Canadian Criminal Code

CultureLaw

Environmental law is a fairly new topic in legal discourse. It is only in the past hundred years or so that humans have been made aware of the environmental consequences of their actions and even now there are forces in our society that demand that said consequences are negligible or worth ignoring. It is, however, impossible to ignore and even major polluters like Exxon Mobil have come to acknowledge their role in climate change.

This article is going to give a brief overview on the rules that punish polluters in Canada and then focus on the punishments individuals might face in Canada for certain kinds of pollution.

Environmental law is one of those fields of law that covers almost every kind of law there is. Rules to protect the environment can be found in agricultural law, federal fisheries legislation, rules governing industry, civil law, municipal law, and even criminal and international law.

In Canada, large scale pollution is regulated by the Canadian Environmental Protection Act, the Federal Fisheries Act, the Criminal Code, and provincial laws such as the Quebec Environmental Quality Act. In the cities, it is municipal by-laws that control the nuisance caused by littering and other forms of pollution.

Some types of pollution by individuals will result in fines, whereas others can lead to lengthy prison terms. So let’s talk about those.

For the purposes of this article, I will focus on Montreal municipal laws. Other cities on the island such as Westmount and Cote-Saint-Luc have their own sets of rules.

In the early two thousands, the City of Montreal tightened its rules regarding littering resulting in outrage from citizens, landlords, and business owners. Under the new by-law, tagging and other forms of graffiti on public roadways, sidewalks, and buildings on public property can result in a fine of a hundred to a thousand dollars. The same goes for leaving broken motor vehicles on public property as well as dumping garbage in public waterways.

The by-law elaborates by specifying that everything from garbage, to ashes, to flyers, syringes, and bandages count as things prohibited from being dumped on public property. There are exceptions to these rules with regards to graffiti on public property in which a person can get authorization from the City of Montreal, presumably to make room for artists to beautify the city with murals and other works of art.

The new by-law takes penalties for littering even further, with punishments for throwing garbage and other forms of waste on public property ranging from sixty to a hundred dollars for a first offense. That means that the seemingly mundane act of throwing your coffee cup or cigarette packet on the ground could land you a hefty fine if you’re caught. Fines for a second offense range from a hundred to three hundred dollars, and for every subsequent offense it’s a fine of three hundred to a thousand dollars.

Recently, the City of Montreal has also opted to crack down on the use of wood burning fireplaces. Montreal is one of the oldest cities in Canada so the presence of houses with indoor fireplaces is inevitable. Unfortunately, they’re dirty and polluting and studies show that they don’t actually warm your house that much.

In 2017 the City of Montreal adopted the By-law Concerning Solid Fuel Burning Devices and Fireplaces. Under the new by-law those in possession of fireplaces or other solid fuel burning devices may not use them in Montreal as of October 2018 unless they are certified to emit no more than 2.5g/hr of fine particulate matter into the atmosphere.

The fines for use of fireplaces after the deadline range from a hundred to five dollars for a first offense, five hundred to a thousand dollars for a second offense, and a thousand to two thousand dollars for every subsequent offense.

The by-law does however allow for exceptions in cases of major power outages and other natural disasters in which a fireplace may be the only source of heat. The rules also do not apply to devices used for food preparation – so charcoal barbeques are fine, as well as for commercial use or in places where authorization to install such a device in a building for commercial use was authorized. Those with fireplaces have the option to either stop using it, or have it replaced and declare it to the City.

In order to face jail time for polluting, the offense has to be quite severe. For example, anyone who, as per the Criminal Code, “makes a device or possesses, uses, transfers, exports, imports, alters or disposes of nuclear material, radioactive material or a device or commits an act against a nuclear facility or an act that causes serious interference with or serious disruption of its operations,” with intent to cause death, serious bodily harm, or substantial damage to property or the environment is facing life in prison if found guilty.

Laws punishing polluters are in place for a reason. Pollution not only tarnishes the beauty of our city, but it makes the environment you live in less healthy, putting all of us at risk. Until we come up with cleaner, more sustainable ways to do things, we need to keep these laws in place and think twice before littering.

LawNews

Gun control is a hot button issue right now thanks to thousands of kids in the US. On March 24th, 2018, high schoolers, parents, and teachers across America took the trauma of surviving or hearing about school shootings and turned it into righteous anger at the people who govern them. They marched on Washington in numbers that made the Orange Egotist’s inauguration look like a One Direction concert on a school night.

