The Digitization of Section 8 of the Charter: Reform or Revolution?

This paper asks whether the technological changes wrought by the digital revolution require concomitantly dramatic changes to the Supreme Court of Canada’s section 8 jurisprudence. The author answers “no”. While technological change inevitably influences constitutional interpretation and application, the foundation set out by the Court in digital (and other) section 8 cases over the past two decades provides the conceptual and doctrinal tools needed to achieve reasonable accommodations between competing privacy and law enforcement interests in the digital era. The paper begins with a brief overview of the basic elements of section 8 law. Next, it chronologically surveys the Supreme Court’s existing “digital section 8” jurisprudence, that is, each decision that has addressed allegations that the state has violated section 8 in a digital realm. The next part distils three key doctrines from these cases that are likely to animate future digital section 8 decisions: (i) the notion that “computers are different”; (ii) the role of contract, statute and other exogenous norms in shaping privacy expectations over information obtained or held by third parties; and (iii) the application of the “biographical core” test to “low resolution” private information. While there is consensus as to the core meanings of each of these doctrines, to varying degrees each suffers from indeterminacy in application. The author the refore proposes refinements to minimize that indeterminacy. The following part examines, from both descriptive and prescriptive perspectives, how these doctrines played out in the Court’s most recent digital section 8 decision: R. v. Spencer

Ties that Bind?: The Supreme Court of Canada, American Jurisprudence, and the Revision of Canadian Criminal Law under the Charter

Chief Justice Dickson has suggested that Canadian jurists should consult American authority in Charter cases, but with care. The authors look at how the Court has followed this advice in its own criminal decisions rendered prior to March 1989, in which American authority is cited in less than 50 percent of the cases. The authors conclude that, in some significant areas, the Court has interpreted the interests of the accused more broadly than the American Supreme Court does and has on occasion done so without citing divergent U.S. precedent. The effect of sections 1 and 24(2) of the Charter on this trend remain to be seen

TB STIGMA – MEASUREMENT GUIDANCE

TB is the most deadly infectious disease in the world, and stigma continues to play a significant role in worsening the epidemic. Stigma and discrimination not only stop people from seeking care but also make it more difficult for those on treatment to continue, both of which make the disease more difficult to treat in the long-term and mean those infected are more likely to transmit the disease to those around them. TB Stigma – Measurement Guidance is a manual to help generate enough information about stigma issues to design and monitor and evaluate efforts to reduce TB stigma. It can help in planning TB stigma baseline measurements and monitoring trends to capture the outcomes of TB stigma reduction efforts. This manual is designed for health workers, professional or management staff, people who advocate for those with TB, and all who need to understand and respond to TB stigma

Recognizing the Societal Value in Information Privacy

Much has been written about database privacy in the Internet Age, most of it critical of the way in which the American legal system addresses the issue. In this article, Professor Nehf maintains that one of the fundamental difficulties with the public policy debates is that information privacy is often discussed as a typical consumer problem rather than a problem of more general societal concern. As a result, arguments over appropriate resolutions reduce to a balancing of individual rights against more general societal interests, such as increased efficiency in law enforcement, government operations or commercial enterprise. Although privacy scholars discussed the societal value of information privacy in the 1960s and early 1970s, the concept was not fully developed. More recently, political theorists have revived the idea and argue the importance of recognizing privacy as a societal norm. Professor Nehf adopts a functional analysis that compares information privacy to other societal values, such as environmental protection, and concludes that privacy policy could take a different form if the issue were viewed in this way

Towards understanding disparities in cancer outcomes for Aboriginal Australians: exploring Aboriginal perceptions and experiences of cancer in Western Australia

