Manitoba Law Journal Volume 40 (2) Underneath The Golden Boy

2017 Volume 40 Number 2
Underneath the Golden Boy
Editors-in-Chief
BRYAN P. SCHWARTZ, LL.B., LL.M., J.S.D.
ASPER PROFESSOR OF INTERNATIONAL BUSINESS AND TRADE LAW,
FACULTY OF LAW, UNIVERSITY OF MANITOBA
DARCY L. MACPHERSON, LL.B., LL.M.

PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA
Student Editors
NICOLE DENISET, B.A., J.D. (2018)
KASIA KIELOCH, B.A., J.D. (2019)
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BRIAN SEED
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2017 Volume 40 Number 2
Underneath the Golden Boy
CONTENTS
i Preface
DARCY L. MACPHERSON
LEGISLATIVE REVIEWS
1 Manitobas changes to Workers Compensation Legislation regarding
Post-Traumatic Stress Disorder: Analysis and Legislative Process
NORA FIEN
29 Bill 34: The Safer Roads Act (Drivers and Vehicles Act and Highway Traffic
Act Amended)
COLLIN INTRATER
55 Reflections on Bill 11: The Domestic Violence and Stalking Amendment Act
ERIKA DAY
87 Bill 5: The Police Services Amendment Act (First Nation Safety Officers)
DANIELLE MAGNIFICO
POLICY REVIEWS
123 The Prevention Strategy: Eliminating FASD in Indigenous Communities
BRYAN P. SCHWARTZ, TERRENCE LAUKKANEN, JUSTINE SMITH
249 Wiretapping Smart Phones with RotaryDial Phones Law: How
Canadas Wiretap Law is in Desperate Need of Updating
ANNE TURNER
299 TO VAPE, OR NOT TO VAPE Electronic Cigarettes and the

Ambiguous State of Their Legality in Canada
RANISH RAVEENDRABOSE
Preface
*
D A RC Y L . M AC P HE RS ON
W hen Dr. Bryan Schwartz and I took over the editorship of the
Manitoba Law Journal (MLJ) in 2010, one of the first tasks
was to determine the path that the publication would follow
going forward. As we re-envisioned the goal of the MLJ, our overriding
aim was to produce high-caliber and lively commentary on issues of
importance to our own legal community. As part of that mandate, we
decided to re-integrate Underneath the Golden Boy (UTGB) into the
annual issues of the MLJ. Inaugurated in 2000 by Dr. Schwartz, UTGB
focuses on legislation and public policy, with an emphasis on issues
affecting Manitobans. While many academic law journals tend to
concentrate on judicial developments, statutory changes and policy
debates are topics often under-analyzed by legal academy.
As usual, this years UTGB issue includes profiles of bills enacted by
the Legislative Assembly of Manitoba. Since these bills were introduced,
there has been a change in government. The references to representatives
of the Crown (such as ministers) are made as of the time of introduction
of the relevant bill.
Nora Fien discusses Bill 35, an amendment to the workers
compensation scheme in Manitoba. She does a remarkable task in
discussing the often-misunderstood concept of post-traumatic stress
disorder (PTSD), and the value of adding a presumption that post-
traumatic stress occurred at work. Two of the most interesting elements of
this paper are the comparison to other Canadian jurisdictions and the
analysis of various stakeholder positions with regard to Bill 35.
In his contribution, Collin Intrater tackles the important issue of bad
driving, whether caused by intoxicants, distractions (such as texting and
*
Professor, Faculty of Law, University of Manitoba; Co-Editor-in-Chief, Manitoba Law
Journal.
ii MANITOBA LAW JOURNAL|VOLUME 40 ISSUE 2
social media), or other factors. Bill 34 introduced harsher penalties for

provincial offences around driving, despite some indication from academic
literature that there is only a minor deterrent effect in increased
punishments. The amended act does not wait for a criminal conviction to
apply these harsher outcomes; a charge around driving is sufficient to
impose penalties. The system administered by the Manitoba Public
Insurance to deal with problematic drivers is also scrutinized, and its
buyback provisions are criticized in light of the amendments.
Erika Days contribution, focused on Bill 11, examines recent
amendments designed to protect the victims of stalking and domestic
violence. The author makes a convincing case that domestic violence and
stalking are continuing and gendered problems in Manitoba, often
resulting in the serious injury or death of victims. Bill 11 makes it easier,
among other things, for victims to seek protective orders and monitor the
use of firearms by those subject to these orders. Valid concerns about the
efficacy of such measures are raised.
Danielle Magnifico explores Bill 5, an amendment to the Police
Services Act designed to confront issues surrounding policing in First
Nations communities. Manitoba has one of the largest Indigenous
populations in the country. One of the most interesting parts of the paper
is Ms. Magnificos discussion of the jurisdictional dispute surrounding
policing in First Nations communities, as it appears neither level of
government is willing to take responsibility over the issue.
This volume of UTGB also has a public policy portion. Bryan
Schwartz, Terrence Laukkenen, and Justine Smith address one of the most
important issues to Manitoba society as a whole and its criminal justice
system, which is reducing the incidence of fetal alcohol syndrome
disorder. The authors focus, in particular, on the challenges faced by
Indigenous communities. They propose the need to develop strategies that
include specific and measurable results, that draw on the successes
achieved in other jurisdictions based on a thorough canvassing of the
literature, and that consider interventions on many scales, from the
cellular level to community employment and education.
Anne Turner has produced a thorough study of the history, modern
development, and effectiveness of judicial supervision over the issuance of
search warrants in wiretap situations. She points out that the law in this
area still tends to be dominated by precedents that were developed in the
era of rotary phones. Her ability to use history to explain a complex area of
Preface iii
law and its constitutional dimensions, and at the same time make it
accessible to a non-expert, is a strength of the article.
Finally, the legality of purchase, sale and personal use of e-cigarettes
lies in the background of the contribution authored by Ranish
Raveendrabose. Raveendrabose wrote the article before any federal
legislation was introduced, and he emphasized that more scientific
research would help the legislature in formulating legislation that protects
and serves those who are on either side of the issue of e-cigarettes.
Interestingly, he concludes that the most effective method by which the
federal government could regulate e-cigarettes is by amending the Food and
Drugs Act, or drafting new regulations under this act (as opposed to the
Tobacco Act).
One of the more distinctive aspects of this UTGB volume is that there
is, in each of the contributions, a connection to police work, despite the
fact that in some cases, this can create a jurisdictional issue with respect to
the government. Ms. Fiens contribution has a policing dimension, as the
presumption that PTSD is caused by employment was considered in
certain jurisdictions for first responders, such as police, who are exposed
to trauma as part of their work. The presumption is extended by the
Manitoba legislation to all workers, which makes Manitoba a leader in the
country on broadening this type of legislation and increasing supports for
workers with post-traumatic stress disorder.
Distracted and impaired driving, discussed in Mr. Intraters
contribution, can lead to serious criminal offences that are sought to be
curbed by a provincial amendment. Ms. Days contribution describes how
the amendments proposed by Bill 11 were developed through consultation
with police, and addresses the enforcement aspect of protection orders.
With respect to Ms. Magnificos contribution, the connection to policing
is, to say the least, obvious.
The public policy section addresses similar issues. In some cases (such
as the Turner contribution), the link to the criminal law and policing is
quite direct, while in others (such as the contributions by Schwartz,
Laukkanen, and Smith, and that of Raveendrabose) the link is still clearly
present, but not quite so obvious.
In the end, I believe that the various contributions in this volume
fulfill the commitment that Dr. Schwartz and I have made with respect to
the MLJ. The articles touch on various topics of great importance to
Manitobans and the legal community. Many of the issues discussed are
iv MANITOBA LAW JOURNAL|VOLUME 40 ISSUE 2
connected to the criminal justice system. This is particularly timely as the

MLJ will shortly release its first of many planned issues on criminal law
jurisprudence.1 Manitoba challenges, experiences, and policy initiatives in
the area of criminal justice, including its impact on members of
Indigenous communities, is potentially of national and international
importance; we believe that in this area and in many other public policy
areas over the years, the MLJ has released analysis and reflection that can
contribute significantly to understanding and reform.
1
(2017) 40:3 Man LJ [forthcoming].
Manitobas Changes to Workers
Compensation Legislation Regarding
Post-Traumatic Stress Disorder:
Analysis and Legislative Process
*
N OR A F IE N
I. INTRODUCTION
W
orkers Compensation provides benefits to employees injured at
work. Compensation is provided both for physical and
psychological injuries, including Post-Traumatic Stress Disorder
[PTSD]. In most jurisdictions, the onus is on the worker to show that their
PTSD is work-related. Recently, a number of provincial governments and
political parties have introduced bills to change that.
Several years ago, Alberta passed a bill that created a presumption that
an emergency workers PTSD was work-related, unless the contrary could
be shown. Ontario just recently passed similar provisions. Since then,
similar bills have been introduced in legislatures throughout the country.
But last year, Manitoba went a step further and legislated the presumption
for all workers covered by Workers Compensation.
Public awareness about mental illnesses like PTSD has been
increasing, along with the recognition that stigma is a barrier to treatment.
Political parties have presented presumption bills as a way to reduce stigma
and speed access to treatment for work-related PTSD. These are of course
admirable goals, so admirable in fact that the bills do not always receive
much scrutiny from opposing parties. One can speculate that a political
party does not want to appear unsupportive of emergency workers, who
*
J.D. (2016).
2 MANITOBA LAW JOURNAL| VOLUME 40 ISSUE 2
are quite highly regarded by the public certainly more so than the
average politician.
Manitobas legislature passed Bill 35, The Workers Compensation
Amendment Act (Presumption re Post-Traumatic Stress Disorder and Other
Amendments)1 [Bill 35], into law last year. It received all party support, and
sailed through first reading to Royal Assent in under a month. This paper
will examine the legislative process of Bill 35, including stakeholder
consultation both pre- and post- Bill 35s introduction, involvement of
Manitobas Workers Compensation Board [WCB], and the debate in the
Legislative Assembly. The merits and deficits of the bill will also be
examined.
Bill 35 is particularly interesting politically because a similar bill was
introduced by the Opposition shortly beforehand. That bill will also be
examined for its process and debate, and compared with Bill 35.
II. WORKERS COMPENSATION ACT
A. Generally
The Workers Compensation Act,2 [WCA] is Manitobas legislation for
administering a system of compulsory no-fault insurance for workplace
injuries.3 Benefits are provided to workers in the event of a work-related
injury, illness, or death. Employers fund the system and in turn are
protected from lawsuits by injured workers.4
The WCA covers a wide variety of employers and employees in
Manitoba, in all industries except those excluded by Regulation 196/2005.
Excluded industries and workers include: accounting and legal services,
personal grooming and aesthetic services, elected officials, teachers,
athletes, and entertainers.5 Covered employers and workers cannot
1
Bill 35, The Workers Compensation Amendment Act (Presumption re Post-Traumatic Stress
Disorder and Other Amendments), 4th Sess, 40th Leg, Manitoba, 2015 (assented to 30
June 2015), SM 2015, c 13 [Bill 35].
2
The Workers Compensation Act, CCSM c W200 [WCA].
3
WCB, Overview of the Workers Compensation System, (2014) online: WCB
<http://www.wcb.mb.ca/overview>.
4
Ibid.
5
Man Reg 196/2005.
Bill 35: Workers Compensation 3
contract out of the WCA.6 The legislation sets out the compensation
scheme, exceptions, required notices, benefits, calculation of
compensation, duties of the Board, and administrative penalties.
Compensation is provided when a personal injury by accident
arising out of and in the course of the employment is caused to a
worker.7 The term accident is defined as follows:
accident means a chance event occasioned by a physical or natural cause;
and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in
the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured8
None of the above was altered by Bill 35.
B. Pre Bill 35
Following from part (c) of the definition of accident above, the term
occupational disease was defined as follows:
occupational disease means a disease arising out of and in the course of
employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event9
Therefore, although PTSD was not specifically referenced in the WCA,
part (d) of the occupational disease definition allowed PTSD to be
compensated when it arose as an acute reaction to a traumatic event out of
and in the course of employment.
6
WCA, supra note 2, s 15.
7
Ibid, s 4(1) [emphasis added].
8
Ibid, s 1(1) [emphasis added].
9
The Workers Compensation Act, CCSM c W200, s 1(1) as it appeared on 29 June 2015
(prior to the Bill 35, SM 201, c 13 amendment).
C. Presumptions Are Nothing New

Both before and after Bill 35, the WCA contained provisions that
certain injuries to certain workers are presumed to be either an
occupational disease, or to arise out of and in the course of employment.
If a firefighter suffers a listed injury, that injury must be presumed to
be an occupational disease the dominant cause of which is the
employment as a firefighter, unless the contrary is proven.10 The listed
injuries are all specific types of cancer.11 A regulation sets out the
minimum period of employment required.
There is also a presumption that if a firefighter suffers an injury to
the heart within 24 hours after attendance at an emergency response, the
injury must be presumed to be an accident arising out of and in the course
of the employment, unless the contrary is proven.12
The initial provision regarding the cancer presumption for firefighters
was added in 2002,13 and the provision for heart injury in 2005.14
Additionally, there is the following general presumption for all workers
and all accidents:
Where the accident arises out of the employment, unless the contrary is proven,
it shall be presumed that it occurred in the course of the employment; and,
where the accident occurs in the course of the employment, unless the contrary is
proven, it shall be presumed that it arose out of the employment.15
10
WCA, supra note 2, s 4(5.2).
11
Ibid.
12
Ibid, s 4(5.6).
13
Bill 5, The Workers Compensation Amendment Act, 3rd Sess, 37th Leg, Manitoba, 2002
(assented to 23 May 2002), SM 2002, c 2, s 2 [Cancer Presumption Bill].
14
Bill 25, The Workers Compensation Amendment Act, 3rd Sess, 38th Leg, Manitoba, 2005
(assented to 9 June 2005), SM 2005, c 17, s 6(2).
15
WCA, supra note 2, s 4(5).
III. SUMMARY OF THE PROPOSED LEGISLATION AMENDING

THE WCA
A. Bill 35
1. PTSD
Under Bill 35, PTSD is presumed to be caused by a workers
employment. The bill achieves this result by amending the definition
section of the WCA and by adding two new sub-sections about the
presumption. The presumption is not limited to certain occupations.
The definition of occupational disease in s. 1(1) is amended to the
following (amendments in bold):
occupational disease means a disease arising out of and in the course of
employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment; or
(b.1) that trigger post-traumatic stress disorder;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event 16
The following presumption is added as s. 4(5.8):
If a worker
(a) is exposed to a traumatic event or events of a type specified in the Diagnostic
and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress
disorder; and
(b) is diagnosed with post-traumatic stress disorder by a physician or
psychologist;
the post-traumatic stress disorder must be presumed to be an occupational
disease the dominant cause of which is the employment, unless the contrary is
proven. 17
The newly added s. 4(5.9) states that this presumption will apply to
workers diagnosed with PTSD on or after the day the amendments come
into force (here, a day fixed by proclamation,18 January 1, 2016). Thus the
new presumption for PTSD is not retroactive to previous diagnoses.
16
Bill 35, supra note 1, s 2 [emphasis added].
17
Ibid, s 3.
18
The Workers Compensation Amendment Act (Presumption re Post-Traumatic Stress Disorder
and Other Amendments), SM 2015, c 13, Proclamation, proclaimed in force 1 January
Definitions of Diagnostic and Statistical Manual of Mental

Disorders [Manual], post-traumatic stress disorder, and psychologist,
were added to s. 1(1) to support the amendments.19
2. Other Provisions
Bill 35 adds a penalty for failure to post certain notices as required by
the WCB.20 It also extends the filing dates for the WCBs annual reports
and five year plan, as well as for the appeal commissions annual report.21
These provisions will not be discussed further.
B. Bill 205
One of the interesting aspects of Bill 35s legislative process is that a
similar bill, Bill 205, The Workers Compensation Amendment Act (Presumption
re Post-Traumatic Stress Disorder),22 was introduced by a member of the
opposition Progressive Conservatives [PC] earlier in the same session of
the Legislature.
Bill 205 sought to amend the WCA to include a presumption that
PTSD of an emergency response worker was an occupational disease
caused by their employment, unless proven otherwise.23 Bill 205 defined
emergency response worker to be firefighters, emergency medical
response technicians, and police officers. 24 The bill also added a definition
of PTSD.25
2016.
19
Bill 35, supra note 1, s 2.
20
Ibid, ss 4, 8.
21
Ibid, ss 57.
22
Bill 205, The Workers Compensation Amendment Act (Presumption re Post-Traumatic Stress
Disorder), 4th Sess, 40th Leg, Manitoba, 2014 [Bill 205].
23
Ibid, s 2.
24
Ibid.
25
Ibid.
C. Direct Comparison of Key Provisions

Bill 35 Bill 205
"post-traumatic stress
"post-traumatic stress
disorder" means
disorder" means
an anxiety disorder that develops
Posttraumatic Stress Disorder as
after exposure to a traumatic event
that condition is described in
or experience with symptoms that
the Diagnostic and Statistical
may include flashbacks, nightmares
Manual of Mental Disorders
and intense feelings of fear or
horror
If a worker If a worker
(a) is exposed to a traumatic
event or events of a type
specified in the Diagnostic who is or has been an emergency
and Statistical Manual of response worker suffers from post-
Mental Disorders as a traumatic stress disorder,
trigger for post-traumatic
stress disorder; and
(b) is diagnosed with post-
traumatic stress disorder by
a physician or psychologist;
the post-traumatic stress disorder the disorder
must be presumed to be an must be presumed to be an
occupational disease the dominant occupational disease the dominant
cause of which is the employment, cause of which is the employment
as an emergency response worker,
unless the contrary is proven unless the contrary is proven
In contrast to Bill 205, Bill 35 leaves the definition and diagnosis of

