The MJLH Presents Its 3rd Annual Continuing Legal Education Forum

Posted By The MJLH | RDSM Team – Feb. 1, 2012


March 21, 2012, 18h30-20h15 followed by a wine and cheese.

The McGill Journal of Law and Health (MJLH) invites you to its 3rd annual Continuing Legal Education Forum (CLEF) on the role of Public Private Partnerships (P3’s) in the modernization of Quebec’s healthcare system. The goal is to provide legal professionals, healthcare practitioners, and students with a better understanding of the legal aspects underlying Quebec’s P3 model.

In exploring this topic, the CLEF will, as a case study, focus on the Redevelopment Projects of both McGill University Health Center and the Centre Hospitalier de l’Université de Montréal (commonly referred to as the Super-Hospital projects). The CLEF will be moderated by Professor Alana Klein of McGill’s Faculty of Law and will be of a bilingual nature.

Speakers will include:

Andrew Ford – Partner with Frasken-Martinault with an extensive background in negotiating P3’s agreements, both here in Quebec and beyond, will speak from a practicing lawyer’s perspective on the many legal aspects of the P3’s process.

André Dufour – President of Groupe immobilier santé McGill at SNC-Lavalin, will speak on the legal opportunities, challenges, and interests that embody private industry interests in P3’s.

Eric Michaud – Director at Infrastructure Quebec, will situate the historic progression of P3’s in Quebec and elaborate on the role that this ministry plays in establishing an evolving legal framework.

For further details, please contact:

Admission is free to this event

Supervised Injection Sites: Is the Supreme Court of Canada’s Insite Decision Off-Target?

Posted By Meara Conway – Jan. 20, 2012

Supervised Injection Sites: Is the Supreme Court of Canada’s Insite Decision Off-Target?

Meara Conway, Executive Online Editor

North America’s sole legally supervised injection site located in the heart of Vancouver’s Downtown Eastside (DTES) will remain open, says the Supreme Court of Canada (SCC). After over a decade of lobbying local, provincial and federal governments, Insite began operating as a harm reducing measure in 2003, managed jointly by the regional health authority and a local non-profit.

Insite operates under a discretionary exemption from prohibitions of possession and trafficking controlled substances under s. 56 of the Controlled Drugs and Substances Act (CDSA). The exemption for medical and scientific necessity was initially granted by the then Liberal federal government’s Minister of Health, and was subsequently extended to June 2008, whereupon the “tough on crime” Conservatives indicated they would deny future exemption applications.

Despite its detractors, Insite enjoys overwhelming popular support. Insite has been the focus of multiple studies published in over a dozen peer-reviewed journals which confirm again and again Insite’s success at saving lives by reducing the risk of drug overdose, reducing the spread of infectious diseases such as HIV/AIDS and hepatitis B and C, improving health without increasing the incidence of drug use, and reducing crime in the surrounding area.

On appeal from the British Columbia Court of Appeal, the SCC adjuticated whether the prohibitions on trafficking and possession of the CDSA (ss. 4(1) and 5(1)) are constitutionally applicable to the activities of Insite by virtue of Canada’s division of powers; and whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter; alternatively the Court considered whether the Minister’s denial to grant an exemption infringed the claimants’ s. 7 rights. While Canada has power to enact criminal laws, decisions over health fall within provincial jurisdiction under ss. 92(7), (13), and (16) of the Constitution Act 1867.

Division of Powers

Unlike the British Columbia of Appeal, the Court opted not to engage in structural judicial review and decide the case along division of powers. Implicit in the judgment is the acknowledgment of interjurisdictional immunity’s ambiguous legacy. According to the Court, the premise of watertight cores is in tension with the evolution of Canada’s more adaptable concepts of double aspect and cooperative federalism and to “apply [interjurisdictional immunity] here would disturb settled competencies and introduce uncertainties for new ones.” In short, absent Charter issues, Insite’s ability to operate — notwithstanding health being a protected provincial undertaking — would yield to the federal paramountcy of the CDSA.

