Digital Commons Network^™

Relational Theory And Health Law And Policy, Jocelyn Downie, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

Relational theory starts from an understanding of human selves as relational. This theory informs some significant current developments in the areas of philosophy, ethics and legal theory that re-envision key concepts including autonomy, equality, rights, justice, memory, trust, judgment and identity. In this paper we introduce relational theory and begin to explore some of its implications for health law and policy. In doing so, we hope to show the relevance of each field to the other and to persuade those interested in health law and policy to take up the challenge to pursue the transformative potential of relational theory through …

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

The Protection Of The Marine Environment From Land-Based Pollution And Activities: Gauging The Tides Of Global And Regional Governance, David Vanderzwaag, Ann Powers

Articles, Book Chapters, & Popular Press

After providing an introductory overview of the major land-based threats to the marine environment, this article focuses upon the specific global and regional efforts to address land-based marine pollution and activities through a four-part survey. The main international initiative is first described, namely, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA). Progress in GPA implementation is next assessed with an emphasis on the documentation and results from the Second Intergovernmental Review Meeting on Implementation of the GPA held in October 2006. Major challenges constraining GPA implementation are then summarized, including limited national …

Arbitrary Detention: Whither - Or Wither? - Section 9, Stephen Coughlan

Articles, Book Chapters, & Popular Press

It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …

Power, Parliament And Prorogation: A Canadian Political Drama, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Rarely have Canadians (or Americans!) been so riveted by political life in Ottawa as during the late days of November and the early days of December, 2008. The nature of this focus on Canada’s Parliament was not the kind of positive energy that surrounded American President-elect Obama’s historic election victory a few weeks before, but rather a negative and nervous energy characterized by disbelief, disgust and surprise. In a time of economic crisis rivaled only by the Great Depression of the 1930s, Canada was being plunged into a political crisis not seen since 1926, when then-Governor General Byng denied then-Prime …

Mandatory Legal Education Is A Step In The Right Direction, Richard Devlin, Jocelyn Downie

Articles, Book Chapters, & Popular Press

For decades, and from sea to sea to sea, many Canadian lawyers have resisted and ridiculed mandatory continuing legal education (MCLE). But the winds of change are blowing from the West.

As of January 2009 all lawyers in British Columbia will be obliged to complete 12 hours of “continuing professional development” per year. While some other provinces have imposed mandatory reporting obligations for CLE, British Columbia is the first to grasp the nettle and make actual participation in CLE mandatory. There are a number of compelling reasons for concluding that this is a very good thing.

The End(S) Of Self Regulation?, Richard Devlin, Porter Heffernan

Articles, Book Chapters, & Popular Press

Self-regulation is a sacred cow of the Canadian legal profession. The authors question this assumption on several levels and ask whether, in a liberal democratic society such as Canada, self-regulation really is in the public interest. The advantages and disadvantages of self-regulation are discussed in the context of other Commonwealth nations who have moved away from this type of regulatory structure. Though the self-regulation debate has been traditionally viewed as a "one way or the other" argument, calibrated regulation seems to be a possibility in Canada and, in fact, steps have already been taken in this direction. Devlin and Heffernan …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …

Re-Interpreting The Criminal Regulation Of Sex Work In Light Of R C Labaye, Elaine Craig

Articles, Book Chapters, & Popular Press

In 2005, the Supreme Court of Canada revised the meaning of indecency under the Criminal Code. This was achieved by removing from its definition any reliance on the community standard of tolerance test. In R. c. Labaye the Court reinforced the notion that the focus of laws regulating sexuality should not be based on sexual morality and moral harm to society but rather on political morality and actual harm to individuals. The reasoning in R. c. Labaye should change the way that courts understand the prostitution-related provisions in the Criminal Code. In particular, a proper application of its reasoning suggests …

James Abbott Mcneill Whistler: Photographs Of His Paintings And The Art Of Photography, Hiroko Suda

Dissertations and Theses

James Abbott McNeill Whistler (1834-1903) is an important figure in the development of art photography. His lyrical and atmospheric images were not only admired by modernist painters, but also influenced many photographers who aspired to be artists. His treatment of the subject matter, careful selection of paper, and arduous printing process gave profound inspiration to many of the early twentieth century photographers.

