In lieu of an abstract, here is a brief excerpt of the content:Bioethics Commissions: Town Meetings with a “Blue, Blue Ribbon”Susan Cartier Poland (bio)Town meetings are characteristic of New England. In theory, a quorum of registered voters in a small municipality meets annually to decide local public policy. In fact, special interests and the town bureaucracy control the meeting.Like a town meeting, a commission (or committee or council) comes into being, whether on an ad hoc or permanent basis, to (...) direct a government function. Bioethics commissions specialize in one area: the intersection of public policy with developments, either real or anticipated, in the basic and applied sciences.That specialization of commissions carries over into the selection of the members. More often than not commission members are appointed on the basis of expertise in a specific area. Although some commissions are still made up entirely of one kind of expert, usually medical, the majority of these government bodies seek breadth between the fields of law, religion, ethics, and science (including medicine and the social sciences).In the words of Mrs. Rigenbach, the law clerk to Chief Judge Carl B. Rubin of the United States District Court for the Southern District of Ohio, selection of persons “knowledgeable in the field” constitutes a “blue, blue ribbon” jury. In contrast, a “blue ribbon” jury is composed of those persons having “the greatest amount of formal education” (In re Richardson-Merrill, Inc. (Bendectin litigation), 624 Federal Supplement 1212 at 1217 (1985)). The problem with persons knowledgeable in the field is that their minds may have already been made up. For a jury, this is a disaster; for a bioethics commission, this directs and shapes the research, investigation, and discussion, or, in short, it makes for more efficient decision making.For this Scope Note, the definition of commission begins with the Bioethicsline description of its index term “advisory committees” as committees or commissions set up to advise government bodies on public policy. Furthermore, a commission [End Page 91] (or committee) receives government funding and support in exchange for its expertise in research, investigation, reporting, and recommendations.Six functions served by bioethics commissions have been clearly and succinctly described by LeRoy Walters (Commissions and Bioethics. Journal of Medicine and Philosophy 14 (4): 363–68, August 1989). The functions are: (1) to legitimize action; (2) to delay action or resolution; (3) to identify duplication; (4) to be representative; (5) to do research and find facts; and (6) to provide education and support (pp. 364–65). Since 1989, however, another government function has moved to the forefront. Instead of remaining within the legislative arena, government commissions serve the judiciary as well, in cases involving complex and technical questions. The now defunct Law Reform Commission of Canada recognized this use when it included in its annual reports a section on its “Influence on Law Reform through Judicial Decisions.”In mid-1997, the United States Supreme Court in its consolidated cases on assisted suicide used extensively the writings from a state commission, the New York State Task Force on Life and the Law, to support its rationale. Not only did the Court make use of the Task Force’s work, but in so doing the Court extended the efforts of the commission beyond its jurisdiction of New York into another jurisdiction on the opposite coast, Washington state. Furthermore, although the commission was chartered by one state, through the federal court system, its influence became national.Outside the U.S., the United Nations recently adopted its first bioethics text on the ethics of genetic research, and Canada is reworking its human research guidelines into a single set of guidelines that will apply to research in both the natural sciences and the social sciences.This Scope Note attempts to compile for the researcher and the reference librarian those commissions, existing and defunct, that have addressed bioethics issues. Only one other such attempt is known to the author, an Office of Technology Assessment [OTA] Background Paper, Biomedical Ethics in U.S. Public Policy (1993). Due to space limitations, not all publications could be listed; the selections included represent the range of topics from a particular group or the more frequently cited sources. Future updates of this compilation are planned, so please notify the... (shrink)

This paper will begin with a brief account of the mandate and description of the Law Reform Commission of Canada and its Protection of Life Project, secondly, point to a limitation imposed upon it by the nature of health law in Canada and, thirdly propose some basic questions which such commissions have both the luxury and the duty to wrestle with and resolve. In my view it is these fundamental challenges which ought to be the major (...) components of the standards by which national commissions such as ours are judged. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and (...) extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

This article examines how migrant and immigrant sex workers have been rendered invisible before the courts and parliament in the reform of laws regarding sex work in Canada. A discourse analysis of the expansive legal record in the Bedford case and the transcripts of Parliamentary debates and testimony before Standing Committees confirm the lack of nuanced discussion on how criminal law reform could impact migrant and immigrant sex workers. As such, while the case of Bedford and the (...) resulting change in the law made by Parliament have been celebrated as a win for some sex workers as an acknowledgment, recognition and judicial validation of experiences by legal institutions of sex workers, a sub-group of women – migrant and immigrant sex workers – remain in the shadows. This article examines how law excludes migrant and immigrant sex workers; it is a starting point for research on how migrant and immigrant sex workers may participate in future legal reform. (shrink)

