23 June 2012


'Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study (AIC Trends & issues in crime and criminal justice) by James Ogloff, Margaret Cutajar, Emily Mann & Paul Mullen notes that "up to 30 percent of children experience childhood sexual abuse (CSA) and whether this impacts re-victimisation or offending as an adult has been the subject of numerous studies".

The new research
 investigates whether a disproportionate number of CSA victims subsequently perpetrate offences and experience future victimisation compared with people who have not been sexually abused. In a sample of 2,759 CSA victims who were abused between 1964 and 1995, it was found CSA victims were almost five times more likely than the general population to be charged with any offence than their non-abused counterparts, with strongest associations found for sexual and violent offences. CSA victims were also more likely to have been victims of crime, particularly crimes of a sexual or violent nature. This research highlights the need for therapeutic interventions targeted at adolescent male CSA victims, particularly with regard to offender treatment programs, where many programs currently do not allow for exploration of offenders’ own sexual victimisation. 
... this is the largest prospective study to demonstrate with confidence that the majority of victims sexually abused during childhood do not perpetuate the cycle of violence by becoming an offender or by the ongoing victimisation of violence. However, relative to members of the general population, both male and female CSA victims are at an increased risk for committing or experiencing a range of offences, in particular those of a sexual or violent nature. This study also indicates that adolescent males who experience serious sexual abuse form a high-risk group for those who subsequently commit sexual offences and require active intervention and follow up. 
 The authors argue that
 Overcoming many limitations of previous studies, this study revealed that, in general, CSA victims were 1.4 times more likely to have some form of contact with the police for any matter compared with other members of the general community. Although most (77%) CSA victims did not have an official criminal record, CSA victims were almost five times more likely than others to be charged with any offence, with the strongest associations yielded for sexual and violent offences and breach of orders. It was contact with the police for being a victim of crime that accounted for a large proportion of all contacts. Nonetheless both male and female CSA victims were significantly more likely than non-abused people to be charged all types of offences, in particular violence and sexual offences. Not only were CSA victims more likely than others to offend, they had a greater number of charges, a higher proportion of charges resulting in a guilty verdict, more custodial sentences and they continued offending to an older age. These findings suggest that offences committed by sexual abuse victims are not isolated to sexual offences or being male (Benoit & Kennedy 1992). 
While the majority (99%) of male and female victims of CSA were not charged for a sexual offence, CSA victims were 7.6 times more likely to be charged with sexual offences than the general population. Moreover, as the results show, a surprisingly high percentage of male victims were subsequently convicted of a sexual offence (5% of all male victims and 9.25 of those aged 12 years and above at the time of their victimisation). Some other research has found no association between childhood victims of sexual abuse and future sexual offending; however, this may be due to the small sample size of CSA victims and the fact that the samples comprised mostly females (Widom 1989a, 1989b). In a meta-analysis of factors related to recidivism in sex offenders, Hanson and Bussiere (1998) did not find a relationship between sexual abuse victimisation and subsequent sexual offending. This is, of course, due to the nature of the studies included in the meta-analysis, which have largely relied on self-report and retrospective methodology. 
As expected, male CSA victims were largely responsible for the increased rate of sexual offences, in particular those boys abused at 12 years or older. Given that almost one in 10 boys who were sexually abused in this age group subsequently were convicted of a sexual offence, sexual victimisation may be an important risk factor for this population (but not for females). The hallmark feature of this period is psychosexual development, where heightened sexual arousal may be paired with cognitive distortion/implicit theories relating to sexual relations (Ward 2000) and aberrant sexual urges, which may develop and underlie sexual offending. Possible explanations for the phenomenon were not examined in this study, but should be investigated in subsequent studies. 
Surprisingly, four CSA cases committed homicide compared with no control cases. Applying statistics from the wider Australian population, two or three murders per 100,000 persons would be expected— not anywhere near the 145 murders per 100,000 CSA victims revealed here. Findings also showed female victims were as likely as male victims to be charged with homicide. These findings must be interpreted cautiously given the limited sample size. 
This study extends upon and lends further support to the association between CSA and re-victimisation. With the exception of theft and bad public behaviour, CSA cases were more often victims of crime than non-abused comparisons, with highest associations found for sexual offences (5x more likely), threats of violence (4x) and violent offences (3x). On average, CSA cases reported more separate victimisation incidents than the general population; however, there was no difference in the number of separate incidents relating to sexual assault. This is the first prospective study to demonstrate that male victims of CSA were significantly more likely than males in the general population, but significantly less likely than their female abused counterparts, to be a victim of a subsequent sexual assault. 
These findings have a number of implications for clinical, policing and judicial practices. One clear implication is the need for therapeutic interventions targeted at adolescent male CSA victims with a focus on positive sexuality in attempt to reduce their heightened risk of committing a sexual offence. The benefits of psychological treatment for trauma, addressing victims’ mental health problems and preventing or addressing criminogenic risk factors such as low education and employment attainment, substance abuse and negative supports, in the aftermath of sexual abuse to both male and female victims is also likely to reduce the risks of offending in general and violent offences in particular. Legal and judicial representatives, as well as forensic psychologists and psychiatrists who may assess offenders, should take into consideration the complex interplay between history of CSA, mental illness and offending. Offender treatment programs in the community or custodial settings may need to be adapted to consider the role of childhood abuse in attempts to reduce recidivism. Many now do not allow for the discussion of offenders’ own sexual victimisation. 

IP in Biobanks

'The Data Difficulty in Database Protection' (University of Oslo Faculty of Law Research Paper No. 2012-18) by Lee Bygrave examines the definition of the term ‘database’ in the 1996 EU Database Directive.

