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Archive for November, 2011

Genetics and the Law

November 28th, 2011 Comments off

I was looking for connections between science and the law when I stumbled upon the very interesting (and probably a little controversial) topic of genetically modified organisms. Here’s what I found…

The Harvard Mouse

The Harvard mouse is considered a landmark case because it’s an example of the limits of our patent laws. In Canada genes, individual cells, and microorganisms have been granted patents since the 1980s, However, something as complex as a mammal had not.

Harvard College created a process to insert a cancer causing gene in mice for research. They sought a patent for the process and the product (the mouse). The Americans allowed the patent but Canada was different. In 2002 the Canadian Supreme Court’s interpretation of the word invention made a higher life form , like a mouse, unpatentable.  Canada became the first major jurisdiction to refuse to recognize the patentability of higher life forms.  [Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76, [2002] 4 S.C.R. 45]

Monsanto Canada Inc.v. Schmeiser (SCC, 2004).

Just two years after the Harvard Mouse case came another important lawsuit. Since the 1980s, Canada has allowed the patenting of genes and individual cells (but not higher life forms).  Crops like genetically modified canola have been patented. This means that if farmers want to grow them, they must pay the company that owns the patent.

One concern with genetically modified organisms is that the genetic material might spread outside its intended area. Seeds could travel by wind or the crop could cross-pollinate with the neighbouring field.

This is what Percy Schmeiser claimed when Monsanto took him to court for growing Canola that contained their patented herbicide resistant gene. He claimed that seeds from a neighbouring field landed on his land. Eventually the Supreme Court found that Schmesier had infringed on the patent by growing the crop. Schmeiser argued that the plant was a higher life form and could not be patented. The court agreed that a plant was a higher life form and could not be patented, but the herbicide resistant gene could be. Schmeiser was ordered to remove the canola from his land but was not forced to pay any money to Monsanto. [Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, [2004] 1 S.C.R. 902]

Read more here and here

Transgenic Fish

Transgenic organisms are living things with genetic information that has been added from another species. A Canadian company has created transgenic salmon that grow to full size at twice the rate of a normal fish. (Read how here.) The laws and regulations around it are a bit murky. As it gets closer to the grocery store shelf it can give us a better idea how transgenic  organisms fit under our current laws (and any new ones).

While we wait… did you know that transgenic fish have been available for purchase in Canada already? Not in our grocery stores, but in our pet stores.

GloFish™ were briefly available in Canadian pet stores until Environment Canada found out about them. (Read more at: “CBC – Marketplace: Growing Nemo”.) The fish are obviously a bit different from the Salmon because they are not meant to be eaten.  They made it into the Canadian marketplace before getting government approval and have since been banned from being imported. GloFish™ are a genetically modified aquarium staple, the zebra  danio, that has been genetically altered to glow. The glowing effect has been added by introducing a gene from sea coral.  The example illustrates the challenges faced by our government and regulatory agencies as innovation outpaces our laws and ability to enforce them.

As science continues to advance and push legal and ethical boundaries expect to see many of these issues brought to court.

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A Question about Burning Money

November 22nd, 2011 Comments off

Question of the month from the Garvie Reading Room:

photo of Canadian money

Photo by Caitlin Thompson

Is it against the law to burn or otherwise damage Canadian currency?

Canadian currency consists of both coins and bank notes (the proper name for paper money), and the law treats coins differently from bank notes.

The law for coins is quite specifically spelled out in the Currency Act (R.S.C., 1985, c. C-52) Section 11 (1):

“No person shall, except in accordance with a licence granted by the Minister, melt down, break up or use otherwise than as currency any coin that is current and legal tender in Canada.”

This Act also spells out the penalties for doing so. As if that was not enough, the Criminal Code of Canada (R.S.C., 1985, c. C-46) also has a relevant section:

“456. Every one who

(a) defaces a current coin, or

(b) utters a current coin that has been defaced,

is guilty of an offence punishable on summary conviction.

(By the way, isn’t this an interesting use of “utters”? In this particular section, “utters” means to use for payment or to sell.)

The law regarding bank notes is very different.  Neither the Bank Act nor the Criminal Code says anything about mutilation or defacement of bank notes. Before you start scribbling on those twenties in your wallet (or burning them up for that matter), there are some important reasons why you should not damage bank notes. Writing on bank notes may interfere with the security features. As well, damage reduces the lifespan of the notes, which increases costs because then they have to be replaced more frequently. Markings on notes may also prevent them from being accepted in transactions. Furthermore, it is generally thought that marking or damaging bank notes is inappropriate because Canadian paper money is a symbol of our country and source of national pride.

The production of bank notes is one of the main roles of the Bank of Canada. If you do encounter damaged or mutilated bank notes, a free redemption service is offered.

In the end, how many of us actually have “money to burn”?