However, the barriers and facilitators of such changes - law reform perspectives - have been virtually ignored. Why do so many attempts to change the law fail but others are successful? International Perspectives on End-of-Life Law Reform aims to address this question by drawing on ten case studies of end-of-life law reform from the United Kingdom, the United States, Canada, the Netherlands, Belgium and Australia. Written by leading end-of-life scholars, the book's chapters blend perspectives from law, (...) medicine, bioethics and sociology to examine sustained reform efforts to permit assisted dying and change the law about withholding and withdrawing life-sustaining treatment. Findings from this book not only shed light on changing end-of-life law but also provide insight more generally into how and why law reform succeeds in complex and controversial social policy areas. (shrink)

Empirical research in this field has underlined the diversity of the cohabitation population, the existence of the common law marriage myth and the lack of consensus on the best way forward for reform of the law in England and Wales. Against the backdrop of the English Law Commission’s on-going project on cohabitation law, this article will explore the reasons found by recent research for people’s choice of cohabitation over marriage, the interrelationship between commitment and economic vulnerability and the (...) tension in feminist debates as to whether an extension of rights for opposite-sex cohabitants that are analogous to married spouses (either by an opt-in model or opt-out model) might be an appropriate solution or a reinforcement of patriarchal marriage values. It will also consider, given recent research findings and other initiatives aimed at raising awareness about the legal differences between different styles of cohabitation relationship, law’s dual and conflicting role in shaping regulated family structures whilst both protecting vulnerable family members inside and outside such structures and at the same time also offering socially acceptable standards of dispute resolution in this most personal of spheres. (shrink)

This Article focuses both on the changes that have been made to the legal framework governing post-separation parenting of children in Australia, as well as the processes and discourses via which these matters have been dealt with and debated. Alone among comparable common law jurisdictions such as Canada, the United States, and England, Australia’s family law legislation, and the significant changes made to it in the past fifteen years, can be seen to have been particularly responsive to the lobbying (...) of fathers’ rights groups. It will be suggested that changes to the legislative framework that governs family law in Australia have taken place, at best, without any clear rationale or need and perhaps more problematically, have at times flown in the face of, rather than been undertaken by reference to, the evidence-based research about post-separation parenting practices and what we know about children’s welfare or best interests, the paramount consideration that underpins decision-making in this field. The purpose of this discussion is to attempt to posit some possible explanations for this distinctive path of Australian family law “reform”. (shrink)

ABSTRACTThis report on end‐of‐life decision‐making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters.Chapter 1 reviews what is known about end‐of‐life care and opinions about assisted dying in Canada.Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death.Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada's (...) constitutional order.Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying in some shape or form.Chapter 5 provides recommendations with regard to the provision of palliative care in Canada, as well as recommendations for reform with respect to the various forms of assisted death covered in this document. (shrink)

In February 1828 a Royal Commission was appointed to examine the law of Real Property of England and Wales. The Commission sat for four years and examined a vast amount of material, recommended certain changes in the law, and drafted several bills for consideration by parliament. Four massive reports were eventually presented to parliament in May 1829, June 1830, May 1832, and lastly in April 1833. As a result parliament enacted a limited number of piecemeal reforms, but did (...) not attempt a major revision of the law. (shrink)

We examine the role of Australian state and federal committees and law reform commissions in bioethics. Most have been concerned with in vitro fertilization and embryo research. We find deficiencies in the standards of reasoning about the underlying ethical issues raised by these techniques. We suggest stronger representation of those with a background in ethics. Keywords: ethics, embryo, in vitro fertilization, law reform, committees, commissions CiteULike Connotea Del.icio.us What's this?

