you know, i don't mind the border people doing all kinds of inane checks into my history. in the end, they might not like my politics, and it might harm my employment opportunities (if it hasn't already, and i'm sure it has), but i don't expect that to be a serious limit on anything i actually want to do in life. i don't find surveillance to be particularly bothersome, not even at a deep level. i dunno, call me a political voyeur or something...
...but the reference requirements are really quite onerous. if you don't know anybody with a passport, you need to find four people that aren't family and have known you for more than two years and they have to vouch that the information you provide (which is mundane shit like address and work history) is valid.
i couldn't even find one person that's known me for two years well enough to verify that.
nor is it really useful in any kind of...well, anything. security wise, references are stupid. i've been through this argument with employers. do you expect me to give you a bad reference? really, what the process is doing is determining if the applicant has the social skills to build personal friendships or not. that's at least arguably valid in an employment situation. it's of almost no value in a passport situation.
all of this is so that i can walk over a bridge to see a concert, maybe have a few beers. to spend money in the local economy, if you want to phrase it like that.
i'm good at 'splainin'. i can run off odsp documents, write an essay. i'm sure i'll convince them.
...but the whole process is really quite stupid, regardless of the angle it's being approached from.
Tuesday, October 15, 2013
R v. Pauchay: Contrasting Traditional Court Practices to Restorative Methods of Justice
R
v. Pauchay:
Contrasting
Traditional Court Practices to Restorative Methods of Justice
Jesica Murray
Aug 10, 2010
Interspersed in a passage with heavy
Pythagorean Cult imagery, Plato once decided that Socrates would declare that
justice’s “real concern is not with external actions, but with a man’s inward
self.”[1]. While the Platonic-Pythagorean view, which is of course
arbitrary like any other view, that only the individual that is in tune with
the cosmic ratios of the universe is capable of being “just” may seem somewhat
naïve today, if not ludicrously comical, to take Socrates’ words literally
would also marginalize the akousmatic analogy; what Socrates really meant to
say is that justice is in the mind, that just people must think like just
people before they can behave justly and that actions and behaviours do not
characterize the abstract mode of thought that truly defines justice.
Continuing on with the Pythagorean Cult imagery, Socrates eventually concludes
that “It seems, then, that virtue is a kind of mental health or beauty or
fitness, and vice a kind of illness or deformity or weakness.”[2]. Once again, this should not be interpreted literally;
Socrates seems to simply be acknowledging that those who commit injustices are
often not of sound mental health and that the path back to just thinking should
be viewed as something clinical, as strange and mystical as views of the
clinical may have been at that time.
These ideas are, although exaggerated,
largely consistent with the ones underlying the new paradigm of restorative
justice, which focuses on reconciliation and not upon punishment. The new
paradigm attempts to reduce the influence of the formal criminal justice system
in the process of determining punishment in favour of a larger role for the
community, including one defined by the victims, and with the eventual intent
being social reintegration through the repaying of some concrete debt to the
victim instead of through some abstract debt to society[3].
Restorative justice systems do not assign blame or guilt to past events, they ask
the offender to take responsibility for past actions by demonstrating a
thorough understanding of the consequences of any negative behaviour and then
taking concrete steps to reverse the results of any negative actions in order
to set things right for both the community and the victim[4].
This is generally accomplished through a victim-offender mediation process that
is overseen by either an individual mediator or a team of mediators and that requires an admission of guilt by the
offender at a very early stage in the process in order to get right to the
catharsis[5].
An underlying assumption driving this meditative approach is that one of the
root causes of anti-social behaviour is often real or perceived alienation from
the community[6]; the aim
of this mediation is to, through lengthy and thorough dialogue, force the
offender to build a new relationship with the community by grieving with it[7],
with the hope that this will eventually lead the offender to adjust her inward
self to think in terms of principles that Socrates would find more conducive to
a just individual. Finally, once at least some form of venting and
reconciliation is established, a bond is established between the victim and the
offender where the offender promises to perform some appropriate task in order
to reverse past wrongs in exchange for forgiveness and reintegration into the
community[8].
Where a new paradigm exists, an old
paradigm cannot be far away. Adjudicative and adversarial approaches to law are
interrelated but they are not precisely the same thing and they should be
defined separately before they are synthesized into a coherent system.