The article focuses on whether or not biological material may legally be regarded as database constituents. Bygrave argues that question is a reminder of the need for lawmakers to address rigorously the meaning of information concepts. He  suggests that
it can be plausibly argued that biobanking, particularly in the private sector, is a relatively new and cutting-edge industry that fits within the call for ‘investment in all the Member States in advanced information processing systems’ (recital 10). The industry’s youth renders it also arguably in special need of ‘a stable and uniform legal protection regime’ (recital 12) in order to flourish. In Europe, there appears to be little private-sector involvement in biobanking. The bulk of biobank activity is still occurring in the public sector, with only a very small percentage of it being privately funded. As for the regulatory framework for biobanking, analyses frequently point out that this is inchoate, fragmented and plagued with uncertainty and inconsistency.  
However, the bulk of such analyses tend to focus on the interests and fundamental rights of the persons from whom the biological samples are derived rather than the interests of those establishing, managing or otherwise investing in biobanks. The analyses rarely take account of the potential or actual application of the database Directive. There also seems to be a paucity of reliable evidence showing, firstly, a significant amount of ‘free-riding’ which is hampering investment in biobanking and indicating, secondly, that such free-riding would probably be reduced were the regulatory framework strengthened by the sort of protection available under the Directive. We must remember too that the treatment of a biobank as a database presumes that the above-noted criteria of independence, accessibility and systematic arrangement are met. If they are met, the protection of such a collection under the sui generis right would presume in turn that ‘substantial investment’ has gone into the obtaining, verification or presentation of its contents (Art.7(1)). Alternatively, the protection of such a collection under copyright (Art. 3(1)) would presume that the selection or arrangement of the contents involves ‘making free and creative choices’ and, concomitantly, a ‘personal touch’ as opposed to simply ‘sweat of the brow’. In other words, a considerable number of hurdles need to be jumped before protection will kick in.  
He concludes that
Discussion about the precise meaning of ‘data or other materials’ has hitherto been largely confined to the ivory tower of academia. Remarkably, the issue was not salient in the Commission’s first evaluation of the Directive undertaken in the early to mid-2000s. This seems to reflect the fact that national implementations of the Directive have ignored the issue or skirted around it. The issue appears to have attracted little litigation. 
More litigation – at least focusing on biobanks – could be a long way off. After all, who (apart from the odd academic commentator) is interested in pushing the view that a database covers collections of biological material (or other physical objects) per se? There do not exist database protection agencies equivalent to the supervisory authorities in the field of data privacy which would be interested in pursuing the matter. Organisations which establish, run or invest in biobanks already have fairly robust legal means of regulating others’ exploitation of the material – first and foremost in the form of contractual mechanisms, such as licensing agreements. If they find it necessary to litigate against ‘free-riders’ that are not parties to a licensing agreement, they will typically be able to sue under other heads of action (e.g., larceny, trespass, undue enrichment) than breach of the sui generis database right or copyright. The importance of the latter rights is also reduced by the fact that biological material is patentable subject matter in many jurisdictions. These observations detract from the practical significance of the issue of whether a biobank can qualify for database protection. 
This is not to say that the issue has no practical significance: database protection would undoubtedly be a useful addition to the legal arsenal of biobank managers. And for a large number of reasons, the issue is important in principle and in the broader regulatory context. The overprotective potential of the sui generis database right, the relatively open-ended nature of the database definition and the harmonisation aims of the Directive are three reasons. The ongoing development of biobanking and other forms of biotechnology is another. 
Even more significant, is that the issue serves as a pertinent reminder that lawmakers ought not to take for granted the meaning of basic information concepts like ‘data’. Such concepts are increasingly being used as ‘front-line’ legislative terms, not just within the field of intellectual property but more generally. This development partly reflects attempts by lawmakers to keep abreast of technological change by drafting legislation using relatively generic terminology rather than technology-specific rules. Yet as this article highlights, such concepts can be ambiguous. Before employing them in legislation, lawmakers ought to reflect thoroughly over the precise meaning they are to have and to communicate clearly the results of that reflection.