In this paper, I offer a personal and professional narrative of how Canada went from prohibition to permission for medical assistance in dying. I describe the legal developments to date and flag what might be coming in the near future. I also offer some personal observations and reflections on the role and impact of bioethics and bioethicists, on what it was like to be a participant in Canada's law reform process, and on lessons that readers in other (...) jurisdictions might take from Canada's experience. (shrink)

This paper examines an application of epistemic injustice not fully explored in the literature. How does epistemic injustice function in broader contexts of relationships within countries between colonizers and colonized? More specifically, what can be learned about the ongoing structural aspects of hermeneutical injustice in Canada’s settler history of the forced assimilation of Indigenous peoples and the resultant erasing and marginalizing of Indigenous histories, languages, laws, traditions, and practices? In this paper, I use insights from Canada’s Truth and (...) Reconciliation Commission report to challenge dominant understandings of reconciliation, reciprocity, respect for agency, and the rule of law in settler nations. In its retrieval of the richness and diversity of Indigenous collective interpretive resources, both past and present, Canada’s Truth and Reconciliation Commission draws on a broad and full account of relationships that have shaped Indigenous lives and communities, non-Indigenous lives and communities, the interactions of Indigenous and non-Indigenous peoples and communities, and the relationships of all of these to and through the state. (shrink)

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation precludes (...) a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives. (shrink)

This study analyzes the ideals of responsibility and accountability, asking such questions as when it is legitimate to blame top officials of an organization for mistakes made by personnel below them in the bureaucratic hierarchy; when things go wrong in a large and complex organization like the Canadian Forces, who is responsible and accountable; and whether a plea of ignorance is a good excuse. The study also analyzes the doctrine of ministerial responsibility in both the British and Canadian parliamentary traditions, (...) asking whether it is realistic to expect that a government minister should be held responsible for everything that goes wrong in his/her department. Finally, traditional military values are examined, considering the kinds of attitudes and values expected from Canada's armed forces and the differences between the military and civilian sectors. (shrink)

The worldwide rise of the Value-Added Tax over the last half-century is emblematic of the paradox in modern tax systems: their remarkable similarity in the face of divergent political, cultural and social systems. However, efforts to introduce VAT-style taxes have frequently been accompanied by fierce localized resistance. The histories of VAT reform in Australia, Canada and the United States encapsulate the tension that arises from a tendency among developed tax systems to converge against frequent and often fierce localized (...) opposition. This tension speaks to a key debate in the public policy and comparative law literature concerning the transferability of policy ideas or legal instruments across jurisdictions. The Article details the history of VAT reform in Australia, Canada and the United States over a period of four decades, 1965-2005, where the global uptake of the VAT was at its highest, but where VAT reform in each jurisdiction was highly controversial. The Article concludes with an assessment of the factors that contribute towards tax policy convergence and localized resistance. (shrink)

Professor Brenda Baker's recent critique of the Canadian Law Reform Commission's treatment of general standards for criminal liability adds to a growing body of critical theory concerning such standards and their relation to criminal justice. From within the perspective of this same critical movement, I assess the strengths and weaknesses of Professor Baker's efforts and of similar lines of argument in the work of Professor George Fletcher. I find two significant flaws in their shared approach. The first is (...) confusion as to the proper level for analysis of liability standards and, hence, for criticism of the "orthodox" view. This leads Professors Baker and Fletcher to concentrate on issues of culpability rather than responsibility (and to conflate these issues). The second flaw is an error in comprehension of the faults of the orthodox view and, hence, in recognition of the fundamental character of views opposed to that orthodoxy. This leads both theorists to overemphasize a suspect and unilluminating distinction between normative and descriptive approaches to liability problems. The rest of the article is devoted to an overview of my own approach to problems of liability and a general critique of the orthodox view in light of that approach. I argue that the fundamental issue is the relation of liability standards to a conception of agent responsibility. The primary fault of orthodoxy lies, then, in the cognitivist model of responsibility on which it relies. Against this, I propose use of a capacities model of responsibility as the basis for standards of liability. These two models are outlined and compared in final sections. (shrink)

She concentrates on responses to the 'crisis' that currently confronts the American legal profession and legal education—including the increasing cost of legal services, the threat to lawyer income and the oversupply of law graduates. Rhode regards the response by the American Bar Association (ABA) through its Ethics 20/20 Commission as lacking innovation and achieving only modest reform. Surveying other countries' efforts at opening the provision of some traditional legal services to non-lawyers and outside investment in law practices, she (...) argues that the US 'is likely to lag behind other nations in its capacity to provide cost effective legal services'. She also proposes greater diversity in the options available for legal education. (shrink)