The demands of the marchers were simple ones: stop taking money from people who value guns over lives. Make assault weapons less accessible to those who want to turn their anger on the world around them. Stop ranting about the importance of child safety while doing nothing to ensure it.

They recognize that their government is too well compensated by the gun-obsessed losers in the US and that dramatic action is needed. They want background checks, and licensing, and all sorts of other measures to ensure that dangerous people do not get access to guns.

What they are asking for is what we Canadians consider to be the bare minimum. On March 21, 2018, federal Public Safety Minister Ralph Goodale introduced Bill C 71 which would beef up Canada’s existing gun control legislation.

This article is going to give you a crash course on gun control in Canada, specifically with regards to individual rights to gun possession.

Gun control is governed primarily by two laws: The Canadian Firearms Act and the Canadian Criminal Code. They define different kinds of weapons under Canadian law and set out rules regarding which weapons are legal in Canada and under what circumstances.

The Canadian Criminal Code defines a weapon as anything used, designed to be used, or intended for use in causing the death or injury to any person, or for the purpose of intimidating them. This includes firearms and anything used, designed to be used, or intended to be used to bind or tie someone up against their will.

That said, not all weapons in Canada require a license.

Only firearms, prohibited firearms, restricted firearms and weapons, and prohibited devices require a license under Canadian law.

A prohibited firearm is any handgun with a barrel equal to or less than 105mm in length and is designed to discharge a 25 or 32 caliber bullet. Prohibited firearms also include sawed off shotguns and automatic weapons.

Prohibited weapons include switchblades or any other knife with a blade that can open via hand pressure to a button or other mechanism, as well as any other weapon considered prohibited but which is not a firearm.

A prohibited device includes any part of or accessory to a weapon that is considered prohibited. It also includes handgun barrels equal to or less 105mm in length, with an exception allowed for competitive sport shooting weapons required by the rules of the International Shooting Union. Anything used to silence, muffle, or stop the report of a firearm is also considered a prohibited device.

A restricted firearm includes any handgun not considered a prohibited firearm and has a barrel less than 470 mm in length. It also has to be capable of discharging ammunition in a semi automatic way.

Restricted weapons are any weapon considered as such that is not a firearm. Crossbows generally fall into this category (apologies to any medieval weapon enthusiasts).

In order to have access to any such weapons, you have to apply for a licence as per the Federal Firearms Act. You are considered ineligible for a licence if in the interests of the safety it is best you not possess a weapon or ammunition.

It is generally up the chief firearms officer named by the Federal Public Safety Minister or a provincial court judge to decide eligibility. In determining applications for licenses, they generally look at the following criteria and whether or not these apply over the last five years prior to the application:

  • Have you ever been convicted of or received a discharge for offenses in which violence against a person was attempted, used, or threatened?
  • Have you ever been convicted of or received a discharge for firearms or other weapons offenses?
  • Have you ever been convicted of criminal harassment?
  • Have you ever been convicted of certain drug related offenses?
  • Have you ever been treated at a hospital, mental health institute, or psychiatric clinic for a mental illness that was associated with threatened or attempted violence (this fact is looked at regardless of whether or not an applicant was confined at the aforementioned treatment facilities)?
  • Is there is a court mandated prohibition order barring you from possession a weapon?

Once these criteria are assessed, a person must successfully undergo the “Canadian Firearms Safety Course” for the class of weapon for they want a license for and pass the corresponding exam. They also must fill out forms and provide character references.

The more dangerous the weapon for which a license is being requested, the more likely the references will be checked. Firearms themselves have to be registered with the Firearms Registrar.

It must be noted that the Firearms Act does have exceptions including those rights guaranteed as per existing aboriginal or treaty rights.

Bill C 71 proposes a few changes to the Canadian Firearms Act and the Criminal Code.

The new law proposes to do away with the five-year limit on criteria for licenses set out in the Firearms Act. It also requires that any firearms seized by or surrendered to peace officers due to a prohibition order be automatically forfeited to the Crown unless the order specifies otherwise. The remaining rules pertain primarily to grandfather clauses written into the Firearms Act in order to protect those legally possessing firearms at the time the law was put into force.

If the law is passed, C 71 will come into force in the summer of 2018. The law is likely to pass because unlike the leaders to the south, Canadians care about protecting each other from gun violence.