Adjudication is a verb that refers to the process of a judge making an official
decision of the guilt or innocence of an accused party.[9]
Strictly literally, there is no reason that an adjudicative process must adhere
to any kind of objective system of legal standards such as legislative or case
law. An informal legal system where decisions are arbitrarily made by a
collection of “wise people” or “sages” that, like oracles, are not required to
justify their decisions would fit the definition of an adjudicative system; all
that adjudication itself refers to is the act of judging. However, within the
context of a traditional English legal system, adjudication is always tied to
an adversarial system[10].
In an adversarial system, conflict is abstracted into a set of rational arguments
that use empirical evidence and Aristotelian logic to simulate a battle between
the identified parties. It is the judge’s responsibility to adjudicate in the
matter by weighing all available evidence and interpreting it in the context of
an objective system of legal principles, specifically legislative and case law,
in order to determine who the “winner” in the conflict between the two parties
is[11].
The emphasis in this system is on the individual rights of disputants and on
the concept of compensation to counteract the infringement of rights, not upon
compromise or reconciliation[12];
the assumption underlying all independent parties in the theory of adversarial
justice is cold, autonomous self-interest[13],
with disputants having little interest in the ultimate well being of the
parties they defeat in combat.
Clearly, these two paradigms are in
contradiction with one another, as can be explained by exploring the case of R v. Pauchay. The facts of the case are
not in dispute[14] and are
explored in great detail in the case. The crime that Mr. Pauchay admits guilt
of is criminal negligence[15];
specifically, Mr. Pauchay left his two very young children out in the snow in
the midst of a long night of drinking in February and they both perished due to
hypothermia[16]. It also happens to be the case that Mr.
Pauchy, at the age of 25, had a criminal record with 51 entries on it[17].
The traditional, adversarial system
would see this case as very open and shut. First, there’s a confession[18].
Second, the law quite clearly states that the punishment for criminal
negligence causing death is “imprisonment for life”[19].
As the crime would be against the state, a short adversarial trial between Mr.
Pauchay and an abstraction of the king would quickly establish blame and guilt
and impose a sufficient punishment; the facts being clear and undisputed, the
adjudication being uncontroversial and the criminal being thrown away to think
about his crime for the rest of his life with no chance of parole and no
opportunity to repent, make amends or be forgiven[20].
The old paradigm would explicitly argue
against restorative justice approaches, such as that of a sentencing circle, by
deploying an array of precedents such as that in R v. Morin [1995] 9 W.W.R
696[21],
the general argument being that there is a class of particularly heinous crimes
like the one committed by Mr. Pauchay that require punishment in traditional
terms due to the violent and anti-social nature of the crimes themselves, a
view articulated by the judge in R v.
Morin, “it is clear that the circumstances require, at a minimum, a
penitentiary term.”[22].
The argument against a restorative approach in this case also included the
observation that Mr. Pauchay had already been convicted sixteen times for
refusing to follow through with court orders, suggesting that Mr. Pauchay was
not a rational candidate for a sentencing circle due to his historical lack of
respect for the decisions of the court[23].
The new paradigm, however, would see
things differently. In this specific circumstance, Mr. Pauchey has requested a
sentencing circle, which is an experimental approach to restorative justice
that has been explored extensively in Canada[24].
The circle would consist of members of the community that would confront Mr.
Pauchey about the consequences that his drinking and negligence have had with
the goal of having him understand these consequences, acknowledge them as real
and work out a plan for the future that will help heal the offender, victim and
community, allowing for full reintegration back into society.[25]
While the punishment that Mr. Pauchay would ultimately receive would be
determined by the residing judge and not by the sentencing circle[26],
a purist on the restorative side would argue that the focus should not be upon
abstract kinds of punishment for crimes committed against the state at all but
upon getting Mr. Pauchay the help he needs to, at the very least, stop drinking
so heavily[27]. The
intimidating and often violent language of adversarial justice, language that
would speak of “imprisonment for life” and how it is “clear” that a
penitentiary term is “required”, would be replaced by constructive dialogue
between Mr. Pauchay and his community; in time, stigmas and negative labels
associated with Mr. Pauchay’s mistakes would hopefully be completely forgotten
as Mr. Pauchay once again becomes an essential, integrated member of his
community[28].