The Law Society recently published a practice note titled 'Prosecutions of victims of trafficking'. This practice note comes many years after many lawyers had highlighted the problem and after the government machinery had chuntered into action and passed the UK Modern Slavery Act 2015 with explanatory notes and non-statutory guidelines for corporations. Since 2012 there had been issued warnings about the way defence lawyers, the Crown Prosecution Service and the UK police were dealing with trafficking and the Criminal Cases Review (...) Commission as far back as 2012 had note the severe failings by defence solicitors, prosecution and police, leading to many appeals and potential miscarriages of justice. Even in 2012 there were 946 known human trafficking victims, including 234 children. There was an attempt at a Human Trafficking Bill in 2010 which came to a halt and several reports including one by the Prison Reform Trust and Cambridge University Press, notwithstanding many books by notable academics for many years before today. This article examines the inadequacies of the Law Society practice note on defending victims and the jumble of high-ideals but short-sighted and impractical parts of the UK Modern Slavery Act 2015. (shrink)

In 2004, the U.K. parliament passed the Civil Partnership Act which provides a scheme to enable same-sex couples to obtain formal recognition of their relationships through the registration of a civil partnership. When the Civil Partnership Bill was making its way through parliament, attempts were made in the House of Lords to derail the Bill through amendments seeking to extend the Bill to certain familial relationships of care and support. In order to counter these attempts and to facilitate the removal (...) of the amendments, the government gave the assurance that the matter of the economically vulnerable cohabitant would be referred back to the Law Commission for England and Wales for review. Consequently, in July 2005, the Law Commission commenced its project on cohabitation. This paper seeks to examine models of reform (such as the one proposed by the Law Society of England and Wales in its 2002 Cohabitation report) as well as those introduced in other Commonwealth countries. The aim is to identify some of the crucial questions that the Law Commission will need to give careful consideration to if they are to make recommendations that will provide a more radical approach to this area of the law, rather than adopt the more conservative approach of including cohabitation in ‘piggy back’ mode on the marriage model. (shrink)

Fiction. Although this story contains a measure of historical accuracy, any resemblance between the central character and a real person, or between the events of the story and real events, is entirely coincidental. The main purpose of this piece is to expand upon the notion of overload as one reason business people should not be burdened with moral responsibility. The overload argument is presented in a chapter of Business Ethics in Canada, edited by Deborah Poff and Wilfrid Waluchow (Prentice-Hall (...) of Canada, 1987). In this chapter, Moral Responsibility in Business or Fourteen Ways to Pass the Buck, Alex C. Michalos both presents and replies to the overload argument. This short story is presented as an alternative to his reply. (shrink)

This article provides a comparative analysis of the regulatory landscapes governing artificial intelligence (AI) in healthcare in the European Union (EU) and South Africa (SA). It critically examines the approaches, frameworks and mechanisms each jurisdiction employs to balance innovation with ethical considerations, patient safety, data privacy and accountability. The EU’s proactive stance, embodied by the AI Act, offers a structured and risk-based categorisation for AI applications, emphasising stringent guidelines for risk management, data governance and human oversight. In contrast, SA’s regulatory (...) environment is characterised by its infancy and lack of specificity, with existing legislation such as the National Health Act and the Medicines and Related Substances Act providing a foundational but limited framework for addressing the unique challenges posed by AI in healthcare. The article delves into the dynamic nature of AI technologies, highlighting the need for continuous risk assessment, the importance of transparent and responsible data governance and the critical role of human oversight in ensuring patient safety and autonomy. It discusses the obligation of clear liability frameworks to address potential malfunctions and security breaches in AI applications. Through this comparative lens, the manuscript identifies regulatory gaps and proposes that the South African Law Reform Commission (SALRC) should play a predominant role in developing draft legislation for AI prior to the evolution of challenges related to these technologies. (shrink)

This book on privacy and data protection offers readers conceptual analysis as well as thoughtful discussion of issues, practices, and solutions. It features results of the seventh annual International Conference on Computers, Privacy, and Data Protection, CPDP 2014, held in Brussels January 2014. The book first examines profiling, a persistent core issue of data protection and privacy. It covers the emergence of profiling technologies, on-line behavioral tracking, and the impact of profiling on fundamental rights and values. Next, the book looks (...) at preventing privacy risks and harms through impact assessments. It contains discussions on the tools and methodologies for impact assessments as well as case studies. The book then goes on to cover the purported trade-off between privacy and security, ways to support privacy and data protection, and the controversial right to be forgotten, which offers individuals a means to oppose the often persistent digital memory of the web. Written during the process of the fundamental revision of the current EU data protection law by the Data Protection Package proposed by the European Commission, this interdisciplinary book presents both daring and prospective approaches. It will serve as an insightful resource for readers with an interest in privacy and data protection. (shrink)

