words at war you folks at home probably read about the trial in the papers it must have sounded pretty terrible an officer of the American Air Corps on trial for robbing Italian peasants since it was a military matter I don't suppose the papers over here ever carried a follow-up story on it anyhow now that I'm back on furlough I'd like very much to tell you the real story of lieutenant Eddie Amato's court martial what lay behind it how it finally turned out I know the story at first hand I was flight surgeon of Eddie squadron the national broadcasting company in cooperation with the council on books and wartime presents another program in the series words at war all of us on words at war are more than a little proud that this week our program has been honored by a special citation from variety the trade paper of show business in awarding this citation variety characterized words at war as one of the most outstanding programs in current radio thank you variety tonight it's Elliott's Arnold's novel of democracy in war-torn Italy tomorrow we'll see in February of that year our b-24 squadron was transferred from North Africa to an air base near fogear Italy I remember the day we landed the rain was coming down on hatfuls and the boys were pretty disappointed in their first glimpse of the country so this is sunny Italy give me Chicago any day doctor I see what you mean Kelly no chamber of commerce here hey Eddie you didn't tell us about this why don't you warn us well look Kelly all I know about this place is what my father used to tell me he was born here not me you have some relatives near here haven't you any yeah yeah an uncle of mine's got a farm somewhere around fogear and who cares about your uncles haven't you got any good-looking cousins female cousins listen to them will you doc Kelly you talk like a man with a paper tongue that Eddie's uncle had a farm just a few miles from the base so after we got settled Eddie and I piled into a jeep and drove over there the old man was polite but reserved I am a Genaro Amato I am glad to welcome the son of my dead brother come into the house Genaro's son Ricardo had been an officer in the Italian army he wasn't inclined to be as polite as his father when Eddie told him that he was a bombardier Ricardo said oh then I must congratulate your cousin the bombing of fogear was very well done there's only by me a chance that you find us a life and well Eddie tried to explain that poja had been bombed long before we came there but it didn't help to take the chill out of the atmosphere meanwhile Genaro had sent for his neighbors to come over and meet his American nephew among them were the Sorvinos and their daughter Nina there seemed to be some understanding between this lovely young girl and Ricardo had liked the idea of playing host to American officers you must sing for our guests very well what shall I sing Ricardo sing Lily Marlene the American lieutenant has no objection no of course not why should I have Jackson you know the song Lily Marlene it was sung by the Germans in North Africa and by the Italian army also well everybody's singing it now I'd like to hear you sing it I felt rather sorry for Eddie right then he'd been so eager to meet his relatives the actual welcome was pretty disheartening there was more to it than the fact that he was an American officer Eddie discovered that when his uncle took him outside to show him the farm say uncle that girl Nina she she appears to dislike me well the Sorvinos had a son he was killed by the Americans in North Africa oh I see is a is she in love with Ricardo I do not know for sure Ricardo wish with her brother in North Africa whether this is love or just remembering her brother I do not know she she's very beautiful yes she is well Eduardo what do you think of this farm oh oh it's fine place uncle you should be proud to own it I do not own it no way I thought you did this land this house this farm is not the mind it belongs to you what your father left it in my care when he went to America now that he's dead what was his becomes yours well I guy I don't know what to say nevertheless the farm is yours but uncle I can't come along and take what you've worked for so many years I have my own farm in Long Island a good farm well at any rate it's not a matter to be decided now that was how the legend of Eddie Amato began with this question of the ownership of the farm under the Germans the people had grown used to ruthless ways of a conquering army it seemed unbelievable to Genaro that Eddie should hesitate to accept property which was rightfully his yes Eddie Amato was definitely something new in the way of conquerors imagine the Germans making a request like this uncle if I won't be in the way I'd like to help with the work here you wish to help to work you see I'm a farmer uncle I'd be very happy to work here very well I plan to begin the plowing in a few days good I'll be here say uncle is is Nina betrothed to Ricardo no I am I don't wish to provoke him I know that Ricardo doesn't like me well it is necessary to understand this about Ricardo from at the time of his birth he has been exposed to certain things he is not possible for him to discard these things at once of course of course I understand they were being polite of course Ricardo's hatred of Eddie was of the bitterest kind on a double score first because he was an American officer and then because Eddie might accept the farm and deprive Ricardo of a potential legacy cousin Ricardo poured out his bitterness to Nina but Ricardo the lieutenant has not said that you will accept the farm Nina cannot be that you believe this wait there's nothing but a trick to win the confidence of fools like my father later when this trust has been won the Americans will probably sees all the farms Ricardo no remember this Nina these are the same ones who killed your brother you must not trust them I must not forget this for me I can no longer stand the sight of these idiots grumbling before the American what will you do there are Italian forces still fighting with the Germans in the north I go to join them and when I return it'll be as a hero it was obvious to Eddie that Ricardo had left because of him and he felt very badly about it but it did make things easier for him at Genaro's house and eventually at the Sorvinos too but it was no easy matter to break through the hardness that Nina had thrown around herself Nina I know how you feel about your brother's death but you must realize that it's a thing of war you shouldn't hold it against me why do you come into my father's house what do you do here well I don't ask me to explain why does one wish to see another there can be many reasons if you don't want to see me Nina I won't come here it is easy to be confused you do not think one thing and say another no Nina believe me Nina's suspicion were echoed in the minds of many of these people and Eddie began to break them down with understanding and generosity and kindness he did it in a dozen different ways and each of these things added new wonder to the legend that was spreading over the countryside the blade of the plow has a broken there is no place to get it repaired now split right through what will I do if I cannot get a play the repair I must wait and borrow a plow from the others then we'll be too late for the planting yes yes I think I can get this fixed uncle there's a welding shop at the airfield will they do this your army our conquerors here's the deal fellas I'd like as many of you as a willing to come out to the farm and lend a hand the exercise will be good for you no kidding and at the same time you'll be doing my uncle a favor he'll never forget I'm in trouble at work but the trouble what is it Cicero there's an evil blood on my vines it eats it through my leaves like a hungry team some of the others say I should burn it down to my vineyard burn it down no no that's ridiculous perhaps I can get something for you to cure the vines I would see them maybe something I can get from the army if not I could cable to the Secretary of Agriculture in Washington the Secretary of Agriculture mm-hmm you had a personal relationship with him I have heard how you fixed Pichillo's vines it was very good of you at Warthog it was nothing Nina was fortunate I was able to get the chemical and did did you know that my cousin Ricardo has come back yes I I know he could not get true to the German lines do you care that is back I I do not think Ricardo and I were such good friends as we thought that is what you want to know is it not Eduardo these men wish to ask a question of your government I told them you would answer it well I will answer it if I can Cicero what is it it is the question of the crops in the previous years the proceeds of our labor on the land were denied to us we were told by the Germans that our our crops were needed to feed their army now there is a new army here the Americans your army we would like to know this what is the attitude of the American army on this subject I I don't think any of you need have any fear on that subject the army of the United States provides its own food is they've stayed a promise yes Cicero it's a promise can you visualize the wonder in the eyes of these peasants an officer of a conquering army came among them refused to take advantage of them and went out of his way to help them at every turn and if there was any single thing that clinched their admiration for Eddie it was a shortwave broadcast the whole thing came up in the course of a conversation with Nina's father he was questioning Eddie about the condition of Italians in America is not the government of the United States hateful violent or the Italians in America no no senior so we know look I'm I'm of Italian blood and I'm an officer in the American Army while the mayor of New York City is of Italian decision was not the same mayor thrown into jail then executed what where'd you hear that it was so announced by the all the government here I love all tell me tell me do all the people here think as you do that the mayor of New York was killed sir believe me senior sir you know it it's nothing but a lie I'll prove it to you how can this be proved hmm well I don't know at this moment but I'll find a way to prove it you see Doc yes Eddie I've told these people a lot of things about America but if they believe this stuff about the mayor why they probably think I'm full of baloney about all the rest well how about this why not let them listen to listen to you nuts doc how I understand the mayor broadcasts over shortwave every Sunday he does huh see that's a terrific idea doc look we'll borrow a radio and take it out to Savino's next Sunday he can pass the word around all the farmers they can hear the mayor for themselves well the news of the coming broadcast spread all right like a prairie fire that Sunday night there must have been at least 500 farmers gathered in Savino's front yard up on the porch Eddie paced back and forth well Kelly and I have fiddled with the radio Eddie was as jittery as a bombardier before a flight doc doc suppose just tonight he doesn't speak or the transmission span is that it doc is that it the 25 meter band the mayor ought to be on a few seconds hey you better say something to the crowd no say something sure you know introduce it okay it goes attention everybody in just a few moments we'll hear the voice of the mayor of New York City I don't know what this man will say the thing I do know is this he's of Italian blood he's still mayor of the largest city in America and he speaks his mind as he pleases such as the United States the faces of the peasants were filled with wonder as the mayor talked on heads began to nod gravely eyes began to shine as the mayor closed his talk there was a restless stirring in the crowd as they anticipated the finish you see you don't generally think of ideas in the abstract you identify them with people and when these farmers thought of democracy in America they thought of Eddie Amato maybe that sounds a little pompous but it was really the way they felt if they didn't they would never have sought Eddie's opinion about the marketing of the crops to them it was as crucial as life and death Eduardo as you have promised we are now permitted by the American to sell our crops wherever we please but when we go to market place so we find the dealers are all agree on a certain low price half what the crops are worth well then we ask ourselves how are we better offer than before it it was thought to buy these men that perhaps you could help us as you have