Advocates of applying restorative justice principles to this case would point
to the criteria for circle sentencing developed in R. v. Joseyounen and take it as a valid precedent, arguing that the
relevancy of a sentencing circle in R. v.
Pauchay is directly established by case law.
Any student of critical legal studies
would conclude that this situation is a mess. With clear precedents for both
arguments, the entire approach of referring to case law becomes a sort of
elaborate joke, a twisted game where cases are scoured for ideological support
and not the initial system of stare
decisis theoretically envisioned. As these inconsistencies in case law deny
the adjudicator of any kind of a clear, objective guiding force, it is consequently
the case that the judge has no option but to use a great deal of discretion in
strategically collecting information from previously decided cases with the
purpose of constructing an argument that conforms to his own prejudices,
predilections and biases[29].
The precedent chosen was from R. v.
Joseyounen and consisted of seven criteria that must be satisfied before a
case can go to a sentencing circle, six of which were relevant and five of
which were clearly shown to be satisfied[30].
The remaining point, whether or not a risk should be taken in the possibility
of the production of a lax sentence, was actually not truly relevant because
the judge always retains the final say in the outcome of the restorative
process anyways; that is to say that if the sentencing circle were to produce a
result that the judge felt was insufficient, the judge would retain the right
to overturn the circle and enforce a traditional punishment[31].
The court appears to have applied this test correctly, leaving little room for
dissent or discussion. From a critical legal studies perspective, the reasons
underlying the court’s decision to choose that precedent over another are not
important; the judge pieced together the desired precedent to support a
decision that he had already made, and quite plausibly for arbitrary reasons:
curiosity, excitement or a desire to create an important document to be cited
in the future are motives that, while frivolous, are truly not implausible[32].
Likewise, the reasons underlying the decision of this author to support the
chosen precedent are not relevant relative to the decision to actually support
the precedent because if the reasons were to modulate to their contradictions
then the differing results would not be any more or less rational relative to
existing case law, nor any more suitable for use as an objective standard; all
of the arguments collapse to a personal aversion to non-rehabilitative
punishment as a constructive means of correcting negative behaviour and any
arguments presented would be manipulated in order to achieve that aim. I concur with the decision to allow a
sentencing circle because I think that Mr. Pauchay requires help with his
addiction more than he requires a lengthy stay in a penitentiary and any legal
arguments that I would construct to support this view would be little more than
pragmatic tools to achieve my ulterior, ideologically driven motives, shifting
and dishonest arguments that I would support only so long as they are useful to
my political views. Critical Legalism demands that these sorts of biases be
stated and understood in order to understand what role they play, the logical
conclusion being that the legal arguments themselves are no longer even worth
articulating; the actual practice of law reduces to little more than the
implementation of a collection of opinions, opinions that only require support
and corresponding evidence for the cosmetic purposes of maintaining tradition.
The question of restorative vs.
adjudicative-adversarial processes in the quest for justice is one that is
based upon a more fundamental question, namely the question of what justice is. If justice is a process of
retribution and the appropriateness of implementation is to be determined by
logic and objective facts then the latter is the approach to follow; if justice
is some kind of abstraction of inner peace manifested in a correctness of
thought then restorative processes are needed to restore that peace to
offenders through reconciliation and reintegration. At least one historical
figure that provided an answer to the pertinent question, what is justice?,
would likely deduce that a restorative process has a better chance of cleansing
an offender’s soul and accomplishing the task of converting the offender into
an individual who thinks in just terms and consequently produces just actions.
Bibliography
Neil Brooks, “The Judge and the
Adversary System” (1976) Introduction to Legal Studies
Heino Liles, “Circle Sentencing: Part of the Restorative Justice Continuum”
(2002) http://www.iirp.org/library/mn02/mn02_lilles.html
Plato, Republic,
(New York: Penguin Classics, 1966)
R. v. Pauchey
[2009] 1 C.N.L.R. 317, 64 C.R.