Canada has an enviable record of relatively progressive and egalitarian legislation and policy in relation to Canadian family forms. The country’s constitutional guarantees of equality and multiculturalism provide the legal foundation for this record. In particular, Canada’s leadership in the recognition of and support for same-sex relationships in family law and social policy is widely acknowledged. This is, however, also deeply contested terrain: Feminist legal scholars informed by critical political economy argue that recent family law advances in Canada (...) sit compatibly with neo-liberal social policy and restructuring of the welfare state; the neo-conservative and religious right assert that the fundamental nature of family has been undermined by the recognition of same-sex marriage, facilitating the legal recognition of polygamous relationships, among others. Still others take the view that despite a liberal, progressive and formally egalitarian approach to family, the legal recognition of same-sex marriage in Canada reflects and reinforces a historically patriarchal, heterosexual institution that should be jettisoned rather than embraced. These arguments raise issues and illustrate more generally the tensions in state and legal construction and regulation of familial relations — historically and in the current context. In this Article, I re-theorize the significance of patriarchy and the relationship between patriarchal relations and the discourse of privatization in critical family law. Using the experience of women from the “outskirts” — lesbian spouses, welfare mothers, and women in polygamous relationships — I demonstrate the limits of any theory of “privatization” that does not theorize patriarchal relations. In particular, I identify and analyze the impediments to equality posed by increasingly invisible, but no less enduring, patriarchal familial ideologies in order to envision forms of family law reform and state social policy that might actually improve gendered and generational familial relations and transform the social landscape more generally. (shrink)

The past decade has seen intensified calls for the reform of democratic political institutions in Canada, on the grounds that there is a “democracy deficit” at the level of federal politics. Some commentators have even begun to describe the country as a “banana republic,” or a “friendly dictatorship.”1 Yet any attempt to assess the state of democracy in Canada must naturally presuppose some theory of what democracy is – how to identify it, and how to tell whether (...) it is performing well or not. Unfortunately, there is no widely accepted theoretical account of what makes democracies democratic – or more specifically, there is no account of precisely how democratic institutions serve to confer legitimacy upon the power of the state. Public debate in Canada over the “democracy deficit” has been implicitly dominated by the populist tradition, which identifies democracy with the practice of voting. Thus most of the proposals for correcting the democracy deficit involve having more people vote on more issues, more often. Yet democratic societies function through a complex set of institutions and practices, which include but are not limited to the practice of voting. Democratic societies are also characterized by the rule of law, the protection of individual rights and liberties, the freedom of assembly and debate, a free press, competitive political parties, consultative and deliberative exercises, and a wide variety of representative institutions. If any of these elements were absent, we would hesitate to say that the society was fully democratic. (shrink)

This paper contributes to international feminist debates on shared parenting and family violence via reforms to Canada’s Divorce Act, in force since 2021. Looking backwards, it reviews parliamentary debates and early judicial discussions. The documentary review reads the reforms as an unstable compromise between calls from feminist voices and experts on family violence and from groups representing fathers. Family violence is now defined broadly and declared relevant to children’s welfare. But language in the statute may undermine its seriousness. Exposing (...) the tensions underlying these reforms is useful for Canadian participants in family justice and for scholars, practitioners, and policymakers elsewhere, exemplifying the promise and perils of reform in this area. Looking ahead, the paper offers recommendations to higher courts. Appellate judges should read rules on contact with both parents and parental cooperation in the light of the new recognition of family violence, taking the latter as an overarching objective of the statute. (shrink)

The Commission on Assisted Dying was an unofficial body set up to investigate the legal position on assisted dying in the UK in the autumn of 2010. Its report was published to some degree of media attention in the first week of January 2012; its most headline-grabbing suggestion provided a framework setting out how British law might be reformed to allow assisted dying for the terminally ill. In this paper, I analyse some of the key points of the report (...) and argue that it adds little that could settle – or even add to – the assisted dying debate. (shrink)

McGovern, Kevin The Victorian Law Reform Commission's Report on Guardianship contains many findings and recommendations about Advance Care Planning. This article considers the most significant of these from the perspective of the teaching of the Catholic Church.