20 June 2012

Health rights

In a work of interest for readers of John Tobin's The Right To Health (Cambridge: Cambridge University Press 2012) 'Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights Through a Framework Convention on Global Health' by Eric Friedman and Lawrence Gostin in 14(1) Health and Human Rights Journal (2012) 1-16 argues that -
Ever more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in designing, implementing, and monitoring the health sector, as well as an all-of-government approach in advancing the public's health; 2) litigation, using creative legal strategies, enhanced training, and promotion of progressive judgments to increase courts' effectiveness in advancing the right to health; 3) civil society and community engagement, empowering communities to understand and claim this right and building the capacity of right to health organizations; and4) innovative global governance for health, strengthening World Health Organization leadership on health and human rights, further clarifying the international right to health, ensuring sustained and scalable development assistance, and conforming other international legal regimes (e.g., trade, intellectual property, and finance) to health and human rights norms. We offer specific steps to advance each of these areas, including how a new global health treaty, a Framework Convention on Global Health (FCGH), could help construct these four pillars.
The authors conclude that -
... four pillars - incorporating the right to health into national laws, using creative strategies to increase the impact of national right to health litigation, empowering communities to claim their rights, and bringing the right to health to the center of global governance for health - are integrally intertwined. Social movements spur legal and policy reform. Legal and policy change creates new opportunities for litigation. Elevating human rights in and integrating it throughout global governance for health will facilitate national progress, even as national processes, priorities, and experiences should inform global action. 
An FCGH could help to simultaneously erect all four pillars. A successful FCGH will need to incorporate strong compliance mechanisms. These would begin with regular, public country reports on how they are implementing the treaty. Whether by requiring an inclusive process in developing these state reports, explicitly considering parallel civil society reports in evaluating state compliance, or both, the treaty should ensure that evaluation of compliance is not based simply on states’ say-so. Reporting cannot be the end of compliance strategies, however. While countries have considerable self-interest in improving the health of their own and the world’s population, the treaty should also include creative incentives for compliance and sanctions for non-compliance. For example, certain forms of international funding might be available or ensured only for countries that are meeting their own funding obligations. Non-compliance might open up the possibility of suspension from the possibility of serving on the WHO Executive Board or UN Human Rights Council. Given the lives on the line, targeted sanctions of the sort usually reserved for traditional national security concerns, such as freezing assets and travel bans on individuals, could be options in severe ases. Any sanctions must themselves adhere to the highest human rights standards and not degrade the health and undermine the rights of the very people they are meant to help. Populations of countries whose governments are failing to meet their FCGH obligations should have a central role in determining what sanctions, if any, would be most appropriate and effective. 
Critical to a successful FCGH will be a social movement that supports the treaty and the right to health more broadly. A powerful social movement, one that includes labor, environmental, and other broader concerns, can ensure that pressure for compliance comes from domestic as well as international sources. Indeed, a widely supported FCGH with clear standards could be a powerful tool for civil society advocacy in both the global South and North, even in countries that have not ratified the Convention themselves. 
A comprehensive approach to advancing the right to health, backed by a global treaty, could prove a com- manding counterweight to competing interests and political forces, advance effective policies and mechanisms for implementing the right to health, further clarify human rights law and attendant obligations, and enhance accountability and enforcement through community, national, and international actions. 
Due regard to each pillar, drawing on and adding to innovative right-to-health approaches and capturing the synergies among the pillars, holds much promise for global health. With bold, systematic, and innova- tive actions, human rights stand to have a transfor- mative impact in making global health better tomorrow than it is today. 
We believe an FCGH could powerfully advance the right to health and close national and global health inequities. JALI [Joint Action and Learning Initiative on National and Global Responsibilities for Health] envisions a treaty developed through a broadly inclusive “bottom-up” process. While hoping that our ideas contribute, we know that ultimately the most important input into an FCGH will come from the people whose health realities are worlds away from our own. The treaty must speak to the real- ities of slum dwellers who live near centers of power yet lack the most basic services, to farmers who find themselves and their children without proper nour- ishment, and to the orphans and widows, indigenous populations, sexual minorities, women, people with disabilities, and others who often suffer the ugliest discrimination and most extreme poverty. It is their voices that JALI most hopes to hear and incorporate in guiding a process to develop an FCGH.


'No Need to Reinvent the Wheel for a Human Rights-Based Approach to Tackling Climate Change: The Contribution of International Biodiversity Law' (Edinburgh School of Law Research Paper No. 2012/15) by Elisa Morgera offers -
 a systematic analysis of the ways in which international biodiversity law contributes to the fight against climate change by assessing and preventing the negative impacts on biodiversity and community livelihoods of measures to address climate change (‘response measures’), and adopting the ecosystem approach to climate change mitigation and adaptation. In highlighting readily available legal avenues for ensuring the mutual supportiveness of the international biodiversity regime and the international climate change regime, the chapter argues that positive interaction between the two regimes can promote a human rights-based approach to the development of the international climate change regime and its implementation at the national level.
Morgera concludes by stating that she has -
sought to draw attention to the abundance of climate change- and human rights-related normative developments under the CBD and its great potential to fill key gaps in the international climate change regime and in its implementation at the national level. Not only has the CBD COP “actively sought to manage the interactions between the two regimes”, revealing itself as “instrumental in highlighting biodiversity concerns in UNFCCC decisions,” but it has also made significant conceptual progress on the politically charged question related to environmentally holistic and human rights-based approaches to climate change mitigation and adaptation. As a result, the normative activity undertaken by the CBD COP can contribute to ensuring coherence between the international climate change regime and international human rights instruments, linking international, national and local levels of governance and reaching into the relations between private entities and indigenous and local communities. Notably, international biodiversity law can provide both procedural and substantive elements of a human rights-based approach to climate change. 
It remains to be seen whether these multi-level normative developments under the CBD will be allowed to filter into UNFCCC COP decisions and national-level implementation, although practice under the international climate change regime so far has been disappointing. Given the urgency of constructing an effective international climate change regime, however, reliance on the CBD guidance may save UNFCCC Parties precious negotiating time. Cross-reference to the CBD decisions can also provide a “social justice and development” dimension to the international climate change regime, thus facilitating “intersecting inequalities that contribute to vulnerability and allows for an exploration of a variety of approaches that offer redress and capacity-building to marginalized populations.” In addition, the CBD normative activity provides highly refined and intergovernmentally approved “methodologies for engaging the particiapation of, and consultation with, key stakeholders in the formulation of climate change and development strategies.”
In conclusion, this [paper] represents an invitation not only to climate change lawyers, but also to human rights experts interested in climate change to engage with the normative activity of the governing bodies of international biodiversity-related conventions. In particular such an engagement would be useful to ascertain whether existing guidance under the CBD and related conventions covers all relevant vulnerable groups. It would also be interesting to start a dialogue on the possible value added of supporting a human rights-based approach through the CBD COP decisions. For instance, an argument can be made that the CBD guidelines go beyond human rights instruments in that they do not require an ‘identifiable violation,’ but can rather be triggered by a threat of a negative impact, thereby injecting human rights with a preventive (and even precautionary) approach. In addition, the CBD guidelines can more easily reach across international borders, on the basis of the common concern of humankind, whereas there are significant limitations to the extraterritorial application of human rights instruments. Finally, the CBD can count on a virtually universal membership, whereas different UNFCCC parties are subject to different human rights instruments with varying membership. 
Finally, human rights experts, climate lawyers and biodiversity lawyers could engage in a certainly enriching debate on enforcement and compliance. Without explicit and operational links between the international law on climate change, biodiversity and human rights, state compliance with these interconnected obligations cannot be monitored and enforced. Even if these links are established, however, monitoring compliance under the CBD would be very limited. The CBD does not have a compliance committee and does not use Parties’ self- reporting or other types of monitoring to identify shortcomings in individual States’ compliance. In turn, while international human rights instruments have international tribunals and rapporteurs to hear and investigate complaints, not all impacts on human rights arising from climate change response measure may trigger them and not all human rights enforcement mechanisms are necessarily effective. So, another question that merits discussion is whether the compliance mechanism under the international climate change regime has the potential to contribute to the respect of international biodiversity and human rights law between States, within States and possibly even in relations between the private sector and communities.