* Featured image by Steve Rainwater via Wikimedia Commons

CultureLawQueer

Montreal Pride is upon us and with it the sights and sounds of people celebrating sexual diversity in an environment that is supposed to be safe and welcoming. Though in Canada we pride ourselves at our enlightenment on issues of sexuality and gender identity, we have still have a long way to go. Before we can move forward, we need to look at our past.

This article will look briefly at the history of LGBTQ struggles in Quebec and Canada, conduct a quick overview of current legislation, and do its best to present a picture of the status quo and what needs to be done to make our country safer and more inclusive.

During the British colonial period, homosexuality, known as “buggery” or “sodomy” was punishable by death. In 1861, the law was eased a bit and the penalty was changed to ten years to life in jail. Anti-gay laws almost always targeted men and the language of laws was kept intentionally vague in order to give huge discretion to law enforcement.

Starting in 1890, gays were generally charged with “gross indecency”, and between 1948 and 1961 changes to the Canadian Criminal Code were made, creating the categories of criminal “sexual psychopaths” and “dangerous sexual offenders”. Instead of persecuting rapists and pedophiles, the changes were disproportionately used to target gays. In addition, Canadian immigration law considered homosexuals an inadmissible class of immigrants.

The gay rights movement in Canada didn’t really gain momentum until the 1960s, when George Everett Klippert, a mechanic from the Northwest Territories, admitted that he was gay and had sex with men. In 1967 he was charged with “gross indecency” and sent to prison indefinitely as a “dangerous sexual offender”.

His conviction was sadly upheld by the Supreme Court of Canada.

While Klippert was rotting in jail, the British government opted to decriminalize certain homosexual acts. Taking a cue from our Mother Country, Pierre Elliot Trudeau, at the time Justice Minister for Prime Minister Lester Pearson, began pushing the omnibus bill, a bill that would amend the Criminal Code to decriminalize homosexual sex, legalize contraception, and increase access to abortion. When asked about it, Trudeau told the press:

“It’s bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there’s no place for the state in the bedrooms of the nation. I think that what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter.”

The bill passed in 1969, and two years later, Everett Klippert was released from prison.

In 1977 Quebec passed its Charter of Human Rights and Freedoms, a quasi-constitutional bit of legislation and the first of its kind to openly ban discrimination on the basis of sexual orientation. Applicable to both private and public parties, the law bans discrimination in access to public spaces, contracts or refusal to enter into them, housing, and employment on the basis of many grounds including sexual orientation. The Quebec Charter also grants equal recognition, and bans harassment, and the distribution of discriminatory notices, symbols, or signs.

In 1978 Canada’s immigration laws were modified so homosexuals are no longer inadmissible.

In 1992, the ban on gays in the military was lifted. A few years later, in 1999, the Supreme Court of Canada ruled that same sex couples are entitled to the same benefits and under the same obligations as opposite-sex couples for the social programs they contribute to.

In the summer of 2005, Paul Martin’s government successfully passed Bill C-38, the Law on Civil Marriage, allowing same sex couples the legal right to marry. Attempts by Conservatives to reopen the marriage debate have failed and continue to do so to this day.

Over the years the Canadian Criminal Code has evolved to include “sexual orientation and gender identity or expression” in its definition of hate crimes. The inclusion of gender identity or expression is a recent addition by Prime Minister Justin Trudeau.

Hate crimes include public incitement of hatred, advocating genocide, and willful promotion of hatred, which carry penalties ranging from six months to five years in prison. In addition, sentencing guidelines for the courts now include the obligation to consider aggravating circumstances that could add to a sentence, including evidence that the crime was motivated by bias, prejudice or hate based on factors that include sexual orientation or gender identity or expression.

As it stands, life for Canada’s LGBTQ people is far from perfect. Many members of the LGBTQ community are still denied access to proper health care in Quebec and people are still being fired for being gay or transgender. Though the election of the orange bigot and the rise in hate crimes south of the border has bolstered support for LGBTQ groups, it has also given hatemongers in Canada the confidence to be more open in their hate.

Some Montreal institutions have to deal with homophobia in their recent past. Several groups have been calling on the City of Montreal and the Montreal Police (SPVM) to apologize for violent raids on gay clubs and parties in the 70s, 80s and 90s and just this year Projet Montreal City Councillor Richard Ryan and his party joined them. The raid on Sex Garage in 1990 was what sparked the movement that would ultimately lead to Montreal Pride.