"Canada, like other industrial nations, is undergoing widespread social change at a faster pace than ever before. Many features of our basic institutions are being transformed and some of the values on which they were based are being weakened or swept away to be replaced by others. As this Royal Commission indicated in its first report, Challenges and Choices, the scope and implications of these changes call "into question basic assumptions, values, and institutions at every level of society, (...) from the shop floor to the cabinet room, to the international economic system," but while many values change, others endure."--. (shrink)

The Chairman of the Australian Law Reform Commission summarizes the discussion of in vitro fertilization (IVF) at the 1983 Mogul International Management Consultants Ltd. Conference on "Bioethics and Law of Human Conception in Vitro." Participants included IVF pioneers Patrick Steptoe and Robert Edwards, as well as other British physicians, scientists, sociologists, and moral philosophers. They raised questions about multiple embryo implantations, the risks and benefits of IVF, the ethical responsibilities of investigators, public policy and social control of IVF, (...) threats to the family and to genetic integrity, and the implications of IVF for determining criteria of personhood and the beginning of life. (shrink)

HIV-related state laws are being created transnationally though the use of omnibus model laws. In 2004, the US Agency for International Development funded the creation of one such guidance text known as the USAID/Action for West Africa Region Model Law, or N'Djamena Model Law, which led to the rapid spread of HIV/AIDS laws, including the criminalisation of HIV transmission, across much of West and Central Africa . In this article, I explicate how an epidemic of highly problematic legislation spread across (...) the region as a result of a text-mediated work process enabled through model laws. I theorise the textual genre of model laws arguing that these texts are best understood as ‘preoperative documents’ which, when activated, can lead to swift legislative reform in and beyond the field of HIV/AIDS governance. The legislative process being investigated was made visible through participant observation, archival research, textual analysis and informant interviews with national and international stakeholders . This involved ethnographic research in Canada, the USA, Switzerland, Austria, South Africa and Senegal . The untold policy processes and narratives explored in this article make evident how the work of contesting problematic HIV/AIDS model laws and newly drafted state laws involves both creating new texts and contesting the legitimacy and efficacy of others. (shrink)

The Criminal Cases Review Commission (CCRC) was the first publicly funded body created to investigate claims of wrongful conviction, with the power to refer cases to the Court of Appeal. In other countries, such as Australia, Canada and the United States, many regard the CCRC as the optimal solution to wrongful conviction and, for years, Innocence Projects in these countries have called for the establishment of a CCRC-style body in their own jurisdictions. However, it is now Innocence Projects (...) which are being introduced in England and Wales to try to assist applicants who are innocent but convicted. This article reviews why the CCRC was created, discusses the role of factual innocence within this body and within the criminal justice system generally and explores why Innocence Projects are being created in England and Wales, despite the presence of the CCRC. It explains how these different organizations may work together to assist factually innocent people who have been wrongly convicted, and the role Innocence Projects may play generally in criminal justice reform and legal education. (shrink)

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed (...) reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue while taking into account s. 7 of the Canadian Charter. It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health. (shrink)

Focusing on the work of one bioethics commission, the New York State Task Force on Life and the Law, this article explores the role played by moral consensus in public ethics. Task Force members, who were appointed to represent diverse interests in New York State, identified a culturally strong value of individual autonomy as the ethical basis for their work on life-sustaining treatment. This moral consensus permitted the members to unite across their differences and develop public policy recommendations that (...) substantially reformed a highly troubling New York law. However, the principle of autonomy insufficiently guides decisions by caring family members for incompetent adults in cases where little is known of patient preference. A different, more innovative moral vision is required – one that grants a more robust moral authority to the family. While government efforts that rely on moral consensus developed in a broadbased and well-reasoned manner can serve us well, in some cases the consensus will provide inadequate moral guidance. Government bioethical efforts must guard against the limits of moral vision in light of their disproportionate societal power. Keywords: autonomy, consensus, family decisionmaking, government bioethics, incompetent patients, life-sustaining treatment, surrogate decisionmaking CiteULike Connotea Del.icio.us What's this? (shrink)

This paper argues that while regulatory frameworks in aged care authorise restraints to protect vulnerable persons living with dementia from harm, they also serve as normalising practices to control challenging monstrous Others. This argument emerges out of an observed unease in aged care discourse where older people living with dementia are described as ‘vulnerable’, while dementia behaviours are described as ‘challenging’. Using narrative analysis on a case study from the Final Report of the Australian Royal Commission into Aged Care (...) Quality and Safety (RCAC), this paper investigates how the RCAC (re)produced constructions of persons with dementia as ‘vulnerable monsters’. Drawing upon monstrous theory about ‘unruly and leaky’ bodies, extracts from the case study reveal how the RCAC repeated and reinforced monstrous constructions of dementia. Dementia behaviours, particularly ‘wandering’, were constructed through a dehumanising crisis frame that produced ‘challenging’ bodies and legitimised ‘last resort’ normalising practices, such as physical and chemical restraints. In failing to resist monstrous constructions of dementia behaviours, the RCAC accepted and authorised a regime of scaled responses leading to restrictive practices for control of challenging bodies in aged care. Although dementia care and restrictive practices received substantial attention in the RCAC, this paper reveals a missed opportunity for deeper review of institutionalised use of restraints that has relevance for ongoing reform of Australian aged care following conclusion of the RCAC. (shrink)