Charter claims

According to the SCC, while the prohibition on possession of drugs engages the claimants’ s. 7 rights, the Minister’s ability to grant targeted exemptions under s. 56 for a “medical and scientific purpose” or in the “public interest” preserves the constitutionality of the CDSA. However, the Minister’s refusal to extend a s. 56 exemption from the CDSA prohibitions was found to be an arbitrary and grossly disproportionate contravention of the claimants’ rights under s. 7 (life, liberty, security of person). As Insite staff would be operating within the legal definition of illegal drug possession under s. 4(1) of the CDSA due to their minimal involvement with clients’ drug use, they would be exposed to potential imprisonment. This threat to the liberty of Insite staff would in turn impact the s. 7 rights to security of person and life of clients who depend upon Insite for potentially lifesaving health services. Finally, the application of s. 4(1) to the clients of Insite would directly engage their s. 7 interests, as their ability to use Insite’s lifesaving and harm reducing services would depend upon an exemption to prohibitions on drug possession.

The Minister’s decision was found to bear no relationship to the objectives behind the CDSA, which have been identified as the protection of public health and public safety [Malmo-Levine]. In fact, in describing the Minister’s refusal as arbitrary, the Court stressed the exemption would rather further the dual objectives of public health and safety. Moreover, the refusal was found to be grossly disproportionate in its effects of denying Insite’s services in light of the overwhelming benefits of Insite and its complete lack of discernable negative impacts. In sum, the effect of the Minister’s refusal would have threatened the health and lives of Insite’s potential clients. Writing for a unanimous court, the Chief Justice drew attention to the failure of traditional criminal law strategies to meaningfully reduce drug use in the DTES, the overwhelming local support enjoyed by Insite, the absence of observable disadvantages of Insite’s operation, and even the reported reduction in crime by a local business.

The Court ordered the Minister to grant an exemption to Insite forthwith but held that any change in Insite’s operation would not bar the Minister from withdrawing it in the future.

Questions going forward

According to Chief Justice McLachlin: “Where, as here, the evidence indicates that a supervised injection site will decrease the risk of death and disease; and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.” In fact, the decision may raise more questions than answers going forward.

According to the Court, the Minister must consider “whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, of the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expression of community support or opposition.” [152-153]

The next day, The Globe and Mail charged the SCC with forging “a new means to strike down law” and giving “judges a new tool for activisim… [ensuring] that legal waves would surge across several important Charter of Rights cases already in the courts…” This is a highly doubtful and exaggerated claim. While the case appears to be a triumph of evidence over ideology at first blush, the judgment is surprisingly narrow and raises concerns for those hoping it will open the door to similar initiatives across the country.

A Catch 22?

Insite was initially granted an exemption by the then Liberal government. During its operation, Insite was fortunate to be the subject of multiple studies. The SCC decision may have created a kind of Catch 22 going forward. In short, to amass the requisite evidence, future harm-reducing measures will need initial compliance and support from multiple regulatory and governmental levels. What is the potential for future pilot projects with a Conservative majority, increasingly emboldened to push its “tough on crime” agenda in Parliament?

What role for the community’s response?

Here in Quebec, the government has initiated a program to oversee the opening of facilities wherever deemed “socially acceptable ” by communities, according to Health and Social Services Minister Yves Bolduc. To be sure, the Court made considerable issue of the role of community support or opposition. The Chief Justice was right to point out that “Existence is bleak” in the DTES. Her sympathetic and exhaustive portrayal of life in the DTES was not the usual tone adopted in providing background and facts in SCC adjudications. The decision must be appreciated within the context of increased media coverage and mounting political pressure to address the DTES: media coverage of the Pickton murders, the Stolen Sisters campaign, and the escalating health crisis surely contributed to building community support and opening the door to a favourable decision for Insite. However, it should be noted that the DTES is something of an anomaly within Canada. Vancouver is well-known for its stark urban juxtaposition of staggering wealth and deep deprivation. Complex factors, including Vancouver’s mild climate, have made it a Mecca for homeless drug users. As the DTES is a veritable spatial ghetto, what are the implications for cities across Canada (such as Montreal) with more heterogeneity and dispersed pockets of poverty and drug use? Barring Montreal’s relatively liberal social attitudes to issues around drug use and crime, the potential for successfully launching safe injection sites will suffer if some citizens (though theoretically supporting such initiatives) can say “not in my backyard!”

