SCC Decision on Consent

captain morgan

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Medical doctors have a code of ethics. It's not subjective whether or not they will save an unconscious victim who is brought into their emergency room.

You're not getting the point. What's not to say that the logic of this ruling won't be applied to any circumstance outside of sexual contact? Malpractice suits are launched every day that have some form of conflict with the code of ethics applicable to physicians. Further, that code is the physician's code and not that of everyone else.

Regardless, we can go round-and-round like this all day. We'll just have to let a little time pass before we observe (or don't) the unintended consequences of the SCOC ruling.
 

Tonington

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You're not getting the point. What's not to say that the logic of this ruling won't be applied to any circumstance outside of sexual contact?

No, I don't think you are getting it. I've already posted the actual section of the criminal code they were interpreting. You can't apply an interpretation and ruling on a specific section of the criminal code, to a situation to which it doesn't apply. That is not how the law works.

The provisions applied to sexual assault. That's where they end in their applicability.

Malpractice suits are launched every day that have some form of conflict with the code of ethics applicable to physicians. Further, that code is the physician's code and not that of everyone else.
Malpractice doesn't cover a surgeon who operates to save an unconscious ER patient....
 

captain morgan

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No, I don't think you are getting it. I've already posted the actual section of the criminal code they were interpreting. You can't apply an interpretation and ruling on a specific section of the criminal code, to a situation to which it doesn't apply. That is not how the law works.

The provisions applied to sexual assault. That's where they end in their applicability.


Yeah, I guess you're right... Questioning the interpretation of something never occurs at the SCOC level. That's why the laws never change once established... *sigh*

*(un-f*ckin'-believable)

Malpractice doesn't cover a surgeon who operates to save an unconscious ER patient....

That must be one of those exceptions I wasn't aware of in law or the code.... If the doc actually saves the life of an unconsciousness person, then the doc is entitled to abuse the patient sexually or otherwise.
 

Tonington

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Yeah, I guess you're right... Questioning the interpretation of something never occurs at the SCOC level. That's why the laws never change once established... *sigh*

You're being obtuse. The SCOC doesn't apply a decision covering abuse of children to laws concerning abuse of animals.

That must be one of those exceptions I wasn't aware of in law or the code.... If the doc actually saves the life of an unconsciousness person, then the doc is entitled to abuse the patient sexually or otherwise.

This is a long way off the road from what Praxius said. Not related at all.
 

Tonington

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Cite any example you like similar to this hypothetical jump from sexual assault to informed consent rights of patients.
 

karrie

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The law has for ages said that people can not enter into contracts when drunk, yet, has continued to allow emergency rooms to treat people who are drunk. The two issues never collided. There are plenty of areas of law that differ from one scenario to another, and that's why we have lawyers and judges and the Supreme Court to untangle the whole mess.
 

captain morgan

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The SCOC has now recognized conscious consent as an identifiable issue. It will act as one more layer within the existing laws upon which a group/individual can challenge the existing system.

Will this be applied to medical/dental events? Who knows, but what we do know is that the door is open for the challenge and because of this, there is a greater chance that the apple cart may get turned over.
 

karrie

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The SCOC has now recognized conscious consent as an identifiable issue. It will act as one more layer within the existing laws upon which a group/individual can challenge the existing system.

Will this be applied to medical/dental events? Who knows, but what we do know is that the door is open for the challenge and because of this, there is a greater chance that the apple cart may get turned over.

No there isn't. There's greater chance that the laws and wordings will simply be clarified as to when conscious concent is null and void, and when it isn't.
 

karrie

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.. And you know this... How exactly?

Because the law is a reflection of what society finds acceptable, interacting with what an individual's rights are.

Society finds medical care, dental care, acceptable, and an individual's rights are rarely impinged upon by having such work done. That's a no brainer. No one's rights are infringed upon by having medical work done. And if and when they ARE, they do have a right, regardless of the rulings of this case, to bring their case before a court. Cases where consent was not given have come before courts before, especially in suicide cases, where clearly the intent was to die. Society has taken a stand and said that they don't approve of suicide, and so medical professionals can continue regardless. It's always a balance when it comes to these issues.

in this case, the SCoC has said, essentially, that the right to security of person is something that we can't give away, and that the situation she was in was one which violated that basic human right. Comparing it to medical care, where security of person is planned for, strived for, at every turn, is a flawed argument at the very best. The two do not compare in the end, and people can take it to the courts all they want... the court will continue its balancing act, and medical and dental care will continue just as they always have.
 

Kreskin

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Feb 23, 2006
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The next thing you know they'll stop us from having sex with dead people - even after they consented!
 

captain morgan

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Because the law is a reflection of what society finds acceptable, interacting with what an individual's rights are.

Society finds medical care, dental care, acceptable, and an individual's rights are rarely impinged upon by having such work done. That's a no brainer. No one's rights are infringed upon by having medical work done. And if and when they ARE, they do have a right, regardless of the rulings of this case, to bring their case before a court. Cases where consent was not given have come before courts before, especially in suicide cases, where clearly the intent was to die. Society has taken a stand and said that they don't approve of suicide, and so medical professionals can continue regardless. It's always a balance when it comes to these issues.

in this case, the SCoC has said, essentially, that the right to security of person is something that we can't give away, and that the situation she was in was one which violated that basic human right. Comparing it to medical care, where security of person is planned for, strived for, at every turn, is a flawed argument at the very best. The two do not compare in the end, and people can take it to the courts all they want... the court will continue its balancing act, and medical and dental care will continue just as they always have.