Quebec launched initiatives in 2013 to fight homophobia, however queer people are still glared at in public for simply being themselves. Unfortunately, the one law that would firmly entrench LGBTQ rights – our constitution – still does not include protections for them, and partisan politics and the Quebec notion of us vs them where the rest of Canada is concerned will keep these protections from ever happening.

Protections for LGBTQ people are there but they could be a whole lot better.

This Pride, let’s do what the haters hate most – be out and proud and open and fabulous, while still firmly pushing for those changes Canada so desperately needs.

CultureLawNewsPolitics

On March 7, 2017 Federal Justice Minister Jody Wilson-Raybould announced plans to clean up the Canadian Criminal Code and rid it of “zombie laws”. If you think of zombie laws, you probably think of the rules one would have to follow during a zombie apocalypse. Sadly, zombie laws aren’t related to the undead, but they ARE interesting, and like the zombies in fiction, can be rather annoying.

Zombie laws are laws that are no longer in force but still technically, physically, on the books.

The issue of zombie criminal laws recently came up due to the case of Travis Vader, the man convicted of murdering two elderly people in Alberta. The judge sentenced him for culpable homicide aka second degree murder.

Unfortunately, culpable homicide no longer exists in Canadian criminal law, it’s a zombie concept. If you kill someone, you can only be convicted of murder or manslaughter.

The provision the judge used to convict him – section 230 of the Criminal Code – had been declared unconstitutional by the Supreme Court in 1990. Vader’s lawyers argued for a mistrial, but fortunately for the safety of everyone, they did not get one. The judge in question instead sentenced Vader to life for two counts manslaughter.

This is not the first time zombie laws have caused problems. Though the law prohibiting anal sex for people under the age of eighteen has been ruled unconstitutional by appeals’ courts, there are claims that sixty-nine people have been charged with the offense between 2014 and 2015.

Stephen Coughlan, Professor at Schulich School of Law at Dalhousie University in Halifax came up with a list of zombie criminal laws. These laws include:

  • Spreading false news: This provision of the Criminal Code was struck down by the Supreme Court of Canada in 1992 for violating constitutional protections of freedom of expression.
  • Vagrancy: This was struck down by the Supreme Court in 1994 in R v. Heywood for violating the constitutional rights to life, liberty, and security of the person, and the right to be presumed innocent until proven guilty.
  • Procuring a miscarriage aka abortion: Struck down by the Supreme Court in 1988 in R v. Morgentaler

Restrictions also still on the books include those against dueling, fraudulently pretending to practice witchcraft, and crime comic books – yes, crime comics used to be illegal.

The Canadian Criminal Code is over eight hundred forty nine provisions long.

Law enforcement, prosecutors and judges rely on it to determine who to arrest, who to charge, how to convict, and how to sentence a person for a crime. Though people in the legal and law enforcement professions are expected to stay up to date in their field, it’s impossible to keep track of every law and many will still look it up when in doubt.

If a law in a text they rely on to inform them has been declared unconstitutional but was never actually removed from that text, mistakes like the one in the Travis Vader case are inevitable, because the source material they rely on – and should rely on – is full of mistakes.

So why haven’t federal governments worked to remove these laws sooner?

The most likely reason is because governments are busy and removing something from a body of law as vast as the Canadian Criminal Code takes a lot of work they don’t have the time for.

In order to amend the Criminal Code, the government will have to present a bill calling for the changes. That bill will have to outline every single zombie provision and when it was struck down, declared unconstitutional, or why it’s not used anymore. That means that someone or a group of someones will have to go through the Criminal Code and the Canadian judicial system’s vast body of case law to determine which ones are zombie provisions. The extensive work of Professor Stephen Coughlan on the subject will undoubtedly be a useful starting point.

Once the bill is drafted, it will have to go through the same grueling process every other federal law has to go through. That means that it will have to be formally presented to Parliament, debated, debated again, and voted on. If it passes, it will have to go to the Senate for its own round of debate and votes. Either house can kill the bill.

If the law proposing to update the Criminal Code is passed, the next step is arduous process of actually doing it. That means not only removing the zombie provisions but also going over the Code in its entirety to make sure the text is clear and consistent through and through. There’s also the issue of where the current Criminal Code will stand while the updates are in the works.