in other ways well to investigate this organization that appears to be keeping the prices down is beyond my abilities there's there's probably some agency some government agency which could help you it seems to me that the only way the only way to fight an organization of buyers is with an organization of sellers how you mean it well it's this uncle together you may not even have to deal with the buyers in the market why not sell directly to the retail stores in the town let's take a vote on the matter then all those who wish the plan to be investigated say so there was much enthusiastic discussion and finally Eddie's plan was approved by all Genaro and some of the others went beforehand to the stores in the towns and made contracts for the storekeepers on the morning of the day on which the produce was to be sold the wagons of the farmers formed a long procession on the road it was like a holiday with Sunday clothes and flowers and silver harnesses when they reached the first town Eddie arose in his wagon and addressed the people listen everyone listen listen my uncle Genaro Amato has suggested that I take charge of the money we receive from the storekeepers then I will divide it among you tomorrow is that satisfactory all right then let's go the day was unbelievably successful and by evening every lettuce vegetable have been sold at a good price Eddie and Nina celebrated the day by going to the opera in Bari then she and Eddie drove slowly home in the wagon it's been a long day Nina long happy at Waldo there has never been such a day for any of us I'm glad I was a little worried it might not work out no one at Waldo no one has ever so concerned himself for them they will not forget it well they'll be even happier when I divide this money why I must have several hundred thousand lira how much is that in your money well let's see a lure is now worth penny there must be about three thousand dollars whoa well here we are but wait a minute you know I'll help you down all right come on there we are you must go and get some rest I cannot wait to see their faces when you divide the money Eddie said that he left Nina at one o'clock in the morning it was four hours later when he came into my quarters and waking me his face was white and he was trembling all over doc something terrible happened but was it Eddie doc doctor though I was holding for the farmers it's gone I I lost it as somebody stole it or something what I've been laying out there in the road since one o'clock somebody cucked me on a head or something fell on me I don't know but when I came to the money was gone what am I gonna do doc what'll I tell those farmers I don't know where he did get the guts to face those people the next day it was brutal the worst part of it was that none of them set a word they just accepted it the way they had been accepting treachery for years you know I'll refuse to look at Eddie uncle look at me do do you believe that I've stolen the money I do not make me answer please all of you you must believe me look look at the back of my head seeing also mean oh look this is where I was struck Cesaro look you can see the sign of the blow look look uncle please you you can't believe that I did this the boy was crushed completely when he wasn't flying he refused to move outside his tent imagine that everyone would point him out as a thief of course the fellas all believed Eddie's story I tried to but they all admitted that he was in a bad spot a court martial proceeds on fact not faith Kelly if frantically laid down a barrage of potential suspects they got no good cousin of his for example doc that guy give us right arm to turn these people against Eddie why don't we sweat it out of him Kelly please don't just see what that would look like it's just what their own black shirts would do and what about that damn Nina she was the last one kidding she's in love with Eddie how do you know she is because she says so you remember how she hated all of us when we first came here how do you know she hasn't just been playing up to Eddie just to frame him like this Kelly I know you want to help him but all right then what about the old man himself his uncle that whole business about the farm belonging to Eddie would not be a sweet way to solve the problem Kelly was just sounding off there wasn't a shred of proof in Eddie's defense and the court martial was instituted at once the people were amazed at the very fact of the trial here the Americans were trying one of their own officers for robbing the peasants and then to top it off they summoned the peasants themselves as witnesses I was called last as the doctor who had examined Eddie's brewers I hated to give that testimony but there was nothing else I could do captain can you state authoritatively that the blow is delivered by an outside force no I cannot thank you captain your witness major captain is it possible to so deliver a blow to the head that the victim will be rendered unconscious and yet not to break the skin of the scalp objection your honor incompetent or relevant in the material what is the line of argument the defense is attempting here the court please I will try to show that the injuries sustained by the defendant would have been delivered by an assailant after that I hope to show that this type of attack is known to have been a part of the training of the black shirts go on major well there are many black shirts in the neighborhood aren't there for my black shirts yes it was a weak defense we knew it everyone knew it it was just about then that a man rose in the courtroom went over to Genaro and whispered in his ear it was Dino a little Italian who worked in the officers quarters at the field Genaro get up suddenly and both of them left Eddie was asked if he wished to make a final statement he came slowly toward the front of the courtroom and stood there for a moment I I don't know what more I can see in spite of what's happened I'd I'd like all these people to know that I don't hold anything against them I hope they got to understand American things better because of me I ought to say this maybe I wouldn't don't you see I wouldn't let these people down like that that's your honor your honor now what on earth is this Genaro motto who is this man with you your honor is a former black shirt it is my son Ricardo Amato I wrote at the stand with tears of shame in his eyes the old man told how Dino had been invited by Ricardo to join him in another attempt to reach the Germans in the north Ricardo had offered him huge sums of money for the care of his family but Dino had no desire to accept the imitation your honor I was anxious to know the source of this money my wife she knew where Ricardo was hiding now I have a broader son of mine here he will tell you the truth you seek he will tell you it was he who stole the money not my American nephew well that's the story of how American democracy came to one little section of Italy democracy in the shape of a decent honest kid from a truck farm in Long Island I'd like to be able to give you a rousing end to the story to tell you that Eddie and Nina were married and lived happily ever after but that's not the end Eddie is now in the Pacific continuing to fight a war and Nina is waiting for him in Italy please God the two will meet again in any case Eddie Amato will never be forgotten in one corner of Italy he'll live if only as a legend as eternal proof that democracy is something more than a political concept has proved that this overused word is nothing more or less than a man's decency to his fellow men tonight on words at war we've brought you a dramatization of Elliott Arnold's novel about democracy in war torn Italy entitled tomorrow we'll sing the radio play was written by Edward jurist Eddie Amato was played by Larry Haynes Nina by Bryna Rayburn Genaro by Lou Soren and docked by Joseph Curtin Mayor LaGuardia was impersonated the music was arranged and played by William Meader production Garnett Garrison next week words at war will present the radio dramatization of Banshee Harvest by James Phelan this series of programs is brought to you in cooperation with the council on books in wartime by the National Broadcasting Company and the independent radio stations associated with the NBC network this is the National Broadcasting


Wonderful. So we might as well get started. Welcome to our second lecture in the Dalhousie Health Law Institute Health Law and Policy Seminar Series. I'm Sheila Wildman. I'm the Associate Director of the Health Law Institute. We're grateful to convene with you in person today as well as also folks online in Nygma G, the ancestral and unceded territory of the Nygma people. We pay respect to the indigenous knowledges held by the Nygma people and the wisdom of their elders past and present. We honor and acknowledge also the histories, contributions, and legacies of African Nova Scotians who have lived in this territory for over 400 years. Our speaker today is Professor Martha Jackman. Professor Jackman has for decades been among the most important innovative scholars and strategists of domestic and international human rights law with a focus on challenging the state's role in creating and perpetuating structural injustice through a focus on socioeconomic rights. Professor Jackman joined the University of Ottawa Faculty of Law in 1988 and has held a variety of leadership positions there and on national bodies such as the National Association of Women in the Law and the Women's Legal Education and Action Fund since then. As a scholar, activist, and lawyer, she has participated in both spectacular human rights wins and a couple spectacular fails and has contributed not only through her academic writing, but as counsel for equality seeking litigants in some of Canada's most important human rights cases, engaging equality as well as security of the person and the interaction of those, including Eldridge and Chowli. In her hands and those of others, I think it's fair to say that even the fails come off as carefully written postcards to a more enlightened future. Professor Jackman's legal advocacy has been celebrated in numerous ways including a 2007 Law Society of Upper Canada Medal and a 2015 CBA Touchstone Award. We're so lucky to have her join us to share her experience and imagination on how law may be harnessed unwilling as it may be to projects of transformative social change. Please welcome me in joining Professor Jackman. Please join me in welcoming Professor Martha Jackson. Thanks so much Sheila for that very generous introduction and it's really great to be here in Halifax, one of my favorite places, not least because my fellow traveler, Vince Calderhead, who I'm sure many of you know, has done some amazing work from here. So as I tell all of my students in all of my classes, law generally and the charter in particular are indeed a tool and terrain not only for social justice but also for social injustice and sometimes all four things at the same time. And how law and the charter operate in relation to health and access to health care is of course no exception. From the very early years of the charter, there were promising examples of charter rights being deployed to promote access to health and to determinative health rights. Morgan Taller, which of course continues to be very relevant here in the struggles you're having around access to abortion, and Eldridge in particular as Sheila mentioned, one of the earlier cases that I was involved in and actually almost the only win quite some time ago. But there have also been disheartening examples of the charter as a source of health wrongs. And the most egregious example of course is Shauli and again, maybe sour grapes, I was involved in that spectacular loss. After the hearing, I actually thought Justice Deschamps was going to rule in favor of the Quebec government. So really called that one wrong. But aside from Shauli, there have been multiple determinant social determinant of health related claims that have either been struck before they've even been argued that have been lost and where appellate courts, including the Supreme Court of Canada in particular have refused leave to appeal, including in some big cases here in Nova Scotia. So in my remarks today, I will examine the charter as a source of health rights and health wrongs. And I'll do that in three parts. First, I will very briefly remind you how section seven and 15 operate as a basis for right to health claims. Second, I will talk about how the Charter rights claims in rights claim in the Toussaint v. Canada case, or