PTSD up to the Manual. However, the definition may change with the
Manual, so the Legislature will want to keep up to date in case of radical
changes. The definition given by Bill 35 of "Diagnostic and Statistical
Manual of Mental Disorders" is the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders published by the American
Psychiatric Association.26
26
Bill 35, supra note 1, s 2(b) [emphasis added].
Bill 205s definition classifies PTSD as an anxiety disorder, when the

Manual had actually been revised in 2013 to remove PTSD from the
anxiety disorder chapter.27
IV. LEGISLATIVE DEBATE

The 4th Session of the 40th Legislature ran from November 20, 2014 to
November 5, 2015.28
A. Bill 205
We will first walk through the legislative debate surrounding Bill 205
in order to provide context for some of the comments of the Members of
the Legislative Assembly [MLAs or Members] during the Bill 35 debate
which occurred later.
1. First Reading29
Bill 205 had its first reading on December 4, 2014. Myrna Driedger
(PC MLA) moved the bill. It was seconded by Mr. Goertzen (PC MLA).
Mrs. Driedger briefly described the bill and the Assembly then adopted
the motion for first reading.
2. Second Reading30
The second reading occurred months later, over two different dates:
May 21, 2015 and June 2, 2015.
On May 21, both PC and NDP Members spoke to the bill. Many
discussed personal incidents of trauma, family and friends who were
emergency response workers, and statistics about PTSD. They spoke of the
27
American Psychiatric Association, Posttraumatic Stress Disorder (2013), online:
American Psychiatric Association DSM-5 Development, online:
<http://www.dsm5.org/Documents/PTSD%20Fact%20Sheet.pdf> [APA PTSD].
28
The Legislative Assembly of Manitoba, 4th Sess, 40th Leg, online:
http://web2.gov.mb.ca/bills/40-4/.
29
Manitoba, Legislative Assembly, Hansard, 4th Sess, 40th Leg, No 11B (4 December
2014) at 367368.
30
Manitoba, Legislative Assembly, Hansard, 4th Sess, 40th Leg, No 34A (21 May 2015)
at 969978; Manitoba, Legislative Assembly, Hansard, 4th Sess, 40th Leg No 40A (2
June 2015) at 13631368 [Hansard 2 June 2015].
seriousness of PTSD, suicide rates, and the importance of amending the

WCA to bring in a presumption that a workers PTSD is an occupational
disease caused by employment. Members agreed that this was not a
partisan issue and that it should not matter who introduced such
legislation.
The NDP explained that they were already planning to bring in
broader legislation this session, because workers in every occupation can
suffer from PTSD.31 The PCs suggested that the NDP amend Bill 205 in
order to make it expedient.32
On June 2, three NDP Members spoke on the bill. The tone was
different from May 21. Dave Gaudreau (NDP MLA) led off by saying
while the bill is a good idea, he had to point out that the PCs always vote
against NDP worker-safety legislation. Mr. Gaudreau also attacked the
PCs record from when they were in government, as well as the PC voting
record, suggested hypocrisy, and touted NDP accomplishments in the area
of safety.33 The second speaker, Mr. Clarence Pettersen (NDP MLA) said
more of the same and recounted a personal anecdote.34
The third speaker, the Honourable Melanie Wight (NDP MLA and
Minister of Children and Youth Opportunities) stated that only about
10% of the PTSD claims come from emergency workers, so to only cover
emergency workers with this presumption would be mistaken.35 She also
told a personal anecdote.
This was as far as Bill 205 travelled in the legislative process.
B. Bill 35
Bill 35 went from first reading on June 8, 2015 to Royal Assent on
June 30, 2015.
31
Ibid (21 May) at 971.
32
Ibid (21 May) at 973.
33
Hansard 2 June 2015, supra note 30 at 13631365 (Dave Gaudreau).
34
Ibid at 13651367 (Clarence Pattersen).
35
Ibid at 1367 (Hon Melanie Wight).
1. First Reading36
Bill 35 had its first reading on June 8, 2015. It was introduced by the
Honourable Erna Braun (NDP MLA). Ms. Braun is the Minister of
Labour and Immigration, and also the Minister charged with the
administration of the WCA. The bill was seconded by Sharon Blady (NDP
MLA and Minister of Health). Ms. Braun briefly summarized the bill, and
it was adopted by the Assembly for first reading.
2. Second Reading37
Bill 35 had its second reading on June 16, 2015. Ms. Braun moved
that the bill be read a second time and be referred to a committee. It was
seconded by the Honourable Dave Chomiak (NDP MLA and Minister of
Mineral Resources).
Ms. Braun again described the bill and summarized the reasoning
behind it:
While PTSD claims are currently compensable under The Workers
Compensation Act, the proposed presumption would enhance timely
adjudication and access to treatment. It would help ensure that people with
work-related PTSD seek the supports and services they need. It would be a step
towards reducing the stigma attached to mental illness.38
Reiterating what was said by her NDP colleague during the second
reading of Bill 205, she stated that 90% of PTSD claims are from
occupations other than emergency workers.39
Dennis Smook (PC MLA) talked about PTSD, but also gave some
examples of bills that the NDP spoke down like they had Bill 205.40 He
said that the NDP could have amended Bill 205, but that they instead
wanted to grandstand, and that the day they announced Bill 35 they
had hundreds of people out in front of the Legislature making this a
big deal.41 Myrna Driedger (PC MLA), who introduced Bill 205,
36
Manitoba, Legislative Assembly, Hansard, 4th Sess, 40th Leg, No 43 (8 June 2015) at
1612.
37
19181924.
38
Ibid at 1919 (Hon Erna Braun).
39
Ibid.
40
Ibid at 1920 (Dennis Smook).
41
Ibid.
questioned the NDPs motivation in not amending Bill 205 but instead
bringing in their own bill, but she was still supportive of Bill 35.42
The Honourable Jon Gerrard (Liberal MLA) also spoke to Bill 35. He
discussed some of the science and history of PTSD, and encouraged an
evidence and science-based approach to treatment. He also noted that
people who do not work, such as children, or those suffering from PTSD
from instances that are not work-related, need help too.43 He was
supportive of the bill.
The Honourable Sharon Blady (NDP MLA and Minister of Health)
also spoke in favour of the bill.44
3. Standing Committee on Social and Economic Development45

At the committee stage, there was one written submission from the
United Fire Fighters of Winnipeg, and seven presenters, representing the
following organizations: Manitoba Government and General Employees'
Union, Manitoba Federation of Labour, Manitoba Association of Fire
Chiefs, Manitoba Nurses Union, Winnipeg Chamber of Commerce,
United Food and Commercial Workers Local 832, Paramedic Association
of Manitoba. 46
All were supportive except the Winnipeg Chamber of Commerce.47
The Nurses Union suggested a number of amendments that would
broaden the legislation.48
Each clause of Bill 35 was passed.49
42
Ibid (Myrna Driedger).
43
Ibid at 1923 (Hon Jon Gerrard).
44
Ibid at 19931924 (Hon Sharon Blady).
45
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
4th Sess, 40th Leg, No 3 (18 June 2015) [Standing Committee].
46
Ibid.
47
Ibid at 7071.
48
Ibid at 6670.
49
Ibid at 82.
4. Attempted Report Stage Amendment50

Just prior to Bill 35s third reading, PC MLAs attempted to make a
report stage amendment. The amendment proposed to add the following
to the bill:
Within three months after the end of each year, the board must prepare and
submit to the minister a report that sets out
(a) the number of cases in that year in which a worker has made a claim in
respect of posttraumatic stress disorder; and
(b) the number of claims in that year in which the board has applied the
presumption in subsection (5.8) and awarded compensation on the basis
that post-traumatic stress disorder is an occupational disease.51
The amendment also called for the minister to table a copy of the
report as proposed in the Legislative Assembly within a certain time
period.52
Mrs. Driedger (PC MLA), who had moved the amendment, explained
that she was now aware that there had not been sufficient consultation
regarding the bill in the community and that keeping track of claims
would answer some of the questions and concerns.53 Mr. Smook (PC
MLA) expressed a similar opinion.54
Ms. Braun (NDP MLA) stated that she could not support the
amendment because it singled out PTSD and would be unhelpful in
destigmatizing PTSD. She noted that other presumptions for cancers and
heart injuries do not have a reporting requirement.55
The amendment failed to pass.56
5. Third Reading57
Ms. Braun spoke to the bill once more. She touted it as the first of its
kind in Canada, and asserted that the bill would help to reduce stigma
50
22862287 [Report Stage (Hansard)].
51
Ibid at 286.
52
Ibid.
53
Ibid at 22862287 (Myrna Driedger).
54
55
Ibid at 2287 (Hon Erna Braun).
56
Ibid.
57
Ibid at 22872289.
around PTSD which is a barrier for workers coming to seek the supports
they need.58
Mr. Gerrard (Liberal MLA) spoke in favour of the bill, saying that he
had been convinced by the presentations at committee that covering all
workers was the best way to go. He advised that the legislation should be
monitored on an ongoing basis, but he did not foresee runaway costs.59
Mr. Smook spoke in favour of the bill, but expressed disappointment
that the report stage amendment was not passed.60
The bill then passed third reading.61
6. Royal Assent62
Bill 35 received Royal Assent on June 30, 2015.
V. OPINIONS: DOES THE SOLUTION FIT THE PROBLEM?
A. The PTSD Problem

The Diagnostic and Statistical Manual of Mental Disorders classifies PTSD
as a trauma and stressor-related disorder.63 PTSD is a psychological
reaction that can manifest itself after a traumatic event and which has
been present for at least one month.64 Symptoms include [c]ontinually
reliving the traumatic event during the day or at night, [a]voidance -
conscious or involuntary - of any trauma reminder, and [h]yperarousal in
the absence of any imminent risk.65
While much research has been conducted on PTSD occurrence in
military personnel and first responders, there are fewer available statistics
58
Ibid at 2288.
59
Ibid (Hon Jon Gerrard).
60
61
Ibid.
62
Ibid at 22982299.
63
APA PTSD, supra note 27.
64
Canadian Psychological Association, Simple Facts about Traumatic Stress and
PTSD (2016), online: Canadian Psychological Association
<http://www.cpa.ca/aboutcpa/cpasections/traumaticstress/traumaticstressbasicinfor
mation>.
65
Ibid.
on PTSD as it relates to other occupations. In general, lifetime prevalence

of PTSD is approximately 7-12 percent.66
There is no question that PTSD is a problem, that the disorder can
have tragic consequences if left untreated, or that there is stigma associated
with mental illness.
According to a report by the Mood Disorders Society of Canada the
largest problem hindering effective treatment of PTSD is the societal
stigma surrounding the disorder.67 The report also comments that
many healthcare providers, including physicians, have stigmatizing
attitudes towards patients presenting with possible mental health problems
including PTSD.68
While stigma can be associated with PTSD arising out of any
circumstances, work-related PTSD presents some unique issues. It has
been noted that [t]rauma occurring in the workplace may be distinct
from trauma in other settings due to the complicating factors of return to
work, employer liability and worker compensation [footnotes omitted].69
One study found that a significant proportion of individuals who
experience work-related PTSD were not able to return to work, even in
the absence of significant coexisting physical injury.70 Many of the
66
Statistics Canada, Health state descriptions for Canadians, Section B Anxiety
Disorders, (27 November 2015), online: Statistics Canada
<http://www.statcan.gc.ca/pub/82-619-m/2012004/sections/sectionb-eng.htm#a6>;
Mood Disorders Society of Canada, Post Traumatic Stress Disorder (PTSD) Facts,
online: Mood Disorders Society of Canada:
<http://www.mooddisorderscanada.ca/documents/Advocacy/PTSD_Backgrounder_
EN.pdf> at 2.
67
Mood Disorders Society of Canada, Post Traumatic Stress Disorder: Out of Sight,
Not out of Mind, (March 2012) online: Mood Disorders Society of Canada
<http://www.mooddisorderscanada.ca/documents/Advocacy/PTSD_Report_EN.pdf
> at 3.
68
Ibid at 5.
69
J. Hensel et al., A descriptive study of a specialized worker's psychological trauma
program (December 2010) 60:8 Occupational Medicine 654 at 654.
70
Heather A. MacDonald et al., Posttraumatic Stress Disorder (PTSD) in the
Workplace: A Descriptive Study of Workers Experiencing PTSD Resulting From
Work Injury (June 2003) 13:2 J of Occupational Rehabilitation 63 at 74.
employees who did return to work did not return to their previous
employer.71
The NDP Government was undoubtedly hoping that Bill 35 would
help combat some of these problems. The Government announced that
the presumption would make it much easier to access supports, treatment
and compensation.72 These are laudable goals, but does the presumption
achieve them?
In the legislative debates, all Members discussed the high rates of
PTSD and its devastating consequences, including suicide. However, it was
not precisely discussed that there were any issues with the old system,
where a worker had to prove their PTSD was an occupational disease
caused by their employment. No one brought up that this may be difficult
to prove, or that workers were not seeking treatment because they bore the
onus.
B. Public Opinion and Media

Media coverage was largely positive as many of the unions and other
stakeholders representing employees that were interviewed by the media
spoke in favour of the legislation. It was hailed as the first in Canada.73
Some business and employer stakeholders, such as the Canadian
Federation of Independent Business [CFIB], provided more critical
commentary in media interviews. The CFIBs spokesperson said that the
presumption could lead to a spike in claims and increased employer
premiums, and that the financial costs had not been studied.74 Given the
difficulty with appearing to be unsupportive of attempts to combat mental
illness, one could assume that criticisms were somewhat tempered.
71
Ibid.
72
Government of Manitoba, News Release, Province Introduces Groundbreaking First-
in-Canada Presumptive Post-Traumatic Stress Disorder Legislation (8 June 2015),
online: <http://news.gov.mb.ca/news/index.html?archive=&item=35114>.
73
Manitoba first in country to offer PTSD coverage to all workers, CBC News (08
June 2015), online: CBC <http://www.cbc.ca/news/canada/manitoba/manitoba-first-
in-country-to-offer-ptsd-coverage-to-all-workers-1.3104409>.
74
Ibid.
C. Stakeholder Opinions
Prior to the introduction of Bill 35, the WCB put out a list of specific
questions seeking feedback on a possible PTSD presumption. This
Stakeholder Consultation Document75 was provided to 55 stakeholders
and experts, as well as posted on the WCB website from February 23,
2015 to May 1, 2015.76
One of the questions posed was whether a presumption was an
appropriate method by which to improve the timeliness and consistency of
adjudication in respect of claims based on PTSD,77 which clues us into
the goals of Bill 35.
From the feedback, the WCB created a Report on Consultations
document [Report].78 Overall, labour organizations and workers expressed
support for presumptive legislation for PTSD, while employer
organizations and employers were generally opposed to a PTSD
presumption.79
The following table was compiled by surveying the 29 submissions
posted on the WCB website:80
75
WCB, Stakeholder Consultation Document: Amending the Workers Compensation
Act to Provide Presumptive Coverage for Post-Traumatic Stress Disorder (10
February 2015), online: WCB
<http://www.wcb.mb.ca/sites/default/files/files/Consultation%20Paper%20PTSD%
20Feb%2010%202015.pdf> [SCD].
76
WCB, Report on Consultations: Amending the Workers Compensation Act to
Provide Presumptive Coverage for Post-Traumatic Stress Disorder (5 June 2015)
online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/PTSD%20CONSULTATION%20
REPORT%20June%202015.pdf> at 2 [Report].
77
Ibid.
78
Ibid.
79
Ibid at 34.
80
Links to each submission can be found here: Workers Compensation Board of
Manitoba, Stakeholder Submissions Regarding WCB Coverage for Post-Traumatic
Stress Disorder, online: https://www.wcb.mb.ca/stakeholder-submissions-regarding-
wcb-coverage-for-post-traumatic-stress-disorder.
Support
Support
Presumption Do Not
Stakeholder Presumption
for Only Support
for All
Some Presumption
Workers
Workers
Canadian National
Railway Company X
and Canadian Pacific
City of Brandon X
City of Winnipeg X
Compass Group
X
Canada
Diagnostic Services
X
Manitoba
Individual
X
Submission #1
Klinic Community
X
Health Centre
Manitoba Association
of Health Care X
Professionals
Manitoba Employers
X
Council
Manitoba Federation
X
of Labour
Manitoba
Government and
X
General Employees
Union
Manitoba Hydro X
Manitoba Liquor &
X
Lotteries
Manitoba Nurses
X
Union
Manitoba
X
Psychological Society
Northern Health
X
Region
Support
Support
Presumption Do Not
Stakeholder Presumption
for Only Support
for All
Some Presumption
Workers
Workers
Paramedic
Association of X
Manitoba
Prairie Mountain
X
Health
Public Service
X
Alliance of Canada
Rycom Solutions X
Group
Southern Health X
Unifor X
Union of Canadian
X
Correctional Officers
United Fire Fighters
X
of Winnipeg
United Food &
Commercial Workers X
Union Local 832
VIA Rail Canada X
Winnipeg Chamber
` X
of Commerce
Winnipeg Police
X
Association
Winnipeg Regional
X
Health Authority
VI. SIMILAR LEGISLATION IN OTHER JURISDICTIONS