In Harbour Radio Pty Ltd v Australian Communications & Media Authority [2012] FCA 614 the Federal Court of Australia (Griffiths J) has found against Sydney radio station 2GB in its challenge to a new commercial broadcasting industry Standard on advertising disclosures.

The new Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard under subs 125(1) of the Broadcasting Services Act 1992 (Cth) replaces the 2000 industry standard that sat alongside the 2011 Commercial Radio Codes of Practice and that introduced requirements for on-air disclosure of the existence of commercial agreements between presenters of radio current affairs programs and their sponsors.

The 2012 Standard is aimed at encouraging broadcast licensees to
be responsive to the need for a fair and accurate coverage of matters of public interest by requiring disclosure of commercial agreements or other arrangements having the potential to affect content of current affairs programs.
That follows more than two decades of behaviour such as 'cash for comments', noted in previous posts of this blog and elegantly characterised by Griffiths J as resulting in a perception that "industry self-regulation was not ... operating to provide appropriate community safeguards in relation to, among other things, accuracy and fairness in current affairs programs".

Harbour Radio and Macquarie Radio Network (Harbour's parent) referred to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), s 39B(1A)(c) of the Judiciary Act 1903(Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) in challenging the Standard as a decision by ACMA, the national broadcast and telecommunications regulator.

Earlier this year in Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 they had been unsuccessful in an application to stay the commencement of the 2012 Standard.

In the current case the Plaintiffs argued that -
a) the decision was made in excess of the jurisdiction conferred on ACMA by s 125(1) of the Broadcasting Services Act, including on the basis that the 2012 Standard was made in circumstances where relevant jurisdictional facts did not exist. They claimed in particular that ACMA acted without “convincing evidence” that a registered industry code of practice was not operating to provide appropriate community standards;
b) neither s 125 nor any other provision of that Act conferred jurisdiction on ACMA to make a standard such as the 2012 Standard which "burdens communications on political and governmental matters" and is "not reasonably appropriate and adapted to serve any legitimate and relevant purpose"
c) the decision to make the 2012 Standard was not reasonably or rationally proportionate to the community safeguards it sought to protect; and;
d) ACMA’s decision was so unreasonable that no reasonable person could so exercise the power.
The Court found that the Standard was not made in excess of jurisdiction nor was the standard unreasonable. The Standard does not impose obligations contrary to the constitutional implied freedom of political communication about government or political matters.