Though the process is going to be a long and annoying one, removing zombie laws is a necessary job that’s long overdue. The difficulties will come not only in drafting and passing a law to actually do it, but in figuring out an efficient way to do it without leaving dangerous voids in our legal system.

Will the Federal government’s plan work? Only time will tell.

CultureLawNews

At 6:30 pm on December 9th, 2014, Jeff Weber saw a black man having his after dinner cigarette outside. Weber then walked to a store, bought a hammer, a knife, and a calendar and walked back to where the man was smoking. He then attacked the man, fifty-five year old Nabute Ghebrehiwet, by repeatedly hitting him on the head with a hammer. One blow struck Ghebrehiwet in the eye, leaving him partially blind.

Weber was charged with aggravated assault and possession of a dangerous weapon. His attorney used the defense of Not Criminally Responsible (NCR) – Canada’s insanity plea, because his client has treatment-resistant paranoid schizophrenia and is well-known to authorities. Since 2005, Weber has been charged with over twenty five offenses ranging from assaults, to threats, to attempted abductions.

On September 29th, 2016, Jeff Weber was found Not Criminally Responsible for his crime. This is the fourth time he’s successfully avoided criminal liability via this defense.

The insanity defense is a popular subject in books, film, and television. The plots always follow the same formula: someone gets murdered, they find the killer, and the defense attorney claims his client was crazy and didn’t know what they were doing.

Sometimes the person is convicted and goes to jail only for the attorney to find out that the person was insane all along. Sometimes the insanity plea works and the person goes free, only for someone to secretly find out the accused was sane and faking.

Despite what pop culture would have us believe, in Canada a successful use of the NCR defense does not mean the accused will go free.

The rules regarding an NCR defense are written into the Canadian Criminal Code.

They start with the premise that anyone who commits a crime while suffering from a mental illness that renders them incapable of knowing that what they did was wrong is not considered criminally responsible for their actions.

The second rule is that everyone is presumed sane enough to be held accountable for their crimes.

The third rule is regarding the burden of proof.

In ordinary criminal cases, the burden of proof is on the State, represented by the prosecution, who has to prove the accused’s guilt beyond a reasonable doubt. To get an acquittal, all the defense has to do is raise a reasonable doubt as to their client’s guilt.

When an insanity plea is raised, the burden of proof shifts onto the defense, which has to prove by a balance of probabilities – a standard lighter than proving something beyond a reasonable doubt – that the accused was not only suffering from a mental illness or disorder, but also that this disorder made the person incapable of telling right from wrong. The accused does not have to be incapable of telling right from wrong all the time for an NCR defense to work; they only have to prove that they were not criminally responsible at the time they committed the crime.

The way to prove that an accused is not criminally responsible is via psychiatric assessment. The defense will usually have the accused assessed by one or more mental health experts.

The court can order its own assessment of the accused at any time during criminal proceedings. The prosecution can also apply to have the accused assessed, but the court can only grant this request if the accused brings up his mental capacity for criminal intent during the trial, or if the State convinces the court that there are reasonable grounds to doubt that the accused was criminally responsible at the time of the offense.

If the court is convinced the accused committed the crime but their mental illness kept them from being aware of their actions or the fact that they were wrong, the court will issue a verdict saying that the defendant committed the crime but is not criminally responsible on account of a mental disorder.

This verdict is not a conviction and it is not an acquittal, but something in between.

All defendants found Not Criminally Responsible have to go through the Review Boards of their respective provinces. The job of the Review Boards is to review the status of all people found Not Criminally Responsible or mentally unfit to stand trial.

At least one of the Board’s five or more members has to be licensed to practice psychiatry, and where the board has only one psychiatrist, there also has to be at least one other member who is a medical doctor or psychologist with training and experience in mental health. In order to determine what should happen to a defendant found not criminally responsible, the Review Board holds a disposition hearing.

The hearing determines what should happen to an NCR person, which can include an absolute discharge – meaning they are completely free to go, a release with conditions such as taking their medication and seeing a psychiatrist, or being held in a hospital. The sentence depends on how much of a danger the person is to the public.

The Review Board system is far from perfect, for it is their failings that put Jeff Weber back on the street to blind an innocent man. It is nonetheless better than countries like the US, where the mentally ill are often killed by police, incarcerated, or shipped off to another state. Unlike many countries, Canadian laws regarding the mentally ill are designed with the intent to balance public safety with getting people the care they need so that they can live fulfilling, independent lives.