Nonetheless, Whistler's own attitude towards the medium of photography was quite elusive. He never took the camera seriously as a tool of his artistic expression and photography was never included in his oeuvre. The artist never explained his …

The Therapeutic Misconception: A Threat To Valid Parental Consent For Paediatric Neuroimaging Research, Michael Hadskis, Nuala Kenny, Jocelyn Downie, Matthias Schmidt, Ryan D'Arcy

Articles, Book Chapters, & Popular Press

Neuroimaging research has brought major advances to child health and well-being. However, because of the vulnerabilities associated with neurological and developmental conditions, the parental need for hope, and the expectation of parents that new medical advances can benefit their child, pediatric neuroimaging research presents significant challenges to the general problem of consent in the context of research involving children. A particular challenge in this domain is created by the presence of therapeutic misconception on the part of parents and other key research stakeholders. This article reviews the concept of therapeutic misconception and its role in pediatric neuroimaging research. It argues …

Relational Theory And Health Law And Policy, Jennifer Llewellyn, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Relational theory starts from an understanding of human selves as relational. This theory informs some significant current developments in the areas of philosophy, ethics and legal theory that re-envision key concepts including autonomy, equality, rights, justice, memory, trust, judgment and identity. In this paper we introduce relational theory and begin to explore some of its implications for health law and policy. In doing so, we hope to show the relevance of each field to the other and to persuade those interested in health law and policy to take up the challenge to pursue the transformative potential of relational theory through …

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Health Equity, Hpv And The Cervical Cancer Vaccine, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article explores the relationship between technological innovation and health inequity. It examines in particular the relationship between the vaccine against human papillomavirus (HPV) infection, the cause of cervical cancer, and inequity in cervical cancer incidence and mortality. In Canada, screening programs have drastically reduced the incidence of cervical cancer, but their benefits have been unequally distributed. Prevention efforts have disproportionately failed women of disadvantaged social groups. Technological innovation alone will not remedy this inequity. The HPV vaccine merely expands the available means for reducing or increasing health inequity depending on its implementation. For this reason, the article looks beyond …

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

Articles, Book Chapters, & Popular Press

In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Rodriguez Redux, Jocelyn Downie, Simone Bern

Articles, Book Chapters, & Popular Press

Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

Beyond Content, Deeper Than Delivery: What Critique Feedback Reveals About Communication Expectations In Design Education, Deanna Dannels, Amy Housley Gaffney, Kelly Norris Martin

International Journal for the Scholarship of Teaching & Learning

In design education, the critique is a communication event in which students present their design and critics provide feedback. Presumably, the feedback gives the students information about their progress on the design. Yet critic feedback also serves a socializing function—providing students information about what it means to communicate well in the design education context. Using a qualitative research methodology, this study explores what critic feedback reflects about expected communication competencies in design studios. Results suggest that communication competence in this setting involves interaction management, demonstration of design evolution, transparent advocacy of intent, explanation of visuals, and the staging of the …

Accommodating The Needs Of Iconsumers: Making Sure They Get Their Money’S Worth Of Digital Entertainment, Lucie Guibault

Articles, Book Chapters, & Popular Press

The current methods of distributing music and film on the mass-market, either off-line or on-line, raise two types of consumer protection issues. First, consumers are not always in a position to know what they can and cannot do with their digital hardware and content. A lack of proper information and the ensuing failure of the products to meet the consumer’s expectations inevitably leads to discontent. In addition, as weaker party in the transaction, consumers have often no other choice but to accept or refuse the restrictive terms of use, even if these could be regarded as unfair. This paper examines …

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy - A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Globalization and the new information economy are putting great stress on western high-wage economies of which Canada is an exemplar. As individuals and together as a society, Canadians are being forced to become more flexible and strategic in adjusting to changing employment opportunities and economic challenges. Meanwhile, governments have shifted from being purveyors of welfare to being supervisors of both markets and decentralized/ privatized public services. Key roles for the government in this new political environment are the sponsorship of mechanisms for autonomous, individual human capital investment as well as for community responses to these emerging economic and social challenges. …

Envisioning The Future Of Aboriginal Health Under The Health Transfer Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Canadian government, and many Aboriginal communities, are committed to formally transferring varying aspects of governance responsibilities from federal hands to Aboriginal ones. These transfers take various forms, from creating Aboriginal political bodies with broad sets of governance powers, as was the case with the Nisga'a Treaty of 2000, to more partial transfers of specific powers or responsibilities, or types of responsibilities. One core transfer area is public health programming, for which there are specific and highly developed initiatives dating back to around 1989. Although it is expected that these initiatives will, overall, have very positive effects for improving the …

Asking For Money Back - Chilling Commercialization Or Recouping Public Trust In The Context Of Stem Cell Research?, Matthew Herder