19 June 2012


'"I'm Not Gay - Not that There's Anything Wrong with That!": Are Unwanted Imputations of Gayness Defamatory?' (Victoria University of Wellington Legal Research Paper No. 25/2012) by Dean R. Knight notes that -
 The question of whether unwanted imputations of gayness are defamatory continues to be controversial. This article considers whether a person can bring a defamation claim if they have been described as being gay or lesbian. In particular, this article addresses whether such an imputation is defamatory, including whether such an imputation tends to lower the reputation of a person in the estimation of “right-thinking” members of society, and the unique issues that this imputation presents for possible defences. In addition to assessing the present position, this article considers whether imputations of gayness ought to be defamatory, particularly in the context of today’s legal environment. It is argued that an imputation of gayness should not be treated as being defamatory in the light of the reforms of gay and lesbian rights, including the anti-discrimination and equality protections that are now commonplace in Anglo-Commonwealth societies.
Knight comments that -
The quotation in the title of this article is from one of the most well­known Seinfeld episodes, "The Outing". An eavesdropping reporter mistakenly assumes from the banter between Jerry and George that they are both gay and she subsequently comments on it in an article. Discovering that he and George have been "outed" in newspapers across the country, Jerry is then faced with the difficult task of correcting the gay label attributed to him – with the typical humorous consequences. His flippant humour, however, highlights a much more serious issue. How does the law react when a person is incorrectly and/or unwantedly described as gay (or of any other, presumably non­heterosexual, sexual orientation)? Perhaps more importantly, how should the law react? Although this question arises in the civil courts, the outcome of the question is an important litmus test of the place of gays in society and their citizenship status in today's legal framework. 
Discussion of these issues was prevalent in the late 1980s and early 1990s when outing was increasingly used by some gay groups, and in some cases conservative groups, to score political points. Since that time, there has been a slight shift in the practice; the high­profile outings or dialogue about people's sexuality has moved into the entertainment and sports industries, where the motivation seems to be more of "salacious gossip" rather than strictly political objectives. Musings about the sexuality of celebrities is common­place in gossip columns and message boards on the internet and in print media. In line with this trend, there are numerous recent examples of high­ profile people anxious to deny suggestions of gayness and to assert their heterosexuality. For example, in New Zealand a famous All Black demanded, and was granted, an apology and donation to a charity from a sports magazine for a reference in an editorial to a rumour that he was gay, despite the editorial criticising the existence of the rumour and clearly challenging its veracity. Later, in an autobiography, he said he was "furious" about the rumour and described the incident as "hurtful". In another example, Tom Cruise won a default judgment against Chad Slater, also known as wrestling porn star Kyle Bradford, for allegedly telling French magazine Actustar that he had had a gay affair with the actor. ... More recently, Robbie Williams filed a claim against two magazines which claimed he was gay, a claim which was ultimately settled in his favour. In addition, two soccer stars and a prominent DJ issued defamation proceedings (as yet unresolved) after a newspaper published claims that they had engaged in a gay orgy. The list goes on.
He goes on to argue that -
The track record of the right­thinking person demonstrates that they generally viewed imputations of gayness as tarnishing a person's reputation. There has been some softening in the position in recent years with doubts expressed about whether societal and legal changes render this conclusion untenable. Despite these doubts, often expressed in obiter terms, there has been an apparent unwillingness to definitively reject this conclusion. Of particular concern, though, is the shallowness of analysis of this issue or its implications. With one notable exception, Bell J's discussion in Rivkin v Amalgamated Television, the conclusion that an imputation of gayness tarnishes a person's reputation is made with little, if any, analysis. This notion has been accepted without argument or is made by simple assertion. It is notable that the only case that has considered this reasonably complex question in some detail concluded that such an imputation was not capable of being defamatory. 
Even if the more progressive stance of Bell J in Rivkin v Amalgamated Television was adopted, a distinction still needs to be drawn regarding the nature of the imputation of gayness. Imputations of "gayness per se" are where there is a mere assertion that someone is a homosexual, and "gayness plus" where there is an assertion that someone is a homosexual along with some other related assertion such as infidelity or representational dishonesty. Even if the former is not defamatory, the latter may still be so if the "plus" element is defamatory in its own right. However, this distinction may still prove problematic. It is possible that the same prejudice that underscores the conclusion that imputations of gayness per se are defamatory can still infiltrate the evaluation if the seriousness of the "plus" element effectively restates the allegation of homosexuality, or is coloured and exaggerated by the assertion of homosexuality. This manner in which the test can still be manipulated is demonstrated by Jason Donovan's successful defamation claim in the early 1990s against a magazine that published a photo of him wearing a shirt emblazoned with the words "Queer as Fuck". Donovan sued, not on the imputation of gayness (which he accepted was not defamatory), but on the imputation that he was "lying and deceitful about his sexuality" because he had previously stated he was not gay. While imputations of dishonesty and hypocrisy may found a claim, the almost irresistible inference is that the claim was in reality about the imputation of gayness, especially as he was ultimately awarded damages of £200,000. Further, claims of representational dishonesty are problematic because they implicitly adopt a monosexual perspective of sexual orientation and ignore the potential fluidity of sexual orientation. 
Bell J's progressive approach has not yet been universally accepted in Australia nor has it yet been considered in other jurisdictions. There remains the prospect of findings that an allegation of gayness lowers a person's reputation in the eyes of right­thinking people. The conclusion that imputations of gayness are defamatory is unsatisfactory in a number of respects and, in my view, ought to be avoided. First, the conclusion marks gay people out as inferior and reinforces homophobic attitudes towards gays. Second, the test has been misapplied to place undue emphasis on actual community views, ignoring the aspirational aspect of the test. Third, the outcome is out of step with today's vision of a contemporary, pluralistic society, highlighted particularly by the numerous reforms that seek to give gays equivalent citizenship rights to those of straights.
Knight concludes -
For many years the courts have accepted that unwanted imputations of gayness damage a person's reputation and entitle them to compensation through the tort of defamation. Despite one court ruling that this conclusion is no longer appropriate in today's society, there remains a reluctance on the part of the courts to definitively rule that the right­thinking person is now indifferent to imputations of gayness. The conclusion that an imputation of gayness is defamatory remains problematic. It reinforces the view that gays are inferior and perpetuates homophobic attitudes towards gays. Undue emphasis is placed on the realist view of community attitudes towards gays, ignoring the public policy factors, which direct that prejudicial attitudes should not be reinforced by the tort of defamation. Society, through its laws, now aspires to equal citizenship for gays and equivalent treatment under the law. The aspirations of our pluralistic society will not be achieved if our courts continue to send the message that gays are less desirable members of society by concluding that imputations of gayness are defamatory.