in the case of Cambie surgeries from BC, charter wrong claims have been framed and assessed on doctrine and evidence. And then finally, and probably fairly briefly, I will examine the significance of those two cases for other emerging health and determinant determinants of health related claims. In particular, the issue that I know many of you are working on, including Sheila, the issue of decriminalization and safe supply of drugs. So first, if your first year charter course is a ways away, section seven and 15 is a source of access to health care claims. As you remember, section seven guarantees a right to life, liberty and security of the person, and requires any a violation of those rights to be in accordance with the principles of fundamental justice. And again, as you may remember from your first year charter course, the Morgan dollar case around access to abortion, show Lee around access to private care, in sight in relation to access to safe injection services, and Carter in relation to access to medically assisted death were all primarily grounded in the section seven guarantee. Section 15, of course, an even more promising history and text section 15 guarantees equal protection and benefit of the law without discrimination on both enumerated and analogous grounds. And as I mentioned, the Eldridge case, which was a really important victory where the BC, the Supreme Court of Canada recognized that failure to ensure access to interpretation services for the deaf within the single pair system was discriminatory. An important case relying on the section 15 equality guarantee. And both sections seven and 15 were relied on by the claimants in the can be surgeries case and in the two same case, however, the rights claims in the two cases were formulated very differently. In can be surgeries, the appellant Dr. Brian day relied on the show Lee case to argue that all of the restrictions in BC health and hospital insurance registration legislation on access to private care were unconstitutional. The trial court, and this was a litigation that went on in terms of motions and countermotions for about a decade before it got to trial. But it did eventually, it was eventually heard on its merits. Dr. day had acknowledged that he was engaged in illegal billing practices, and he argued that that was okay because the regime was unconstitutional. And happily the trial judge in can be surgeries disagreed with him. The court did agree with Dr. day that delays in access to health care. Where in a context where the single pair system had an effective monopoly was a violation of some patients right to security of the person because people can become more ill on waiting lists. But the trial judge as was the case and show Lee at trial and at the court of appeal the trial judge found that any violation of security of the person that resulted from the single pair monopoly was not did not violate the section seven principles of fundamental justice it was not arbitrary because those restrictions are designed to protect the viability of the single pair system and to ensure that in British Columbia access to care is based on need and not ability to pay. And the BC court of appeal agreed with the trial judge although the court of appeal did find that in addition to security of the person violations the there were potential right to life violations in terms of people dying on waiting lists. But again the BC court of appeal agreed with the trial judge and indeed with the lower courts and show Lee that restrictions within provincial health and hospital insurance legislation based on the conditions of the Canada Health Act designed to prohibit or to restrict private duplicative care were not arbitrary or grossly disproportionate. And again the court of appeal agreed that these provisions including the provision on double dipping private health insurance were designed to protect the single pair system and the important value that people in British Columbia have access to care based on need and not ability to pay. I had hoped that Dr. Dave given up he announced when he lost at the court of appeal that he did plan to appeal. And so in the end I called the AG lawyers and indeed apparently last week Brian Day did file his leave to appeal motion. It's not on the Supreme Court site yet but no doubt it will go through the process in show Lee both the trial and appellate judge ruled against Dr. show Lee and on the evidence and the Supreme Court granted leave. So the fact and can be that the trial judge and court of appeal ruled in favor of the government on the evidence I don't think will necessarily dictate the outcome of that need to appeal and I do actually expect the case to make its way to the Supreme Court of Canada. In the now to say case which is also a long ongoing case is now to say he was a arrived in Canada in 1999 on a visitor's visa from Granada and stayed on without being able to regularize your immigration status. She is also relying on the show Lee case in her charter challenge but she is arguing that the exclusion of undocumented migrants from access to publicly funded federal health care under the interim federal health program violate section seven and section 15. And as you may remember the I F HP is the program that former Prime Minister Harper cut back in terms of even a refugee access unsuccessfully attempted to cut back. But he was emboldened to do that by the federal court ruling in Tucson in 2010 where the federal court agreed on the evidence that being excluded from federal health benefits when she had no ability to pay for care herself and when because of a number of chronic heart health conditions including diabetes meant that she was at actual imminent risk of death in the absence of of access to care. The federal court in two 10 agreed that her exclusion from the federal from federal health insurance benefits violated her right like right to life and security of the person but the federal court found that that violation was in accordance with principles of fundamental justice since it was rational for the Canadian government to deprive undocumented migrants of access to health care in order to discourage illegal migration and the court of appeal upheld the trial judgment in 2011 but even went further and it cast some doubt on causality and suggested that the harms the health harms that Miss Toussaint had experienced were due to her own bad choices and the court of appeal also agreed that the exclusion of undocumented migrants from federal health insurance coverage was rational and not a violation of principles of fundamental justice because Canada legitimately did not want to become a healthcare healthcare safe haven. Miss Toussaint then appealed to the United Nations Human Rights Committee under availing herself of the optional protocol to the ICCPR she argued that her right to life was violated by the federal government's exclusion of undocumented migrants from access to care and her right to equality based on migrant status and not surprisingly the UNHRC agreed with her and issued views in 2018 to the Canadian government recognizing that Canada had violated Miss Toussaint's right to life as well as her right to equality under articles 6 and 26 of the international covenant on civil and political rights and the committee recommended both that Canada provide damages to Miss Toussaint for the harm she had suffered which included amputation of a limb pretty much blindness and a stroke that had severe consequences for her in addition the committee told Canada it needed to amend the interim federal health program to ensure that people were no longer subject to discrimination based on their migrant status Canada waited a bit but eventually in 2019 told the committee that it couldn't agree with its views and in fact it disagreed with the committee's interpretation of the international covenant and that I really loved I imagine myself writing to Chief Justice McLaughlin to tell her that I disagreed with her interpretation of section 7 of the charter but in any event Canada declared that it wasn't planning to take any measures to respond to the views of the committee and so Miss Toussaint turned to the Ontario courts and in October 2020 she brought a challenge in the Ontario Superior Court to Canada's failure to respond to the views and she she challenged the failure to provide her with the damages that the committee had recommended and also the failure to implement the systemic remedy that the UNHCR had recommended in its views she relied again on Xiaoli and the idea in Xiaoli that delays in access to care violated the right to life and to security and were fundamentally unjust in her section 7 principles of fundamental justice argument she argued that it was arbitrary to exclude undocumented migrants in fact it was a false economy discriminatory and also violated the international customary rule of pacta soot servanda which requires countries to implement their international treaty obligations in good faith she also is relying on section 15 and the argument that exclusion from the continued exclusion from federal health benefits and the refusal to implement the views with the committee violates section 15 based on migrant status and she argued under admin law principles that the Canadian government's decision was was unreasonable yes no problem thanks not surprisingly in the fall of 2021 the Attorney General of Canada brought a motion to strike uh Ms. Toussaint's claim and they the government basically took issue of all with all of it they said it was raised due to Cata because the federal court had already decided against her um her damages claim uh was out of time views of international bodies and in fact international Canada's treaty commitments in general are non-binding domestically and the charter laws settled uh in terms of immigration status as a prohibitive brown and access to health care is a section 7 right in august uh the Ontario Superior Court Justice Perrell dismissed the Attorney General's motion to strike and again on all grounds he disagreed that there wasn't a reasonable cause he found that it was not obvious that the raised due to Cata applied he found the law to be unsettled uh and uh he struck uh sorry he struck he dismissed the motion. AG Canada quickly turned to the Ontario Court of Appeal and brought a motion to stay Justice Perrell's uh ruling which the court granted although it is uh promising an expedited appeal of the stay uh sorry the appeal of Perrell Justice Perrell's decision so going forward what is the significance of how these claims uh were framed or are being framed and how they are or were assessed in terms of the charter as a source source of both health rights and health wrongs so first in terms of the framing and assessment of uh the section 7 claims in the two cases as I have written and I think some of you uh may have read in course assignments uh show Lee the legacy of show Lee and indeed the earlier a Supreme Court decision in Gusney is a double standard both doctrinal and evidentiary as between the treatment of the claims of the advantage and the disadvantage under the charter doctrinally the way this has played out is that in contrast to the claim of the advantage those who could afford private care and show Lee where the Supreme Court focused very much on the right to life and security violations that were being alleged in that case rather than focusing on actual claims uh and deprivations of life and security in determinants of health related claims uh brought by disadvantage groups the courts including the Supreme Court of Canada have consistently characterized claims there are section 7 rights claims as demands for freestanding rights that don't exist in the charter so in the Toussaint case with the federal court and federal court of appeal Ms Toussaint's right to life and security claim was mischaracterized as a demand for access of freestanding right to health care anywhere anytime in Tanuja just a case some of you may be familiar with the Ontario Tanuja case where the claimants challenged Ontario and Canada's inaction in relation to homelessness and invoked the harms to life security of the person inequality that resulted from government action and inaction in relation to housing inadequacy in striking the claim the superior court mischaracterized Ms Tanuja and the other plaintiff's claim as a claim to a freestanding right to housing and in fact in Gosne the court that uh the majority of the court effectively characterized Louise Gosne's claim that cutting social assistance