Mark S. Umbreit, “Restorative Justice and Mediation:
Is the Public Interested?” (2001) Introduction to Legal Studies
Steven Vago & Adie Nelson, Law and
Society (Toronto:
Pearson, 2008)
Cursory Endnote
What do I really think? Well, despite the fact that I like the idea, I
don’t personally have a lot of faith in restorative justice procedures due to
my rather negative view of human nature. I fully expect that what will likely
happen is that the sentencing circle will fail to have any long term effect on
Mr. Pauchy and that he’ll probably be found stumbling around in the snow again
within a few months after any verdict is completed. However, that doesn’t mean
that the approach shouldn’t be attempted. Suppose the sentencing circle
succeeds; we have a rehabilitated member of society, the supposed goal of the
whole system. Suppose the sentencing circle fails; then we go back to the
drawing board and try something else. I’m attracted to this option because it
strikes me as an opportunity, one
that I think that all people in difficult positions should be given, and while
I have little faith in the general criminal taking advantage of this
opportunity, the few that do and change their lives drastically make all of the
costs and failure and overrun associated with the procedure worthwhile.
I also admit to rushing this slightly, to not spending as much time on
it as I could (hey, it’s august) and to it not being the most profound piece of
writing I’ve ever constructed.
(Flesch-Kincaid: 25.8/18.5. Heh.)
[3] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 168
[4] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 169
[5] Heino Liles, “Circle
Sentencing: Part of the Restorative Justice Continuum” (2002) http://www.iirp.org/library/mn02/mn02_lilles.html
at 2
[6] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 168
[7] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 171
[8] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 171
[10] Neil Brooks, “The Judge and The Adversary System” (1976)
Introduction to Legal Studies at 213
[13] Neil Brooks, “The Judge and The Adversary System” (1976)
Introduction to Legal Studies at 218
[20] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 169
[24] Heino Liles, “Circle
Sentencing: Part of the Restorative Justice Continuum” (2002) http://www.iirp.org/library/mn02/mn02_lilles.html
at 1
[25] Heino Liles, “Circle
Sentencing: Part of the Restorative Justice Continuum” (2002) http://www.iirp.org/library/mn02/mn02_lilles.html
at 2
[27] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 169
[28] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 169
[32] Steven Vago & Adie
Nelson, Law and Society (Toronto: Pearson, 2008) at
48
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/pauchay.html
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/pauchay.html
at
20:25
Location:
Windsor, ON, Canada
Starson v. Swayze: An Exploration of Canada’s Orwellian Mental Health Laws
Starson
v. Swayze:
An
Exploration of Canada’s
Orwellian Mental Health Laws
Jessica Murray
June
21, 2010
The world
of literature is saturated with frightening delves into dystopian realities
where the state controls the individual’s thoughts through various means,
voiding dissent of the intellectual garden which it requires to flower into the
highest form of human intellect: criticism. While such concerns are only
cursory to the case of Starson v.
Swayze, they are deeply relevant to any general conclusions drawn from the case
itself. A state that attempts to determine whether or not an individual, free
or not, is capable of making its own decisions is not just illiberal but drunk
on the elixir of paternal authority, itself in need of treatment and absolutely
deserving of the scathing, sobering critique that follows.