Toronto physician Brian Goldman had thought about “joining the camp that favours private health care for Canada.” Writing in the Canadian Medical Association Journal, he tells us that he changed his mind after one of his cats experienced a series of illnesses and misadventures that resulted in a Can$3,101 medical bill. “I’m just glad,” he says, “that the cost of health care never entered my deliberations.”’Canadian citizens and permanent residents are similarly free from most worries about the direct costs (...) of their own medical care, and have been for more than a generation. This reflects a fundamental difference between the Canadian and United States contexts for health policy. Since the failure of President Clinton's first-term efforts to provide something approximating universal health insurance, reforms to the existing regime of providing and financing health care in the United States have been incremental, and primarily responsive to the changing nature of the health care marketplace. In Canada, universal publicly funded first-dollar coverage for most physicians’ and hospitals’ services has been a reality since the early 1970s. (shrink)

In this paper, I discuss accounts of agency, participation, and self-determination by David Crocker and Stacy Kosko because they acknowledge that relationships of power can determine who gets to participate and when. Kosko usefully applies the concept of agency vulnerability to the case of the self-determination of indigenous peoples. I examine the specific context of Canada’s history as a settler nation, a history that reflects attempts to denigrate, dismiss and erase Indigenous laws, practices, languages, and traditions. I argue that (...) this history displays epistemic injustice in that the dominant collective interpretative resources of non-Indigenous Canadians have allowed the dismissal of the collective interpretative resources of Canada’s Indigenous peoples. This gap in collective interpretative resources can explain that Canada’s constitution, institutions, laws, and structures reflect the dominant collective interpretative resources of a colonizing nation, ones that have delineated and restricted the agency, participation, and self-determination of Indigenous Canadians. One important outcome of Canada’s Truth and Reconciliation Commission and of its National Inquiry into Murdered and Missing Indigenous Women and Girls is bringing the rich history of Indigenous collective interpretative resources and the networks of relationships shaped by them to light. By discussing examples from these reports, I give substance to the argument that foundational and structural injustices in settler nations are at bottom epistemic injustices, ones that have implications for accounts of agency, participation, and self-determination. (shrink)

This article offers an account of settler witnessing of residential school survivor testimony that avoids the politics of recognition and the pitfalls of colonial empathy. It knits together the concepts of bearing witness, Indigenous storytelling, and affective reckoning. Following the work of Kelly Oliver, it argues that witnessing involves a reaching beyond ourselves and responsiveness to the agency and self-determination of the other. Given the cultural genocide of residential schools, responsiveness to the other require openness to and nurturing of Indigenous (...) ways of knowing and being. In order to illustrate the complexities and challenges of settler witnessing, the author reflects on her experiences in attending six of the TRC’s national events and, in particular, what she has learned from Frederick “Fredda” Paul, Passamaquoddy Elder, healer, storyteller, and residential school survivor. The article analyzes (1) aesthetics and emotions in the staging of TRC events and (2) making meaning over time and the temporality of transitional justice. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws (...) are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

Reconciliation, Transitional and Indigenous Justice presents fifteen reflections upon justice twenty years after the Truth and Reconciliation Commission of South Africa introduced a new paradigm for political reconciliation in settler and post-colonial societies. The volume considers processes of political reconciliation, appraising the results of South Africa’s Commission, of the recently concluded Truth and Reconciliation Commission of Canada and of the on-going process of the Waitangi Tribunal of Aotearoa New Zealand. Contributors discuss the separate politics of Indigenous (...) resurgence, linguistic justice, environmental justice and law. Further contributors present a theoretical symposium focused on The Conceptual Foundations of Transitional Justice, authored by Colleen Murphy, who provides a response to their comments. Indigenous and non-indigenous voices from four regions of the world are represented in this critical assessment of the prospects for political reconciliation, for transitional justice and for alternative, nascent conceptions of just politics. Radically challenging assumptions concerning sovereignty and just process in the current context of settler-colonial states, Reconciliation, Transitional and Indigenous Justice will be of great interest to scholars of Ethics, Indigenous Studies, Transitional Justice and International Relations more broadly. The chapters were originally published as a special issue in the Journal of Global Ethics, with one addition from The Round Table.”. (shrink)