'Sentencing Offenders with Impaired Mental Functioning: Developing Australia's 'Most Sophisticated and Subtle' Analysis' by Jamie Walvisch in 17(2) Psychiatry, Psychology and Law (2010) 187-2010  notes that
When the Victorian Court of Appeal decision in R v Verdins (2007) 16 VR 269 was handed down, it was described as Australia’s ‘most sophisticated and subtle analysis’ of the relevance of psychiatric symptomatology to sentencing. In the two years since Verdins was decided, it has been raised in over 100 cases in Victoria alone. This article examines those cases, looking at how the law has developed since 2007. In the course of doing so, the author highlights a number of gaps which still exist in relation to the sentencing of offenders with impaired mental functioning. He concludes by suggesting an approach to filling those gaps, and to addressing this complex issue in general.
Walvisch comments that -
People with mental illnesses "comprise a disproportionate number of people who are arrested, who come before the courts and who are imprisoned". Yet despite the prevalence of offenders with mental health concerns, little academic work has been done to examine the way that the law currently addresses, and should address, the sentencing of people with mental illnesses who are convicted of an offence. Instead, for the past 150 years, most of the legal works which have been written about mental illness have focused on the issue of legal responsibility. While in recent years other related issues have also been addressed (such as the disposition of offenders found not guilty by reason of insanity, or the treatment of those who have become mentally ill while in prison), the sentencing of offenders with mental illnesses remains an underdeveloped topic of study. 
Given the prevalence of such offenders in the criminal justice system, it is not surprising that this issue has received far greater attention in the courts. For example, over the past decade courts in each of the Australian jurisdictions have looked at the way in which an offender’s impaired mental functioning should be taken into account in sentencing him or her. In Victoria, this issue has been raised in over 100 cases in the past two years alone. 
To some extent, this deluge of cases in Victoria has been driven by the judgement in R v Verdins, which was handed down in 2007. In that case, the Victorian Court of Appeal identified at least six ways in which impaired mental functioning could affect sentencing: by reducing the offender’s moral culpability; by influencing the kind of sentence to be imposed; by moderating or eliminating the need for general deterrence; by moderating or eliminating the need for specific deterrence; by making a sentence weigh more heavily on the offen- der than on a person in normal health; or by creating a serious risk of imprisonment having a significant adverse effect on the offender’s mental health (the 'Verdins principles'). 
In his commentary on Verdins, Freckelton noted that the judgement is "Australia’s most sophisticated and subtle analysis of the relevance of psychiatric symptomatology to sentencing". The case liberalised the law, allowing a wide range of impairments to be taken into account in a variety of ways. However, while this landmark decision went a "substantial distance" towards clarifying the law, it also left a number of issues unresolved.  
This article looks at how Victorian law has developed in this complex area over the past two years, highlighting the gaps which still exist and which need to be addressed. It concludes by suggesting that the best way to fill these gaps and to approach the sentencing of people with impaired mental functioning – in Victoria and elsewhere – is to think clearly about the reasons why we sentence people, and to adopt a principled approach.
He goes on to note that -
courts have applied the Verdins principles in cases where the offender’s impairment has been found to (at least partly) result from the following conditions:
  • schizophrenia; 
  • depression; 
  • bipolar disorder; 
  • dysthymia; 
  • acquired brain injury; 
  • intellectual disability; 
  • post-natal depression; 
  • schizoid personality disorder; 
  • post-traumatic stress disorder.
Although not yet determined, the Verdins principles may also apply where the relevant condition is ‘learned helplessness’ arising from a prolonged history of family violence. While it was intended that the Verdins principles be interpreted broadly, it has been held that they do not apply to all cases in which an offender’s mental functioning is impaired. For example, the principles have been held not to apply in the following cases: where the offender’s impairment arose from the ordinary pressures of daily life, such as
  • work, financial and marital pressures; 
  • where the offender’s impairment was the result of drug or alcohol use; 
  • where the offender was extremely sensitive to abuse, and had a problem with impulsivity, but did not have a diagnosable clinical psychological disorder or personality disorder; 
  • where the offender suffered from a conversion disorder.
Unfortunately, in none of these cases did the court elaborate upon the reasons why the offender was not able to rely upon the Verdins principles, despite the fact that his or her mental functioning was impaired at the relevant time. It was simply assumed in each of the cases that the principles did not apply in the circumstances.

St Catherine

As someone who is not a fan of either Catherine MacKinnon or Andrea Dworkin I was interested to read 'Three Snapshots of Scholarly Engagement: Catharine MacKinnon’s Ethical Entrenchment, Transformative Politics, and Personal Commitment' by Adrienne Davis.

Davis states that
 Those who know me know that very little awes me. Those who know me very well know that one thing that does awe me is Catharine MacKinnon and her work. As I always tell my own students for props, I was a student in Professor MacKinnon's class during her year-long challenge to the Yale Law School curriculum and hiring process for faculty. In fact, I have three sets of photographs in my office: several of my family, one of Billie Holiday, and one snapped at the Yale Law Journal Centennial Banquet in 1991 that shows Professors MacKinnon and Derrick Bell, another senior intellectual icon in legal academia who transformed how we think about law and justice and who, not un-coincidentally, was on strike from Harvard Law School while Professor MacKinnon was visiting at Yale. When visitors to my office ask about that photo, I tell them that these two scholars are my intellectual forebears, academic and activist heroes who have inspired my scholarship and career. Like Derrick Bell - as a teacher, as a writer, as an activist, and a lawyer - Professor MacKinnon has embodied the subject of this essay: the engaged scholar. 
One of Catharine MacKinnon's germinal works calls attention to the political effects of modifiers. So, I was intrigued by the modifier of the conference panel that sparked this essay, the "engaged" scholar. I was struck by the quite distinct connotations invoked by this modifier. Of course there is the use I believe was envisioned by the plenary organizers as characterizing Professor MacKinnon's stunning body of legal work: engaged as in connected to something, seriously paying attention to consequences, rigorous and sustained involvement with a subject. Yet there are other connotations of engaged that I think are also helpful in understanding the scholar, modified, and hence the import of Professor MacKinnon's work for sex equality and jurisprudence more generally. There is also engaged, as in to have ceased negotiations and begun actual fighting, to have stopped hand-wringing and undertaken serious offensive and defensive measures. Finally, there is the meaning least invoked among scholars, yet the most commonly associated with the modifier: engaged, as the liminal status between single and married. That a public proclamation of connection and intention sustained not by institutionally imposed obligation but by personal commitment. In this sense, it is a connection characterized typically by confidence in past efforts and faith in the future. 
Davis continues -
This short essay offers three snapshots of Catharine MacKinnon's work, exemplifying each of these common connotations of engagement or the scholar modified. The first snapshot comes from several pieces that proved germinal for legal theory, feminist and not. 'Feminism, Marxism, Method and the State: An Agenda for Theory' and 'Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence', both published in the influential feminist journal Signs, and MacKinnon's essays on difference and dominance published in her second book, Feminism Unmodified, each portray that first, probably most anticipated connotation of engagement. Again, that is to take something seriously; to treat it rigorously rigorously and with sustained reflection; involvement; connection; paying attention to what is going on.


SSRN has released the short editor's Introduction by Robert F. Cochran Jr. to Louis D. Brandeis’s MIT Lectures on Law (Carolina Academic Press), summarised as -
 In the mid-1890s, Louis Brandeis taught a course on law to undergraduates at MIT. Brandeis later said, “Those talks at Tech marked an epoch in my own career.” At the time of the lectures, Brandeis had been practicing law for 15 years, had published the Harvard Law Review “Right to Privacy” article, was head of one of the nation’s most successful law firms, and had begun the public interest advocacy for which he would soon earn the title “The People’s Lawyer.” In the lectures, Brandeis presents his views of areas of law in which he would lead the country over the next five decades as activist lawyer and Supreme Court Justice — anti-trust, labor, privacy, criminal procedure, legal ethics, legislation, evidence, the judicial role, and jurisprudence. In some areas of the law, we see the foundations of Brandeis’s later work. In others, we find Brandeis taking positions that were the opposite of those he would take in the future. A careful examination of the lectures reveals that the “epoch” he identified in his career was his change of views as to the value of legislation. Prior to the lectures, Brandeis was a strong supporter of the common law and was skeptical about legislation. During the lectures, he grew to believe that legislation was a necessary response to the rapidly developing industrial and economic challenges of the day. He would become the foremost defender of legislation in the following century.