There is but one axiom of legal liberalism, which is that
the one and only justification for infringing upon the rights of the sovereign
individual is to prevent it from doing harm to others. This does not explicitly
deny the principle of beneficence, but it does, legally, place it as
subservient to free will; no matter how much harm an individual may place upon
herself or how outlandish her behaviour may appear to others, so long as she is
of no threat to others then the state
has no business meddling in her affairs. An individual’s capability to
understand the consequences of its actions is of absolutely no consequence
within this legal framework and is not a question that should even be seriously
entertained; the individual’s absolute sovereignty over itself renders such
propositions as preposterous, unbecoming of a free and civilized society and
fit for nothing other than contemptuous dismissal as backwards and despotic.[1]
This case is so riddled with absurdity that it is
difficult to know where to begin in tackling it, so let me begin at the
beginning, which is as good a place to begin as anyone can begin to expect of
any place to begin. Let us refer to the patient by his given name, Scott; he
would not oppose this, although there is some contention over further labels as
they may or may not apply to him. Scott was diagnosed with bipolar disorder
some time ago and since then has been found not
criminally responsible for a series of violent threats made against various
people, the ruling coming about by account of his mental illness. He was
consequently confined at the Queen Street Mental Health Centre in Toronto, under the care
of Dr. Paul Posner who diagnosed a set of prescriptions for Scott that he
refused to take.[2]
If our legal system was fully consistent with the tenets
of legal liberalism then the case would end here as a rather uninteresting
statement of the individual’s right to make independent decisions, no matter
how loudly or passionately the doctors may plead with him to do what is in the
best interests of his own well-being, which is something that Mills would have
actually encouraged.[3]
The initial ruling that found Scott not criminally responsible for uttering
death threats explicitly stated that because Scott was deemed a threat to
others due to his criminal record and mental disorder he could therefore never
be released so long as he refused to take the medication[4],
which is clearly consistent with the aforementioned single axiom of legal
liberalism. So, from the liberal perspective, the ideal situation would have
been for Scott to simply refuse treatment and remain institutionalized
indefinitely. If he is allowed to refuse medication then he remains
indefinitely incarcerated and if he accepts medication, and is possibly released
afterwards, then he is presumably no longer a threat upon release. The rights
of others to be protected from Scott are consequently not a relevant
consideration in the determination of whether or not Scott should be forced to
take the medication. In her dissenting report on the eventual final ruling in
the case, Chief Justice Beverly McLachlin of the Supreme Court of Canada comes
to a similar conclusion, albeit through a different argument. [5]
However,
our legal system is unfortunately not fully consistent with the tenets of legal
liberalism. A deeply illiberal law entitled the Health Care Consent Act
was passed in Ontario in the 1990s that provides doctors with the ability to
overrule the individual if it is somehow determined that the individual is
incapable of making treatment decisions. This is not the place to outline the
history of the legislation, although I will say that the legislation ironically
stems from a bill passed by the Ontario Liberal Party[6]
and was then amended by the Ontario NDP[7]
before it was reviewed and rewritten by the Progressive Conservative Party of
Ontario.[8]
The relevant section of the act is as follows:
“4. (1) A person is capable with respect to a
treatment, admission to a care facility or a personal assistance service if the
person is able to understand the information that is relevant to making a
decision about the treatment, admission or personal assistance service, as the
case may be, and able to appreciate the reasonably foreseeable consequences of
a decision or lack of decision. 1996,
c. 2, Sched. A, s. 4 (1)
(2) A person is presumed to be
capable with respect to treatment, admission to a care facility and personal
assistance services. 1996, c. 2, Sched. A, s. 4 (2).
(3) A person is entitled to rely
on the presumption of capacity with respect to another person unless he or she
has reasonable grounds to believe that the other person is incapable with
respect to the treatment, the admission or the personal assistance service, as
the case may be. 1996, c. 2, Sched. A, s. 4 (3).” [9]
A person that is not capable is called “incapable”; the
implication is that those labelled as “incapable” no longer have the right to
refuse treatment. As Scott refused treatment and his doctors felt that
treatment was necessary for his well-being, Dr. Ian Swayze of the Queen Street
Mental Health Centre attempted to use the aforementioned legislation to
forcibly inject Scott with anti-psychotics by declaring him incapable of
consenting to treatment, an egregious affront upon his liberty which Scott
promptly appealed to the Ontario Consent and Capacity board, which correctly ruled
against him.[10]
The board’s ruling against Scott was based partially upon
his own statements and partially upon the expertise of his doctors. The initial
ruling gravitated around whether or not Scott was able to understand the nature