The United Kingdom is partway through a multiyear process of revising its law on surrogacy, both traditional and gestational. In October of 2019, the Law Commission of England and Wales and the Scottish Law Commission—statutorily created independent bodies charged with keeping the law under review and recommending reforms whenever necessary—completed a public consultation on surrogacy. In June, the commissions published an extensive consultation paper laying out the case for surrogacy reform and making tentative recommendations about how revision (...) should proceed. The commissions are now digesting the public's responses, and they aim to have a final report on their proposed revisions of the law and a draft bill for consideration by Parliament in 2021. The foundation of current U.K. surrogacy law was laid in the Surrogacy Arrangements Act of 1985. There are numerous problems with the existing regime. (shrink)

Straipsnyje nagrinėjamas Lietuvos Respublikos darbo ginčų instituto reformavimas ir kaita Nepriklausomybės laikotarpiu atskirų Europos Sąjungos valstybių patirties kontekste. Darbo ginčų reforma Lietuvoje minimu laikotarpiu vyko keliais etapais, iš jų paskutinysis, prasidėjęs 2013 m. sausio 1 d., pakeitė darbo ginčų komisijų organizavimo tvarką, šias komisijas pradėjus kurti teritoriniu principu, prie veikiančių Valstybinės darbo inspekcijos teritorinių padalinių, nustačius, kad į darbo ginčų komisiją su skundu gali kreiptis ne tik darbuotojas, bet ir darbdavys, įvedus kitas naujoves. Tačiau šie pokyčiai vis dar neatspindi europinių (...) tendencijų, kiek įmanoma mažiau institucionalizuoti ikiteisminę individulių darbo ginčų nagrinėjimo tvarką. Straipsnyje akcentuojama mintis, jog darbo ginčų instituto reforma laikytina nebaigta ir, tikėtina, bus tęsiama, remiantis pažangiausia kai kurių ES valstybių praktika šioje srityje, tačiau išlaikant nacionalinį teisinio reguliavimo ypatumą. (shrink)

Recent years have seen the advent of two feminist judgment-writing projects, the Women’s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart’s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law (1989). At the same time, it reflects on Smart’s arguments 20 years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce (...) or trouble her conclusions. It argues that both of these results are discernible—that while some of Smart’s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects. (shrink)

In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these (...) themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world. (shrink)

Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Carl Schmitt interpreted Rousseau’s chapter as marking the transition from ‘commissarial’ to ‘sovereign dictatorship’. This article argues that Schmitt’s interpretation is historically and conceptually inaccurate. Instead of paving the way for sovereign dictatorship, Rousseau carefully distinguished the dictatorship from the people’s sovereign authority. Taking position in the ‘debate’ between Bodin and Grotius on the relation between dictatorship and sovereignty, he argued that the dictator could provisionally suspend the (...) people’s sovereign authority, but not abolish it. More particularly, the dictator did not possess the power to make generally binding laws, which had to remain the exclusive authority of the popular assembly. However, this did not prevent Rousseau from recognizing the dictatorship as a means for democratic reform. Rousseau thus conceived of the dictatorship as a time-limited and revocable commission to protect the constitution and to provide for a more stable and effective state organization based on the principle of popular sovereignty. (shrink)

The past year in bioethics in Australia has been relatively predictable. We continue to struggle with rising healthcare costs, though thankfully not on par with numerous other countries due to a relatively positive economic outlook. We are still fighting difficulties associated with higher medical indemnity costs, which have again caused many physicians to leave private practice, particularly in high-risk and specialty practice areas. In response, the federal government delayed the imposition of the medical indemnity levy for physicians until mid 2005. (...) In May, the Australian Law Reform Commission and the Australian Health Ethics Commission issued their final joint report on genetic testing entitled “Essentially Yours” and endorsed use of genetic tests by insurance companies, despite the concerns of some geneticists and many members of the public about their scientific reliability. However, they also advocated the establishment of the Human Genetics Commission of Australia to oversee such uses of genetic tests in terms of both scientific and actuarial reliability, and debates continue over the implementation of this and a number of their other recommendations. And state governments continue to phase in smoking bans in public places, with most implementing full bans in enclosed restaurants and cafes and planning to require provision of nonsmoking areas in all pubs within the next year. a. (shrink)