It seems that many governments and political parties (and not just
labour-aligned parties), think that presumptive PTSD legislation is good
legislation. Taking the more cynical view, parties may at least see it as a
way of attracting votes.
In 2012, Albertas Progressive Conservative government introduced

and passed legislation to bring in the PTSD presumption for first
responders.81 In Alberta there were rallies held calling for the expansion of
presumptive coverage to other (though not all) occupations.82
Ontario passed a bill similar to Albertas in April 2016.83 That bill was
introduced by the governing Liberals.
New Brunswick, under a Liberal government, brought in a PTSD
presumption for emergency responders in a bill which received Royal
Assent in June of 2016.84
A PTSD presumption for emergency response workers was announced
as a campaign promise by the Progressive Conservatives in Newfoundland
and Labradors 2015 election,85 but the Liberals won the election.
In 2014, a private members bill was introduced in Nova Scotia. It
made it to second reading debate.86 It covered emergency responders but
had a definition that was broader including Correctional Service
workers, agents with Children and Family Services, nurses, and social
workers.87
In 2015, a private members bill in the Yukon was introduced,88 as was
one in British Columbia in 2016.89 Both have only reached first reading so
far and apply to first responders.
81
Bill 1, Workers Compensation Amendment Act, 1st Sess, 28th Leg, Alberta, 2012
(assented to 10 December 2012), SA 2012 c8.
82
Alberta asked to expand PTSD coverage under new bill, CBC News (12 December
2012), online: CBC <http://www.cbc.ca/news/canada/edmonton/alberta-asked-to-
expand-ptsd-coverage-under-new-bill-1.1284219>.
83
Bill 163, Supporting Ontario's First Responders Act (Posttraumatic Stress Disorder), 1st Sess,
41st Parl, Ontario, 2016 (assented to 6 April 2016), SO 2016 C4.
84
Bill 39, An Act to Amend the Workers Compensation Act, 2nd Sess, 58th Leg, New
Brunswick, (assented to 28 June 2016).
85
Progressive Conservative Party of Newfoundland and Labrador, News Release, Care
for Firefighters, Emergency Responders, (16 November 2015) online:
<https://www.pcpartynl.ca/article/201511161/>.
86
Bill 11, An Act to Amend Chapter 10 of the Acts of 1994-95, the Workers' Compensation
Act, 2nd Sess, 62nd Leg, Nova Scotia, 2014.
87
Ibid.
88
Bill 106, An Act to Amend the Workers Compensation Act, with Respect to Post-Traumatic
Stress Disorder, 1st Sess, 33rd Leg, Yukon, 2015.
89
Bill M203, Workers Compensation Amendment Act, 5th Sess, 40th Parl, British
A private members bill from an NDP MLA in Saskatchewan would

apply a PTSD presumption to all workers,90 like in Manitoba. This bill,
introduced in June 2016, has passed only first reading.
VII. MERITS & DEFICITS OF BILL 35 & SOME ALTERNATIVE

SOLUTIONS
A. Merits and Praise

In supporting the introduction of the presumption, labour
organizations commonly expressed that removing the onus of proof from
the worker would encourage more workers to make a claim and that the
presumption would get a claim accepted more quickly, ensuring workers
could get treatment faster.91 Both politicians and stakeholders were
hopeful that the presumption would help reduce the stigma of mental
illness as well.92
The WCB explained that the presumption was being considered
because, while PTSD was already covered by the WCB, it is sometimes
difficult to establish a causal link between workplace incidents and PTSD
which can result in delay and inconsistency in adjudication. A
presumption would speed up claim adjudication providing quicker access
to treatment.93 The same document also said that a presumption would
help reduce the stigma associated with mental illnesses.94
Many of the stakeholders who responded agreed with this, expressing
that a presumption either for some, or all workers would help with
timeliness, consistency, and result in better treatment for PTSD-affected
workers.95 The stakeholders in favour of the presumption were largely
Columbia, 2016.
90
Bill 601, An Act to amend The Workers Compensation Act, 2013 to provide protection for
workers suffering post-traumatic stress disorder, 1st Sess, 28th Leg, Saskatchewan, 2016.
91
Report, supra note 76 at 3.
92
Ibid.
93
SCD, supra note 75 at 1.
94
Ibid.
95
For example, see stakeholder submissions from: Manitoba Federation of Labour at 1,
Manitoba Government and General Employees Union at 2, Manitoba Nurses Union
at 1, United Food & Commercial Workers Union Local 832 at 3, Winnipeg Police
those representing employees, and many based their opinion on their

experiences dealing with PTSD claims.96
Though one criticism may be that Bill 35 means that workers suffering
from work-related PTSD are now treated better than workers suffering
from work-related physical injuries, the case of Plesner v British Columbia
Hydro and Power Authority97 suggests that it may put them on equal footing.
In Plesner, a Hydro employee was diagnosed with PTSD and sought
compensation under BCs Workers Compensation legislation. The court
found that the requirement of a traumatic event, when read with the
corresponding Workers Compensation policy document, breached s. 15(1)
of the Charter of Rights and Freedoms because it discriminated between
workers with different types of illness or injury.98 The reasoning for this
was that the traumatic event requirement meant that workers suffering
from PTSD or other purely mental injuries had to meet a higher bar than
those with purely physical injuries.99 In order to receive compensation for
mental stress under the legislation, Plesner had to meet the following two
part test:
1. There must be an acute reaction to a sudden and unexpected
traumatic event.
2. The acute reaction to the traumatic event must arise out of and in
the course of employment.100
However, those with physical injuries only had to establish the injury
was work-related, assisted by the presumption that an accident that
happens at work is work-related.101
While Manitoba had the acute requirement prior to Bill 35,
Manitobas corresponding WCB policy102 did not define traumatic events
Association at 4.
96
Report, supra note 76 at 34. Also, for example, see stakeholder submissions from:
Manitoba Government and General Employees Union, Manitoba Nurses Union,
United Food & Commercial Workers Union Local 832, Winnipeg Police
Association.
97
2009 BCCA 188, 2009 CarswellBC 1095 [Plesner].
98
Ibid at para 96.
99
Ibid.
100
Ibid at para 107.
101
Ibid at para 128.
in the same way that was problematic for the Majority in Plesner.
Manitobas policy was repealed and replaced in 2012.103 This change was
perhaps made in response to the Plesner decision, which occurred three
years earlier.
Therefore, even if Manitoba did not have the exact problem illustrated
in Plesner before the enactment of Bill 35, the decision does highlight that
there may be a higher bar for those suffering from PTSD compared to
physical injuries, and that a presumption may help to balance this. One
stakeholder explained they had found that professional diagnoses of PTSD
get debated at adjudication, dragging the process on.104 That never
happens with a physical injury such as a broken leg.105
Bill 35 may also have some positive domino effects. For example, a
presumption may prompt employers to evaluate their own internal
programs for coping, safety and employee support.106
As mentioned earlier, Albertas legislation has been criticized for
leaving out certain occupations. However, Bill 35 treats all workers with
PTSD equally. It does not draw a distinction between occupations, thus
not leaving out other high-risk occupations by restricting the presumption
to emergency workers.
102
WCB, Adjudication of Psychological Injuries: Policy 44.05.30 (November 2012)
online:
<http://www.wcb.mb.ca/sites/default/files/files/44_05_30PsychologicalConditions.p
df>.
103
Ibid at 2.
104
Winnipeg Police Association, Re: Presumptive Legislation WCB PTSD Claims,
Stakeholder Submissions Regarding WCB Coverage for Post-Traumatic Stress
Disorder, (7 April 2015), online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/WPA%20Association%20submissi
on.pdf> at 3.
105
Ibid.
106
Compass Group Canada, Stakeholder Consultation Document Feedback Request
Response, Stakeholder Submissions Regarding WCB Coverage for Post-Traumatic
Stress Disorder, online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/Compass%20Group%20submissio
n.pdf> at 2.
B. Deficits and Concerns

One of the concerns about Bill 35 is that a presumption will only
speed up acceptance and not treatment. An employer stakeholder noted
that in their experience, if anything, it was the availability of mental health
care provider resources that delayed the process.107 If this observation is
astute, then the legislation on its own will fail to achieve the goal of faster
access. Without an increase in resources, just because a workers claim is
accepted does not necessarily mean they will receive treatment in a
timelier manner than before.
Another major criticism was the consultation process itself. The
Winnipeg Chamber of Commerce went so far as to say that the public
consultation was window dressing on a decision already made.108 Some
stakeholders noted there was insufficient evidence provided on the current
state of affairs with respect to PTSD claims, such as statistics on
adjudicative and treatment delays or denials of compensation, and how
Bill 35 would change them.109
It was questioned whether Bill 35 provides a solution to a problem
that does not exist. No evidence was provided that there existed any issue
with work-related PTSD compensation claims being denied,110 the very
problem that this legislation on its face would appear to address. There
were also no statistics provided or cost analysis done.111 There is potential
107
MB Hydro, Re: Presumptive PTSD Coverage, Stakeholder Submissions Regarding
WCB Coverage for Post-Traumatic Stress Disorder, (1 May 2015), online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/Manitoba%20Hydro%20submissio
n.pdf> at 4.
108
Standing Committee, supra note 45 at 71 (Loren Remillard, Winnipeg Chamber of
Commerce representative).
109
For example, see stakeholder submissions from: Canadian National Railway Company
and Canadian Pacific at 2 and 7, Manitoba Employers Council at 2, Winnipeg
Chamber of Commerce at 2.
110
Winnipeg Chamber of Commerce, Comment on WCBs Proposal to Amend The
Workers Compensation Act to provide Presumptive Coverage for Post-Traumatic
Stress Disorder, Stakeholder Submissions Regarding WCB Coverage for Post-
Traumatic Stress Disorder, (30 April 2015), online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/Winnipeg%20Chamber%20submis
sion.pdf> at 2.
111
Ibid; Manitoba Employers Council, Re: Post Traumatic Stress Disorder, Stakeholder
Submissions Regarding WCB Coverage for Post-Traumatic Stress Disorder, (30 April
for a spike in claims if Bill 35 works well, or if there is abuse of the system.
In both instances, costs to employers and the WCB would go up.
The bill was also hailed for its ability to reduce stigma. The legislation
certainly signals the governments recognition of PTSD as a real issue,
which could help to change attitudes in the general public. However, this
is only possible if the public is aware of the legislation, and the mere
existence of the legislation is insufficient to achieve this. There was media
coverage of the bill when it was brought in, and unions may communicate
the information to their members (especially if they represent high risk
occupations), but the average worker might only find out about the
presumption once they have made a claim, and thus already overcome any
stigma which could have prevented them from coming forward. Further
on that point, a worker must still admit they need help and seek
treatment, and a presumption that their PTSD is work-related does not
make that any easier.112
The concerns are largely that Bill 35 simply will not solve the problem,
or that it will work too well and increase costs. However, we should also be
concerned that the bill could actually be harmful. As previously stated,
evidence brought forward in the past was largely controlled by workers as
they had the onus to prove the casual connection to their employment.
Bill 35 now gives the onus to the employer or the WCB to prove the
contrary. Thus, if an employer or the WCB wants to rebut the
presumption, they will have to investigate to find other potential causes of
the workers PTSD, leading them to dig into the workers life outside of
work. This could be very invasive, especially to a worker who is already
vulnerable and suffering from PTSD. Such an investigation could also
prove difficult as employers have less access to the necessary information
about the workers private life, not only for obvious reasons, but also
2015), online: WCB

<https://www.wcb.mb.ca/sites/default/files/files/Manitoba%20Employers%20Coun
cil%20submission.pdf> at 4.
112
City of Brandon, Subject: City of Brandon Response to the Workers Compensation
Coverage for Post Traumatic Stress Disorder and Stakeholder Consultations,
Stakeholder Submissions Regarding WCB Coverage for Post-Traumatic Stress
Disorder, (30 April 2015), online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/City%20of%20Brandon%20submi
ssion.pdf> at 3.
because of privacy legislation.113 A worker is in a better position to meet

the causal onus than their employer.
C. Alternative Solutions
A good addition to Bill 35 would have been the proposed report stage
amendment that required reporting of statistics about the use of the
presumption. Only one Member, the NDPs Ms. Braun, spoke against it.
She argued that:
I cannot support this amendment in that it singles out and highlights PTSD
claims within the legislation on a different basis than any other type of injury.
Our other presumptive cancers and heart injuries are notthere is no
requirement to report on them. So I think that in our efforts to destigmatize the
whole issue of PTSD amongst our workers, I think that this would be contrary to
that particular philosophy.114
This argument is not that convincing given that Bill 35 itself singles
out PTSD by making it the subject of a presumption that most other
injuries and illnesses (other than certain cancers and heart attacks for
firefighters) are not. A reporting requirement for a unique provision is
reasonable. Also, Ms. Braun noted that there is no reporting requirement
on the presumptive cancers and heart injuries for firefighters. This is true
now, but was not always the case. The amendment that first brought in the
presumption for cancer (i.e. if a firefighter suffers an injury that is a listed
type of cancer, the injury shall be presumed to be an occupational disease
the dominant cause of which is the employment as a firefighter, unless the
contrary is proven) included a reporting requirement.115 The provision
mandated that the board conduct research to determine if the [listed
cancers] are occupational diseases, the dominant cause of which is the
employment as a firefighter, and for the minister to report to the
Legislative Assembly within a certain time period.116 This provision was
later removed, and the same could have been done with a reporting
113
Southern Health, Stakeholder Submissions Regarding WCB Coverage for Post-
Traumatic Stress Disorder, (30 April 2015), online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/Southern%20Health%20-
%20Submission.pdf> at 5.
114
Report Stage (Hansard), supra note 50 at 2287 (Hon Erna Braun).
115
Cancer Presumption Bill, supra note 13 (as enacted).
116
Ibid, s 2.
provision on the PTSD presumption. The reporting provision could have

even had a set expiry of a number of years, thus making it clear that it is
there to study how well a new provision works, rather than to single out
PTSD in the way that concerned Ms. Braun.
Alberta and Ontarios approach is another option. They apply the
PTSD presumption only to first responders. Manitoba could add other
occupations to the list as well, such as nurses or correctional workers,
though it may be difficult to determine where to draw the line.
While almost everyone can agree that goals such as reducing stigma
and providing faster access to treatment are positive, they could be
achieved in other ways, such as through funding research, education,
campaigns, and increased recruitment and training of medical
professionals who can treat PTSD. These are more traditional approaches,
but stakeholders also came up with other innovative solutions, including
establishing a specialized unit within the WCB to adjudicate psychological
claims.117 This would create consistency and could be an expedited
process.118 Another suggestion was to provide investigational access to
treatment while claims were under investigation, instead of having the
presumption.119 This would address the issue of fast access to PTSD
treatment.
VIII. CONCLUSIONS
Even if we were to accept that the merits of Bill 35 outweigh the
downsides and that it is a step in the right direction, more must be done
to combat PTSD. Bill 35 alone will not eliminate stigma or spur research,
117
City of Winnipeg, Re: Post-Traumatic Stress Disorder, Stakeholder Submissions
Regarding WCB Coverage for Post-Traumatic Stress Disorder, (29 April 2015),
online: WCB
<https://www.wcb.mb.ca/sites/default/files/files/City%20of%20Winnipeg%20subm
ission.pdf> at 3.
118
Ibid.
119
Canadian National Railway Company and Canadian Pacific, Re: Presumptive
Coverage for Post Traumatic Stress Disorder (PTSD), Stakeholder Submissions
Regarding WCB Coverage for Post-Traumatic Stress Disorder, (8 May 2015), online:
WCB
<https://www.wcb.mb.ca/sites/default/files/files/Canadian%20National%20Railway
%20Canadian%20Pacific.pdf> at 3.
nor will it create more resources for PTSD treatment in Manitoba. PTSD
affects the entire population, including those suffering from non-work-
related PTSD.
Bill 35 would have benefited from more research and study. The bill
went through the legislative process quickly. There was consultation
beforehand, but a lack of cost analysis and statistics hampered evidence-
based discussion. At the very least, it would have been beneficial to adopt
the report stage amendment that would have mandated reporting on the
new provision.
A significant difficulty with Bill 35 is the potential for invasive
investigation into a workers personal life when attempting to rebut the
presumption. This could even have a chilling effect on PTSD claims.
However, this did not appear to be raised by any politicians or
stakeholders, which may reveal a challenge with feel good legislation that
lacks careful scrutiny.
Given that presumptive PTSD bills are being read in Legislative
Assemblies throughout the country, Manitoba, Alberta, and Ontario are
unlikely to remain unique for long. Though Manitoba may continue to be
the only province with the presumption in place for all workers, we will
discover in the coming years whether the legislation achieves its laudable
goals, or if we have to go back to the drawing board on tackling workers
compensation for PTSD.
Bill 34: The Safer Roads Act (Drivers
and Vehicles Act and Highway Traffic
Act Amended)
*
C OL L I N INT RA T E R
I. INTRODUCTION
B
ill 34 - The Safer Roads Act1 was first introduced to the Manitoba
Legislature on June 4, 2015 during the fourth session of the
fortieth Legislature,2 and subsequently received Royal Assent on
November 5, 2015.3 The bill amended both The Drivers and Vehicles Act,4
and The Highway Traffic Act,5 with the overall objective to keep dangerous
drivers off the road by targeting chronic bad drivers, as well as distracted
and impaired driving offenders through implementation of immediate
driver improvement actions, including license suspensions.6 It was stated
by the Minister of Justice and Attorney General, the Honourable Gord
Mackintosh (Mr. Mackintosh) that the introduction of The Safer Roads Act
sends a strong message that dangerous and illegal driving behaviours, such
*
J.D. (2017).
1
Bill 34, The Safer Roads Act (Drivers and Vehicles Act and Highway Traffic Act Amended),
4th Sess, 40th Leg, Manitoba, 2015 (assented to 5 November 2015) SM 2015 c 39
[Bill 34].
2
Manitoba, Legislative Assembly, Debates and Proceedings, 40th Leg, 4th Sess, Vol
LXVII, No. 42B (4 June 2015) at 1567 [First Reading].
3
LXVII, No. 78B (5 Nov 2015) at 3040 [Royal Assent].
4
The Drivers and Vehicles Act, CCSM 2005, c D104.
5
The Highway Traffic Act, CCSM H60 [Highway Traffic Act].
6
First Reading, supra note 2 at 1568 (Hon Gord Mackintosh).
as driving while impaired by drugs or alcohol, or committing other serious

driving-related offences that put others at risk, are not acceptable and will
not be tolerated.7 Following the adaptations of the affected legislation,
The Safer Roads Act was proclaimed and came into force on December 1st,
2015.8
This paper will explore the amendments made to both The Drivers and
Vehicles Act, and The Highway Traffic Act through the implementation of
The Safer Roads Act, and the background of what brought about the need
for these changes. Following this, the paper will examine the legislative
process concerning the development of Bill 34, including the debates and
concerns throughout the different stages within the house. Finally, it will
address whether the amendments produced by Bill 34 will in fact achieve
the sought after objectives intended by the legislature.
II. SUMMARY OF BILL 34 AMENDMENTS