of his illness; in her dissenting report on the eventual ruling, Chief Justice McLachlin
carefully explains that the board ruled against Scott because it found that he
is in “almost total”[11]
denial of his mental illness and that this denial, combined with a series of
topically delusional statements, logically implies that he is unable to
understand the information relevant to making a decision about his treatment,
specifically information pertaining to whether or not he has a mental illness,
which renders him “incapable” under the law.[12]
McLachlin demonstrates this by pulling out a section of the initial ruling
where Dr. Posner recalls a discussion he had with Scott where Scott not only
denies that he has an illness but accuses the doctor of plotting to kill him
through injecting him with drugs as a part of a massive conspiracy by drug
companies and psychiatrists.[13]
While I do not see the argument outlined explicitly in the case, the inference
I’m drawing is that if Scott truly was able to understand the nature of his
illness then he would have recognized that the paranoid thoughts he was having
were the result of his illness and he would not have acted upon them. As he did
act upon them, the board ruled that he could not truly understand the nature of
his illness. In his report on the majority ruling, John Major notes that
because Scott was not questioned about the relationship between refusing
treatment and the possibility of a future deterioration in his condition, the
assumption that he is capable of understanding this point is not challenged by
the evidence. [14]
This is a
very dangerous place for the law to meddle in and it is perhaps more
appropriate to cite the opinion of Orwell on this point than it is to cite the
opinion of Mills; allow me to demonstrate this point by intersecting these two
pillars of liberalism in the form of a question: even if a panel of the best
doctors in the world were to unanimously agree that Scott is incapable of
thinking in a way deemed capable by the law, how could the court ever be sure
that their unanimous decision is not somehow in error? What if there is a giant international conspiracy by
the remnants of IG Farben to perform heinous experiments on the mentally ill,
and what if a collection of covertly trained CIA psychiatrists is not just in
on it but actually driving it? What if Scott truly was a potential victim? Who could possibly be so arrogant as to
declare that another is incapable of understanding the consequences of his own
decisions, let alone declare that he, himself, is capable of determining whether or not another is
capable of understanding the consequences of his own decisions? It is the idea
of lending credibility to this kind of thinking that is deeply concerning. If
this absurd logic is allowed to remain within this law, it could be applied
elsewhere. Might some woman somewhere be deemed incapable of determining
whether or not she can provide sexual consent to her husband, legitimizing rape
under the law? Might the elderly be deemed incapable of refusing euthanasia if
they are sufficiently ill? Might the political dissident be deemed incapable of
speaking freely for simply dissenting on the grounds that the presence of
dissent proves that she lacks the ability to understand why she shouldn’t be
dissenting? This is a slippery slope, indeed!
Scott appealed
the decision by the board and won. This decision was then appealed by the
doctors, but Scott won again. Finally, the case was taken up by the Supreme
Court of Canada, which once again ruled in Scott’s favour in a 6-3 decision
carried by justices Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps,
with justices McLachlin, Gonthier and LeBel dissenting. The dissenting side of
the report was written by the Chief Justice, Beverly McLachlin; the majority
decision was written by John Major. The primary question before the Supreme
Court was not whether or not Scott should have been ruled incapable but whether
or not the Consent and Capacity Board reached a reasonable conclusion in its
interpretation of the law.[15]
At least
one observer has suggested that the majority ruling in this case was that that
the conclusion that the board reached was not a reasonable one because there
was not enough evidence in the case to come to the ruling that it came to.[16]
However, despite the fact that John Major did explicitly use language of that
nature at least once in the case,[17]
what characterizes the majority ruling is actually a rejection of the
previously discussed logical implication for reasons that are not discussed and
are frankly somewhat difficult to comprehend. In writing his majority report,
John Major simply ignores the time that Scott accused the doctors of trying to
kill him by injecting him with the medication in question and instead focuses
solely on Scott’s own words in an attempt to prove that, while he did not
accept that he was mentally ill, he certainly accepted that he was different
and that this is sufficient to demonstrate that he was capable.[18]
After he’s ignored the conflicting evidence, he claims that there isn’t any.[19]
The implication is that the majority did not feel that the opinions of the
doctors were remotely relevant, which could only be the case if it denied the aforementioned
implication. Yet, the assumption is
that Scott is capable so this is, technically, the wrong approach to take in
the case. The law states that “A person is entitled to rely on the presumption
of capacity with respect to another person unless he or she has reasonable
grounds to believe that the other person is incapable” [20],