* Featured Image: Court sketch of Jeff Weber

CultureLawNews

On September 27th, 2015 Marco Muzzo, the 29 year old son of one of Canada’s wealthiest families and heir to a billion dollar estate killed four people in a drunk driving accident in Vaughan, Ontario. The victims were Daniel Neville-Lake, age 9, Harrison, age 5, Milly, age 2, and their 65 year old grandfather, Gary Neville.

At the time Muzzo was drunk and returning home from a family weekend partying in Miami, Florida. He was driving an SUV at 85 km/h when he slammed into a minivan killing all inside.

Muzzo pled guilty to all charges. The Crown asked that Muzzo be sentenced to between ten and twelve years for his crime, something unlikely to happen given his family’s wealth and prestige. Muzzo will be sentenced on March 29, 2016.

But this isn’t about the difference between the rich and poor in Canada’s criminal justice system. It’s not about how whites and non-whites are treated differently by a system that claims to be unbiased. We know the criminal justice system treats the white and wealthy better.

This article is about drunk driving.

Canada’s drunk driving laws fall under the Canadian Criminal Code which sets out the rules defining criminal behavior and its penalties across Canada. According to article 253, anyone operating a motor vehicle while their ability to operate it is impaired by drugs or alcohol is committing an offense.

If it’s a first offense and no one was hurt, the sentence is a fine of no less than a thousand dollars. For a second offense in which no one was harmed, the punishment is no less than thirty days in prison. For every subsequent offense, the penalty is a minimum of a hundred and twenty days in jail. The maximum sentences in these cases can range between eighteen months and five years in prison.

Marco Muzzo (right) leaves the courthouse (image: Canadian Press)
Marco Muzzo (right) leaves the courthouse (image: Canadian Press)

The sentence for drunk driving is far greater if someone other than the driver is hurt. If your drunk driving results in bodily harm to another person, you’re looking at a sentence of up to ten years imprisonment. If your blood alcohol level is higher than the legal limit and the accident resulted in bodily harm to another person, you could also be looking at a maximum sentence of ten years.

If your drunk driving resulted in the death of another person you’re looking at life in prison. The same applies if your blood alcohol level was above the legal limit when the accident killing the other person occurred.

If you’re an alcoholic or a drug addict and a medical report says you’re in need of rehab, the law allows for some mercy from the courts, which can discharge a person on the condition that they undergo treatment for the addiction.

If you’re operating a motor vehicle – in motion or not – and you’ve got more than eighty milligrams of alcohol in your system for every hundred milliliters of blood, you’re considered to be above the legal limit. The authorities will figure this out through a breathalyzer test and they can do it if they have “reasonable grounds” to suspect you have alcohol or drugs in your system and drove in the past three hours.

They can also make you do a physical coordination test. Fail the test and the officer can request urine and blood samples to confirm or refute their suspicions. If you refuse to provide the requested samples you’re committing an offense for which the penalty varies depending on the severity of the accident.

If you knew or ought to have known that your operation of the vehicle resulted in an accident causing death and you refuse to do a breathalyzer test or provide any requested samples, you’re looking at the same sentence as if you were convicted of killing someone while driving drunk. The same goes if you refuse to provide samples when you knew or ought to have known that your impaired driving caused bodily harm.

If your blood alcohol level was above one hundred and sixty milligrams of alcohol in one hundred milliliters of blood at the time of the offense, the court will consider it an “aggravating circumstance” which could add to your sentence.

The rules regarding sobriety and legal blood alcohol limits are extremely problematic.

They set a standard without taking into account certain biological facts.

Like the fact that men and women digest alcohol differently.

Men are able to drink more than women not only because their larger size means more blood and less body fat, but also because they have a higher concentration of an enzyme called dehydrogenase which breaks down alcohol in the system. Women on the other hand are generally smaller, have more body fat, less dehydrogenase and experience hormonal changes more often resulting in a lower alcohol tolerance.

There is also the size factor to consider. A larger, heavier person is going to be able to handle a lot more alcohol than a smaller, skinnier one. That’s not only science, it’s common sense.

Everyone is different when it comes to alcohol’s effects. Some of us have higher tolerances, some lower, and there are others who are more affected by alcohol due to the medications they are taking. There are plenty of drugs, over the counter and prescription that warn consumers not to use them with alcohol mostly because the medicine will reduce their tolerance.