The Safer Roads Act amended both The Drivers and Vehicles Act, and The
Highway Traffic Act in very different respects.
A. The Highway Traffic Act

Looking first at The Highway Traffic Act, there are two major changes
affecting those who were driving with a blood alcohol content (BAC) of
0.05 - 0.08, or were previously convicted of an impaired operation offence
under the Criminal Code. Firstly, prior to the amendment made by Bill 34,
if an individual was found to be operating a vehicle with a BAC of 0.05 -
0.08, or was shown not to be able to safely operate it by the results of a
physical coordination test or drug recognition evaluation, they received an
automatic 24 hour administrative license suspension.9 The amendment
made to this provision by The Safer Roads Act increased the penalty from
7
Manitoba Government, News Release, Manitoba Introduces Legislation that would
Toughen Laws Aimed at Impaired, High-Risk Drivers (4 June 2015), online:
<http://news.gov.mb.ca/news/index.html?item=35078> [Manitoba Government
News Release (4 June 2015)].
8
4th Sess, 40th Leg, Manitoba, 2015 (Proclaimed on 1 December 2015) SM 2015 c 39
[Proclamation].
9
Highway Traffic Act, supra note 5 as it appeared on 4 November 2015.
Bill 34: Safer Roads Act 31
24 hours to 72 hours.10 In addition, if the operator of the vehicle is

accompanied by a passenger younger than 16 years of age, the automatic
licence suspension is extended to seven days.11
Secondly, The Highway Traffic Act was amended so that an individual
who was convicted of an impaired operation offence under the Criminal
Code cannot avoid participating in the ignition interlock program by
merely waiting out the prescribed participation period.12 The ignition
interlock program requires those who have been convicted of impaired
driving offences to install an alcohol breath-screening device in their
vehicle for a predetermined amount of time.13 The device is wired to the
vehicles ignition, and will prevent the vehicle from starting if it detects
alcohol on the drivers breath. In addition, the device will require random
samples throughout the course of the operation of the vehicle, and if a
sample is not provided or alcohol is detected in the sample, the device will
issue a warning, log the event and set off an alarm until the vehicle is shut
off.14 Prior to this amendment, if one was convicted of an impaired
operation offence, they could simply avoid participation in the required
ignition interlock program by delaying licensing once a mandatory period
of suspension had been served.15 For example, when one is convicted of an
impaired operation offence for the first or second time, they must
participate in the ignition interlock program, and have an ignition lock
installed in their vehicle for a period of one year.16 In the past, if the
offender delayed licensing for this one year after their mandatory
suspension period, they would no longer be required to participate in the
ignition interlock program when becoming licensed again. However, since
The Safer Roads Act came into force, this is no longer a possibility as
impaired driving offenders are required to participate in the ignition
10
4th Sess, 40th Leg, Manitoba, 2015 (assented to 5 November 2015) SM 2015 c 39,
Explanatory Note [Explanatory Note].
11
Ibid.
12
Ibid.
13
Manitoba, Manitoba Public Insurance, Ignition Interlock Program, 2015 at 1 [Interlock].
14
Ibid at 2.
15
Manitoba Government News Release (4 June 2015), supra note 7.
16
Interlock, supra note 13 at 1.
interlock program as a condition of immediate licence reinstatement

following a mandatory drivers licence suspension.17 The program takes
effect upon the drivers license reinstatement, not when the mandatory
suspension period lapses. It has been said that required ignition lock
devices are not issued as a penalty to the driver, but strictly to influence
safer driving behaviour, and past research in the area has stated that they
do in fact achieve this goal. A study conducted in 1990 reported
significantly lower rearrest rates for drivers with a ignition interlock fitted
to their vehicle (3.4%) when compared to a control group who had
received licence revocation sanctions (9.8%).18 This suggested that even
while sanctions are in effect, the alcohol interlock is an effective way to
deter drinking and driving behaviour.19
B. The Drivers and Vehicles Act

Looking now to The Drivers and Vehicles Act, one of the main
amendments made by Bill 34 is that law enforcement officers are now
required to report to the Registrar of Motor Vehicles when a driver is
charged with a serious driving offence listed under s. 125(6) of The Drivers
and Vehicles Act.20 The listed offences all revolve around the theme of
dangerous driving, and this is in an effort to keep dangerous and chronic
bad drivers off the roads. Coinciding with the requirement to report all
listed offences to the Registrar of Motor Vehicles, the registrar has the
power to suspend a drivers license, and this power is made explicitly
applicable to contraventions of The Highway Traffic Act.21 This is a unique
approach among Canadian jurisdictions, and it infers that drivers may lose
the privilege of driving immediately after a high-risk driving charge (since it
can now be taken into account along with at fault accidents and other
infractions) as opposed to waiting for a court conviction on the charge.22
Mr. Mackintosh stated that this would improve road safety by taking
17
18
Dominic Zaal, Traffic Law Enforcement: A Review of the Literature (Melbourne:
Monash University Accident Research Centre, 1994) at 64.
19
Ibid.
20
Explanatory Note, supra note 10.
21
Ibid.
22
immediate action when a drivers past driving history warrants.23

However, this raises concerns about presuming what the courts will rule,
and removing a privilege based on this presumption. This will be discussed
in further detail later in the paper. In addition, the amendment allows the
registrar to delegate these powers and duties to employees of Manitoba
Public Insurance (MPI), as well as the Department of Infrastructure and
Transportation.24
It should be noted that amendments to the Driver Safety Rating
regulation administered by MPI were also introduced to compliment Bill
34.25 These amendments are aimed at penalizing drivers who are using
handheld devices while operating a vehicle. A person convicted of using a
handheld device while operating a vehicle will receive a $200 fine, as well
as five demerits, which is an increase of three demerits from the previous
penalty.26 The new implemented changes based on Bill 34 and the
complimenting Driver Safety Rating regulation will be the toughest laws
on distracted drivers in Canada.27 They will work together to get
dangerous drivers off our roads, as the registrar takes demerits into
account when deciding to implement immediate driver improvement
action, such as a license suspension.
III. BACKGROUND TO THE DEVELOPMENT OF BILL 34

There were multiple factors contributing to the introduction of Bill
34, and the need to crack down on dangerous driving, including distracted
driving, impaired driving or simply chronic bad driving. In 2014, the most
prevalent contributing factor for collisions in Manitoba was distracted
driving, accounting for 21% of all collisions.28 Distracted driving also
topped the charts for most prevalent contributing factor for collisions
23
Ibid.
24
25
26
Manitoba distracted drivers to face stiffest penalties in Canada, CBC News (4 June
2015), online: <www.cbc.ca> [CBC News (4 June 2015)].
27
Ibid.
28
Manitoba, Manitoba Public Insurance, Traffic Collision Statistics Report, 2014 at v
[Traffic Collision Statistics Report].
where people are killed or seriously injured, with nearly 27% of people
killed, and 29% of people seriously injured.29 As Mr. Mackintosh stated,
[t]he prevalence of distracted driving on our roads is equally as disturbing
as impaired driving.30 He added that [o]n average, 28 people are killed
every year in Manitoba due to distracted driving and that [t]his is
devastating and senseless because texting or talking while driving is 100
per cent preventable.31 Further, according to MPI, impaired driving was
one of the top five most prevalent contributing factors for collisions where
people are killed or seriously injured, having 28% of people involved
killed, and 8% of people seriously injured in 2014.32 Skipping ahead to
2015, the RCMP have reported that the number of fatalities due to
collisions on Manitoba roads has increased to 79 (from 74 in 2014), and
that in 40% of these fatal collisions, alcohol or drug impairment was
involved.33 On top of this, there were an alarming 1,922 alcohol related
Criminal Code convictions in 2013, which is only 3% less than in 2012.34
As Mr. Mackintosh stated in response to The Safer Roads Act, while we
have been successful in reducing alcohol-related incidents, we will
continue to enhance our laws to send the message that drinking and
driving will not be tolerated.35 Statistics such as these made it evident that
further preventative measures need to be taken in regards to dangerous
drivers, and Bill 34 made an effort to tackle some of these issues.
While both distracted and impaired driving were crucial contributing
factors to the creation and advancement of Bill 34, this bill arose largely in
response to the death of Kendall Wiebe.36 On April 7, 2012, Kendall was
working at a hair salon on Portage Avenue in Winnipeg, Manitoba, when
a man named Adebola Shoyoye drove his SUV through the salon, killing
29
Ibid at vi.
30
31
Ibid.
32
Traffic Collision Statistics Report, supra note 28 at vi.
33
Manitoba RCMP see rise in number of fatal crashes in 2015, CBC News (7 January
2015), online: <www.cbc.ca> [CBC News (7 January 2015)].
34
Traffic Collision Statistics Report, supra note 28 at vi.
35
36
LXVII, No 68B (20 October 2015) at 2358 (Hon Jon Gerrard) [Third Reading].
Kendall and seriously injuring one of her co-workers.37 While driving

down Portage Avenue, Shoyoye lost control of his jeep, causing him to
erratically and dangerously drive across all six lanes of Portage Avenue,
jump the median boulevard, go over the curb and sidewalk, and across a
parking lot before crashing through the salon.38 The incident lasted 25
seconds, and it was stated that he was depressing the gas pedal when he
meant to depress the brake pedal to try to stop.39 Shoyoye failed to stop
the vehicle for over 700 metres before crashing through the salon at a
speed of 100 km/h.40 Shoyoye is responsible for nine at fault accidents,
and committed five infractions contrary to The Highway Traffic Act from
2005 to 2013.41 In fact, multiple infractions occurred following the
Kendall Wiebe incident, where Shoyoye was able to maintain his licence
in the years following the crash.42 In the end, Shoyoye pled guilty and was
convicted of dangerous driving causing bodily harm, and dangerous
driving causing death, for which he was sentenced to 90 days behind bars
and an eight year license suspension.43 Looking at the chronic bad driving
record of Shoyoye, and the fact that he was able to maintain his driving
privileges not only after all the accidents and infractions leading up to the
Kendall Wiebe incident, but even after the fatal incident occurred, it is
clear that something had to be done. The amendments made by The Safer
Roads Act, specifically to The Drivers and Vehicles Act attempt to target this
chronic bad driving behaviour.
37
Partner of Winnipeg woman killed in crash calls driver menace to the road, CBC
News (13 April 2015), online: <www.cbc.ca> [CBC News (13 April 2015)].
38
R v Shoyoye 2015 MBQB 72 at paras 46, 317 Man R (2d) 57 [Shoyoye].
39
Ibid at para 9.
40
Ibid at paras 89.
41
Ibid at para 17.
42
Legal System Devalued the Life of Kendall Wiebe, CJOB News (04 May 2015),
online: <www.cjob.com>.
43
Something needs to change says dad of Ultracuts crash victim Kendall Wiebe,
CBC News (30 April 2015), online: <www.cbc.ca>; Shoyoye, supra note 38 at para 37.
IV. THE LEGISLATIVE PROCESS OF BILL 34

Bill 34, The Safer Roads Act, was debated in the Manitoba legislature
over the course of the fourth session of the Fortieth Legislature. It
followed the common path through the legislative process, and did not
spark a lot of debate between the different parties as dangerous driving is
an issue that everyone can get behind. Although members of the
legislature supported the bill due to it having the right intention, a
number of concerns were still raised throughout the legislative process.
A. The First Reading

As previously stated, Bill 34 - The Safer Roads Act was first introduced
on June 4, 2015.44 The Minister of Justice and Attorney General, the
Honourable Gord Mackintosh, introduced Bill 34 and brought forth a
motion that it should be read for the first time. He briefly explained that
the bill would introduce immediate driver improvement actions,
including:
licence suspension when charges are laid for serious traffic offences, longer
administrative roadside suspensions for blowing over .05, especially when a child
is in the vehicle, extending participation in Manitoba's Ignition Interlock
Program for all convicted impaired drivers, which will complement regulatory
changes for Canada's highest demerits for using a cellphone while driving. 45
The house agreed to adopt the motion and Bill 34 proceeded to the
second reading.
B. The Second Reading

On June 29, 2015, Bill 34 was presented for debate and the second
reading.46 Mr. Kelvin Goertzen, MLA for the Steinbach constituency and
house leader of the Progressive Conservative party, the official opposition,
was the first and only one to speak to the bill at this stage.47 Mr. Goertzen
began by reminding everyone that drinking and driving is still a prevalent
44
First Reading, supra note 2 at 1568.
45
Ibid (Hon Gord Mackintosh).
46
LXVII, No 54 (29 June 2015) at 2248 [Second Reading].
47
Ibid (Kelvin Goertzen).
issue of concern in our province today, and that Bill 34 aims at ensuring
those who are driving on our highways and our roads in Manitoba are
doing so, not only responsibly when it comes to obeying the rules of the
road, but that they're not doing so in an impaired fashion.48 Mr.
Goertzen spoke in favour of the bill generally. However, he raised a
concern for the first time, which became a recurring concern in nearly
every stage of the legislative process moving forward. While the
amendments to make things more punitive is something of interest and
value for a problem as extreme as drinking and driving, there is the worry
that increasing the severity of the penalties is not necessarily the best
approach, as the greatest deterrent is police enforcement itself, and the
chance that the offender thinks they have of actually getting caught.49
Once individuals are in a state where they have been drinking, they do not
really consider the penalties involved with the action of drinking and
driving. It is before the individuals go out, if the chance of being caught is
higher, that a potential offender may be more likely to find other means of
transportation for the evening, and not engage in impaired driving
activity.50 This concern is especially relevant to rural areas of Manitoba,
where policing areas per detachment are huge, and the presence of law
enforcement at any one time within a specific area is often very little.51 Not
only are units covering large masses of land at a time, but they are required
to do many more things in the course of duty, such as remain with
individuals in detainment, or be at a hospital after an incident, both of
which require their constant attendance.52 This would make them unable
to be on patrol, and limit the true policing presence they can offer. The
amendments set out in this bill were briefly compared to The Highway
Traffic Act Amendment (Promoting Safer and Healthier Conditions in Motor
Vehicles), which was passed in the third session of the thirty-ninth
legislature, making it illegal to drive with a child under 16 years of age in
the car while smoking.53 Since the bill has been passed, there have not
48
Ibid.
49
Ibid.
50
Ibid.
51
Ibid.
52
Ibid.
53
Bill 5, The Highway Traffic Amendment Act (Promoting Safer and Healthier Conditions in
been very many convictions on this particular provision.54 The worry here
is that it is an issue of enforcement, and not one of a lack of offenders. 55
Mr. Goertzen concluded by saying that he looked forward to having this
bill sent to committee, but summed up his concerns:
[T]he ability for the police to be able to ensure that the law is being followed
really falls on their ability to do active policing and the ability for them to be
empowered to have enough individuals to provide a deterrent and to hope that
[] those who are within the purviews of, perhaps, making a criminal act or one
that violates The Highway Traffic Act, believe that they're going to get caught.56
Following Mr. Goertzens submissions to the house, the house agreed
to adopt the motion and sent Bill 34, The Safer Roads Act, to committee.
C. The Committee Hearings

1. The Social and Economic Development Committee
On September 24, 2015, Mr. Mackintosh opened the committee
discussion by thanking the main groups who contributed to the bill,
through giving of advice, support and cooperation. Following this opening
statement, Mr. Kelvin Goertzen was the only one that spoke to the bill at
committee. As the official opposition, he stated that he was in broad
agreement with the intention of all aspects of [Bill 34], and what the
minister was trying to do in response to the tragedy of Kendall Wiebe.57
However, while Mr. Goertzen agreed with the general intention of the bill,
he stated that he was unsure whether this legislation would have changed
the outcome of the Kendall Wiebe situation, and therefore that questions
should be raised with MPI when the Crown Corporations Committee
would meet.58 Mr. Goertzen stressed that driving is a privilege, not a right,
and that this needs to be further addressed with MPI to determine when
Motor Vehicles), 3rd Sess, 39th Leg, Manitoba, 2009 (assented to 11 June 2009) SM
2009 c 6.
54
Second Reading, supra note 46 at 2248 (Kelvin Goertzen).
55
Ibid.
56
Ibid.
57
Manitoba, Legislative Assembly, The Standing Committee on Social and Economic
Development, 40th Leg, 4th Sess, Vol LXVII, No 7 (14 September 2015) at 141 (Kelvin
Goertzen).
58
Ibid.
an individual hits a bar and loses that privilege, as well as what specific
criteria are in place to ensure this happens, so that it complements the
amended legislation.59 Following Mr. Goertzens submissions, the
committee passed all clauses of The Safer Roads Act, and sent it to
concurrence and its third reading.
2. The Crown Corporations Committee for MPI