Visceral Notice

Experiencing 'privacy warning fatigue' (or simply incomprehension)?

'Against Notice Skepticism in Privacy (and Elsewhere)' by M. Ryan Calo in 87 Notre Dame Law Review (2012) 1027-1072 reflects empirical work noted earlier this year.

Calo argues that -
Requiring notice is a very popular way to regulate. It is also among the most heavily criticized. This article undermines the case for notice skepticism by exposing two erroneous assumptions critics of notice commonly make. 
The first assumption is that notice is monolithic. It is not. Notice consists of several, distinct strategies. It is surprisingly common for a lawmaker to select the wrong form(s) of notice for the particular context or concern. A statute will require a warning, for instance, where other categories of notice such as reporting or notification would be more effective and less costly. 
The second assumption is that notice must consist of language or its symbolic equivalent. Experience itself can also constitute a form of non-linguistic or “visceral” notice, one less susceptible to cognitive and other limitations. Electric cars, being silent, put pedestrians at risk. Officials could post warnings throughout the city that many would miss or tune out or ban the technology altogether. Instead, some regulators have proposed requiring that electric car manufacturers reintroduce an engine noise. Various emerging techniques can change our mental models in legally relevant ways without recourse to text or symbols. 
The prevailing notice skepticism should not succeed in convincing lawmakers, academics, and others to abandon notice as a strategy without first acknowledging and correcting these errors. Officials, meanwhile, should look to these insights as they consider mandatory notice going forward.
He concludes that -
Mandatory notice is a popular but controversial form of regulation. It is popular because it is perceived by government and industry as easier, cheaper, and less invasive than restricting conduct. It is controversial in that many are skeptical that notice ever works in practice. The arguments against notice, in online privacy and elsewhere, tend to follow the same pattern: notice is ineffective because consumers never see it and, when they do, they cannot make much use of it. The understandable conclusion that notice does not work in practice has led skeptics to reject notice entirely as a regulatory strategy — an action that would send regulators back to the proverbial square one. 
It may well be that, no matter how popular or advantageous a strategy, we need to abandon mandatory notice in favor of something else. This Article has argued that extreme skeptics of notice move too fast, however, in rejecting the potential of privacy notice to warn or inform consumers. Emerging strategies that do not necessarily rely on words or symbols to convey salient information to consumers may not be susceptible to the same withering critiques as more traditional notice. Especially given the paucity of alternatives, such “visceral” notice strategies are worthy of further exploration to ensure we know the full panoply of options available to regulators and courts. 
In short, this Article has identified a radical new dimension to notice in one context and urged further investigation. Without it, reports of the death of notice remain exaggerated. Although the focus of the Article has been online privacy - where notice is among the only affirmative obligations websites face and where opportunities for innovation are perhaps unique - its insights go beyond privacy or the Internet. We might explore the potential of visceral notice in contexts as variable as traffic safety, cyberbullying, and water purity. 
What is needed in each instance is a commitment on the part of regulators and industry to innovate around notice, an open mind on the part of critics, and a willingness within multiple disciplines to assess the results of such innovation. The way forward in notice is difficult but, this Article has argued, it is also worthwhile.

18 June 2012


The Australian Institute of Criminology (AIC) has reported on a project to "identify the typical characteristics and offence types of amphetamine user detainees in Western Australia".

'Amphetamine users and crime in Western Australia, 1999–2009' by Natalie Gately, Jennifer Fleming, Robyn Morris & Catherine McGregor concludes that
Relative to detainee amphetamine non-users, the typical profile of a detainee amphetamine user (defined as use within the past 30 days) emerged as including a higher proportion of females; non-Indigenous, 24–28 years of age, single with no dependent children, unemployed, educated to year 10 or lower, living at the home of another person, and first arrested before the age of 18. In regard to other substance use, a typical detainee amphetamine user, when compared with detainee non-users was more likely to have tried alcohol before the age of 18 but less likely to have drunk at risky levels in the previous 30 days; more likely to have used cannabis, heroin, illegal benzodiazepines and amphetamines before the age of 18; and more likely to have used cannabis, heroin and illegal benzodiazepines in the previous 30 days than amphetamine non-users. 
This profile suggests that failure to reduce amphetamine use in Western Australia may have financial ramifications through unemployment costs such as Centrelink payments, as well as public health costs as a result of poly-drug use. The profile also indicates a transient lifestyle and reduced ability of users to find employment because of lower education and current substance use. There may also be an increased risk in this population for mental health complaints either as a result of substance use or the lifestyle it coincides with. Further, there is a vulnerability associated with the young age and gender of amphetamine users, and it is not unreasonable to anticipate problems for these females if they become pregnant. 
In regards to offence types, the study determined that amphetamine users were more likely than amphetamine non-users to commit property offences, robbery and related offences, illicit drug offences, fraud offences and weapons offences. These results support the findings of the Amphetamines in Queensland project by Lynch et al. (2003), although the present study did not find a high prevalence of assault charges within this population. This difference may be explained by the type of data collected. Lynch et al. (2003) used a community sample that self-reported previous offences, whereas the current project measured offence types based on current police charges at the time of data collection. The current findings are also consistent with those of McGregor and Gately (2008), who reported that amphetamine users were more likely to be charged with theft, illicit drug and weapons offences. These findings identify common patterns in crimes committed by amphetamine users in Australia. 
Of particular note, amphetamine users were no more likely to commit violent offences than amphetamine non-users, even when considering the frequency of amphetamine use. This supports and extends the findings of Smith and Rodwell (2009), who also found no association between amphetamine use and violent crime. This provides further evidence against a relationship between amphetamine use and violence.
The report argues that in WA a significantly greater proportion of amphetamine users who committed offences relating to -
  • robbery, extortion and related offences (1.6 times non-amphetamine user rate); 
  • unlawful entry with intent/burglary, break and enter (1.8 times non-amphetamine user rate); 
  • theft and related offences (1.8 times non-amphetamine user rate); 
  • fraud, deception and related offences (1.4 times non-amphetamine user rate); 
  • illicit drug offences (2.6 times non-amphetamine user rate); 
  • prohibited and regulated weapons and explosive offences (2.1 times non-amphetamine user rate); and 
  • crime against property (1.5 times non-amphetamine user rate).
The differences were especially large for the  'crime against property' category; specifically for illicit drug offences, theft and related offences, and unlawful entry with intent/burglary, break and enter. Amphetamine non-users were found to have a significantly greater proportion of detainees committing offences relating to -
  • public order offences (1.5 times amphetamine user rate); 
  • sexual assault and related offences (3.8 times amphetamine user rate); and 
  • abduction, harassment and other offences against the person (1.67 times amphetamine user rate).