In short, the Court’s enlightened discussion of choice and addiction,1 and the emphasis on the need to establish the health and safety benefits of a safe injection site, do not sit well with the need for local support. Judicial references to community standards have a checkered past. Community standards tests — read “the deep moral consensus of the nation, as interpreted by judges”2 — have historically provided considerable ammunition for regulating that which is considered immoral or indecent by invoking supposedly democratic entities (i.e. the community). While the kind of established and documented popular support discussed in Insite can be distinguished from the notion of community standards discussed by Valverde, I question why, short of harm, community support should bear upon the adjudication of the permissibility of Charter-infringing governmental action.

Since the above blog was first posted, predictable resistance has met efforts to set up safe injection sites in Montreal. A coalition of downtown residents associations is calling for an immediate moratorium on any attempt  to introduce supervised injection sites in their neighbourhood.3 This begs the question: how will the role of “community support” — barring a DTES anomaly — be negotiated in the future? When those who need the service most have no voice, no lobbying clout, and no influence to ensure that “community support” is truly representative, its central role in the Court’s reasoning could neutralize the apparent ground gained in Insite going forward.



1 The SCC rejected the government’s moral argument that those who commit crimes should be made to suffer the consequences, opting rather for a more nuanced understanding of addiction as an illness rather than a choice. See paras 97-106.

2 See Valverde’s discussion of R v. Butler; R v. Mara; R v. Potts; R v. McKeigan  found in Valverde, “Law’s Dream of a Common Knowledge” Chapter 2 The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms 2003 Princeton University Press Woodstock, Oxfordshire 28 – 53. It should be noted that the “community standard” (of decency) test was formally rejected in R v. Labaye short of harm or signiicant risk of harm.

The McGill Research Group on Health and Law presents l’évolution du droit de la procréation assistée: La bioéthique a la française

Posted By The MJLH | RDSM Team – Jan. 1, 2012

The McGill Research Group on Health and Law will present its 4th Annual Lecture given by Frédérique Dreifuss-Netter, Justice of the first civil chamber of the Cour de cassation on assisted reproduction. The presentation will take place January 18, 2012 at 16h30 in room 312 NCDH. 

Space is limited. Kindly RSVP to

Le RGHL présente la quatrième conférence annuelle en santé et droit au sujet de l’évolution du droit de la procréation assistée. Frédérique Dreifuss-Netter, conseillère à la première chambre civile de la Cour de cassation, présentera mecredi le 18 janvier, 2012 à 16h30, salle 312 NCDH.

Le nombre de participants est limité. SVP confirmez votre présence à

For more information:

Inside Opinion: Fears Over European Stem Cell Decision Overstated – a View from the Trenches

Posted By Dr. Torsten Holm Nielsen – Dec. 11, 2011

Dr. Torsten Holm Nielsen is a Danish physician who has practised in Denmark and Sweden. Dr. Nielsen is also an oncology researcher investigating innovative drug treatments for difficult to treat B cell lymphomas.

The recent ruling from the European Court of Justice (EJC) banning patents on materials derived from human embryos, hereunder-embryonic stem cells, has drawn much attention of late. European stem cell researchers in both academia and industry as well as legal professionals have warned that the decision may weaken the ability of European stem cell research to attract funding which will lead to an exodus of stem cell research from the European Union (EU) to areas of the world where better legal protection for novel technologies/applications is available. In my opinion, this is likely an exaggeration and I think the impact of this ruling on European stem cell research may be less severe than feared for two reasons. First, any new technologies involving embryonic stem cells will almost certainly also involve other highly complex methods and technologies not directly related to embryonic stem cells and therefore patentable under EU law, thereby offering a degree of protection of the combined technology. Second, stem cells can be “induced” from non-stem cells derived from adult tissues, thereby obviating the need for embryonic stem cells. Technologies derived from these induced pluripotent stem cells would not be subject to the decision concerning embryonic stem cells, making them an attractive alternative. The EJC’s ruling probably represents a desire on the part of the Court to very clearly convey the message that human embryos are not to be commercialized. It is to be hoped that this message does not also spell the end of European stem cell research.