Canadian law sets one standard for determining guilt for some drunk driving charges even though the prohibited blood alcohol level is not a fair indication of impairment. The laws in place were most likely chosen by experts who convinced legislators that it was the only objective way to prove a driver was drunk. The problem is that technology has yet to come up with a better test, so for now it’s best to err on the side of caution and avoid alcohol altogether when driving.

If you drive, drive dry.

* Featured image by James Palinsad via Flickr/Creative Commons

CultureLaw

January 28th marks the twenty-eighth anniversary of the Morgentaler decision by the Supreme Court of Canada. On that day in 1988, a majority judgment struck down section 251 of the Canadian Criminal Code thus legalizing abortion in Canada.

Despite every subsequent attempt by the Conservatives to make abortion illegal again, the women of Canada remain free to choose.

And it was all thanks to Dr. Henry Morgentaler.

Henry Morgentaler was born in 1923 in Lodz, Poland, and spent five years in a concentration camp where his mother and sister perished at the hands of the Nazis. He came to Canada after the Second World War, went to medical school and became a doctor.

Somewhere along the way he became a humanist, and after witnessing the suffering caused by so many botched abortions – entire hospital wards were devoted to them – and hearing the pleas of desperate women, he began performing abortions, then illegal, in safe, clinical environments.

At the time, abortions fell under Section 251 of the Canadian Criminal Code. Under Section 251, abortions were illegal except in very specific circumstances. In order for a woman to get an abortion, the law required that the decision be put to a panel of three doctors who would assess whether it was required under the circumstances. The only criterion was the health of the mother. If the panel agreed that carrying the pregnancy to term would put the woman at risk, the right to an abortion was granted, after which a fourth doctor would have to administer it.

The law was an impractical one. Many hospitals didn’t have enough doctors to form the required panel and the extra one to perform the abortion. The notion of a woman’s health was applied subjectively and could mean her physical or mental well-being. In many major cities the decision was often rubber stamped and granted to anyone who asked. In more conservative and rural areas, hospitals seemed to find any excuse not to grant a woman an abortion, and so the botched back alley abortions continued, and women continued to die as a result.

Morgentaler was tired of seeing this happen, and he performed abortions on any woman who came to him for help, some even secretly referred to him by his fellow doctors. Eventually he was arrested. He bravely told the authorities to go ahead and prosecute, no jury would convict him.

And he was right.

Despite the fact that he had clearly broken the law, he was acquitted every time.

In 1974, the year following his first trial, with no legal precedent behind it, the Quebec Court of Appeal overturned his acquittal and replaced it with a conviction. Morgentaler was sentenced to 18 months in prison which he began serving in 1975. In prison he suffered a heart attack while in solitary confinement and was briefly transferred to a nursing home. Despite legal custom that made a prisoner eligible for parole after serving a third of his sentence, Morgentaler was only released after ten months, in 1976.

His treatment by the authorities caused massive outrage and protests erupted all over the country. The government recognized that was time for change.

The year of his release from prison, the Canadian Government under Prime Minister Pierre Elliot Trudeau changed the law so that appeals courts COULD NOT overturn an acquittal by a jury.

This amendment, known as the Morgentaler Amendment, was created as a direct result of his defiance of and persecution by the authorities.

In other words, before Morgentaler, if a jury found you not guilty of a crime, say, for example, firebombing a clinic and killing a doctor, a higher court could simply say “No, I don’t think so,” make it a guilty verdict, and send you to jail.

Following the Amendment, all an appellate court can do is order a new trial.

Whether you are Pro-Life, Pro-Choice, male or female, religious or not, the Morgentaler Amendment affects and protects YOU.

It guarantees that you won’t arbitrarily be sent to jail if you are acquitted by a jury of your peers.

And for that alone, Morgentaler is a hero.

On May 29, 2013, Morgentaler died, and news sources everywhere erupted with timelines and debates about the morality of what he did.

The perceived morality or immorality of what Morgentaler did is irrelevant.

Regardless of your position on the subject, remember that any time you find yourself facing criminal charges and end up a free man at the end of your trial you owe your freedom in part to an abortion doctor.