 

Photos by Caitlin Thompson at  http://www.flickr.com/photos/kittycanuck/

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The end of a life: Staying within the law…

November 18th, 2011 Comments off

This post was co-authored by Carole Aippersbach and Aman Athwal

In the news recently, we have heard a great deal about a new euthanasia case making its way through the Canadian Court system. In this new case, five plaintiffs are asking the BC courts to grant the right to doctor-assisted suicide. One of the plaintiffs is Gloria Taylor, a West Kelowna woman with amyotrophic lateral sclerosis, also known as ALS or “Lou Gehrig’s disease”.

The Taylor case is reminiscent of the 1993 Sue Rodriguez case, which went all the way to the Supreme Court of Canada (SCC). Sue Rodriguez also had ALS. At the time, the SCC ruled that assisted suicide was illegal and Ms. Rodriguez was denied her request (although, in the end, she did find an anonymous doctor who helped her carry out her dying wish).

So what exactly is assisted suicide (or euthanasia), and how, if at all, does it differ from “pulling the plug”? We actually get that question a lot here at the Legal Resource Centre….and it is a very important one. More specifically, it is an important concept to both understand and consider when one is planning one’s future. This was recently commented upon by a panel of experts at the Royal Society of Canada, which found that Canadians are not preparing well in this regard, and they should have more discussions with their families about such topics. So… what is the difference?

  • The concept of “pulling the plug” refers to the withdrawal or withholding of treatment.  For example, not resuscitating a patient whose heart has stopped or removing life support equipment. In a nutshell: if a medical practitioner does not touch you at all, you will die.  “Pulling the plug” is not a criminal offence because it is simply letting nature takes its course.
  • Euthanasia (or “assisted suicide”), on the other hand, is an active intervention that ends the person’s life. For example, where a doctor gives a lethal injection to a patient. In a nutshell: it is because the medical practitioner touches you that you die (if s/he did not touch you, you would continue to live).  Assisted suicide is a criminal offence, as it is illegal to counsel, aid or abet a person to commit suicide, and the offence carries a maximum punishment of 14 years in prison.

The Taylor case is only the most recent part of the Canadian debate about euthanasia. Not too long ago, we had Bill C-384 “An Act to Amend the Criminal Code – Right to Die with Dignity”, which was introduced for the third time as a private member’s bill on March 2, 2010. However, the bill was defeated 228-59 at its third reading. If the amendments to the Criminal Code are implemented in the future, it would allow medical practitioners to aid a person who is experiencing severe physical or mental pain without any prospect of relief or is suffering from a terminal illness to die with dignity once the person has expressed his/her free and informed consent to die”. In other words, a patient who can consent to his/her death and is in extreme, continuous pain or is suffering from a terminal illness can be euthanized by a doctor.

The province of Quebec has gone even further in its attempt to legalize euthanasia. The province held its first national assembly in Parliament to hear witness testimony of the pros and cons of legalizing euthanasia. The Quebec College of Physicians is proposing that euthanasia, not assisted suicide, be included “as part of the appropriate care in certain particular circumstances”. In other words, the College would like clarification, specifically, on whether an increase or decrease in the dosage of medication is a criminal act.

Not surprisingly, there are arguments on both sides of end-of-life practices. One of the most popular arguments against assisted suicide is what is commonly referred to as the “slippery slope” argument. The slippery slope argument is the idea that if any type of end-of-life practice were to be allowed in Canada, there would be no assurance that only those who meet the criterion actually have a genuine interest in death and there would be no accountability for the process. In other words, there would be people who would undergo an end-of-life treatment who did not really want or need it. Naturally, this possibility raises concerns about potential abuse, especially the abuse of elders and vulnerable youth. Although charges of this nature have been rare in Canada, they have occurred: see for example the recent case of the Scout leader from Vancouver.

The slippery slope argument has been discussed in an article in the New England Journal of Medicine by Timothy Quill, a professor at the University of Rochester School of Medicine. The article examines the potential pitfalls of euthanasia and physician assisted suicide, by looking at jurisdictions were the practice allowed: specifically, Oregon and the Netherlands. First, Quill reported that the use of euthanasia and physician assisted suicide in the Netherlands has remained stable over the years and “there is no evidence of a slippery slope”. Second, Quill stated that in Oregon the data has remained relatively stable and rather increased open discussion and evaluation of end-of-life options among residents.

All of that said, what does that currently mean for us on a daily basis? Well – in Alberta, when planning for end of life, you can complete a Personal Directive. In that Personal Directive you can include instructions about how and when to “pull the plug”…but you cannot ask for someone to assist you with suicide (as it is still a crime in Canada). So, if you would like to have a death where nature takes its course, talk to a lawyer about including these wishes in your Personal Directive. Also, share your wishes with your family in advance – if you wait until your death bed to make your wishes clear, it is less likely that they will be followed. Lastly, be sure you wishes are as clear as possible – this is, after all not a decision to be reached lightly, and both your family and your medical professionals will want to ensure that they have your consent.

To learn more about planning for your future, see: www.oaknet.ca.