Articles, Book Chapters, & Popular Press

As publicly funded institutions have increasingly embraced the goal of commercializing scientific research, concerns about private appropriation have become familiar refrain. One commonly suggested remedy is to create some kind of 'recoupment' provision whereby the State, on behalf of the public, receives a certain percentage of profits realized. The Bayh-Dole Act originally included a recoupment provision but it was deleted by a legislative committee. Countries around the globe attempting to emulate Bayh-Dole have, whether by design or default, reinforced the underlying logic against recoupment, which is essentially as follows: obligations to provide direct financial returns undermine the commercialization process and …

Health Equity, Hpv And The Cervical Cancer Vaccine, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article explores the relationship between technological innovation and health inequity. It examines in particular the relationship between the vaccine against human papillomavirus (HPV) infection, the cause of cervical cancer, and inequity in cervical cancer incidence and mortality. In Canada, screening programs have drastically reduced the incidence of cervical cancer, but their benefits have been unequally distributed. Prevention efforts have disproportionately failed women of disadvantaged social groups. Technological innovation alone will not remedy this inequity. The HPV vaccine merely expands the available means for reducing or increasing health inequity depending on its implementation. For this reason, the article looks beyond …

Access To Medical Records For Research Purposes: Varying Perceptions Across Research Ethics Boards, Donald Willison, Claudia Emerson, Karen Szala-Meneok, Elaine Gibson, Lisa Schwartz, Karen Weisbaum, François Fournier, Kevin Brazil, Michael Coughlin

Articles, Book Chapters, & Popular Press

Variation across research ethics boards (REBs) in conditions placed on access to medical records for research purposes raises concerns around negative impacts on research quality and on human subject protection, including privacy. Aim: To study variation in REB consent requirements for retrospective chart review and who may have access to the medical record for data abstraction. Methods: Thirty 90-min face-to-face interviews were conducted with REB chairs and administrators affiliated with faculties of medicine in Canadian universities, using structured questions around a case study with open-ended responses. Interviews were recorded, transcribed and coded manually. Results: Fourteen sites (47%) required individual patient …

Air Cargo Fuel Surcharges And Tacit Collusion Under The Sherman Act: What Good Is Catching A Few Bad Guys If Consumers Still Get Robbed, Dustin Appel

Journal of Air Law and Commerce

No abstract provided.

Inter-Nation Equity: The Development Of An Important But Underappreciated International Tax Value, Kim Brooks

Articles, Book Chapters, & Popular Press

Modern high-income states have relied on income taxes and redistributive spending to reduce inequality nationally; yet few states have considered how their national tax systems might have important implications for international income flows between high-income and low-income states and how their tax treaties might be used as a mechanism for achieving a fairer distribution of income internationally. Discussions about the possibilities of tax systems as a means of distributing income globally, and of acting in the service of the reduction of global inequality, are nascent, but not new. The foundational, and still leading, contribution to this area of scholarship is …

Protecting Civilians During The Fight Against Transnational Terrorism: Applying International Humanitarian Law To Transnational Armed Conflicts, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article will explore the ability of international law- particularly international humanitarian law (IHL)-- to protect innocent civilians from harm in the context of the fight against transnational terrorism. To achieve the goal of allowing states to protect their populations from the threat of terrorism, while at the same time respecting the rule of law and the rights of innocent civilians, it is argued that, while IHL must remain applicable only to armed conflicts, it must also evolve so that it clearly applies to "transnational" armed conflicts.

Japanese Vocabulary Acquisition By Learners In Three Contexts, Dan P. Dewey

Faculty Publications

This study is an investigation of the development of vocabulary knowledge during study abroad (SA), intensive domestic immersion (IM) and academic-year formal classroom (AY) learning. Its focus was the growth of vocabulary knowledge in Japanese--a language where little SA research has been conducted to date. Unlike most studies addressing vocabulary development, it was centered strictly on vocabulary acquisition. Following the example of one of the most insightful comparative studies of vocabulary learning abroad and at home to date (Laufer & Paribakht, 1998), it included multiple measures of vocabulary knowledge to assess possible subtle differences in vocabulary acquisition between the SA, …

Home State Obligations For The Prevention And Remediation Of Transnational Harm: Canada, Global Mining And Local Communities, Sara Seck

Articles, Book Chapters, & Popular Press

Canadian mining companies, stock exchanges, mining professionals, and the Canadian government itself, play a significant role in global mining. This unpublished PhD dissertation, completed in January 2008, explores whether Canada has a legal obligation to regulate to prevent and remedy human rights and environmental harm associated with Canadian mining companies operating abroad. Canada and global mining serve as a case study to explore the broader question of whether home states have obligations under international environmental and human rights law. The key claims examined in this dissertation are as follows. First, the exercise of unilateral home state jurisdiction over transnational corporate …