The Crown Corporations Committee for MPI met on September 28,
2015 and discussed a variety of matters, some of which were in relation to
Bill 34.60 During the committee meeting, Mr. Dan Guimond, President
and Chief Executive Officer for MPI Corporation, spoke to the majority
of the concerns raised. The main issue that was addressed in relation to
Bill 34 at this committee meeting was the process of how and when one
may have their driving privileges revoked. This is especially important in
getting dangerous and chronic bad drivers off the road, which is in the
spirit of The Safer Roads Act, and complements the amendments made,
specifically to The Drivers and Vehicles Act. Mr. Goertzen was the one to
raise this concern at committee, posing the question of whether there were
certain specific criteria that would result in one losing their privilege to
drive.61 Mr. Guimond laid out the three-pronged approach which helps
them to isolate people that are starting to be problematic and determine
whether MPI should remove their license or not.62 The first prong is the
Driver Safety Rating Scale, which rates drivers on a demerit based system,
coinciding with the number of infractions and at-fault accidents one has.63
The less infractions and accidents one is involved in, the higher up they
are on the point scale, and this leads to discounts on their license and auto
insurance to promote safe driving. Mr. Guimond explained that by
monitoring the pattern of infractions and accidents one is involved with, it
allows them to analyze, from an actuarial perspective, when there will be a
59
Ibid.
60
Manitoba, Legislative Assembly, The Standing Committee on Crown Corporations 40th
Leg, 4th Sess, Vol LXVII, No 4 (28 September 2015) at 119 [Crown Corporation
Committee].
61
62
Ibid (Dan Guimond).
63
Ibid; Manitoba Public Insurance, The Driver Safety Rating, online: <www.mpi.mb.ca>.
higher chance that a particular individual will be involved in an accident,

and allows MPI to take action and prevent this from happening.64 Taking
action leads into the second prong of the approach, the Driver
Improvement and Control Program. This is where a proactive approach is
taken to counteract an individuals bad driving behaviour. 65 For example,
in 2014, 48,000 Manitoba drivers were put through a variety of mandatory
courses to improve their driving.66 If MPI is not satisfied with how things
are going for an individual partaking in the mandatory program, they
enter the third prong of the approach, and hold a show-cause hearing to
determine if the particular individual should be allowed to continue to
drive or not.67 In 2014, MPI held 8,000 show-cause hearings, and out of
those hearings, approximately 4,000 drivers lost their licenses.68 This three
pronged approach will work hand in hand with the amendments made by
The Safer Roads Act, as the registrar can now take into account not only
infractions and at fault accidents when deciding whether to put an
individual into the program, but also charges laid on an individual for
serious driving offences. This will allow the registrar to take action sooner,
and the three-pronged approach to kick in faster, as MPI no longer has to
wait for convictions to take actions of the driver into account, theoretically
taking bad and dangerous drivers off the road in a more efficient time
frame.69
Mr. Goertzen, based on the description of the approach used to
determine when one should lose their driving privileges, made the
argument that this approach seems very arbitrary and discretionary, as
there is no specific point where these different punishments arise.70 In
addition, he pointed out that one can by-pass the system all together by
buying back their accident claims, which is effectively paying MPI back for
the percentage of the damage which was their fault, and not being
64
Crown Corporation Committee, supra note 60 at 119 (Dan Guimond).
65
Ibid at 120.
66
Ibid.
67
Ibid.
68
Ibid.
69
Ibid.
70
penalized in MPIs system by way of demerits.71 If individuals are buying

back their claims and avoiding the demerits that come along with them,
this means that their Driver Safety Rating Scale is no longer an adequate
representation of their driving ability. This can undermine the
effectiveness of the three-pronged approach, as the measures to help get
dangerous or chronic bad drivers off the road, such as the Driver
Improvement and Control Program or a show-cause hearing, are based on
the Driver Safety Rating Scale, and therefore would not be implemented
at the correct time, potentially putting the public at risk. These were valid
concerns regarding the three-pronged approach; these potential problems
will be explored later in the paper.
D. The Third Reading

On October 20, 2015, Bill 34 was introduced for its concurrence and
third reading to the house.72 The debate was started again by Mr.
Goertzen, who stated for the record that even though he still had concerns
that the bill would not meet the sought after objectives, he supported it.73
He explained this was not a partisan matter and that [t]here have been
different Attorney Generals under different political stripes who have tried
to take action on drinking and driving and to try to reduce it in
Manitoba.74 Mr. Goertzen renewed many of the same concerns that
enforcement and presence are as much of a deterrent as the actual penalty
itself, and elaborated that while there is good work being done in the field,
there continues to be an unacceptable level of drinking and driving.75 He
briefly explained that while deterrents such as MPI check stops have been
effective, there needs to be a greater visible policing presence as a
reminder, especially in rural communities where RCMP officers are very
sparse due to the large landmass each detachment must cover.76 Mr.
Goertzen mentioned the Community Safety Officers Program as a
potential way to get more presence in these communities, a program
71
Ibid at 122.
72
Third Reading, supra note 36 at 2355.
73
Ibid at 2356 (Kelvin Goertzen).
74
Ibid.
75
Ibid.
76
Ibid.
explored later in this paper. In concluding his submissions, he stated that

he was willing to allow this bill to go through because the intention of the
bill was the right one (that of reducing drinking and driving to ensure that
dangerous drivers are not on the road putting families at risk).77 He
contended that while the bill would not likely prevent any deaths, it also
would not cause any harm, and therefore was worth a try.78
The Honourable Jon Gerrard (Mr. Gerrard), MLA for the River
Heights constituency and member of the Liberal party, spoke to Bill 34
following Mr. Goertzens submissions.79 His submissions focused heavily
on the provisions which allowed drivers licenses to be suspended
following the charge of a high risk driving incident, as opposed to MPI
waiting to take action until the offender has been convicted in court. He
expressed that while he was prepared to allow the bill to move forward,
this must be done with caution. He stated:
[W]e always have to be careful about measures which will presume what a court
will decide or will take away individual's privileges in this context, because
without actually having a clear conviction and, clearly, when licences are taken
away in this fashion, there needs to be a very significant amount of due diligence
done to make sure that individuals are not penalized incorrectly.80
He pointed out that it was made evident during the committee stage
that MPIs considerations for license suspensions, and the threshold to
take action against an individual were very unclear, and that this should be
explicitly clarified to the public prior to the enactment of the legislation.81
All drivers need this information if they are vulnerable to having their
driving privileges removed, as it will help to ensure they are not incorrectly
penalized.
Lastly, Mr. Cliff Graydon, MLA for the Emerson constituency and
member of the Progressive Conservative caucus, exclaimed again that the
purpose of the bill is to take chronic poor drivers off the road.82 While
there was nothing in this bill Mr. Graydon opposed, he wanted to put on
77
Ibid at 2358.
78
Ibid at 2357.
79
80
Ibid.
81
Ibid.
82
Ibid at 2359 (Cliff Graydon).
record that authorities had to be mindful of their conduct when dealing

with dangerous and impaired driving situations. He stated that the
authorities have to realize when these individuals start to run, that perhaps
they can quit chasing a little bit sooner, as chasing prolongs the danger.83
He related this back to the tragic death of 20 year old Taylor Renwick,
who was killed on October 9, 2015, when a drunk driver, Manuel Cowley,
collided head on with her vehicle while being pursued by the RCMP.84
Police found Cowley at a gas station on highway 2 in the Midland
constituency, and began the chase when he attempted to evade the
RCMP. The chase was eventually called off when Cowley was driving too
recklessly at excessive speeds, but not long after, he collided with
Renwicks vehicle. The police conduct during the incident is still under
investigation by the Independent Investigations Unit, and due to this, no
further information is available.85 In rural Manitoba, there are few places
one can run to, and with the communication and resources of the RCMP,
which includes helicopters, they must be strategic in such situations. Mr.
Graydon concluded by speaking of Kendall Wiebes family, and how they
want to ensure what happened to her no longer happens to others.86 This
legislation is a step towards that goal.
With the conclusion of those comments, the house adopted the
motion of concurrence and third reading of The Safer Roads Act, and it
subsequently proceeded to receive Royal Assent on November 5, 2015.87
Bill 34 was finally proclaimed and put into force on December 1, 2015.88
83
Ibid at 2360.
84
Mike McIntyre, Man accused of killing university student in high-speed crash has
long legal history, The Winnipeg Free Press (22 October 2015), online:
<www.winnipegfreepress.com>.
85
Tamara Forlanski, Man facing 19 charges after crash near St.Claude kills Manitoba
woman, Global News (22 October 2015), online: http://globalnews.ca.
86
Third Reading, supra note 36 at 2360 (Cliff Graydon).
87
Royal Assent, supra note 3 at 3040.
88
Proclamation, supra note 8.
V. WILL BILL 34 ACHIEVE THE OBJECTIVE OF TAKING

DANGEROUS DRIVERS OFF THE ROAD?
A. Harsher Penalties
One of the main concerns with Bill 34 was whether increasing the
harshness of penalties will actually have any bearing on the number of
dangerous or impaired drivers getting behind the wheel. Although this was
cause for concern, everyone agreed with the intention of the bill to reduce
drinking and driving and to keep dangerous drivers off the road, therefore
this concern was not enough to prevent the bill from passing.89 There is a
considerable amount of research completed in the field of deterrents, most
of which finds that the actual presence of law enforcement itself is the
most crucial and effective deterrent, and that the harshness of the penalty
itself is not going to do much to deter offenders.
Dominic Zaal of the Federal Office of Road Safety, working with the
Monash University Accident Research Centre in Australia, carried out a
large review of literature relating to traffic law enforcement which was
carried out in 1994.90 According to Zaal, traffic law enforcement generates
two different types of deterrents, general and specific. General deterrents
result from a belief that traffic laws are being enforced, and there is a real
risk of detection and punishment for breaking such laws, while specific
deterrents are specific to the traffic law itself, such as the penalty for
breaking a particular law.91 It was suggested that the primary way to modify
road behaviour is achieved through the process of general deterrence, and
specific deterrents only work if they are accompanied by a perceived risk of
detection.92 In fact, one studys results indicated that the existence of
statutes impacts only those least likely to drink and drive, while
perceptions of the likelihood of arrest [] significantly reduce the
propensity for almost everyone.93 The effect of specific deterrents alone
can be seen in one study that measured the severity of speeding fines in
89
90
Zaal, supra note 18 at 1.
91
Ibid at 8.
92
Ibid at 9.
93
Anthony Bertelli & Lilliard Richardson Jr., The Behavioural Impact of Drinking and
Driving Laws (2008) 36:4 Policy Studies J 545.
Sweden. In 1982, speeding fines were increased, and even though a

significant portion of drivers knew of the fine increases, they found no
change in subsequent driving behaviour over the next seven years.94 This
conclusion was supported by another study that found that enforcement
strategies which emphasise the perceived probability of detection rather
than the severity of punishment had a much greater impact on road user
behaviour.95 If the probability of detection and punishment was perceived
by the drunk drivers as low, then the effect of increasing penalty severity
would be negligible.96 However, it can be seen in a study reviewed by Zaal
that if the risk of apprehension is high, then increasing the fine amount
can also bring about an increase in the level of general deterrence.97 When
looking at the risk of apprehension and the effectiveness of general
deterrents, the effectiveness is dependent on having a sufficiently high and
visible level of enforcement to create the perception that there is a real
possibility a traffic offence will be detected.98
Zaals findings have subsequently been confirmed by a number of
more recent studies in the area. In February of 2014, a paper titled
Effective drink driving prevention and enforcement strategies:
Approaches to improving practice" was published by the Australian
Institute of Criminology. It stated that evaluations of drink driving
penalties [] indicate harsher penalties alone may not have a significant
impact on drink driving and road safety.99 This was exemplified by a
study conducted in New South Wales, where drink driving penalties were
doubled in 1998.100 The study involved comparing court data from 1997
(prior to the increased penalties) and 1999 (after the increased penalties)
on first time and repeat offenders.101 While the results showed a decrease
94
95
Ibid at 50.
96
Ibid at 49.
97
Ibid at 25.
98
Ibid at 9.
99
Kiptoo Terer & Rick Brown, Effective drink driving prevention and enforcement
strategies: Approaches to improving practice (2014) 472 Trends and Issues in crime
and criminal justice, Australian Institute of Criminology 1 at 5 (Ebscohost).
100
Ibid.
101
Ibid.
in recidivist drink driving following the new penalties, it was very slight
compared to the severity of the new penalties, and may have resulted from
the offenders having lengthier sanctions that incapacitated them from
driving.102 It was further stated that the increased penalties would have
been more effective if combined with improved enforcement, and a
consistent application of license disqualification.103 Another study
examined the effect of fine amounts on driving re-convictions.104 The
results showed that the fine amount exerted no effect on the likelihood of
a further driving offence.105 Based on the outcomes above, and a review of
evidence relating to penalty severity, it seems apparent that the
introduction of more severe penalties only exerts an effect when the
perceived risk of apprehension and punishment is sufficiently high.106
Otherwise, there may be only minimal deterrence benefits to be gained by
introducing more severe penalties.107
The amendments made by The Safer Roads Act attempt to deter
drinking and driving through the use of harsher penalties, such as
roadside suspensions and mandatory participation in the ignition
interlock program, as previously discussed. As we have seen from the
studies above, this is not usually the best method of deterrence, and
theoretically, it needs to be paired with greater visible police presence to
achieve the desired outcome of preventing drinking and driving incidents
in Manitoba. One study showed that sobriety checkpoints have reduced
the number of alcohol impaired drivers in the traffic stream, and were
associated with a reduction of alcohol related fatalities in the range of 10%
to 20%.108 In 2014, more than 300 impaired drivers were removed from
Manitoba roads as part as MPIs road side check program.109 While this
102
Ibid.
103
Ibid.
104
Steve Moffatt & Suzanne Poynton, The deterrent effect of higher fines on recidivism:
driving offences (2007) 106 Crime and Justice Bulletin 1 (Ebscohost).
105
Ibid at 24.
106
Ibid.
107
108
Ibid at 39.
109
MPI, police take aim at impaired drivers with more checkstops, MyToba (14 May
2015), online: <mytoba.ca>.
has been successful, a subsequent study demonstrated that over half the
drivers who were over the legal BAC limit were able to pass through such
checkpoints without being tested, due to the level of police discretion in
determining which drivers should be administered breathalyzer tests.110
The best, and most obvious way to deter dangerous and impaired
driving, and have a greater visible presence of police in public would be to
increase the number of officers on duty at any given time, and have them
patrol smaller areas where their presence can be seen. However, this is not
always possible for a variety of reasons, including budgetary restrictions
and the struggle to fill vacant positions.111 During the third reading of Bill
34, Mr. Goertzen stated that one possible solution to getting a more visible
policing presence on the roads in rural Manitoba is to expand the
Community Safety Officer Program.112 Bill 31 - The Police Services
Amendments Act (Community Safety Officers) was passed in the third session
of the fortieth legislature, and subsequently came into force on the date of
proclamation, June 26, 2015.113 These amendments enabled
municipalities to establish Community Safety Officer Programs, to
deliver crime prevention programs, connect persons in need with
appropriate social services and maintain a public presence in the
community.114 Further, with authorization community safety officers
may assist local police officers in non-criminal matters, exercise prescribed
powers and enforce specific enactments.115
The first Community Safety Officer Program was established in
Thompson, Manitoba, and the officers were prescribed powers to enforce
some provincial laws, including but not limited to The Liquor and Gaming
Control Act, The Intoxicated Persons Detention Act, and The Highway Traffic
Act.116 Establishing CSO programs in rural areas with low levels of visible
110
111
Josh Crabb, RCMP staffing levels raise concerns in rural Manitoba, CTV News
Winnipeg (12 November 2015), online: <www.winnipeg.ctvnews.ca>.
112
Third Reading, supra note 36 at 23562357 (Kelvin Goertzen).
113
Bill 31, The Police Services Amendments Act (Community Safety Officers), 3rd Sess, 40th
Leg, Manitoba, 2014 (assented to 12 June 2014) SM 2014 c 9.
114
Ibid, explanatory note.
115
Ibid.
116
Manitoba Government, News Release, Manitoba Government announces
Community Safety Officer Program to launch in Thompson (27 April 2015), online:
police presence, and granting them the power to enforce legislation such
as The Highway Traffic Act, could be a major step towards deterring
dangerous and impaired driving by creating the risk of apprehension
needed to compliment the harsher penalties instated by Bill 34. While it is
still too early to see the effects of the program in Thompson, as it was only
implemented in June of 2015, Commanding officer of the RCMP in
Manitoba, Kevin Brosseau, stated that [t]he launch of the CSO program
in Thompson demonstrates a collaborative effort toward preventing crime
and addressing social issues, which brings us closer to our ultimate goal
making the community safer, and this can be the case for many scarcely
policed areas throughout rural Manitoba.117
B. Registrars Power to Suspend Driving Privileges

Bill 34 grants the Registrar of Motor Vehicles the power to take
immediate driver improvement action on individuals, such as suspending
their driving privileges, based on not only driving infractions, at-fault
accidents and convictions, but also charges laid on an individual prior to a
court conviction.118 It was stated by Mr. Mackintosh that Authorizing the
registrar to take immediate driver improvement action based on serious
driving charges laid by police [] would improve road safety by taking
immediate action when a drivers past driving history warrants.119 This
view is supported by a study conducted by Robinson and Smiley in 1989,
where they found that license disqualifications were a useful
countermeasure to a violation of serious traffic laws as it reduces the
amount of driving and level of risk taking behaviour among problem
groups of drivers.120
There is no question that taking immediate driver improvement
action, such as suspending an individuals license because of dangerous
driving behaviour, can be effective and meet the objective of getting these
dangerous drivers off the road. However, as Mr. Gerrard expressed during
the third reading of Bill 34, we must be careful about presuming what the
<www.gov.mb.ca> [Manitoba Government News Release (27 April 2015)].

