Ethan Frome

Freedom Of Information Protection of Privacy Act

not in practice very intrusive

How it works:

pattern to set out broad principle
exceptions to general principle
exceptions to exceptions

GENERAL PRINCIPLE

anyone has right to any information held by public bodies

Mandatory exceptions:

confidential information
information that if disclosed would be harmful to business of 3rd party
harmful to personal privacy

Discretionary exceptions:

policy advice, recommendations or draft regulations
legal advice
disclosure harmful to law enforcement

e.g. identity of an informant or information on a case currently under investigation

disclosure harmful to intergovernmental relations or negotiations
disclosure harmful to financial or economic interests of public body
disclosure harmful to conservation interests

heritage sites
environment

e.g if information would attract people to an area where endangered species breeds

disclosure harmful to safety (individual or public)
information to be published or released within 60 days

Section 5 - requests must be in writing - forms are optional

Section 6 - duty of public bodies to assist applicants

e.g. direct to appropriate Ministry

e.g. inform that requests must be in writing

Section 25 - mandatory duty to disclose risks of harm to environment or health and safety of population at large or groups of people

Section 33p - discretionary to disclose personal information if anyone’s health or safety is at risk and must send notice of disclosure to person who’s information it is by mail to last known address

Applicants have the right to appeal to the Commissioner of Information and Privacy if public body will not disclose or if information is disclosed that should not have been.

VII Mental Disorder

7) Mentally Disordered Offenders

persons who commit criminal offenses but are mentally disordered
why special provisions?

mens rea (guilty mind ® intent)
essential element in criminal code
can not be held responsible for criminal act if unable to form intent

Historical Context:

not guilty by reason of insanity
dated back to 1892 & based on British legislation from 1800s

old provisions

if verdict of NGI, court was required to order offender into "strict custody" (into a mental institution) at the pleasure of the lieutenant governor
courts had no discretion
order reviewed by parliament

didn’t let too many out
resulted in much longer sentences in hospital that jail sentences for same crime

same sentence (mental institution) for all offenders

1969 created Boards of Review

discretionary could look at cases of persons found NGI and make recommendations to cabinet ® most offenders sentenced to live out life in institution

1976 Law Reform Committee of Canada report to parliament

very critical of provisions

non reviewable
secretive criteria
and so on

1982 Charter of Rights and Freedoms

section 7 - right to life, liberty and security of the person
section 9 - arbitrary imprisonment
section 12 - cruel and unusual punishment

1985 Charter

section 15 proclaimed - equality (no discrimination based on mental disability)

1986 introduced Bill to change Criminal Code

was dropped due to election

1992 Bill C-30

Mental Disorder Amendments to Criminal Code

R. v. Swain (1996)

Mr. Swain had psychotic break and performed ritualistic attacks on his wife and children (to protect them from devils).

Swain charged with assault and aggravated assault and arrested
went to mental health facility where Swain was treated successfully and released into the community
trial
crown enters insanity
judge found Swain NGI ® institution
Swain appealed to Supreme Court of Canada under sections 7, 9, and 15 of the Charter

Supreme Court found that the Criminal Code violated sections 7 and 9 of the Charter and were not consistent with the purpose of protecting the public
Swain went home
parliament was given 6 months to amend Criminal Code

Bill C-30 accomplished 3 things

eliminated indefinite detention in strict custody at pleasure of lieutenant governor
gave courts more discretion in orders they could make
created a review board in every province

board can make binding decisions to:

1. release

2. conditionally release

3. detain

board is made up of a chair (always an experienced lawyer), at least 1 psychiatrist, a psychologist (if only 1 psychiatrist), and community members

Section 2 of Criminal Code

added definitions of:

"mental disorder"

Mental Disorder is any disease of the mind

"unfit"

unfit to stand trial
accused’s mental state at time of trial means that the person can not understand the trial process or consult meaningfully with counsel

Section 16 of Criminal Code

"NCRMD" not criminally responsible on account of mental disorder

person’s mental state at the time of the offense

person is not responsible if unable to appreciate the nature and quality of the act or omission OR is not capable of knowing that the offense was wrong

every person coming to trial is presumed not NCRMD

must prove on a balance of probabilities (civil standard) that person is NCRMD
either side may raise issue of NCRMD