benefits by two thirds for those under 30 so that people were trying to survive on roughly $150 a month and again the violations of life and security of the person that resulted in Gosne the trial judge and the Supreme Court of Canada characterized Ms Gosne or mischaracterized Ms Gosne's claim effectively as a claim to a freestanding right to social assistance so instead of looking at the right to life and security claims one court after court has mischaracterized the charter rights claims of disadvantaged groups relating to determinants of health and Justice Perrell's categorical rejection of this approach in uh Toussaint in the motion to strike in Toussaint is the most significant aspect of that decision and if you'll forgive me I'm going to read from paragraph 134 of his judgment because it was just such sweet sound to hear this and basically what he said was in a dog whistle argument that reeks of prejudicial stereotypes that immigrants come to Canada to milk the welfare system Canada mischaracterized Ms Toussaint's charter claim as a right to an optimum level of health insurance and a purely socioeconomic right which is outside the guarantees of the charter in Justice Perrell's uh summation this is a fallacious straw man argument and as Justice Perrell put it at paragraph 138 of his judgment Ms Toussaint's claim is not a claim for free health care but for publicly funded health care in circumstances where a right to life is demonstrably and not just theoretically at risk that was absolutely out of character for the Canadian judiciary and really really important that the claimants were able to convey to Justice Perrell and Justice Perrell heard the degree to which this mischaracterization of determinants to health claims as freestanding socioeconomic rights claims to things that aren't in the charter rather than life and security claims which are entrenched that was really really important in the can be case because essentially Dr. Day was claiming a right to private care to private funding and care Dr. Day throughout insisted that he was not actually claiming a freestanding right to health care but rather was alleging violations to life and security of the person and what is interesting about the can be judgment both the trial judgment and the court of appeal judgment is that the courts did accept Dr. Day's characterization of the claim as being not a freestanding right to private health insurance claim although it really was that is a right to life and security claim but in contrast to Shaulie the courts were very attentive to the right to life and security claims not only of the claimants but of those individuals not before the court who would be too poor or too ill to afford private health insurance and the can be court recognized that the introduction of even small scale duplicate of private insurance and care would create a discriminatory second tier of healthcare and BC that would adversely affect access to healthcare for those unable to afford or to qualify for private insurance and that that consideration was found throughout the judgments more significantly and this is something we try to argue and show you but we're unsuccessful in doing the court of appeal and can be recognized that if a parallel system of health care private health care which Dr. Day was demanding as a matter of charter right if a parallel system was allowed to emerge patients waiting for public care who are unable to pay for private care would also have a section seven claim that their rights to life and security were being violated by undue wait times so that was again a very significant aspect of the the can be surgeries decision at an evidentiary level the show Lee and earlier Gus night cases also created another double standard between advantaged and disadvantaged claimants and between disadvantaged claimants and government defendants at an evidentiary level disadvantaged claimants are consistently held to a very high standard of proof relative to advantage claimants and government defendants their evidence is often discounted as was the case in Gus Lane or out now ignored which was the case in show Lee and in the Tucson case in can be in contrast to show Lee the trial and court of appeal were also highly attentive to the harm to the rights of disadvantaged people at both stages of their section seven analysis and the court consistently weighed in the importance of ensuring access to care based on need for the rights of disadvantaged people in British Columbia and that unlike in show Lee led the court to conclude that restrictions on private insurance and care respected principles of fundamental justice because they protected access to care based on need rather than ability to pay as I mentioned in the Tucson case the federal court and federal court of appeal relied heavily on stereotype rather than evidence in finding against Miss Toussaint and not surprisingly the AG Canada relied heavily on the federal court and federal court of appeal judgments in Toussaint in defending against this new claim against Canada's failure to implement the views of the UN committee and in the court that I read Justice Perot called out the federal government for its reliance on stereotypes rather than evidence now whether the Toussaint claim is ultimately struck or allowed to proceed whether the court of appeal and ultimately the trial court if the case is actually heard on its merits adopts the rigorous the same rigorous approach to the evidence as the trial court did in Gusley pardon me in Cambie and in and in show Lee remains to be seen aside from the framing of the evidence and and of the actual claims there's another aspect of these decisions that remains of overarching concern and that is the consistent hostility of the courts including the Supreme Court of Canada to positive rights claims in the Cambie case the section 15 claim was not pursued it was very weak and day dropped it but the section seven analysis is pretty interesting in that perhaps one could say an obiter but in paragraph 338 of the court of appeal judgment the court of appeal suggested that when the province assumes monopoly power over the provision of medical services it is under a constitutional duty to insert to ensure that health services are provided in a timely fashion fashion based on need rather than ability to pay so what the court in can be recognized was what we are doing in show me which that was that if people who could afford care had a section seven right surely people who couldn't afford care had a section seven right to care as well in to say the in granting the stay the court of appeal really focused on the individual damage claim and did not really even allude to the systemic claim certainly at the trial level justice parole rejected the ag's suggestion that it is settled law that section seven does not impose positive obligations on governments but it remains that judicial hostility to positive obligation claims is a major if not the greatest hurdle to determine social determinant of health related claimants not just under section seven but as the tenor Georgia case demonstrated more problematically even under section 15 there is hostility which is a a textual guarantee of positive obligations even under section 15 when it comes to social determinant of health related claims the courts have been hostile to the idea that governments are obligated to do anything to ensure life security or equality so the last thing I would like to address briefly is the implications of can be in to say for charter challenges to the criminalization of possession of drugs and to potential challenges to government's failure to ensure a safe supply of drugs for those who use them the decriminalized the challenge to the criminalization of possession of drugs actually is already in the works and some of you may be involved in that litigation that is an easier claim because it is a negative rights claim so it will really hinge on the court's approach to the evidence and whether the court relies on stereotype or whether it carefully examines the evidence of the multiple harms caused by the criminalization of drug possession and that will be true both for the life liberty and security of the person analysis but also in terms of the arbitrariness analysis under the principles of fundamental justice it's going to really hinge on how the courts treat the evidence are we going to get a show you to say a federal court approach or will we get a can be approached the potential charter claim both section seven and section 15 claim that governments failure to ensure a safe supply of drugs for people who use them that will also hang on the treatment of the evidence and whether courts apply the same double standard or not as between claimants and government defendants again in terms of evidence of the harm caused by lack of access to safe drugs and two evidence around who is disproportionately affected by the failure to ensure access to safe drugs but even more importantly an access to safe drug charter claim will the successor failure will hinge on how the courts frame the claim again because it is a positive rights claim the question will be whether the court examines the actual harm to life liberty and security that results from state action and inaction around safe supply or whether it adverts back to the traditional argument that there is no freestanding right to in that case drugs pharmacare in terms of sexual section 15 as I say there is a high probability of the same hostility to a positive rights claim to access to safe drugs even though even though section 15 of the Charter guarantees equal protection and benefit of the law and the Canadian health care system has all kinds of structures rules and processes in place to ensure that people who need other drugs are guaranteed safe drugs so everything from the Food and Drugs Act to the whole regime for ensuring the safety of pharmaceuticals so we all benefit from that protection of the law the fact that people who use illicit drugs don't enjoy the same level of protection by virtue of the nature of the drugs they use or the underlying health condition that section 15 claim will really hinge on the court's attitude towards positive rights and who claims positive rights as opposed to negative rights so who has access to safe drugs the provision of safe drugs and access to safe drugs through pharmacare regimes who has access to regulation of drug safety and who doesn't and more importantly why not so I would suggest that the Canby case is extremely promising especially in terms of the court's treatment of the evidence which was rigorous and which also took full account of the impact of allowing private insurance and care on people who are poor and ill and unable to buy or qualify for private care it remains though even with Canby which is on appeal to the Supreme Court so we still have that question mark that Medicare is an extremely popular program in Canada and that is not true of access to illicit drugs. I think the fate of the Toussaint case and in particular the systemic claim in Toussaint will ultimately be more revealing because in Toussaint you have the same hostility to a group that is affected and that is seeking to benefit from a pause of right and you have the same hostility to the claim itself the idea that governments in Canada have a charter obligation to provide benefits when they don't want to to groups that are unpopular so the juries out on both those cases given the appeal application for appeal in Canby and the fact that Toussaint is still fighting to be heard on the merits and is facing potential of being struck before it's even heard. So in conclusion I have to say that I remain after all these years firmly committed to the idea that the charter can function as a valuable accountability mechanism in terms of access to determinants of health including health care and while I'm not always optimistic I am absolutely convinced and there is no doubt in my mind that this is a tool and a terrain that we must continually continue to aggressively deploy and occupy and the cost of not doing so and of seeding that tool and terrain to Dr. Day and his help in my view is immeasurable. So thanks very much and I'm really looking forward to questions and I'm just I hope I didn't go over time in my own comments. Tom we've got until 20 after if we if we like to take all that time and I also have folks online here so I'm going to be watching there's about 26 folks sitting online as well so I'll be watching for their questions not going to stick