LawNewsPolitics

UPDATE: The Quebec Court of Appeal ruled today that Bill 52 can go ahead

In 2013, Bill 52 – An Act respecting end-of-life care was introduced to the Quebec National Assembly. The purpose of the bill is to recognize the primacy of a person’s right to choose what kind of care he receives from health professionals including the right to end his suffering through medically assisted suicide. The Bill was adopted by the National Assembly which voted 94 in favor, 22 against. It came into force this month.

Under the new law, any adult capable of consenting to care can withdraw their consent or refuse to receive life-sustaining treatments or procedures and this refusal or withdrawal can be expressed by any means. The attending physician has to provide the person with all the information required particularly with regards to therapies and palliative care in order to allow them to make an informed decision and ensure that said decision is made freely.

Medical aid in dying can only be provided to adults in Quebec who qualify for medicare, suffer from a serious illness, are in an advanced state of irreversible decline, and suffer from “constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable.” The consent can only be provided by the person suffering in a free and informed manner and has to be done via a form that will be prescribed by the Quebec Health Minister. It has to be signed in the presence of a health or social service professional who also has to sign it.

Before the doctor administers the aid in dying, he has to agree that the person meets all the medical requirements and has to make sure that the request was made “freely and without any external pressure” and that the decision is an informed one. The doctor doesn’t have to discuss the patient’s decision with his close relatives unless the patient asks him to. If the physician decides all those criteria are met, he must then consult with a second doctor who is independent of the patient and himself in order to make sure the patient meets the medical requirements for assisted suicide.

If all this checks out, the doctor must then administer the aid personally and take care of the patient until death. The patient can withdraw their request at any time, and doctors are allowed to opt out of administering said aid, in which case the director of professional services must find another doctor to do it.

Though the Act has passed the legislature and received royal assent, the law is facing legal challenges by opponents concerned about the ramifications of medically assisted suicide. Though the law affects only Quebec, the issue has become a national one. In February 2015 the Supreme Court of Canada in Carter v. Canada (Attorney General) ruled the articles in the Criminal Code prohibiting medically assisted suicide unconstitutional and struck them down.

The Criminal Code states that no one can “consent to having death inflicted on him” and that such consent does not negate the criminal responsibility of the person who killed the consenting individual. Killing a person even with their consent would be considered a homicide and would result in a prison sentence of up to 14 years.

While the Supreme Court agreed that the purpose of the ban on medically assisted suicide – to prevent the abuse of vulnerable people, namely, the ill and weak – is a noble one, the ban also unfairly punished those of sound mind who suffer unbearably and want to end their pain. It leaves the latter in an awkward position of having to take their own lives by their own means, or suffer the debilitating agony of their illness.

The court gave the Federal Government one year to come up with new legislation. That delay expires February 6, 2016 and the Federal Government has since requested a six month extension. In the meantime, the articles in the Criminal Code remain in effect, though Quebec Justice Minister Stéphane Vallée has assured physicians that instructions would be given to prosecutors not to go after doctors offering end of life care.

The most vocal opponents of Bill 52 are Paul Saba, head of the Coalition of Physicians for Social Justice, and Lisa D’Amico, a woman with life threatening disabilities. Together, they went to the courts to prevent the law from going into effect.

A Superior Court ruling on December 1, 2015 suspended certain aspects of Bill 52 stating that they can’t come into effect so long as the Criminal Code articles are still in force. According to Saba, the law places undue emphasis on medically assisted suicide and not on palliative care.

Palliative care is the process by which medical and social service professionals make a patient as comfortable as possible in light of terminal illness and prepare the patient’s family for the impending loss.

Saba’s argument seems to be based on the notion that if palliative care was better, fewer patients would want to die. It unfortunately displays a remarkable lack of sensitivity towards the dying who value their dignity, are exhausted by their illness, sick of the side effects of pain medicines, and feel humiliated by the assistance they need for tasks as basic as wiping one’s ass.

D’Amico’s argument is as simple as calling medically assisted suicide murder. On December 9, 2015 she told CBC that “(M)urder should remain a murder. There’s no reason why a physician could be allowed to kill a person that is sick.”

Unfortunately for D’Amico, the Supreme Court of Canada said that medically assisted suicide isn’t murder, and that proper safeguards such as those that exist in countries like the Netherlands would be effective in order to prevent the abuse of the very people D’Amico is fighting to protect.

Most Canadians support medically assisted suicide, and that includes many of our terminally ill. It comes down to the issue of whether one can really choose to die. As history has proven countless times, people can, so why deny them the choice?