Sujit Choudhry

Public Opinion Regarding End of Life Decisions: Influence of Prognosis, Practice and Process

The purpose of this study was to examine the effect of changing key factors in survey questions on public opinion regarding end-of-life decisions. These factors were: (a) patient prognosis (likely vs unlikely to recover from the illness); (b) end-of-life practice (foregoing treatment vs assisted suicide vs euthanasia); and (c) and decision making process (competent patient vs incompetent patient based on living will vs incompetent patient based on family wishes). A representative quota sample of 2019 Canadians 18 years of age or older were surveyed using a 13-item questionnaire with 12 items eliciting attitudes towards end-of-life decisions. The questions were systematically varied according to three key factors; patient prognosis, end-of-life practice and decision making process. One item assessed whether respondents had completed a living will. In the case of a decision to forgo life-sustaining treatment in a competent patient, public approval was 85% if the person was unlikely to recover and 35% if the person was likely to recover. In the case of a competent patient unlikely to recover, public approval was 85% for forgoing life-sustaining treatment, 58% for assisted suicide, and 66% for euthanasia. In the case of forgoing life-sustaining treatment for a patient unlikely to recover, public approval was 85% for a competent patient, 88% for an incompetent patient who had expressed his/her wishes in advance through a living will, and 76% for an incompetent patient based on a familys request. The influence of these key factors was similar in other cases examined. Ten percent of Canadians said they had completed a living will. It was concluded that patient prognosis has a major effect, end-of-life practice a moderate effect, and decision making process a minor effect on public opinion regarding end-of-life decisions.

Public Opinion Regarding Consent to Treatment

To examine public opinion regarding certain elements of consent: disclosure, advance directives, substitute decisions, emergency treatment, and advocacy.

Constitutional Theory and The Quebec Secession Reference

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Courts reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive, responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

Unregulated private markets for health care in Canada? Rules of professional misconduct, physician kickbacks and physician self-referral

The regulation of private health care has become a central issue in Canadian health policy. The legality of private markets for medical services already available under public health insurance has attracted attention.[1][1] However, there has been little discussion of the regulation of independent

Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy

Who speaks for Canada? For the past fifty years, during both the expansion and the retraction of the Canadian welfare state, the politics of social policy has revolved around this single question. In this article, I step back from the politics of social policy to reflect on the constitutional framework within which that politics occurs. My focus is the scope of the federal government’s jurisdiction over social policy. A distinctive feature of Canadian social policy since World War II has been the central role played by the federal government in the development of the Canadian welfare state, now commonly referred to as the social union. The federal role has been all the more remarkable in light of the constitutional limits on federal jurisdiction over social policy. Although jurisdiction over social policy has long been and continues to be disputed by both levels of government, I argue that underlying the politics of social policy lies a set of legal assumptions. These assumptions hold that the Constitution draws a sharp distinction between jurisdiction over the financing of contributory social insurance and social services, and jurisdiction over their design and delivery. Short of explicit constitutional amendment (as occurred in the case of unemployment insurance and pensions), federal jurisdiction is thought to be confined to the former realm, largely exercised through the use of the so-called federal spending power, whereas provincial jurisdiction encompasses both the former and the latter areas. In this article, I question this assumption, and argue that constitutional doctrine provides for federal jurisdiction over subject-matters where there is the risk of races to the bottom.

Review of Legal Instruments and Codes on Medical Experimentation with Children

Medical research with children has been the subject of ongoing debate. The reason for controversy is clear. As with research on adults, one must strike a balance between two goals - promoting the health of children through advances in scientific knowledge and protecting child research subjects from exploitation and harm. However, because of their age and relative immaturity, children cannot protect their own interests as well as adult subjects can. Yet as they progress toward adulthood, increasing care must be taken to involve children in decisions that affect them, even to the extent of allowing them to make choices that may have serious and long-term consequences. This unique convergence of concerns has led many governments and professional organizations to develop legal or administrative instruments that treat pediatric research differently from research with adult subjects. The distinction may be examined with respect to four specific criteria: 1) when is it permissible to conduct pediatric research, 2) who decides whether a particular child can be a research subject, 3) what kinds of research can be conducted, and 4) the composition of committees that evaluate research protocols from an ethical standpoint. The purpose of this paper is to review an extensive array of legal instruments and codes to examine how they deal with these central issues.

Strengthening the Economic Union: The Charter and the Agreement on Internal Trade

The standard story in public policy and constitutional circles on the relationship between the Constitution and the Canadian Economic Union is a story of constitutional failure: that the Constitution has proven to be ineffective at furthering the integration of the Canadian economy. 1 As a consequence, securing this goal requires either constitutional amendment or, in the face of the impossibility of large-scale constitutional change, the use of non-constitutional policy instruments such as the Agreement on Internal Trade , an intergovernmental agreement designed to remove barriers to interprovincial economic mobility. 2 In this paper, I challenge this view. My argument is that constitutional litigation under the Charter ’s 3 mobility rights provisions can serve as an effective alternative to the various mechanisms (adjudication and negotiation) established under the AIT to further the integration of the Canadian economy. Moreover, I suggest how constitutional litigation can actually strengthen the AIT , rather than simply serve as an alternative to it.

Frank Iacobucci as Constitution Maker: From the Quebec Veto Reference to the Meech Lake Accord and the Quebec Secession Reference

Former Supreme Court of Canada justice Frank Iacobucci has played a major role, in various capacities, in the constitutional debates that have shaken the country in the past three decades. Drawing on Iacobuccis own perspective on the events, this paper co-authored by Sujit Choudhry and J-F Gaudreault-DesBiens explores the links between the Quebec Veto Reference, the failed Meech Lake Accord, and the famous Quebec Secession Reference, a case in which the Court was thrust into the heart of the national unity dispute.

Classical and post-conflict federalism: Implications for Asia

Federalism has long been a topic of study for comparative constitutional law. However, the scholarly literature on federalism is in a process of transition. For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. These cases provided the raw material for certain fundamental questions: What is federalism? Why should federations be adopted? What role is there for courts? For the most part, these questions appear to have been answered, often with the aid of comparative analysis. To be sure, important debates persist. For example, scholars disagree over the relative priority to be given to the different goals served by federalism and how those goals should shape the allocation of jurisdiction. In the area of environmental policy, for example, new opportunities for democratic self-government and policy experimentation argue for greater regional authority but also generate inter-jurisdictional externalities, which argue against it. This debate relies on an implicit understanding of its terms and range, and participants in such discussions of federalism often draw on the same standard set of jurisdictions as illustrations of models to be followed and dangers to be avoided. Recent developments in the practice of constitutional design have challenged this consensus. Many states in the developing world, such as

Beyond the Flight from Constitutional Legalism: Rethinking the Politics of Social Policy Post-Charlottetown

A decade after the demise of the Charlottetown Accord in 1992, 1 one of the most visible features of federal-provincial relations is the replacement of constitutional with non-constitutional policy instruments to secure many of the same ends — what I term the “flight from constitutional legalism.” Instead of constitutional amendments, the instrument of choice is the non-legal, intergovernmental accord. The leading examples are the Social Union Framework Agreement 2 and the Agreement on Internal Trade , 3 which in differing levels of detail set out both a normative framework and an institutional architecture to manage the Social Union and the Economic Union, respectively.