up my hand from time to time I'm saying that for your benefit folks also who are online if you want to put a question in the Q&A box I will read that out folks but we can open up it up to the audience to folks have I can ask something just to get things started yeah please don't be shy don't be shy at all so one question I have goes back to this freely I think very profound but very challenging observation that you make about the reception of evidence on the part of the judiciary and I can't help but you know think as an expression of that of the very different responses to the evidence or at least in Justice Perrell's case the prospect of evidence I guess because you know he's at that early stage on his part where there's just no tolerance for some of the claims that are being made by the federal government really about the jurisprudence and the trial court judge I can't remember his name now in Gosselin so the first level judge there so much is riding on that first level judge and they're filtering of and analysis of that evidence and so I wonder if you have observations about kind of what what the strategy is in order to kind of preempt that kind of stereo the typical screen yes blocking the yeah reception of the merits of the evidence that you pointed out in so many of these cases yes well I do and it it doesn't always work but one one big difference and I've pointed this out before as well between Gosselin and then show Lee Gosselin and show Lee actually both all the way to the Supreme Court of Canada is because these cases were argued in Quebec entirely in French they were off the radar and it was only at the Supreme Court of Canada in both cases that there were any interventions and clearly those interventions were not that successful but I think what the interventions did is that they they called out you know what Justice Reeves did and and Justice Reeves actually his judgment was appalling I mean he he right in his judgment the stereotype about why are people you know complaining about inadequate assistance when the evidence shows that they spend this you know they're disproportionate smokers and they spend all their money on smoking you know and the idea that poverty is a matter of moral failing like he it's right in the child judgment but it really it wasn't that scrutinized outside of Quebec and in Chaudry was worse because all this everything was French entirely unilingual French even at the Supreme Court so that it meant that the presence of interveners was really circumscribed and by the time it gets to the Supreme Court so that Charter Committee on Poverty Issues in Canadian Health Coalition was did appear in and show Lee and in Gosselin Vince Vince and I were at the Supreme Court as well for Charter Committee on Poverty Issues you can't say anything about the evidence when you're when you can't add to the evidence as an intervener but you can certainly describe what happens in terms of the treatment of the evidence but I think as I say by by by the Supreme Court it's getting kind of late and I'm not saying this always works because in in Tenu Jaja there were several coalitions very well crafted coalitions of interveners including the Charter Committee on Poverty Issues and Justice Letter didn't care he just what he was so hostile to the claim didn't matter and it was a motion to strike so in theory the evidence isn't even relevant you're meant to assume that the evidence is proven and even assuming that he his doctrinal hostility was so great that he stuck it. Canby was a completely different kettle of fish having seen what happened to Chaudry in Canby right from the trial level groups intervener groups obtain party standing and intervener status right at trial and they were very engaged with the BC government in terms of the evidence it was it was so on the public radar and every false thing that Dr. Brian Day said was then called out in the media there were people literally attending the trial day by day in reporting the BC health coalition had a really live interactive social media presence in it and so it just the the issues around the impact of what Dr. Day was calling for on everybody else it just the court there could not ignore it the way the Supreme Court was able to do in such an unaccountable and really immoral way in my view so this is my point about about interventions in a way or the presence of non-governmental organizations and advocacy groups supporting this litigation I know we are few and far between your stretch very thin but it's really important I think to be paying attention and either to be participating to the degree possible in in the court itself in the interventions or to be you know engaged in op-eds and other forms of advocacy in the public arena and that happens so effectively in in Canby I think it's going to be very hard the Supreme Court could never pull off in Canby what it did in Chaudry it just can't happen that the media and public scrutiny is far too intense so in a weird way that has nothing to do at all with the evidence it has to do with calling out DAG for the kinds of you know what Pharrell calls you know the dog whistle arguments that are always so successful so you can't blame them for doing it their job is to win the case so calling out DAG and calling out the courts when when the rule based on stereotype as was so much the case in Toussaint rather than evidence quick follow-up and I will go to Matt and then I have one online so just my quick follow-up I just want to kind of amplify what you said and point it out particularly to the students who are here and online and and the rest of us that I asked you a question which was kind of a it was kind of a lawyerly question or it had that fake kind of pass to it like how could lawyers vast kind of like assemble the evidence in order to preempt this stuff and your response was so interesting and it reflects your your career of work and the work of many doing social justice litigation your response was to say the the audience here the forum here is much broader than the technical kind of lay nations here and so not only the intervention piece but your piece about having people in the courtroom at the first instance like it can be tweeting things or whatever it's a really it's in a sense it's an unconventional response for a classroom because you're opening up the field of apparently like you know legal treatment of this thing to the field of politics but that's absolutely the pragmatic right approach that that I understand you to be yeah well law law is politics exactly yeah and that's what always pisses me off about the crits is this idea that we shouldn't be using the charter we shouldn't be litigating you know when they join the the critic charter critics of the right the idea that the the court is not the forum like what this is all politics but I don't want to understate how brilliant and clear and keep it simple stupid your legal advocacy has to be you have to be like twice as good a lawyer as the government lawyers because of because of your uphill climb and the demands on lawyers that work on these claims to be like amazing lawyers and to deploy every legal skill that you've ever acquired including clear writing and clear speaking like you can be a government you know you can when you're even even Brian Day's lawyer like you can blah blah blah and just a dog's breakfast and they like what you're saying and they're maybe going to rule for you but if you're arguing for the claimants you you just have to be so clear and it's hard because the issues are complicated thank you all right not to have this kind of let me see thanks so much um I guess I want to talk about the drug stuff that you uh sort of included but um like you I I hope in the deeper motivation case claim um there's a lot of detail in it so should we just see and I wish some folks across the art today but um I'm wondering if you could just reflect on our elaborate a little bit more about the second case around 6 to 5 because my knowledge hasn't actually started I'm really curious if you have any questions it's kind of a technical learning question as well but around like how do I um you know we're thinking about the jurisdictional boundaries but you probably it's often sense or that's where the delivery would actually happen of course the regulator federally and the role in the future for the drugs are available on parking yeah um and there's been this change right where Canada is actually doing a thing to stop short of that yeah no it's a great question and to be honest the the decrim thing is the easier one and I have written it's it's on SSR and if you want to see it it's like a like really conventional charter analysis under section 7 and 15 why uh criminalization is a charter violation and the paper almost wrote itself you'll note that the companion piece around charter challenge to safe drugs that I just have not had the wherewithal and I'm like spitting distance to retirement and it's kind of between me and retirement I don't know but anyway because big picture the claim is that the and I would start with I would start with the federal government in part for very pragmatic reasons court challenges funding I would start with the claim that the failure the federal government's failure to the federal government's inaction which I know is tough but in regard to the safety of the illicit drug supply relative to the safety of the illicit drug supply is a section 15 violation so at the federal level we have the Food and Drugs Act and we have all the interventions of Health Canada to make sure that when I got my COVID vaccine it wasn't going to kill me notwithstanding what the uh Daniel Smith might have you believe um whereas it's there've been very you know in action or ineffectual action in terms of uh illicit supply so you start you could start with the regulatory double standard um and then the uh I mean the actual the the supply side that again is a little bit tougher because the Canada Health Act doesn't include doesn't include drugs and we still don't have a pharmacare act like I think the minute the Pharmacare Act if if the NDP and the Liberals do finally not list any multiple broken promises on that that would make it easier I think that if the decrim challenge is successful then that also in a way becomes a little bit easier because that line between but I get that like the big the really big picture claim is protecting one consume one consumer of drugs and leaving the other consumer of drugs completely out of the cold um but it conceptually it's it's I get it's a lot harder because what you really you don't want regulation you want supply it's not just the safe it's the supply and we don't we do have supply in hospital um province by province that you know I get the jurisdictional issues and and the fact that it's a focus on supply rather than regulation like I get it's really complicated and that's what I just myself haven't had time to really sit down and think okay how how to do this and partly the other case I didn't mention which is the dark shadow overall this is the Auton case where essentially Chief Justice McLaughlin said and it has to be doctrinally wrong but it's a unanimous Supreme Court judgment that when you're within the four squares of the Canada Health Act you can challenge discrimination but you can't she she basically says you can't challenge the act itself it was designed to include only acute healthcare delivered by doctors and hospitals and she basically says that is that's immune from section 15 review which can't be true but if you're trying to challenge the Food and Drug Act or the Canada Health Act from outside so the idea that Canada Health Act or the Food and Drug Act does not include um equal protection for people who consume illicit drugs the first thing the AG is going to argue is Auton so Auton will have to be reversed on that and it is wrong like section 15 like any guarantee of systemic equality tells you and and I know Vince is working on this in the in the housing access to housing for people with disabilities like the idea that you designed it so that people are institutionalized and as long as you don't discriminate against people who are in the institution there's no problem like that cannot be right but that's what Auton says so my answer is I'm sorry I don't entirely know yet and I'm and I don't know if I'm going to get to it it's as some of you know I was motivated to um decrim is not my area criminal law I've avoided like a theme for my whole career I've left it to Lishi and Kim it's like um but my