House of Representatives Passes Protect Life Act

Posted By Rosel Kim – Nov. 28, 2011

On October 13, 2011, the U.S. House of Representatives passed the controversial H.R. 358, better known as Protect Life Act, amending federal coverage to abortions and protecting the rights of institutions and persons refusing to perform abortions. The Act has been met with condemnation from the Democrats, as well as women’s rights groups. Nancy Pelosi strongly opposed the Act by stating: “women can die on the floor and health care providers do not have to intervene.” This strong criticism comes from the Act’s measures that will protect health care facilities or an individual practitioner’s refusal to perform abortions.

The Act gives immunity to institutions or individual health care services, or physicians that refuse to provide coverage or services for abortions. Neither the federal government nor the State government can interfere with or force health care services to provide abortions. Governing bodies cannot punish services – including institutional or individual health care entity – and individuals who refuse to perform abortions. The modifications to coverage could circumvent services like Planned Parenthood from providing abortions by blocking its federal stipends from being used for, not only direct abortion procedures, but also services like counselling (since it could fall under “referral.”)  The section on “Limitation on Abortion Funding” reads as following:


“Nothing in this subsection or section 1311(d)(2)(b)(i) shall restrict any non-Federal health insurance issue offering a qualified health plan from offering separate coverage for abortions for which funding is prohibited under this subsection, or a qualified health plan that includes such abortions, so long as –

(A)  premiums for such separate coverage or plan are paid for entirely with funds not authorized or appropriated by this Act;

(B)  administrative costs and all services offered through such coverage or plan are paid for using only premiums collected for such coverage or plan; and

(C) any such non-Federal health insurance issuer that offers a qualified health plan through an Exchange that includes coverage for abortions for which funding is prohibited under this subsection also offers a qualified health plan through the Exchange that is identical in every respect except that it does not cover abortions for which funding is prohibited under this subsection.1

By protecting the refusal to perform abortions under the language of “nondiscrimination,” the Act essentially characterizes the denial of abortion as a “right” as opposed to the eradication of a right. Health practitioners who oppose abortion on moral grounds become a protected group of citizens, as opposed to professionals who have duties and obligations towards others. Health care is no longer seen as a service that meets the needs and protects the interests of those receiving the services, but instead as an expression of the practitioner’s beliefs (whether it is for or against abortion):

“Federal agency or program, and any State or local government that receives Federal financial assistance under this Act (or an amendment made by this Act), may not subject any institutional or individual health care entity to discrimination, or require any health plan created or regulated under this Act (or an amendment made by this Act) to subject any institutional or individual health care entity to discrimination on the basis that the health care entity refuses to –

(A)  undergo training in the performance of induced abortions;

(B)  require or provide such training;

(C) perform, participate in, provide coverage of, or pay for induced abortions; or

(D) provide referrals for such training or such abortions.” 2

Prior to the Act, the Hyde Amendment had already eliminated abortion from eligible medical services available through the Medicaid program, a federal health care service for low-income population.3 The Act now frames abortion as an “extra” matter that does not belong in the core of health care services. No health care coverage or abortion services receiving federal funds can provide a plan or subsidies for abortions. This places the cost of abortions solely upon those seeking the procedure. The blocking of abortion from all federal agencies or funding marginalizes a procedure that should be considered a basic health procedure for women.

The Act coincides with a new case in New Jersey involving 12 nurses asserting their right to refuse to assist women getting abortions.4 The debate leads the question of scope in “assisting,” and whether it includes indirect procedures such as taking down a patient’s name.

With the upcoming presidential election, the Act undeniably seems to serve a political purpose for the Republican Party. The Act is currently undergoing Senate debates.

1 Protest Life Act, s. 2(c) (9) available online: .

2 Ibid. s.2 (g)

3 Exception to the Hyde Amendment included abortion involving cases of rape, incest, and endangerment of a pregnant woman’s life by disorder or injury.  For more information on the Hyde Amendment, see: <www.a< span=”” style=”box-sizing: border-box;”></www.a<>>.

4 See “New Jersey nurses claim right to refuse assisting in abortions” Online: <www.glo< span=”” style=”box-sizing: border-box;”></www.glo<>>.