117
Ibid.
118
Bill 34, supra note 1.
119
120
courts will decide, and taking action based on these presumptions.121 If we

are going to allow the deprivation of a privilege based on what we presume
the court will decide, there needs to be a very significant amount of due
diligence done to make sure that individuals are not penalized
incorrectly.122 This due diligence would include the need for MPI to lay
out a list of conditions for suspending a drivers license, and ensure this
information is adequately available to the public.123 This is an extremely
important factor as the current system is quite confusing and unclear
regarding license suspensions, including when an individuals license is at
risk for suspension, and what the threshold is to have their license
suspended. Drivers need this information to ensure they are not suddenly
deprived of a privilege which is essential to their everyday life.
C. MPI Penalty System

1. Is a clearer system necessary?
During the Crown Corporations Committee meeting, Mr. Guimond
laid out the three-pronged approach to how an individual may lose their
license, which consists of the Driver Safety Rating Scale, the Driver
Improvement and Control Program, and the show-cause hearing. Drivers
are monitored from an actuarial perspective based on the number of
infractions and at fault accidents they are involved with, and their rating
on the Driver Safety Rating Scale.124 If it is determined that an individual
has a higher propensity to get into an accident, proactive action is taken
and they are put into the Driver Improvement and Control Program.125
From here, if MPI is not satisfied with how things are going in the
program, they hold a show-cause hearing which determines whether the
individual will keep their driving privileges or not.126 These stages are said
to be in place to ensure that high risk drivers are made aware that their
high risk driving is not to be tolerated, and there are consequences in
121
Third Reading, supra note 36 at 2358 (Hon Jon Gerrard).
122
Ibid.
123
Ibid.
124
Crown Corporation Committee, supra note 60 at 119-120 (Dan Guimond).
125
Ibid.
126
Ibid at 120.
terms of suspensions and finances towards keeping or retaining their

drivers license.127
During the committee meeting, Mr. Goertzen pointed out that the
approach seems quite arbitrary, and imposes a fair amount of discretion
on the decision maker, since there is no specific point where one must
have their privilege removed.128 It is up to the decision maker to remove
the driving privilege, or give the individual another chance. This
arbitrariness and discretion may even contradict the objective of ensuring
that high risk drivers are made aware that their driving will not be
tolerated, as they have little information regarding what will prompt a
consequence or punishment, and when it will kick in. Other provinces in
Canada have adopted a much stricter system, giving individuals more
information about when a punishment will be given, and what level of
punishment it would be. For example, British Columbia has a driver
improvement program which is much more concrete. If an individual is
convicted of an offence, they are given a strict number of points based on
the offence committed.129 An individuals driving record is monitored over
a five year span, and depending on the number of points accumulated
during the specified time period, there is a mandatory penalty within a
predetermined range which must be invoked.130 The Adjudicator still has a
level of discretion in granting a penalty closer to the minimum mandatory
penalty, or the maximum, and can consider a wide range of factors in
determining this.131 While Mr. Guimond argued that the Manitoba system
allows calculating for things that a point system may not take into account,
such as heavy drug or alcohol use,132 an advantage can clearly be perceived
in having drivers know exactly when their actions will be given
consequences. For example, one may be much less inclined to pick up
their handheld device while operating a vehicle if they know it will lead to
127
CBC News (13 April 2015), supra note 37.
128
Crown Corporation Committee, supra note 60 at 120 (Kelvin Goertzen).
129
British Columbia, Insurance Corporation of British Columbia, Fines and Points for BC
Traffic Offences (2016), online: <www.icbc.com>.
130
British Columbia, Office of the Superintendent of Motor Vehicles, Driver Improvement
Program Policies and Guidelines (2016) at 1214, online: http://www2.gov.bc.ca.
131
Ibid.
132
Crown Corporation Committee, supra note 60 at 120 (Dan Guimond).
a license suspension, as opposed to someone who is unsure of the penalty.

In addition, if one is on the verge of losing their driving privilege, they
may become more aware of the procedures of the road, including who is
legally at fault for an accident. This information is very pertinent and very
few members of the public are familiar with it. Without the information,
one can be declared wrongfully at-fault for an accident, and this can lead
to someone being incorrectly penalized, or even having their license
revoked. A system with more publicly available information can certainly
be a benefit, and would be useful to complement the amendments made
by Bill 34 to help ensure individuals are not incorrectly losing their
privilege to drive.
2. The Appeal Process

When an individuals driving privilege has been removed, they are
entitled to an appeal. The review process can be undertaken in two
different ways: a driver may apply for a review by the Registrar of Motor
Vehicles of the license suspension and disqualification order within one
year from the date of being served, or appeal the decision of the registrar
to the License Suspension Appeal Board (LSAB).133 Where a license
remains suspended following a review by the registrar, the avenue of
appealing to the LSAB is still available to the driver. The LSAB is
established pursuant to s. 278(1) of The Highway Traffic Act, and is an
independent administrative tribunal at arms-length from MPI.134 The
board considers public safety and exceptional hardships caused by the
suspension, and must ensure that in all cases a remission of the
suspension would not be contrary to the public interest and that no
exceptional hardship will result if the suspension remains in effect.135
There are a number of situations where one may need to utilize the appeal
process, such as where errors were made by police, or individual reasons
for leniency, including one experiencing exceptional hardship from the
suspension of a license. Currently, an appeal to the LSAB costs $130.136
133
Highway Traffic Act, supra note 5, ss 263.2(1), 279(1).
134
Ibid, s 278(1).
135
Manitoba, Minister of Transportation and Government Services, Annual Report of the
Department of Infrastructure and Transportation (2015) at 69 [Annual Report].
136
Licence Suspension Appeal Board (LSAB), LSAB Application Form (Rev 2007),
The decision of each appeal is made on a case by case basis. In 2015 alone,
there were 1,244 driver license suspension appeals.137 Based on this
information, it can be seen that the appeal process is necessary in ensuring
not only that drivers are not incorrectly penalized, but that the penalty
imposed is not severely damaging to any individuals.
3. Loophole in Reporting Scheme (Buyback a claim)

One more concern was raised during the Crown Corporations
Committee for MPI meeting, regarding MPI allowing individuals to buy
back their claims, and the effect of this on the Driver Safety Rating Scale.
Buying back a claim is generally done to keep individuals vehicle
premium and drivers licence premium discounts[,] to avoid additional
drivers licence premiums [or] to maintain a claim-free record before
moving out of the province.138 Mr. Goertzen pointed out that MPI allows
drivers to buyback their accident claims, essentially paying MPI back for
their at fault portion of an accident, and having that accident taken off
their record.139 This signifies that the accident would no longer be
reflected on a Driver Safety Rating Scale, the scale used in assessing
whether a driver is determined to be a risk to others on the road, and
should have their driving privileges removed. When questioned about this,
Mr. Guimond stated that the percentage of people who have the wealth to
buy back their claims constitutes a very small proportion of the overall
population.140 In addition, he emphasized that it is only accidents that can
be bought back, and all other Highway Traffic Act infractions will show up
on the Driver Safety Rating Scale.141 The concern that arises from this is
that the Driver Improvement and Control Program, and subsequently the
show-cause hearings, are determined based on the actuarial analysis of the
Driver Safety Rating Scale. By allowing drivers to buy back their accidents,
Manitoba Transportation and Government Services, online:

http://www.gov.mb.ca/mit/boards/pdf/lsabappform.pdf.
137
Annual Report, supra note 135 at 69.
138
Manitoba, Manitoba Public Insurance, Buying Back a Claim (accessed 19 July
2016), online: https://www.mpi.mb.ca/en/Reg-and-
Ins/Insurance/Rates/Record/Pages/rf_buyback.aspx) [MPI Buying Back a Claim].
139
Ibid; Crown Corporation Committee, supra note 60 at 122 (Kelvin Goertzen).
140
Crown Corporation Committee, ibid at 122 (Dan Guimond).
141
Ibid.
and essentially their points on the scale, the measure used to determine
when an individual is no longer fit to safely operate a vehicle on the road
is no longer accurate. While Mr. Guimonds argument is true, and chronic
bad drivers will show up in the system in other ways, such as Highway
Traffic Act infractions, the buyback system allows them to stay out of MPIs
dangerous driver alert system longer, and this can cause danger to the
public in the interim.142 This directly contradicts the objective of The Safer
Roads Act, which is to get dangerous drivers off the road and eliminate the
potential harm to the public. Collison claims are bought back each year.
Any number of the cases that occurred over the past years could have been
the at fault collision which led to an individuals license being suspended,
or to some other form of driver improvement. As Mr. Goertzen said, it
only takes one to create a tragedy and this program is allowing potentially
dangerous drivers to remain on the roads, and be a risk to the public.143 In
addition, a driver can buy back a claim at any time in the future.144 This
could be used as a tactic to avoid a punishment, such as license
suspension, if the driver becomes aware they are close to receiving such a
punishment. The use of this system could effectively be keeping these
dangerous drivers on the road, which goes against the spirit of the Safer
Roads Act and the ability for the Registrar to instate driver improvement
programs at the correct time.
VI. CONCLUSION
Bill 34 - The Safer Roads Act received wide ranging support throughout
its legislative process. Although there were concerns with some aspects of
the legislation, the bill passed as it had the right intentions to reduce
dangerous driving, including distracted, impaired and chronic bad
driving.145 After a strict analysis of the amendments produced by Bill 34,
the background of why these amendments were brought about, and its
journey through the legislative process, it is evident that while it is a step
142
143
Ibid.
144
MPI Buying Back a Claim, supra note 138.
145
in the right direction, more needs to be done in the field to achieve the
objective sought.
In regards to impaired driving, Bill 34 increased the penalties by
extending the roadside license suspension, and made it mandatory that
offenders participate in the ignition interlock program.146 A vast amount
of research demonstrates that increasing the harshness of penalties alone is
not likely to be effective as a deterrent. To ensure dangerous and impaired
drivers remain off the roads, the penalty increase must be coupled with a
more visible policing presence that gives the subjective impression that
there is a real possibility the offence will be detected. One way this may be
done is to expand the Community Safety Officer program to a variety of
rural areas, where there is a very small policing presence due to the large
landmasses covered by each RCMP detachment.
Bill 34 made it necessary for law enforcement officers to report serious
driving offences to the Registrar of Motor Vehicles. It also gave the
registrar power to take immediate driver improvement action (such as a
license suspension) based on these charges and other factors including at
fault accidents and infractions against The Highway Traffic Act.147 While
this immediate driver improvement action will meet the bills objective of
taking dangerous drivers off the road more quickly than before, it is
important to remember that due diligence and extreme caution should be
taken in this process. Removing someones driving privilege based on a
presumption of what the courts will decide can be a slippery slope, and
adequate measures need to be taken to ensure that drivers are not
incorrectly penalized. One measure of due diligence that must be taken is
making the process of how an individual can come to lose their license
much clearer for the public. While MPIs three-pronged approach may be
effective, it is quite arbitrary. Drivers would benefit from a clearer point
system which would make them aware of when punishments and
consequences are coming, based on their driving behaviour. Hopefully
they would adapt their driving behaviour accordingly. This knowledge
would perhaps influence bad driving behaviour and make the roads safer
for everyone, which is, after all, the spirit of the Safer Roads Act.
146
147
Ibid.
Reflections on Bill 11: The Domestic
Violence and Stalking Amendment Act
*
E RIK A D AY
I. INTRODUCTION
B
ill 11, The Domestic Violence and Stalking Amendment Act,1 was
introduced to the Legislative Assembly of Manitoba during the 5th
session of the 40th Legislature on November 30th, 20152 and
received Royal Assent on March 15th, 2016.3 There are two primary
purposes for which the Minister of Justice and Attorney General sought to
amend The Domestic Violence and Stalking Act.4 First, the bill intended to
create a less challenging and daunting process for the victim or applicant
(the subject) when seeking a protection or prevention order against his or
her assailant (the respondent).5 Second, it expected to provide greater
protection for the subject after an order is granted by controlling the
possession of firearms by respondents. Moreover, while the bill did not
*
J.D. (2016).
1
Bill 11, The Domestic Violence and Stalking Amendment Act, 5th Sess, 40th Leg,
Manitoba, 2015 (assented to 15 March 2016) [Bill 11].
2
Manitoba, Legislative Assembly, Hansard, 40th leg, 5th sess, No 10 (30 November
2015) at 325 [Hansard November].
3
Manitoba, Legislative Assembly, Hansard, 40th leg, 5th sess, No 29B (15 March 2016)
at 1129 [Hansard March].
4
The Domestic Violence and Stalking Act, CCSM c D93 [The MB Act].
5
Gender neutral language is employed throughout this paper because this is not a
unilateral issue. While orders are predominately sought by women (see discussion
under s III. Justifications for Bill 11, below) there have been instances where men seek
orders against women and where women seek orders against other women. See for
example: Ducharme v Borden, 2014 MBCA 5; Gale v Gale, 2006 MBQB 252; LD v
EEOD, 2003 MBQB 236; WSC v KAY, 2008 MBQB 129; Roberts v Buzan, 2009
MBQB 5.
expressly grant the power to use GPS monitoring as a means of controlling

respondents, according to extensive legislative debate on the issue, the bill
has sparked interest in future use of such technology. This paper discusses
how the act originated and has been amended since its enactment. Next, it
sets out the justification for the bill and provides a summary thereof. The
legislative process, including the questions and debate at the second and
third reading and the committee stage, is then thoroughly described.
Finally, the prospective effects of the bill, both in the short and long term,
are analyzed and reflections from beyond the bill are discussed.
II. DESCRIPTION OF THE DOMESTIC VIOLENCE AND

STALKING ACT AND ITS ORIGINS
The Domestic Violence and Stalking Act, originally known as Bill 40,
was assented to in June of 1998 and came into force as The Domestic
Violence and Stalking Prevention, Protection and Compensation Act on
September 30th, 1999.6 This piece of legislation allows victims of
domestic violence and stalking to seek protection or prevention orders
from designated Provincial Court justices of the peace with or without
notice to their alleged assailants.7 To seek an order,
[i]n addition to the initiating sworn application, applicants must provide
evidence under oath about the stalking or domestic violence. A justice of the
peace who finds that stalking or domestic violence has occurred and that the
person seeking relief reasonably believes it will continue is able to grant a
protection order.8
The provisions within a protection order can vary widely, ranging
from prohibiting the respondent from attending at the applicants
residence or place of employment to peace officer assistance in removing
the respondent from premises.9 On the other hand, prevention orders
can contain more significant penalties, such as sole occupation of the
6
The MB Act, supra note 4; Manitoba Justice, Domestic Violence, The Domestic
Violence and Stalking Act, online:
<http://www.gov.mb.ca/justice/domestic/prevent.html>.
7
Baril v Obelnicki, 2007 MBCA 40 at para 8, [2007] 6 WWR 304 [Baril].
8
Ibid.
9
Ibid at para 9.
Bill 11: Domestic Violence and Stalking 57
family residence or payment of compensation for monetary losses due to