niece died of the of a jug over dose and white horse my indigenous niece died and I just promised myself I would I would you know try and do something about that but it's it's really hard well I see Archie has a question Archie I'm just kind of wet and because this person online has theirs up right from the start and then I'll go to you so a question is as we increasingly see the health impacts of climate change maternal rights be leveraged for climate action by federal government a great question and the answer is absolutely yes and um the the climate challenges the charter based climate challenges are facing some of the same hurdles as other determinant of health challenges and as you know the two youth climate emergency charter challenges one got struck and one's going forward so the mother case was just argued like a couple weeks ago um and and they that is a beautiful case and beautiful legal arguments essentially that inaction governments actions and inactions around the climate emergency violate the section 7 of 15 rights of young people who are going to live with the consequences and again I think doctrinally it's really solid um but it's a positive rights case to some degree and it also is a case that's going to hinge very much on the evidence and so it will depend on the attitude of the judiciary I think judges probably are less hostile to uh climate cases than to uh right to health poverty and immigration cases just just because but yes absolutely and Natalia Shalifood and some of her colleagues um there's a an entire special issue of a recent environmental law journal that's devoted I believe to big big paper that Natalia and some of her colleagues wrote really elaborating the section 15 claim so there's a rich for a long time there was almost nothing and in the very beginning of my career I actually did write a few papers making the same arguments about environmental regulation as I did with health and then I kind of got you know knocked off track on that and not a lot happened for like 20 years and then David Boyd's done some stuff with my colleague Linda Collins and Natalia and now I think it's I think it's really really really rich scholarship emerging in that night in some ways I wish the same enthusiasm was being deployed by young scholars around poverty and other determinants of health as climate but I get the climates you know climates are really important so yes the answer is yes and go for it. I'm delighted to address this issue today about the potential of this people in Canada on decriminalization issues but in a number of areas I'm particularly frustrated by the resistance of Canadian courts who considering the input of the special record tourists on the high-risk input right to physical and mental health specifically on the decriminalization agenda because it's been since 2006 that the XRs have said that harm reduction in the decriminalization specific should be part of our understanding of the importance of international decriminalization. So it's more of a question in the exasperation why is it a problem and why are the courts in so immune to people considering international decriminalization? A great question and nice to see you the in every single case that I've been involved in since the early 90s we have argued ccpi's consistently argued international human rights norms as the interpret and necessary interpretive context for charter rights it's the court rarely even mentions it in its judgment in in to say you get hostility to the idea and basically again the AG is arguing that these these commitments have no domestic legal significance whatsoever and the response the Canadian government's response in Tuesday is really classic we disagree with your interpretation in any way we don't have to do anything. So I think it is in a sense sort of the same problem for a long time I said okay well any judge that's my age didn't even get any international human rights law wasn't even taught when I went to TOT we had public international law and nothing else so maybe they're ignorant but now I think the last decade it's not just an issue of judges not being familiar with international human rights law I think the judiciary is changing and I personally think that there's going to that is going to swing the other way as you get a greater and greater cohort of judges who are not intimidated by and in fact some of them very fluent in international norms and again my point about the interventions in both in Tenujaja and in Toussaint and I hope it'll be true in the drug decrim case as it moves into the courts more firmly that you know ESCR net amnesty like there's there's been a coalition constructed that focuses exclusively on the international human rights arguments and so they take more place you know rather than a paragraph or two in somebody's factum they're actually getting entire interventions that are that are focused on this and Toussaint will be very key because what we're arguing in Toussaint is the failure to take into account these norms is a violation of the principle of fundamental justice and the doctrine is there you know like internationally practice in Cervantes is a well-recognized norm of customary international law so even by La Mer's standard or the Kazimi standard it should be a principle of fundamental justice and so I hope that in the in the decrim case that there will be an effort not just to argue them generically in a way but to argue as a principle of fundamental justice so failure to decriminalize is not only arbitrary because it undermines your public health and safety objectives it's arbitrary it's a violation of the principles of fundamental justice because it violates the principle of practicing Cervantes which Canada has committed to to to treaties where it is it's like universally I mean the Canadian chiefs of police agree with this that's why I think the decrim one is a bit easier because society is moved in a way maybe I'm a really optimistic but I feel that it's not just you know the unanimity of international human rights bodies it's actually unanimity of Canadian public health and even criminal criminal policing bodies now but again that if that the paper that the draft paper that I have for Vanessa Grubin's harm reduction book which is available on SSRN or you can just go to my UO website and it's there with the link I do if I remember correctly I do I do refer to the international human rights norms as principles of fundamental justice that would be violated so I'm the hostility is the same the doctrinal response I think I think the pendulum is swinging I hope well that makes me optimistic so I'm used to being optimistic me too upon our time as a basic letter it's been our hostility towards and was in the closet of obligations on the state under the action of clever and the others of this great privilege could be a moment where he's accountable to their health programs to their life certifications health and social justice use of living doctrine of constitutional analysis to kind of broaden the judicial interpretation of the charter well under section 15 you shouldn't have to use living treat section 15 says everyone's entitled to equal protection benefit of the law so that's what was shocking about 10 to judge it is that the trial judge said there are no positive obligations under section 15 the court of appeal didn't rule on that spring court of Canada refused leave to appeal like unbelievable and in gas name the supreme court said we're leaving the door open so the possibility that sections seven could be invoked to claim a pause a pause of right pause of tempos positive obligations they left the door open on purpose the trial judge in Tana Jaja said there are no possible obligation bus nice says there are no positive obligations so the trial judge misread and overturned us name and the supreme court denied leave to appeal and actually a bunch of you I hate to say your first year charter prof may be telling you the customer says there are no positive obligations under section seven they didn't read the case that's not what it says but that the AG has argued this over and over and we have not called them on it and my colleagues often don't reread the case and they're teaching it and suddenly it's said a law that there are no positive obligations under section seven so we shouldn't have to talk about living tree I want to go back to the charter I got in 1982 and the legislative history of that charter section 15 is a positive rights guarantee and there's all kinds of context about section seven and positive obligations the language doesn't preclude it deprivations the language of being you have a right and you have a right not to be deprived deprivation is not and it's not as strictly it's that's a political campaign started by my dearly departed colleague professor peter holland to shrink section seven down to far less than it was and you know and cary frock has done beautiful work on this originalism like section 15 what we need is originalism not living tree so and in fact again the latest my colleague one may need my last paper pre-retirement again get it on ssrn and that's what it's called wisdom stumper living tree about section principles of fundamental justice which lemair's decision in the motor vehicle reference opened a real wide door including to the idea that international human rights norms would be principles of fundamental justice and spring quarter with his whittled it down to now it's just arbitrariness and if your objective is discriminatory so long as the means you adopt is rational it gets through section seven this makes no sense so i i i love living tree but i do not want to concede that the charter reenacted in 1982 does not include everything that i need to protect human and planetary health and well-being and the idea that we need to amend the charter it's not there that we need to read it like a living tree that should be your backup your first your first line of defense is it's already in there give me the rights that are in there well ask your professors to stop assigning it you buy it i don't know what it costs but it costs a lot tell them to sharpen roach it's cheaper and it's better any public law process still teaching that there's no positive rights obligations under section seven let us know yeah that's right lead to your feet yeah but we're we're getting close to the end of our time but i see benz had his hand up so i would love there a minute yeah he should definitely get the last word yeah we have some questions for the last but in your talk and you're thinking of the same case and just now you know when you flip up and there's a tendency and i've been there many times to say this is not to the court this is not a case this is a case of the impact on the one on the other hand yeah and vince nice to see you thanks for everything and if that's what i you heard or i said i misspoke it i what i'm saying is what we have here is is a harm to life and security that results from action and inaction and to fix it there may be a negative rights dimension there may be a positive rights dimension but i would i i hope i would never concede and i hope i'm not being heard to say that my objection to them saying you lose because you're demanding a pre-standing right to health care i'm not saying i'm not saying that the charter doesn't guarantee me a right to health care i'm acknowledging that the right to health care is not in the charter it's a right to life and security but the right to life and security entails access to health care based on need not ability to pay so it has to be publicly funded so it's more that it's more an issue of focusing on the life and security harms through action and inaction and rejecting the idea that that means you're claiming a pre-standing right it may translate into a right to publicly funded care but my claim is not a right to health care when that's not in section seven my claim is to life and security all right well there it is actually going to be a part two to this and i'm going to tell you about that uh as i have you uh join me in thanking professor jackman so thanks so much for the lecture and the conversation uh today on charter rights and wrongs and and on the role of law which includes of course reluctant courts sometimes reluctant courts as well as publics um in this project of you know ensuring equitable access to social determinants of health uh and more broadly you know distributive justice so um such important work i want to alert people to two things one is that we are having kind of impromptu fairly recently convened workshop that starts at two o'clock in the same room from two to three thirty with some folks attending martha is going to be there along with a couple of co-panelists vince calderhead who you heard from earlier today as well as david taylor a former student who has been very active in the first nation's caring society case which has a number of you know really interesting angles on systemic injustice and systemic remedies and the um the topic for our workshop is uh thinking backwards from systemic remedies in health and social litigation so you heard a little bit about the barriers to going forwards moving forwards even from the ground level of you know getting past a motion to dismiss on summary judgment so how much work there is to build up but um we're going to be thinking about the remedies design uh in these kinds of cases and you're very welcome to come again that's at two o'clock uh today um and sorry for late notice on that but it's just a smaller event and the second thing i want to tell you about is our next health law and policy lecture which is friday november fourth same time same place and we love it when you come in person but we're also very happy to have you come online and that one is professor gene pra who is the founder of the health equity and policy lab at the university of pennsylvania um oh i just recognize that i misspoke she's giving her lecture online so this one if you bring your warm body you can come and spend some time at the law school and watch your screen because this is an online lecture friday november fourth same time not exactly same place and her topic is operationalizing health justice through the health capability profile okay so please uh join me in thanking now professor jackman