For more information see also:

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LRC Internships

November 15th, 2011 Comments off

The LRC is looking for five bright and talented interns. The internships are part of SCIP (Servicing Communities Internship Program). What that means is that current university or college students can gain valuable experience and Alberta Advanced Education and Technology will provide them with a $1000 bursary for completion of their internship. Here’s the positions we are looking to fill…

1. Children’s Literature Expert

We are looking for a student to join our team of teachers, librarians, technology specialists, and lawyers to create law related and curriculum matched resources for Alberta classrooms. The internship would involve creating a learning resource (lesson plan, handouts, and multimedia) that can be used in Alberta classrooms. This resource should explore themes connected with our organization’s mission such as, justice, equality, and rights. An Education student or English major would be a perfect fit.

2. Illustrator or Graphic Design Artist

The purpose of this internship is to make our learning materials more accessible. We need someone that can effectively collaborate with staff and volunteers to produce images and logos for our learning resources. The student must have a strong understanding of the power of visuals to communicate. We are open to students from all types of programs for this position. During the interview we will be asking to view a portfolio of the student’s best work.

3. Animated Video Producer
Any aspiring film makers out there? This intern will be responsible for creating a two to five minute animated video on a specific topic related to landlord and tenant law in Alberta. This is open to students from all programs. During the interview we would like to see a sample of the student’s work.

4. Digital Magazine Marketer

This internship is an amazing opportunity for experience in a very competitive industry. The Digital Magazine Marketer will plan, prepare and implement a comprehensive promotional campaign for Law Now Magazine. Students with a background in marketing, communications, or business should definitely apply.

5. Web Designer

This intern’s skills would be used to create and maintain our websites and ensure that people can find the information they are looking for. Specifically, the intern will assist in the launch of a Women and the Law website. This will involve translating a large PDF document into a stand-alone website with the help of our technology specialist and researchers. Experience in building websites required.

 

To apply and read the specifics (time requirement, project goals, etc) please visit http://www.joinscip.ca

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‘Tis the Season of Giving: A few thoughts for donors and charities.

November 10th, 2011 Comments off

The Globe and Mail recently featured a section called Giving: News, advice and analysis on philanthropy, charitable giving and social responsibility. Among all the chatter about it on our Twitter and Facebook feeds, there were quite a few articles that peaked my interest. Some of the pieces that interested me include:

  • Giving by the Numbers: Interactive data and statistics on charitable giving that you can click on! You can see graphs on how many Canadians give, take a quiz on what kind of volunteer you are, or view a map showing the most generous provinces and cities.

Now, before you hit that donate button or jump up from your computer, you might want to gather a bit more info on giving to charities. The Canada Revenue Agency, who has the job of regulating registered charities, has a website called: Giving to Charity: Information for Donors. They have answers to questions like:

On the flip side, if you’re searching for info on being accountable in fundraising, look no further! Charity Central’s website has a whole section on fundraising. It discusses the Canada Revenue Agency’s fundraising guidance and includes learning modules, frequently asked questions, and downloadable print resources. Check us out if:

Or, for a more in depth look, get a copy of the Road to Accountability Handbook.

Whether you’re a donor or fundraiser (or both!) there is a lot of information out there to help you be effective!

 

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You must try to work it out!

November 9th, 2011 Comments off

The Province of Alberta began a new decade with new Rules of Court. In the works for 10 years, the new Rules made their debut in 2010.

One of the most significant changes in the new Rules is the requirement for persons engaged in a civil (as opposed to criminal) legal action in the Court of Queen’s Bench to make an effort to settle their disagreement.  This is mandatory:  litigants must try to resolve their cases using certain court-approved dispute resolution processes before they will be allowed to obtain a trial date. And, it is up to the parties to begin this process.  Only in certain rare circumstances, and by order of a judge, will this requirement be waived.

There are several options that litigants may choose.  They may:

  • Hire a private mediator;
  • Request a mediation by a Court of Queen’s Bench judge; or
  • Use a mediator from the Roster Mediation Service, maintained by the Department of Justice.

In addition, there are programs that are available specifically for some family law disputes.   Family Mediation Services can assist in resolving issues such as child and/or spousal support, communication issues, and minor issues about the division of property.  If a participant’s gross annual income is below $40,000, and he or she has children under the age of 18, this service may be free of charge. In Calgary, the Dispute Resolution Officer Project  (DRO) is mandatory for parties asking for interim child support or to change an existing child support order.  In Edmonton, the Child Support Resolution Project (CSR) is mandatory for persons who are representing themselves in court and are asking for interim child support under the Divorce Act, or to change an existing child support order.

The Court of Queen’s Bench of Alberta is working on other options for court-assisted dispute resolution, so other programs may be available in the near future. But for now,  parties in a civil law case that are represented by a lawyer should discuss  the pros and cons of these different options with their counsel and decide about the best way to proceed.

Persons who are representing themselves might like to obtain a copy of a brochure produced by the Legal Resource Centre entitled: Dispute Resolution: You Must Try to Work It Out!

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