domestic violence or stalking.10
Prior to its passing in Manitoba, a similar piece of legislation, The
Victims of Domestic Violence Act11 was proclaimed in force in Saskatchewan
in 1995. The next year, Prince Edward Island proclaimed the Victims of
Family Violence Act.12 Subsequently, in November of 1999 the Yukons
Family Violence Prevention Act13 came into force and in June of that year,
Alberta proclaimed the Protection Against Family Violence Act.14 Each of
these acts was modelled after the Saskatchewan legislation and,
accordingly, they share a certain commonality.15
The Saskatchewan legislation was developed by an internal Family
Violence Task Force established by Saskatchewan Justice after considering
inter-jurisdictional recommendations and studies, as well as extra-
jurisdictional evaluations of domestic violence legislation.16 It became clear
after carrying out this review that additional legislation to supplement the
Criminal Code was necessary since victims of domestic violence did not
often seek out intervention agencies, such as the police, when they were in
need of protection.17 In addition, given that the Criminal Code provided
the only means of legal redress for victims at that time, this "often meant
that the point of intervention was delayed, reactive and under utilized."18
Accordingly, consultation meetings with 62 agencies including police,
crisis intervention agencies and community agencies which support
10
Ibid.
11
The Victims of Domestic Violence Act, SS 1994, c V-6.02 .
12
Victims of Family Violence Act, RSPEI 1988, c V-3.2.
13
Family Violence Prevention Act, RSY 2002, c 84.
14
Protection Against Family Violence Act, RSA 2000, c P-27.
15
Cheryl Laurie, Seeking that Piece of Paper: An Examination of Protection Orders
under The Domestic Violence and Stalking Act of Manitoba (Masters of Arts Thesis,
University of Manitoba, 2006) [unpublished, archived at University of Manitoba
Department of Sociology] [Cheryl Laurie].
16
Jan Turner, Saskatchewan Justice, Public Law and Policy, Saskatchewan Responds to
Family Violence: The Victims of Domestic Violence Act (May 1995), online:
<http://redengine.lawsociety.sk.ca/inmagicgenie/documentfolder/AC1853.pdf>.
17
Ibid at 4.
18
Ibid at 34.
services for victims were undertaken which identified issues which could
hamper successful use of the provisions and provided the first indications
of the type of impacts which might be anticipated from this innovative
initiative.19 Finally, the bill was passed on May 10th, 1994.
After several Manitoba women were seriously injured and killed by
their stalkers in the 1990s, the Manitoba Law Reform Commission wrote
a report on stalking in which it made recommendations to improve
protective civil remedies.20 In its report, the Commission concluded that
in many cases the Criminal Code offence of harassment was not creating
harsh enough consequences for individuals charged with stalking and was
not adequately preventative in nature. Accordingly, the Commission
proposed that the legislature enact additional proactive legislation to
enable victims of stalking to seek civil remedies in circumstances of
harassment instead of relying on the slow and uncertain procedures set
out in the Criminal Code.21 In addition, the recommendations were made
with the view to lessen the evidentiary burden placed on a victim since
civil cases carry a balance of probabilities burden versus the higher
beyond a reasonable doubt standard mandated in criminal cases.22 It was
the expectation of the Commission that this provincial legislation would
be the key to higher reporting rates in stalking cases and would allow
greater access to protection for victims.23
The legislation was also a response to fatal incidents of extreme
violence perpetrated bydomestic abusers which were highlighted
exhaustively in the media in the 1990s in Manitoba.24 In fact, at the time
of its enactment, it was suggested that thirty percent of women who were
currently or had previously been married had experienced at least one
incident of physical or sexual violence at the hands of their spouse in
19
Ibid at 7, 10.
20
Cheryl Laurie, supra note 15 at 9.
21
Ibid at 10.
22
Ibid.
23
Ibid at 910.
24
Bonnie MacDonald, The Domestic Violence and Stalking Prevention, Protection
and Compensation Act (2001) 28 Underneath the Golden Boy, Man LJ 269 at 269.
their lifetime.25 Therefore, the introduction of the legislation came at a

time of urgent need.
While Manitobas legislation is quite similar to its Saskatchewan
model, it differs from it and other provinces most importantly in two ways.
First, the Manitoba act creates the separate tort of stalking and gives
victims of stalking more explicit protection as opposed to the interpersonal
violence legislation in places like Saskatchewan. In addition, Manitobas
act creates a reverse onus on the respondent upon applying to set aside a
protection or prevention order.26 If the respondent does not make this
application, the order will remain in force. Notably, in the leading case,
Baril v. Obelnicki, this reverse onus was found constitutional when read
down in a manner consistent with the Canadian Charter of Rights and
Freedoms.27 As a result, a respondent need only show, on a balance of
probabilities, that there is an issue arising from the without notice hearing
that entitles them to have the order set aside on the basis of absence of full
disclosure or based on the weight of all the evidence adduced at both the
without notice and review hearings. In other provinces, it is more
common for each order to be confirmed by a judge and then notice of the
order be sent out to the respondent. The respondent then is able to seek a
variation or revocation of the order.28
A. Amendments Subsequent to the Introduction of the Act

The act has been amended on a number of occasions and other
legislative changes have resulted in consequential amendments thereto.
This section will set out certain noteworthy alterations.
In 2004, Bill 17 was enacted which changed the title of the act by
striking out the words Prevention, Protection and Compensation.29 The
25
Ibid.
26
The MB Act, supra note 4, s 12(2).
27
Baril, supra note 7. The reverse onus provision, s.12 (2), was however, read down. This
reading down has been upheld to the most recent case involving this Act: Kostas v
Vandermeulen, 2015 MBQB 212, 325 Man R (2d) 261.
28
Supra note 11, ss 5-6.
29
Bill 17, The Domestic Violence and Stalking Prevention, Protection and Compensation
Amendment Act, 2nd Sess, 38th Leg, Manitoba, 2004 (assented to 10 June 2004), SM
2004 c 13, s 2.
meaning of domestic violence was set out and how to determine who
commits domestic violence was also explained.30 In addition, this
amendment act allowed for ex parte protection order applications to be
granted. Bill 17 also amended the act by providing that a protection order
is deemed to expire within three years of it being granted unless
reapplication is sought.31
In 2005, the act was amended to give justices of the peace authority to
hear and determine applications for protection orders.32
Further changes to the act were assented to in 2010.33 Section 7(1)(c.1)
was introduced, which allows the respondent to attend a court proceeding
that he or she is a party to or is the accused person in where the subject is
present.34 He or she may also attend a proceeding in relation to custody,
access or a related family matter, a court ordered mediation or assessment,
or an investigation or evaluation that has been ordered by the court where
the subject is present.35 Furthermore, s. 7(1.1) was included, creating
certain conditions with respect to carrying out s. 7(c.1) that seek to protect
the subject.36 Finally, s. 7(1.2) states that despite those conditions in s.
7(c.1) the presiding judge or master at a hearing described in that section
may make a different order restricting the respondents conduct.37 This
amendment attempted to balance the rights of the respondent with the
safety concerns related to the subject.
30
Ibid, s 4.
31
Ibid, s 8.1(1).
32
Bill 11, The Provincial Court Amendment Act (Justices of the Peace), 3rd Sess, 38th Leg,
Manitoba, 2005 (assented to 9 June 2005), SM 2005, c 8, s 3(1).
33
Bill 19, The Protection from Domestic Violence and Best Interests of Children Act (Family
Law Statutes Amended), 4th Sess, 39th Leg, Manitoba, 2010 (assented to 17 June 2010),
SM 2010, c 17.
34
Ibid, s 4(1); The MB Act, supra note 4, s 7(1) (c.1).
35
Ibid.
36
The MB Act, supra note 4, s 7(1.1).
37
Ibid, s 7(1.2).
III. JUSTIFICATION FOR BILL 11

Similar to the circumstances surrounding the introduction of the act
in 1999, the need for Bill 11 became apparent after the murder of two
young Manitoba women: Selena Keeper and Camille Runke. On October
8th, 2015, Selena Keeper was beaten to death by her former boyfriend five
months after being denied a protection order against him on the basis that
she was not in imminent danger.38 Camille Runke was found shot to
death on October 30th, 2015, the same year that she had a protection
order granted against her estranged husband and had engaged the police
22 times to deal with him breaching that order.39 Kevin Runke, who was
suspected of her murder, shot himself sometime after her death.40 During
the second reading of the bill on December 1st, 2015, the Minister of
Justice and Attorney General, Honourable Gordon Mackintosh (Mr.
Mackintosh) confirmed that the deaths of these women highlighted the
need to take a hard look at both the application process and the
conditions that can be included when a protection order is granted. 41 To
further illustrate the necessity of these amendments, during the second
reading of the bill, Mr. Mackintosh also articulated that in the past two
years, 1237 ex parte protection orders were granted in favour of subjects,
but 1753 were dismissed.42 This resulted in a 59% dismissal rate.43 He
explained that in many cases, these orders were dismissed on the basis that
38
Chinta Puxley, Changes coming to Manitoba protection orders after woman beaten
to death, The Globe and Mail (02 November 2015), online:
<http://www.theglobeandmail.com/news/national/changes-coming-to-manitoba-
protection-orders-after-woman-beaten-to-death/article27071823/>.
39
This is tragic, Winnipeg police say of Runkes death, CBC News (03 November
2015), online: <http://www.cbc.ca/news/canada/manitoba/this-is-tragic-winnipeg-
police-say-of-camille-runke-s-death-1.3301225>.
40
Ibid.
41
Manitoba, Legislative Assembly, Hansard, 40th Leg, 5th Sess, No 11B (1 December
2015) at 400 (Hon Gord Mackintosh) [Hansard December].
42
Ibid at 403. See also Baril, supra note 7 at para 97, which states that rates of dismissal
steadily declined from 2001-2007.
43
Hansard December, supra note 41 at 403 (Hon Gord Mackintosh).
women were living in a shelter or the respondent was in jail and were
thought to be of no danger to the subject.44
In addition, the Keeper and Runke cases highlight the continued need
for protection for women in domestic violence and stalking situations.
While it is true that both men and women seek protection orders, in
2007, the Manitoba Court of Appeal in Baril v. Obelnicki confirmed that
stalking has an overpowering impact on the victim, usually a woman, and
[it is necessary] for the law to assist the stalking victim to sever her
interaction with the stalker in order to protect herself.45 This statement
was quoted with approval most recently in Steinmann v. Kotello.46 The
Court is, therefore, of the opinion that the protection of women is still a
relevant justification for the act. Legal scholar Dr. Linda Neilson has
further asserted the following:
While either men or women can be targeted by [domestic violence], and anyone
who is targeted and is genuinely fearful is deserving of protection, nuanced
understandings of the complexities of [domestic violence] make it clear that
women are, as a result of social and cultural expectations associated with gender,
the primary targets of coercive [domestic violence].47
Finally, this explanation for the bill was supported by Honourable Jon
Gerrard, member of the Legislative Assembly, who stated during the third
reading that 80% of intimate partner violence cases involve women as
victims.48
Considering the aforementioned statistics evidencing the rate of
applications for protection orders currently being dismissed and given that
the protection of women in domestic violence and stalking circumstances
is still highly material, strengthening the legislation seems appropriate.
44
Ibid at 403-404.
45
Baril, supra note 7 at para 82.
46
2012 MBCA 30 at para 22, 2012 CarswellMan 151.
47
Dr. Linda C. Neilson, Enhancing Civil Protection in Domestic Violence Cases:
Cross Canada Checkup (March 31 2015) Muriel McQueen Fergusson Centre for
Family Violence Research, University of New Brunswick 1 at 7-8.
48
Manitoba, Legislative Assembly, Hansard 40th Leg, 5th Sess, No 24 (7 March 2016) at
874 (Hon Jon Gerrard) [Hansard March].
IV. SUMMARY OF BILL 11

This section describes the most significant changes Bill 11 will make
to the The Domestic Violence and Stalking Act. It is worth noting that many
of these amendments will bring the legislation more in line with the
Saskatchewan legislation which indicates the persuasiveness of that model.
Bill 11 amends s. 1 of the act which encompasses the definitions of
the terms used within the act. Of note, the term telecommunication
now includes a telephone, the Internet, e-mail or fax, and the terms chief
firearms officer and firearm are also added and defined as these terms
will become relevant to the act.49
Subsection 2(3)(b.1) expands the meaning of domestic violence for
the purposes of the act. Domestic violence now includes using the
Internet or other electronic means to harass or threaten the other
person.50
The bill also amends the act by adding s. 3(2) which clearly states the
standard of proof that the subject must satisfy during an application
hearing. The section states, all determinations made by a designated
justice of the peace on an application for a protection order are to be
made on the balance of probabilities.51 While the former act set out the
standard of proof at s. 6 (1), it was not a distinct and separate section. It is
possible that this distinction has been made to provide clarity and
certainty to this area of the law. Given the significant rate of protection
orders being dismissed at this time, this clear provision should signal to
the triers of fact that the subject must not be held to too high of a
standard when providing evidence.
A new provision, s. 4(2.1), will be included in the act which gives
power to the designated justice of the peace to adopt any procedures he
or she considers appropriate to put the subject at ease and to help the
subject understand the application process during a hearing for a
49
The Domestic Violence and Stalking Act, CCSM c D93, s 1(1), as amended by Bill 11, The
Domestic Violence and Stalking Amendment Act, s 2.
50
The Domestic Violence and Stalking Act, CCSM c D93, s 2(3)(b.1), as amended by Bill
11, The Domestic Violence and Stalking Amendment Act, s 3.
51
protection order.52 This section permits the justice of the peace to play a
more active role in a protection order hearing by providing guidance and
legal advice to the subject, where appropriate. While this provision will
help ensure that subjects feel more comfortable with the process, it may be
problematic as it risks resulting in a somewhat imbalanced process
whereby the subject is afforded more procedural rights than the
respondent. While it is undisputed that assisting a subject in the
application process is beneficial to that individual, this amendment seems
to disrupt the impartiality expected of the justice system.
Section 4(4) is added to the act, allowing the subject and any other
person who may submit an application on their behalf to make
submissions to the designated justice of the peace respecting the
application.53 Whereas the former act seemed to allow for persons other
than the subject to submit an application in writing, this provision seeks
to allow that individual to also make oral submissions on behalf of the
subject. This will be beneficial to the subject who is in a particularly
vulnerable state given the necessity of seeking a protection order and could
help to put forth a more sound and clear case before the justice of the
peace. This could in turn allow for more protection orders granted.
Further, s. 4(5) is introduced, allowing the subject applying for a
protection order in person to be accompanied by a family member, friend
or other support person.54 This will put the subject at ease and may,
accordingly, allow for a more effective review of the evidence. The former
act did not explicitly allow for support persons to attend the hearing, but
this new provision provides clarity on the issue.
Section 6(1), dealing with granting protection orders without notice, is
amended by striking the requirement that the subject show imminent and
immediate need for protection to the justice of the peace and replacing it
with the requirement to demonstrate circumstances which are serious or
urgent.55 This language was adopted into the Saskatchewan legislation in
52
The Domestic Violence and Stalking Act, CCSM c D93, s 4(2.1), as amended by Bill 11,
The Domestic Violence and Stalking Amendment Act, s 5(1).
53
Domestic Violence and Stalking Amendment Act, s 5(2).
54
Domestic Violence and Stalking Amendment Act, s 5(2).
55
The Domestic Violence and Stalking Act, CCSM c D93, s 6(1) as amended by Bill 11, The
2015.56 It is yet to see whether this has made a significant impact in

Saskatchewan and whether this will, in fact, affect the number of ex parte
orders being granted in Manitoba.
One of the major changes the bill makes is the addition of s. 6.1(1)
which will guide the justice of the peaces determination in a hearing for
application of a protection order. The section requires that a set of risk
factors be taken into account when coming to a decision in addition to
any unique factors that the subject presents.57 This provision is significant
as it creates a mandatory exercise for the justice of the peace and will
create more consistency in the granting of protection orders since it
requires the consideration of factors that may not be raised by the subject.
The risk factors include:
(a) the history of domestic violence or stalking committed by the

respondent
(b) the nature of the domestic violence or stalking committed by the
respondent
(c) whether the domestic violence or stalking is repetitive or
escalating
(d) whether the domestic violence or stalking is evidence of a pattern
of coercive or controlling behaviour respecting the subject
(e) other previous incidents of violence committed by the respondent,
including any violence against animals
(f) any mental health concerns involving the respondent
(g) the current status of any relationship between the subject and the
respondent, including any recent separation or intention to
separate
(h) any other circumstances of the respondent that may increase the
risk to the subject, such as
i. substance abuse
ii. employment or financial difficulties; or
iii. access to firearms or other weapons
(i) any circumstances of the subject that may

56
Bill 144, An Act to Amend The Victims of Domestic Violence Act and to make a
consequential amendment to The Adult Guardianship Co-decision-making Act, 4th sess,
27th Leg, Saskatchewan, 2014, s 6 (assented to May 14, 2015).
57
The Domestic Violence and Stalking Act, CCSM c D93, s 6.1(1) as amended by Bill 11,
The Domestic Violence and Stalking Amendment Act, s 7.
(ii) increase the risk to the subject, such as

pregnancy, age, family circumstances, health or economic
dependence.58
It is worth noting that the Saskatchewan legislation also requires that

the designated justice of the peace consider certain similar factors upon
determining whether a protection order should be made.59
Another mandatory provision found within the bill is s. 6.1(2), which
requires the justice of the peace to consider any information available
from court registries respecting criminal or family law proceedings
involving the respondent in a protection order hearing.60 This information
will form part of the record. This is an important amendment because in
the past, an ongoing proceeding might have discouraged a justice of the
peace from granting an order given the possibility that any court ordered
sanction would give the subject the protection he or she needed. For
example, in TJH v. TCN, the court was uncertain whether a protection
order could be ordered at all while a family court proceeding involving the
parties was ongoing.61 Therefore, going forward, evidence of criminal or
family proceedings may, in fact, lead to the granting of an order as it has
been determined that this tends to further support the need for emergency
protection.62 It should be noted that this amendment can only be effective
if the court registries and the police records are up to date and there is
enough current information available for the justice of the peace to have
an accurate picture respecting the respondent.
The bill also introduces s. 6.1(3), which sets out the circumstances that
should not lead to the denial of a protection order. It is likely that this
provision reflects the abundance of orders being refused on the basis of
these particular circumstances. They include:
(a) a protection order has previously been granted against the respondent,
regardless of whether the respondent has complied with that order;
(b) the respondent no longer resides in the subjects resident or in the
same community where the subject resides;
58
Ibid.
59
Supra note 11, s 3(2).
60
61
2005 MBQB 25 at paras 17, 21, 2005 CarswellMan 39.
62
Ibid.
(c) the respondent is incarcerated at the time the application is made;