so the court should have been examining whether or not the evidence that
suggests that Scott is incapable is
valid, not presenting evidence that Scott is capable because it’s assumed
that he’s capable unless there is evidence that suggests otherwise. The dissenting report did precisely
this by examining evidence that was provided by the doctors that suggested that
Scott was incapable; the majority report completely ignored the central issue
of the case. After the majority denied the implication that the initial ruling
was based upon, it tackled the question of whether Scott was able to appreciate
the benefits of treatment in a way that completely isolated the question from
the question of whether or not he was able to understand the relevant
information to make a treatment decision. In truth, if the goal is to discard
the initial ruling, this is an
unnecessary task because if it is accepted that Scott was able to understand
the relevant information then the initial ruling collapses under the denial of
the aforementioned implication; that the majority continues on by analyzing the
issue of whether or not Scott was able to appreciate the benefits of treatment actually
suggests a profound lack of understanding of the initial ruling.[21] Nonetheless, the majority makes the same
basic legal error in presenting positive evidence of Scott’s ability to
appreciate the consequences of his decision, ignoring the fact that this is the
null hypothesis and does not require
evidence and ignoring the evidence that suggests otherwise to the point that
it’s not even mentioned. The advanced argument was that Scott did not want to
take the medication because he
understood that it would hamper his thinking and prevent him from proving that
Einstein’s Theory of Relativity was wrong[22],
which would certainly be a task that would require every ounce of brain power
available to him.[23]
The
majority decision in this case appears to have been rooted very strongly in the
theory of classical legal liberalism to the point that it made several basic
legal errors and misapplied the law in a noble attempt to ensure that Scott’s
“natural right”[24]
to refuse treatment was not hampered by illiberal legislation, while the
dissenting decision correctly deduced that such a “natural right” should have
been legally denied to him. While the decision was just, it was technically
wrong and this may very well be the reason that the Chief Justice, who is
generally known for her libertarian views[25],
took an uncharacteristic stance. In her dissenting report, McLachlin says the
following about the Health Care Consent
Act:
“Whatever
the explanation, the fact is that the legislature has chosen a test based on a
nuanced conception of incapacity that includes both the ability to understand
and appreciate, to be applied by the specialized Board. The courts must respect
this choice.”[26]
The courts did not
respect this choice.
Cursory
Endnote
This is where you stop
grading the paper and start reading for fun.
Yes, I’ve used an 11-point
font to fit the paper into 7 pages. It’s readable, so I think getting upset
about this would be ridiculous. Although, it’s perhaps not so readable;
flesh-kincaid statistics are 32.9 and 16.7. I’m not your average first-year student. The
truth is that I’m not a first-year student at all.
I didn’t cite Devlin because
I don’t like his take on Mills at all.
Now, I held back rather
substantially within the essay. I’d like to tell you what I really think,
1)
The law should be rewritten, but
not struck down. The only time that anybody should be deemed incapable of
refusing treatment is if they are in a “vegetative state” and literally
incapable of communicating at all. Whether
medication is effective in controlling mental illness does not strike me as a
valid metric in determining whether or not the mentally ill should be allowed
to re-integrate into society; unless they are monitored at such an extreme
level that they’d might as well remain incarcerated anyways, there’s absolutely
no way to know that they’re actually taking their medication and it’s no secret
that many mental “ill” patients get off of their medication at the soonest
possible opportunity, which is completely understandable because they view the
medication as destroying their individualistic nature, the core of who they
are. Scott’s lack of enthusiasm for taking the medication is far from unique.
As a society, we have a weird belief that magic pills will solve all of our
problems. Bipolar Disorder is not erectile dysfunction. Instead of medicating
the atypical down into the mundane, we should be providing the mentally unique
(which I think is a better term than mentally ill) with the opportunity to
explore their eccentricities in safe and isolated communities where they are
neither oppressed by doctors looking to destroy their individuality nor a
threat to the well-being of the neurotypical. The line between genius and
insanity does not exist and we should never forget that this is the case.
Perhaps Scott never built his star ship, and perhaps it was never particularly
likely that he was ever going to. However, if left to explore his uniqueness
instead of forced to conform to what is declared to be “normal”, he may have
perhaps left us with some writings that future generations may have found some
value within, as many questionably sane people have throughout various
disciplines, from the bizarre mathematics of Cantor to the at least stimulating
writings of Nietzsche. This case reminds me somewhat of the case of Alan
Turing, who was forced to take female hormones as a “treatment” for
homosexuality and eventually committed suicide at the age of 41 as a tragic result.