Cancer has become one of the major chronic diseases among Aboriginal and Torres Strait Islander people of Australia, and was declared a health priority in the National Aboriginal and Torres Strait Islander Health Strategy in 2001. Since then efforts have been instigated to improve the epidemiological information with regard to cancer among Aboriginal Australians in several jurisdictions. Specific issues related to cancer have been identified. Aboriginal Australians compared with non-Aboriginal people have higher occurrence of preventable cancers and are less likely to access cancer screening, are diagnosed at a more advanced stage, have poor continuity of care, lower compliance with treatment and lower five-year survival rates. Several risk factors for higher incidence of some cancers have also been noted. However, these do not adequately explain the reasons behind the delayed presentation, poor compliance and different treatment outcomes of cancer among Aboriginal Australians compared to the total population.To investigate and explore the variations in Aboriginal Australians’ beliefs, understanding and perceptions around cancer and their experiences with cancer services, an exploratory, in-depth qualitative study was undertaken in several locations of Western Australia (WA). This was done with a view to understanding Aboriginal decision-making processes in relation to accessing cancer care in WA. The study was approved by the Human Research Ethics Committee (HREC) of Curtin University, the Western Australian Aboriginal Health Information and Ethics Committee (WAAHIEC), the Royal Perth and Sir Charles Gairdner Hospitals, and by the local Aboriginal Community Controlled Health Services (ACCHS) in regions where the research was conducted.The study adopted a hermeneutic phenomenological research design and used qualitative methods. A hermeneutic phenomenological approach was chosen as this allowed understanding to emerge from the experiences of the participants through interpreting the situated meaning of humans in the world. The views of 30 Aboriginal participants – including patients, survivors and close family members who had lost someone to cancer in their families – were gathered through in-depth interviews. The fieldwork was conducted between March 2006 and September 2007. Interview data were tape-recorded, transcribed and analysed using NVivo7 Software. Thematic analysis was carried out from the information.The findings from the study suggest that many factors affect Aboriginal people’s willingness and ability to participate in cancer-related screening and treatment services. Late diagnoses were not only due to late presentations, as some delayed diagnoses occurred in patients who had regular contact with medical services. Participation in treatment is affected by beliefs and fatalistic attitudes towards cancer; limited understanding of the biomedical aspects of cancer and treatment processes; preference of Aboriginal people to use other approaches to healing such as traditional healers and bush medicine; unwillingness to be separated from family and country, and several infrastructural and logistical issues such as cost, transport and accommodation. It was found that fear of death, shame, beliefs such as cancer is contagious and other spiritual issues affected Aboriginal people’s decisions around accessing services.Moreover, miscommunication between Aboriginal patients and health care providers, lack of cultural security and culturally appropriate support services, lack of Aboriginal staff within the hospital to personally support Aboriginal patients, and the alienating environment of oncology treatment services were also mentioned as barriers. Factors important for effective patient-provider communication such as language, shared understanding, knowledge and use of medical terminology require particular attention. Lack of a reliable and on-going relationship with service providers also came up quite persistently. All of these issues were underpinned by the historical context which includes past discriminatory treatment and experiences of racism by Aboriginal people within mainstream medical institutions. These factors contribute to fear of the medical system, feelings of disempowerment, and mistrust towards the system which constrain Aboriginal participation in cancer treatment and other support services.The results of this study indicate that an understanding of the complex “layers” (from micro to macro) of factors and the interactions between them is required to elucidate Aboriginal people’s decision-making processes around engaging and participating in mainstream cancer services. This research identified gaps in knowledge and understanding and a lack of support services within Aboriginal communities.The findings from the research have been shared with relevant cancer-specific and Aboriginal Community Controlled Health Services with a vision to utilise the study outcomes for the benefit of Aboriginal individuals and communities. Aboriginal people were invited to be co-presenters and co-authors wherever the study findings were presented. An Indigenous Women’s Cancer Support Group (IWCSG) was established in Geraldton after the completion of fieldwork there. This support group has been working to raise awareness of cancer in local Aboriginal people.Some suggestions and recommendations to improve services and cancer outcomes for Aboriginal Australians came out of the study. These include: employment of Aboriginal staff in services and involvement of them in decision-making, maintenance of culturally sensitive, empathetic person-to-person contact, provision of infrastructural and institutional support to involve Aboriginal families within the treatment domain; acknowledgement of holistic concepts of health and well-being; and increase Aboriginal health literacy with regard to cancer