Howdy, how's it going?  It comes from the role of being the DM Sometimes you have to break a few eggs to make a frittata. Even if those eggs are in the shape of your friends and family But in my many games of DM-atude I've seen all the different ways that players have fallen to the dark side and the effect that it has on the rest of the party And so it's time to share that knowledge in case one day you want the devil to tip his hat to you I'm gonna go over what constitutes an evil character.  I'm gonna go over what constitutes an evil character Why the stigma around them exists how to avoid it and how to play the bad guy without the rest of the party seeing you as a Bad guy as always keep in mind that the majority of this is just my opinion So if you're one of those very original people who think that their character's theme song is Voltaire's when you're evil Feel free to play your games however you want and if you want to break down on how to role play evil NPCs You can check out my villains guide and real quick I'd like to give a brief shout out to my new patrons this month, Tykota Jalecki I, Davy Chappy, will from now on only respond to the name Stinkly Dingley So please call me that and only that Shad, Aga, Sam Havens, Nathan, Evans Thank you so much for pledging to my Patreon I noticed that a couple of you pledged to my weekly D&D games and you can be notified of when those games become available by checking out my Discord or my Twitter, but with that out of the way, let's begin So an evil character is a guy who just does bad stuff The reasons to do bad stuff are multitudinous and they don't even have to be antagonistic when put into context But regardless, you are predisposed to take the non-heroic action at pivotal moments The good guys swore of left, but you follow the beat of your own drum and swore of right The good guys want to interrogate a dude, but then they look at you like you're the bad guy for bringing a water-soaked burlap sack But when you're the type of person who likes to fight spandex wearing muscle men, you sort of get hit with a double standard Morally ambiguous characters are considered fun and dynamic all the way up until they actually do stuff that conflicts with the party But in order for a character to be evil in more than just name, they have to do evil things Which is hard when you've got a team full of idealistic bleeding hearts And on a meta sense, it can be really annoying to have one member of the party constantly be tugging everybody else in a counter-intuitive direction That's why the stigma around evil characters is so strong, because as much as I sing the praises of role play, there is something more important Meta play. Meta play isn't playing the game, it's playing your players And in that game, there is only one thing that matters, making sure that everybody else is having fun The key to recognizing a good table is by noticing whether or not the players are checking up on each other And relying on everybody else to check up on them in sort of an unspoken trust fall kind of way If a player doesn't check the other players, either intuitively or better yet verbally, then they can start irking people But they also have to check to see if the other players are giving as much as they're getting as well Otherwise, you're just gonna get suck dry of all that happiness that you bring to the table The reason I'm bringing this up in this video is because to be a bad guy in-game, you have to be a good guy out of game People often bring up not screwing over the party as a rule for playing evil characters But what people don't often bring up is that in-game betrayals do happen And they can be the best twists in the story because while everybody is looking at the DM for incoming plot points Their attention is suddenly turned to Jimmy Mick a good guy revealing his true identity as Jamantha Mick bad girl But the reason some of them are praised as the best twists in the campaign while others are only brought up in dungeon Anonymous meetings is because of the level of trust within the group The perception of whether something is recognized as a role playing moment or a personal attack is often based on how much You like a person for better or worse and as a result I found that socially confident people are more likely to talk positive about playing evil characters while people who have a harder time Socially tend to have bad experiences because they're hoping that everything stays within the dice But perception is reality and the reality is evil characters take social finesse One side is focused on role play the other side is focused on meta play and both sides feel like Agency is being robbed from them when the other side makes a decision But dnd is a team game and you're gonna have to work together somehow So to break it down into a digestible plan when I make an evil character The one thing that I have to remember when I role play is this evil is not stupid There are a lot of factors that go into creating a character But one of the most global ones is that you have to play someone who wants to be in the party If your idea of fun is splitting off from the group and murdering people because your character is psychotic Then you're gonna have a problem You don't have to not play a crazy axe murderer But you do have to take out of game steps to rationalize it so that they stay within the confines of the party Such as recognizing that dnd is all about murdering creatures who are just minding their own business So you don't need to go out of your own way to do it If your type of evil is greedy then take a moment to realize that with your party You were finding treasures beyond your wildest dream So why wouldn't you play ball with the more sentimental rules that you come out rich in the end? You don't even have to steal anything the money is coming to you and someone with plans for world domination Isn't going to have a world to dominate if some other schmuck does it? Or maybe you just don't want to look like you're riding the trend of being a dom Regardless of what your character's goal is their motivation has to align with that of the parties At least in so far that they don't mind sticking with the party Blizzard I love you At least in so far as they don't mind sticking with the party and not doing things that will constantly jeopardize that relationship These are the overarching ways that you have to rationalize your character's behavior But that's only the start because you're still going to be spending session after session playing a character with antagonistic tendencies And the key to not pissing your party off is moderation picking your battle so that it doesn't look like you're just demanding that everybody else Play like you want is the key to playing any character not just evil ones Remember there are three to five other people at your table and all of them want a time to shine So the more impactful your singular actions would be to the entire party the less likely you should be to make them And the more time you should spend in between those actions You can voice your opinion whenever you want but actions speak louder than words And people will remember the things you do more often than the things you've said The trick is to make your ideas seem palpable to the rest of the teams that they don't feel like it's too far off From what they want to do already the more often you try to do things that the rest of the party doesn't want to do The less fun they're going to have and if you can at least explain your actions so that the rest of the team Doesn't think that you're at the big dumb then you probably shouldn't be doing it in case you need some examples Of what an evil character can look like a long time ago I set out to prove that evil characters could be played effectively in a party And so I made three of them based off of the alignments of lawful evil neutral evil and chaotic evil The lawful evil character was an overzealous cleric that punished evil where he found it and took that to mean that it was the Salem witch trials and everybody else was a gorgeous woman He hated the other characters impurity but saw them as a necessary evil Or at least he was smart enough to know that they could stop him and people kept Challenging his views until he ultimately came to the conclusion that he was just as evil as the people he punished But instead of javaring himself. He just devoted his life to not being a knobhead the neutral evil character was easier He was a selfish bastard who cheated and lied to everyone including his family and kept cheating and lying his way through the campaign Until he eventually got caught enough times that he had to grow up and he started cheating and lying for the forces of good And the chaotic evil character was a serial killer who wanted to rule the world But part of his backstory was that he had amnesia due to one of his world ruling schemes backfiring on him So he was just a chill dude with an occasional sociopathic episode until one day He got all of his memories back but kept his memories from his time as a bro Which made him realize that the real murder victims were the friends he made along the way I hope that this video is able to help you with making an evil character for your games But it's good to remember that alignment is bullshit anyway Your character is just the culmination of the things that they do and say and it's up to you to decide If those things make the game better for you and your friends Don't make an evil character make a flawed character and work to reflect those flaws in an interesting way Kidnap a princess tie someone to the railroad and then hey Maybe you can go out for lunch afterward with the money you stole from the orphanage But that'll about do it. I hope you enjoyed this video Be sure to leave a like comment subscribe ring the bell if you want to stay up to date and all of your Davy news and maybe support me on patreon so that I can continue to take shots at old edgelord tropes But yeah, Davy out


So, the O5s have been on my case for a while now about writing my own field manual, in order to pass on my expertise to the younger generation. Increasingly so, since I find myself less and less of the younger generation as time goes on. I mean, I'm older than Adam. And by that I mean older than Adam Savage, the guy from Mythbusters. Anyone remember that show? Anyone? Damn, I'm old. Since there's been a recent uptick amongst the staff in stories about me, I decided now's as good a time as ever to release my field manual. How to survive when reality doesn't, by Alto Clef. Within these pages you'll learn how to deal with reality vendors and what to do if the laws of physics go sideways without warning.  So I wanted to give him mushrooms to see if he affects them the same way he does plants.