I don't disagree with the "spirit" of what you have posted, but this specific legal case has some very important components that have strong ramifications attached.

I won't waste a bunch of time reposting what has already been stated, but suffice to say, if the SCOC found a compelling reason to apply a retro-fit to the existing laws that were in place because of the case forwarded by the complainant; then only the naive will be convinced that there will be no potential for "retro-fit" in other areas that rely upon conscious consent.

The next thing you know they'll stop us from having sex with dead people - even after they consented!


Doesn't sound like it's stopped you
 

karrie

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then only the naive will be convinced that there will be no potential for "retro-fit" in other areas that rely upon conscious consent.

I said they'll likely go through and clarify. But so what? So what if the law has to clarify or 'retro-fit' as you put it? Isn't that what they're there for?
 

captain morgan

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I said they'll likely go through and clarify. But so what? So what if the law has to clarify or 'retro-fit' as you put it? Isn't that what they're there for?


I'll go out on a limb right now and suggest that the next complainant will make an argument that urges that there right to personal security was violated by having no conscious consent. The precedent that they may employ will be the recent SCOC ruling.

Here's a potential medical example... A Jehovah's Witness that can not accept blood transfusions for religious reasons is rushed unconscious to emergency for surgery wherein a blood transfusion is applied.

Tell me that the JW's wouldn't use this SCOC ruling in their favour.
 

karrie

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I'll go out on a limb right now and suggest that the next complainant will make an argument that urges that there right to personal security was violated by having no conscious consent. The precedent that they may employ will be the recent SCOC ruling.

Here's a potential medical example... A Jehovah's Witness that can not accept blood transfusions for religious reasons is rushed unconscious to emergency for surgery wherein a blood transfusion is applied.

Tell me that the JW's wouldn't use this SCOC ruling in their favour.

They wouldn't need this ruling in what you're citing, as they never gave concious consent anyway. it doesn't pertain. And so what if they did try to use it. Do you think they'd win? That's my point... it doesn't matter what people will try. it matters that the law adapts and clarifies and draws its lines in the sand. It has to rule according to what it finds right in THIS CASE, not how others might try to use it. And when others try to use it, it will again adapt and clarify.
 

Kreskin

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Feb 23, 2006
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The SCOC has now recognized conscious consent as an identifiable issue. It will act as one more layer within the existing laws upon which a group/individual can challenge the existing system.

Will this be applied to medical/dental events? Who knows, but what we do know is that the door is open for the challenge and because of this, there is a greater chance that the apple cart may get turned over.
The SCC referred to law on the books.

Parliament has enacted provisions that specifically define consent for the purpose of sexual assault. In particular, s. 273.1 establishes as follows:

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

This is consistent with all facets of our lives. You can agree to mow your neighbour's lawn but you can't be forced to perform the work. Even a court can't force you personally to mow the lawn. You might be responsible to get the work done but you personally can't be forced. Force is slavery. We, you me and everyone else, always have the choice to do something personally physical or stop doing it. The only real exception is a medical intervention. Our legal system recognizes that medical professionals have to make life saving decisions. It's their duty to. They can't do something you previously consented to if the request was illegal or unethical. If anything their negligence could be from doing nothing at all, which isn't remotely the same as ramming you with implements for their personal satisfaction.
 

captain morgan

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The SCC referred to law on the books.

.. And amended it to suit the specific details unique to the case. That is what has opened the door.

This is consistent with all facets of our lives. You can agree to mow your neighbour's lawn but you can't be forced to perform the work. Even a court can't force you personally to mow the lawn. You might be responsible to get the work done but you personally can't be forced. Force is slavery. We, you me and everyone else, always have the choice to do something personally physical or stop doing it. The only real exception is a medical intervention. Our legal system recognizes that medical professionals have to make life saving decisions. It's their duty to. They can't do something you previously consented to if the request was illegal or unethical.

Implying contract law onto the aforementioned case is irrelevant. You can refuse to mow the lawn in which case I don't provide compensation. Further, where the references to slavery come in is wwaaaayyy out in left field.

Lastly, the medical profession examples can represent the entire spectrum of possibilities. I'll refer back to the example of a JW that gets a blood transfusion without their ongoing, expressed consent. That transfusion is required (by law according your above logic), yet tramples on the right to religious freedom granted to the JW.

That said, which right trumps the other? Does the laws binding physicians to force (slavery as per your above definition?) that procedure on a JW supersede the personal rights and security of the individual?

The laws relative to these relationships were murky enough to begin with. The recent SCOC ruling has muddied the waters further.

If anything their negligence could be from doing nothing at all, which isn't remotely the same as ramming you with implements for their personal satisfaction.

Do you go to the doctor with request to be "rammed with implements"? How about in teh case in question? Did the complainant request that treatment? At one point she said she agreed and at another point she denied the agreement.

Funny how that works in child custody cases, eh?