17 June 2012

Personality Rights

Facebook is reported to have agreed to settle a Californian personality rights (aka publicity rights) class action suit by five Facebook 'members', with U$10 million reportedly going to charity.

The people had alleged that the social network service violated their rights to control the use of their own names, photographs and likenesses by publicising their 'likes' of certain advertisers in its 'sponsored stories' feature without offering them scope to opt out or paying them for Facebook's use of their personas.

The settlement in Fraley et al v. Facebook, Inc. (Case CV-11-01726) was apparently reached last month but came to public notice this weekend. Given Facebook's somewhat cavalier approach to privacy and other law the settlement isn't discernible on the corporate site. A class certification hearing was apparently held on 31 May, with federal judge Lucy Koh having refused to dismiss the suit - launched in April 2011 - for want of standing. That is in contrast with the tendency of US federal courts to dismiss privacy actions on the basis that the plaintiffs haven't been able to prove they'd been harmed by alleged privacy violations.

In December last year Koh indicated that "Plaintiffs have adequately alleged unlawful, unfair and fraudulent conduct". She noted that "California has long recognised a right to protect one's name and likeness against appropriation by others for their advantage," and that the value of a "sponsored story" advertisement was considered by Facebook to be at least twice and up to three times the value of a standard Facebook ad without a friend endorsement. Interestingly the plaintiffs were represented by law firms that have a greater profile for dealing with automobile and workplace injury and employment disputes than intellectual property or publicity rights law.

The plaintiffs had alleged that -
1 Facebook violated California's right of publicity statute (Civil Code s 3344), which protects against misappropriation of a person's identity for monetary gain; 
2 the Sponsored Stories, being "unlawful, fraudulent, and unfair", violated California's unfair competition law; and 
3 Facebook's actions constituted unjust enrichment.
Facebook contested those three causes of action, arguing that -
1 the plaintiffs lacked standing because they had failed to allege any actual monetary/commercial injury (because their names/likenesses lacked commercial value); 
2 s 230 of the Communications Decency Act (CDA)  - broadly equivalent to safe harbour provisions in Australian law - protected Facebook because the Sponsored Stories constituted mere "editorial functions"; 
3 Facebook's actions fell within the right of publicity law's exception for "newsworthy" content; 
4 the unfair competition claims failed because Facebook does not charge its users; and 
5 California does not recognize an unjust enrichment claim.
Koh ruled in favor of the plaintiffs apart from dismissing the unjust enrichment claim. She found that the plaintiffs did have the standing on the basis of the alleged violation of the Californian publicity rights statute, held to constitute a concrete and particularized injury. The court rejected Facebook's claim for dismissal under s 230 of the CDA because Facebook created - at least in part - the Sponsored Stories, a creation above and beyond mere editorial functions.

Facebook argued that the Sponsored Stories were "newsworthy" within the meaning of the publicity rights statute because users are "public figures to their friends". That argument did not find favour with the court; Koh held that the newsworthiness exemption in the statute did not apply to "commercial rather than journalistic" uses. (Interestingly the court noted in obiter that the fact that users might be "celebrities to their friends" was sufficient to establish that the users had commercially exploitable names and likenesses protected under the statute.) The court also ruled for the plaintiffs with respect to Facebook's argument that the plaintiffs consented to the Sponsored Stories by agreement to Facebook's terms of service, and ruled that Facebook's profiting from the Sponsored Stories sufficed to show actual damages (at least at the motion to dismiss stage).

Koh rejected Facebook's challenge to the unfair competition claim, but dismissed the unjust enrichment claim. She held that unjust enrichment is only a remedy or measure of damages on another claim rather than an independent cause of action in California. On that basis the right of publicity and the unfair competition claims survived.

The US$10 million settlement seems a cheap way to buff Facebook's profile (and head off extension of the suit to several million consumers), particularly amid criticism - in my view justified - that prices paid at its IPO were unrealistically high and that the company doesn't embody privacy best practice.


I'm reading with interest - not least for discussion in this semester's Mental Health & the Law unit - the decision by Smith J of the Supreme Court of British Columbia in Carter v. Canada (Attorney General) 2012 BCSC 886.

In essence, the Court has found that Canadian laws banning doctor-assisted suicide are unconstitutional. On to the national Supreme Court!

Smith J summarises her decision at [1] to [19] -
The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge.  They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
I will summarize, in brief, my findings of fact and legal reasoning.
Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
I turn to the legal issues. 
The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided.  Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter.  Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness.  That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.