We should be encouraging eccentricity, not conformity.
2)
The Capacity and Consent Board
should have very strict legal definitions attached to it. In addition to at
least one legal expert to avoid the kind of problems that came out of this
case, it should consist of at least four qualified psychiatrists that are not familiar with the case or any of the
doctors involved with it to maintain absolute objectivity and to eliminate
conflicts of interest.
3)
While the law is ridiculous, the
Chief Justice made the more compelling argument in the context of the
ridiculous law. She did her research – she looked up what it means for a
patient to be incapable and she listened to the opinions of the doctors, not
the opinion of the patient. John Major’s arguments are not convincing at all
and strike me as little more than amateurish sophism designed to push his own
political views; he seems to have manipulated the evidence to justify his
opinion, not based his opinion upon the evidence. Epic Fail. Whether somebody
is capable of understanding something or not is a purely scientific question,
not a legal one and cannot be deduced by spin doctoring statements made by the
patient. It certainly cannot be arrived at by ignoring everything the doctors
say! Only the scientists are capable of making this deduction and they were
unanimous on the point – Scott was incapable. It is important to point out that
Scott displayed a willingness to be dishonest in his statements when he stated
that admitting to being ill is a catch-22, which itself displayed at least a
lack of understanding of the law; it is not the case that if he admitted to
being ill that the doctors would have forced treatment on him, it is the case
that if he admitted to being ill then the court would have deduced that he was
able to understand the nature of his condition. That statement itself was an
indication of extreme paranoia. This is not the point; the point is that by
stating that the decision is a catch-22, he displayed that he’s willing to
state whatever he needs to state to avoid medication. He was stating his clear
intention to lie to achieve his aims. His testimony should consequently be
stricken from the record altogether as that of an unreliable witness; only the
views of the doctors should have been consulted in the ruling. Given all of
this, it is ironically likely the case that Justice Major made his decision
based upon a misguided application of the principle of beneficence, being
concerned that the medications were likely not in Scott’s best interests at
all. This decision did not uphold the draconian law, which should have forced
Scott to take the medication (and eventually did).
4)
Not only did this decision not
uphold the law, it was a fundamentally anti-scientific decision at that, which
is an increasingly worrying strain of thought in our society in general.
Science will cease to exist if it is forced to report to tribunals that will
overturn and manipulate its findings to further political or philosophical
agendas. A capable judge should have the maturity to understand when she is in
her area of expertise and when she is not and consult experts in the field when
that is the case. Justice McLachlin displayed this maturity; Justice Major did
not.
Might the
court be deemed incapable of understanding the information that is relevant to
making a decision?
[2] Bernadette
McSherry, “Opening
Minds, Not Closing Doors: Rethinking Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 2
[4] Ari Greenwald, “Law and Ethics in Medicine: Competency and Mental
Illness” (2003) 81 University
of Toronto Medical
Journal 16 at 16
[6] Mental Health Act, R.S.O. 1990, c. M-7
[7] Consent to Treatment Act, S.O. 1992, c. 31
[8] Health Care Consent Act, S.O. 1996, c. 2 schedule A
[9] Health Care Consent Act, S.O. 1996, c. 2 schedule A, s.4
[10] Bernadette McSherry, “Opening Minds, Not Closing Doors: Rethinking
Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 3
[16] Fighting For The Right To Refuse Treatment, 2005, Ottawa Citizen,
June 11,
http://www.canada.com/ottawa/ottawacitizen/news/story.html?id=b5bd867f-db9e-40e2-a52b-013173bd39a8
[20] Health Care Consent Act, S.O. 1996, c. 2 schedule A, s.4(3)
[22] Bernadette McSherry, “Opening Minds, Not Closing Doors: Rethinking
Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 2
[25] Joseph Masciulli, Mikhail A. Molchanov & W. Andy Knight, The
Ashgate Research Companion to Political Leadership (Burlington, VT:
Ashgate Publishing Company, 2009) at 388
[26] Starson v. Swayze,
[2003] 1 S.C.R. 722 at para 11, 2003 SCC 32
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/starson.html
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/starson.html
at
20:25
Location:
Windsor, ON, Canada
Subscribe to:
Posts (Atom)