Section 672.5 of Criminal Code

Disposition Hearings

court can decide what to do with this unfit or NCRMD person OR can delegate this decision to a Review Board
3 possible dispositions

absolute discharge - no further consequences, go home
conditional discharge - impose conditions on release (like parole)
custody order - have to stay until able to be discharged

Section 672.72 of Criminal Code

Decisions by Review Board can be appealed to Court of Appeal

Two Future Developments

5 year review of new Criminal Code provisions coming up

chance to modify
BC wants imposition of procedures of Review Board

parts of Bill C-30 not proclaimed yet

capping - setting maximum lengths of time
designate persons as dangerous mentally disordered offenders

X Other Bioethical Issues - Death and Dying

1) Death and Dying

Definition of Death

not really a problem except in Manitoba cases of beatings where victim ended up in a coma or PVS and the patient died when the plug was pulled

Kiching & Adams
defense contended that the cause of death was not the beatings but rather the removal of life support

whole brain death criteria

findings on basis of clinical findings but after on EEGs to measure brain activity
Law Reform Commission of Canada

"whatever current brain death criteria say"

old definition that person is dead if no longer spontaneous respiration or circulation

Refusal of Life-Saving/Life Support

allowed under consent to treatment criteria

can refuse consent even if that causes death
Masney case (text pg. 388)
Nancy B. Case (text pg. 377-380)

patient wanted respirator removed
informed consent
Superior Court of Quebec stated that since Nancy B. was capable, she could make her own decision

Corbeil case (text pg. 394, 395 and case and statute material)

artificial feeding
Corbeil wanted tubes removed
Court said it was his decision

Right to Life groups yell euthanasia when policies are made to allow for removal of life support
Removal of life support is recognition of person’s right to refuse treatment

NOT intentionally ending life
NOT committing suicide or aiding suicide or murder

Section 241 of Criminal Code - Prohibition against aiding, abetting, or counseling suicide

Case in Rodriguez (text pg. 564-566 and Case and Statute Material)

Rodriguez went to court because she wanted section 241 of the Criminal Code declared unconstitutional on the grounds that it violates sections 7 (right to life, liberty and security of the person), 12 and 15
BC Supreme Court ® Court of Appeal ® Supreme Court of Canada
Supreme Court of Canada upheld other courts ruling that section 241 is not unconstitutional

all judges found section 241 violates section 7 of Charter but that the rights are violated in accordance with the Principles of Fundamental Justice (sanctity of life principle), therefore section 7 as a whole is not violated
Sections 12 (unusual treatment or punishment) and 15 (discrimination on basis of physical disability since she would not be able to commit suicide) were rejected as being violated

Chief Justice said that yes there was unequal treatment and therefore violation of section 15
Majority did not think there was a violation of section 15 and even if there was a violation, section 241 of Criminal Code is saved by section 1 since the Criminal Code provision was demonstrable in a free and democratic society

no middle ground where physician is acting on request of person to kill them

could be lesser sentence by reason of compassion
Chief Justice of BC and of Canada set out guidelines in Rodriguez case to keep this in check
lots of cases go to court but judges or juries have almost unanimously failed to convict

Latimer Case (text pg. 539-541) where Mr. Latimer killed his severely disabled daughter by carbon monoxide poisoning.

Representation Agreement Act

can not ask someone to kill you or commit another criminal offense
can ask representative to put at DNR order on chart

Advance Directives - Representation Act (once it takes effect)

allow agent to make health care decisions including termination of treatment decisions

proxy directive in Representation Agreement

Treatment or care directives

living will
stands under Health Care Consent Act

makes directive binding on substitute decision maker
problem when don’t know that directive exists

living wills usually fairly useless because can not foresee circumstances well enough to give directives

Do Not Resuscitate orders are just that

no CPR if cardiac arrest
do all other care

Degrees of Intervention orders

works fairly well
means of indicating interventions - specify degree

degree 1 - no intervention - keep person comfortable (no CPR, no medications)

degree 2 - compassionate care and use of antibiotics (medications)

degree 3 - take to hospital but do not attempt CPR

degree 4 - do everything possible

under Regionalization may have orders good only in home region
need uniformity so that everyone understands what degree levels mean

facilities sometimes make up own degrees