The Mandalorian season three is here. I don't usually do individual episode reviews for shows. I like to wait until a few have gone by, give early impressions and later ones, but there was so much to say. So much of a disaster happening that I had to make a video. I just had to get some stuff off of my chest. Let's begin. First, I want to point out that I always forget how to pronounce baby Yoda, Grogu, Grogu. So that's just something you're going to have to deal with. We're going to learn together. Could I educate myself? Play back a video of how it's pronounced? Yeah, of course. Am I going to?  Speaking of stupid, let's talk about the plot of Mandalorian season three, episode one. The episode opens with what I thought was a flashback of our young Mando, Dijin or Dijon, Mustard, whatever his real name is, doing a celebratory mask, masking, not unmasking or unboxing, they're actually boxing this kid up. I thought that was him. No, it's not. It turns out there is more Mandalorian chilling out in the cave area than I thought from previous seasons. There was a good 15 to 20 of them. A little flock down at the beachside doing an orientation.  Questions come to mind. One, did you know this thing was in there? Did you know there was a dangerous scary creature with impenetrable armor hanging out right behind you? Two, how deep is the drop off from shore to water? We go from zero to 100 really fast because that thing looked like it was six stories tall. I don't know how it creeped up on these people, I don't know how it did, but it was just nothing's here and then boom, it's there.  What? That doesn't even physically make sense how we did that. Three, if you knew there was possible danger lurking right behind you, why do that there? Why have the ceremony on the beach? I know that it's pretty, it's lovely, it's magical, but we already established that this isn't the Mandalorian planet. That's toxic or something, Britney Spear style. We know that that's not special water.  We don't need to be swimming alongside gators or soon we'll be swimming with the fishes, which means we're dead. So yeah, a lot of questions right out of the gates. This was also a 10 minute battle scene, probably not that much, I'm over exaggerating, but it fell very long.  I just sat there perplexed, like how, why? Why was this a thing that needed to happen? I thought you were supposed to be professional hunters. You guys were supposed to be the best of the best and you didn't do any recon on this pond. You can't even hurt this thing. It's ridiculous. No, I wasn't on board at all with that. Before I get too down in the dumps on this thing, I do wanna point out that I'm happy the Mandalorian's back. I really am.  I'll watch them have a tea party for 35 minutes. That's fine with me. But there was a lot of ugly writing here, a lot of disgusting writing.  How dare you Disney, or whoever made this decision, to have season 2.5 wedged inside of Boba Fett. You have to imagine that 50% of the audience watching the Mandalorian did not watch the book of Boba Fett.  I might be generous. It might be less than that because Boba Fett sucks now.  They concluded major character arcs in Boba Fett, and then they didn't even bother addressing them here. You couldn't have done a recap. The previously on that they started the episode of Mandalorian with was the robot. That was like it, it was like the robot. Remember robot? Remember robot from season one?  Nothing on the emotional goodbyes between those two. No, they're just back together. They could have done a whole episode one of season three just on the book of Boba Fett stuff that people missed. Like just show the mando parts, which, oh wait, that was an entire episode of the book of Boba Fett, it was an entire episode. So for those people that didn't watch, they're going into this like, oh, I guess they're back. I guess they, he's done with his training. How long was he training for? You can find this info off camera. I think someone said it was two years. All right, well, cool. What great storytelling this is. So once the gang's done playing Crocodile Mile, we have Mando really still yearning to be part of this community again. This cult that he's been banned from because he took his helmet off, I still don't get the logistics of this helmet thing. Do people's heads not grow over time?  I just don't get how, what are the semantics of this?   I can't get over that. What a weird, what a weird religion this is or whatever they call it. He's informed by the leader, I don't know the names of these people, female Mandalorian, that there is one way he can get back in their good graces. This is the way, she says. He has to go to their old planet, see if it's toxic, swim in the pools, come on out on the other side, clean as a whistle, sharp as a thistle or some shit, whatever that phrase is. And he will do so. But in order to do so, he needs a team. He needs a crew he can trust and little Gragu isn't gonna be enough. Still not that sharp with the force. He needs someone that's helped in the past, someone that's been blown up several times. And so he traverses back to the planet where it all started. Tatooine, nope. Mos Eisley, nope. Are those the same places? I don't know. I don't care. It's another desert planet where there was a bunch of old buildings and huts and now it's a booming industry. It's a beautiful bustling community, now led by Apollo Creed from the Rocky franchise. He's looking good. He's aging very gracefully. He informs Vando that yeah, they have erected a statue of robot dude with all the arms that was awesome. And he's self-destructive with the Humpty Dumpty disaster back together. So Vando's like, oh, okay, I need that guy. He's the only dude I trust, the only robot I trust, even though he tried to kill me originally, but now he's cool. There's a bunch of little frick mechanics saying, yeah, we can get the job done, but we need a memory chip. Okay, I guess all memory chips are the same. If the robot had a memory of being good and his chip was destroyed, how is taking another memory chip and putting it in the same thing? That's not a replay. You can't do that. That's like, oh, I lost my brain. Give me another person's brain and boom. Now I remember everyone I've lost in my life. No, no. Sci-Fi logistics aside, now we have multiple fetch quests going on. Vando has to go to a planet to bathe in a pool. He has to go find a memory card or RAM or something that this robot needs that he for some reason has to have back because fan service. He's also gonna head to a Mandalorian castle and talk to the chick from Battlestar Galactica. That show was awesome. And she's just chilling like a boss there. This is such an empty, boring place. Looks like something right out of the Star Wars prequels. She's hanging out in the throne, presumably for multiple years. Don't know how she's being fed or where she's going to the bathroom. These are things that keep me up at night, but I don't think anyone else cares. She has a robot butler of sorts there. So maybe he's making her, he's preparing meals for all I know. She's got a major chip on her shoulder because she doesn't have the dark sword. Vando's not gonna give it to her. And that's pretty much that entire conversation. The show ends with a really cool chase. I will give it that. The last eight minutes or so, fantastic. He's flying like a shark through space, hiding behind asteroids. Peek-a-boo. Pfft. Pfft. Pfft. Pfft. Pfft. Blowing in and out of asteroids, killing dudes left and right. But it's a trap. B-b-b-b-b, it's a trap! Subscribe for bad Star Wars impressions. He was chasing some pirates, but the whole thing was a ruse. Yes, the plan was to have all four of them get killed and the fifth one lead him right to his boss in a massive pirate spaceship. And the pirate spaceship is commanded by, you guessed it, Captain Davy Jones.  Doesn't look like anyone else. He's like, ah, I'm gonna get you, Mando! So kind of, you know, we're building up some new villains. I did like the callback to season one. They do a quick and the dead style cowboy showdown, speaking of which, I'm going to be talking about quick and the dead next week on the channel. Just throwing that out there in case you aren't subscribed yet. And then, boom! They take him out. So my thoughts on Mandalorian season three episode one are mixed. On one hand, it's very nice to be back. Love this crew. On the other hand, pretty sloppy writing. Not sure where this story's going. It feels more like a video game than a show where there's bosses that he fights. There's fetch quests to go on. He's gonna go back to the NPC. Hello, I got your item, the memory card you wanted. Okay, goodbye. I see the youth of today doing that on TikTok. So since I actually played those games, the referencing, I thought I could do it as well. I asked my daughter why she was doing this. And she's like, oh, people do it online. Like, yeah, do you even understand the context? And she's like, no. I'm like, okay. I'm so old. You should probably know the drill at this point. I gave you my thoughts. I want to hear from you. Give them to me. Give me all of them in the comments below. Like this video if you had a good time. And I'm begging you at this point. Hit that subscribe.  Just give me a subscription. It's not that hard. It's not that hard. And I'll talk to you next time.


The third example will change up our numbers a little bit. Our processor will use slightly less voltage, and the numbers for capacitive load in megahertz are not going to be quite the same anymore. So this time we have 3 volts of electricity, capacitive load of 2 microfarads, and a switching frequency of 5 megahertz. So when we put those into our equation, we get 2 microfarads times 3 volts squared times 5 megahertz. Again, convert the microfarads and megahertz into farads and hertz. Get 2 times 10 to the minus 6th farads times 9 volts squared times 5 times 10 to the 6th hertz. As before, our 10 to the minus 6th will cancel with our 10 to the 6th. And we will get 2 times 9 is 18 times 5 equals 90 watts of power.