(d) criminal charges have been or may be laid against the respondent;
(e) the subject is residing in an emergency shelter or other safe place;
(f) the subject has a history of resuming a relationship with the
63
respondent.
While the language of this section is permissive in nature, one can

expect that the amendment may lead to the justices of the peace turning
their mind to these circumstances and accepting that these should not be
bars to denying a protection order. Again, it is significant that the
Saskatchewan domestic violence legislation already includes a very similar
provision.
The bill also amends the act by including s. 6.2, the requirement that
the justice of the peace provide oral reasons at the time he or she makes a
decision on an application for a protection order.64 This change begs the
question: are justices of the peace currently providing no reasons for their
decisions and effectively leaving subjects in the dark as to why they are
unsuccessful in their application?65 Providing reasons affords respondents
more natural justice and procedural rights and allows the subject to more
effectively make a future application. In addition, it requires the justice of
the peace to consider the reason for denying the application and to be less
arbitrary with respect to the process.
One of the most significant amendments to the act is the addition of
s. 6.3. This provision involves notifying the chief firearms officer of all
protection orders granted and requires that the justice of the peace who
grants the protection order provide a copy of the order to the officer. 66
This mandatory provision seeks to ensure that the chief firearms officer is
63
64
The Domestic Violence and Stalking Act, CCSM c D93, s 6.2 as amended by Bill 11, The
65
While it is difficult to determine whether reasons are currently given in protection
orders hearings without access to them, it is clear that reasons are given during
applications to vary or set aside an order under s 12 (2) because these are heard by the
Queens Bench and are available for analysis. See for example, Roberts v Buzan, 2009
MBQB 5 at para 25.
66
The Domestic Violence and Stalking Act, CCSM c D93, s 6.3 as amended by Bill 11, The
aware of all protection orders when a respondent seeks to obtain or sell a

firearm lawfully. Practically, it is uncertain whether this will stop a
domestic violence offender or stalker from obtaining a firearm through
other means, but it remains advantageous to involve the chief firearms
officer with every order.
Further, s. 7(1)(g) is amended by narrowing its scope. The new
provision will exclude explosive substances from the list of weapons that a
respondent may be ordered to deliver up to a peace officer upon the
granting of a protection order.67 The bill instead only includes firearms,
ammunition or specified weapons in the respondents possession. This
change is perhaps a reaction to the restricted circumstances in which
possession of explosive substances have been evidenced by subjects in the
past.
In relation to s. 7 (1)(g), the bill introduces s. 7.1(1), which requires a
protection order to include a direction to deliver up any firearm or
ammunition where it is determined that a respondent is in possession of
such and directs peace officers to seize these items using reasonable force
where necessary.68 Prior to this amendment, it was within the justice of the
peaces discretion to include a provision for delivering up and seizing
firearms.69 The amended provision seems to address the practical reality
that respondents may be unwilling to deliver up their weapons regardless
of the legal sanctions that follow. Section 7.1(2) is ancillary to the latter
provision in that it requires that delivery or seizure of the items be dealt
with in accordance with the regulations.70 Further, the bill amends the act
by including s. 11(1) which allows the respondent to apply to the court to
have an order made under s. 7(1)(g) and 7.1(1) set aside.71 This provision
addresses the fundamental rights of the respondent considering the ex
67
The Domestic Violence and Stalking Act, CCSM c D93, s 7(1)(g) as amended by Bill 11,
68
69
In Inscho v Inscho, 2010 MBQB 90, 2010 CarswellMan 140, this was a term of the
protection order granted against the petitioners husband.
70
71
The Domestic Violence and Stalking Act, CCSM c D93, s 11(1) as amended by Bill 11,
parte nature of protection orders. Section 12(1) is amended to reflect the

changes made in s. 7 (1)(g).72 Section 12(2) determines that the respondent
has the onus to demonstrate, on the balance of probabilities that an order
made under s. 7 (1)(g) and 7.1(1) should be set aside.73
Similarly, s. 14(1)(h) directs the respondent to deliver up firearms,
ammunition and weapons in accordance with a prevention order.74 This is
a comparable amendment because it removes explosive substances from
the list of dangerous items to be forfeited by the respondent.
A final amendment is made to s.27 (e) of the act, which seems to
broaden the power of the Lieutenant Governor in Council (LG) with
respect to making regulations.75 It allows the LG to authorize the court to
make orders respecting the handling, storage, forfeiture or disposition of
items delivered up or seized pursuant to a protection or prevention
order.76 Since the Provincial Court of Manitoba is now included under
the act, it appears that the LG may permit more widespread execution of
the act.
V. LEGISLATIVE PROCESS
Bill 11 received Royal Assent on March 15th, 2016.77 The effect of the
legislative process on the bill was negligible since no amendments were
instituted following its introduction. One might have expected
amendments to the bill prior to committee approval because of the
comments made during the readings of the bill concerning the
reacquisition of firearms, GPS monitoring, the enforceability of orders
and the costs associated with the bill.78 While this was not the case, the
questions and debates are worth summarizing as they point out possible
72
The Domestic Violence and Stalking Act, CCSM c D93, s 12(1), as amended by Bill 11,
The Domestic Violence and Stalking Amendment Act, s 11(1).
73
The MB Act, supra note 4, s 12(2).
74
Ibid, s 14(1)(h).
75
The Domestic Violence and Stalking Act, CCSM c D93, s 27 (e), as amended by Bill 11,
76
The MB Act, supra note 4, s 27 (e).
77
Supra note 3.
78
Manitoba, Legislative Assembly, Hansard, 40th leg, 5th sess, No 11B (1 December
2015) at 400412.
deficiencies in the amendments and give proactive insight into how the
bill could be successfully implemented.
A. First Reading
On November 30th, 2015, Mr. Mackintosh presented a motion to the
Manitoba Legislative Assembly stating that The Domestic Violence and
Stalking Amendment Act should be read for the first time.79 The Minister of
Family Services and responsible for the Status of Women seconded the
motion.80 Mr. Mackintosh indicated that the general purpose of the bill
was to make it easier for victims of intimate partner violence to obtain
emergency protection orders and [to] ensure stronger orders including the
mandatory surrender of firearms.81 Further, he highlighted that this
would form part of a broader strategy for greater safety for Manitoba
women and children.82
B. Second Reading
During the second reading of Bill 11 on December 1st, 2015, Mr.
Mackintosh confirmed the more specific purposes of the bill and its
development.83 He explained that the amendments were developed
through consultation with community groups, with police, and others.84
He went on to highlight the most important changes to the legislation,
which were decided based on the consultation process. First, he stated,
the restructuring of the criteria for granting a protection order based on
the seriousness or urgency of the circumstances was a significant
alteration developed by considering specified factors related to the rate of
domestic violence or stalking that must now be considered by the justice
of the peace when granting a protection order.85 Further, he noted the
importance of the provision requiring the other party to surrender their
firearms and ammunition, failing which the legislation provides that
police may seize the items and notify the chief firearms officer, which will
79
Hansard November, supra note 2 at 325 (Hon Gord Mackintosh).
80
Ibid.
81
Ibid.
82
Ibid.
83
Hansard December, supra note 41 at 400 (Hon Gord Mackintosh).
84
Ibid.
85
Ibid.
assist in determining whether to grant, revoke or impose conditions on

the possession and acquisition license for firearms.86 Mr. Mackintosh
justified these amendments as he ensured that they will strengthen the
ability of a victim of domestic violence or stalking to seek a protection
order without notice against a respondent when necessary.87
Furthermore, he insisted that, despite the fact that the victims rights will
be strengthened, the rights of the respondent will continue to be upheld
and respected by allowing the respondent to request that the order be set
aside.88 Finally, he argued that the changes in this bill will significantly
improve the operation of Manitobas domestic violence and stalking
legislation [and] Manitoba will continue to have the broadest civil
domestic violence and stalking laws in the country, and those changes will
benefit Manitobans for years to come.89
1. Questions
During the question period, the most persistent member was Mr.
Kelvin Goertzen, a member of the Progressive Conservative Party. Mr.
Goertzen raised issue with the fact that when Bill 11 was announced to
the public, it was promised that GPS monitoring of those restricted by a
protection or prevention order would be revisited.90 Consequently, he
expected Mr. Mackintosh to shed some light on that proposition.91 He
questioned what type of GPS monitoring was proposed and how this
would form part of the project.92 Mr. Mackintosh indicated that a GPS
expansion team, including the Winnipeg Police Chief Devon Clunis,
University of Manitoba Law Professor Karen Busby, the head of Victims
Services, an expert in high-risk offender prosecution, and the head of
probation in Manitoba was formed and that it would be up to this team to
determine the scope of a GPS monitoring system to be used in
conjunction with the act.93 Mr. Goertzen was concerned that the
government has promised time and time again that monitoring would be
86
Ibid.
87
Ibid.
88
Ibid.
89
Ibid at 401.
90
91
Ibid.
92
Ibid.
93
used in domestic violence cases and that at present, there have been little
to no cases where this approach has been employed.94 Mr. Mackintosh
ensured that the new task force should have a clearer picture of the role
that GPS monitoring could play by the spring of 2016.95
Mr. Goertzen also expressed concerns with implementation of the
changes with respect to possession, delivery, and seizure of firearms.96 He
questioned how the firearms department of the RCMP would, in fact,
enforce this new scheme.97 Mr. Mackintosh explained that the new scheme
requires that the chief firearms officer be involved on every file where a
firearm has been identified as being in the possession of the respondent,
that he may undertake further investigation and revoke or take other
action.98 In the past, it was within the justice of the peaces discretion
whether to have the respondent surrender his or her firearm, however, the
bill makes this a mandatory exercise.99 Concerning broader enforcement
of this aspect of a protection order, Mr. Mackintosh stated that further
and enhanced training for the RCMP and Winnipeg Police with respect to
domestic violence and the amendments to the legislation would be
executed in order to give the officers the tools to ensure that the legislation
be effectively carried out.100 He did not, however, indicate whether there
would be the creation of a special unit formed to ensure compliance with
the delivery and seizure of firearms from a respondent. A valid concern
was raised regarding how the chief firearms officer would address the
situation where a respondents firearms are seized but he or she obtains
additional weapons after this seizure.101 It was questioned whether a
system would be put in place to monitor those individuals. Mr.
Mackintosh avoided this question by answering, were going to make sure
that they, in fact, have a full tool chest and that further training regimes
94
95
96
97
Ibid.
98
99
100
Hansard December, supra note 41 at 403-404 (Hon Gord Mackintosh).
101
may be needed to address this concern.102 This was a valid inquiry given
that the legislative changes would not be fully effective if they cannot
continue to protect victims once the initial removal of firearms from their
assailants is executed.
The Honourable Jon Gerrard, member of the Manitoba Liberal Party,
was the only other member that probed Mr. Mackintosh, but on an
entirely separate issue. His concern was with the estimated cost of the
bill.103 Mr. Mackintosh replied that, other than the costs associated with
prosecuting the breaches of protection orders, which are at the expense of
Manitoba Justice, the only major cost would result from the potential GPS
monitoring.104 He was, thus, seemingly unconcerned with the costs
associated with the bill, as he assured, it is an expansion and a
strengthening of the existing regime.105
2. Debate
During the debate portion of the second reading, Mr. Kelvin Goertzen
took a second opportunity to express concern that the government
previously promised that GPS monitoring was going to be used in
association with domestic violence and that this did not in fact occur. He
found it suspicious that the NDP government re-introduced the use of this
technology to the public and to the Assembly just prior to the provincial
general election of 2016.106 Accordingly, he seemed skeptical whether the
technology would, in fact, be utilized going forward. Mr. Goertzen also
highlighted for the second time the importance of putting into place a
scheme to continually monitor reacquisition of weapons by the
respondents.107 He was not convinced that the bill addressed this and was
concerned that Mr. Mackintosh had not fully considered the issue.
Mr. Gerrard took an alternate position with respect to the GPS
monitoring of respondents. He expressed concern about the ex parte
nature of protection orders and putting tracking collars of GPS systems
on someone without appearing in court.108 He stated further that the
102
103
Ibid (Hon Jon Gerrard).
104
105
Ibid.
106
107
Ibid at 411.
108
respondents human rights must be considered in relation to the

amendments so as to ensure that the respondents rights are upheld.109
Mr. Gerrard also revisited the issue of costs, as he considered that
doubling the amount of protection orders granted and putting GPS
monitoring in place could result in an increased monetary burden.110
Further, he cautioned that this monetary strain might not result in a
decrease in domestic violence and that a provision for ongoing scientific
research must be written into the bill to ensure there is a real effect on
domestic violence rates.111 Finally, he argued that Bill 215, which proposes
to provide education on domestic violence in the primary and secondary
education system, is a valuable alternative or complement to Bill 11.112
C. Committee Hearing: The Standing Committee on Justice

On February 18th, 2016, the Manitoba Legislative Standing
Committee on Justice considered Bill 11.113 Two women spoke to the Bill,
Professor of Sociology at the University of Manitoba, Dr. Jane Ursel, as
well as the director of A Womans Place, Norwest Co-op Community Health
Centre, Ms. Kim Storeshaw. Both women were of the opinion that the
legislative amendments were necessary and would effectively address issues
arising from the current act.114
In 2003, Dr. Ursel conducted research on the application process for
protection orders and its consequences. Her research revealed that the
justices of the peace were exercising wide discretion in granting protection
orders, which resulted in extreme variation for applicants depending on
the decision maker.115 Also, since the only mechanism to review decisions
was triggered when a decision was overturned or varied by a reviewing
court, this created a chilling effect on the decision making process and a
substantial decline in protection orders granted.116 Dr. Ursel evaluated Bill
11 and found the new provisions to directly address those issues. She
109
Ibid.
110
Ibid.
111
Ibid.
112
Ibid at 407.
113
Manitoba, Legislative Assembly, Standing Committee on Justice, 40th Leg, 5th Sess, No 1
(18 February 2016) at 28.
114
Ibid at 28-31.
115
Ibid at 28.
116
Ibid.
stated, I believe that these amendments are crucial in enhancing the

security of persons at risk in circumstances of domestic violence and
respond effectively to the concerns that I was identifying in my research a
number of years ago.117
Ms. Storeshaw considered the focus on the history of domestic
violence under the new legislation to be a welcomed change. Considering
her twenty years of experience assisting women in seeking protection
orders, she was hopeful that centering on the cycle of violence would
restore womens faith in the justice system and would further protect
children in abusive situations.118 Furthermore, having witnessed firsthand
the discretionary nature of the current legislation, she argued that the bill
would eliminate confusion in decision-making.119 It was encouraging to
Ms. Storeshaw that the bill eliminated situations where women would be
denied orders based on residing in shelters or their spouse being in prison
and that it required the seizure of firearms.120 Importantly, she confirmed
that while some women who seek protection orders are not eligible, in her
experience, it is anomalous for a woman to come forward if she is not in
need of protection and that the bill would make protection more
accessible to these women.121 Finally, she confirmed that the bill addressed
Internet stalkers adequately, but that further technical support was
required from the Winnipeg Police Force to prove Internet stalking.122
D. Third Reading and Concurrence

1. Debate
During the third reading and concurrence of Bill 11 on March 7 th,
2016, Mr. Goertzen declared his support for the bill.123 He affirmed that
the issue of the availability of protection orders is critical and that the
bill responded to that issue while also balancing the respondents civil
rights.124 He also raised the important issue of enforceability of protection
117
Ibid at 29 (Dr. Jane Ursel).
118
Ibid (Kim Storeshaw).
119
Ibid at 3031.
120
Ibid.
121
Ibid.
122
Ibid at 32.
123
Hansard March, supra note 48 at 867 (Kelvin Goertzen).
124
Ibid.
orders. He highlighted that the bill is lacking in terms of directing

enforcement of orders and that it must go further.125
On the issue of GPS monitoring, Mr. Goertzen considered that the
House had publicly discussed whether this type of surveillance was
considered constitutional or not.126 He urged that GPS monitoring is an
essential tool for combatting domestic violence and this legislation should
push the envelope to effectively protect victims.127 In sum, while Mr.
Goertzen extended his commitment to the bill, he stated that the issue of
enforcing protection orders required persistent thought, monitoring, and
revision beyond the changes that the bill proposed.128
Subsequently, Mr. Gerrard provided that, since Manitoba has one of
the highest rates of domestic violence in the country, he was satisfied that
moving forward with the bill was reasonable and appropriate.129 He noted
that, considering the research, it was disturbing to find that there wasnt
consistency among justicesin ensuring that the history of domestic
violence was taken into account when a protection order was issued or not
issued.130 Therefore, Mr. Gerrard found it encouraging that the bill
addressed this risk factor. On the other hand, he was concerned about the
general stigmatization of those with mental health issues since mental
health was also included as a mandatory consideration under the risk
factors.131 Considering the factors, he stated that ongoing research was
important in determining the effectiveness of the act going forward.132 He
also urged that this research should be used to determine when, where,
and to whom protection orders should be granted as well as to help
protect both victims and perpetrators.133 He explained:
[T]he better that we can understand the factors which cause the violence, the
better that we can look at ways in which we can prevent violence not just through
125
Ibid.
126
Ibid at 868.
127
Ibid.
128
Ibid.
129
130
Ibid at 873.
131
Ibid.
132
Ibid.
133
Ibid at 874.
the justice system, but through the application of the health-care system, better
supports in mental health- [and] improved access to psychologists [].134
Mr. Reg Helwer, Progressive Conservative member, also supported the
bill during the third and concurrent reading.135 While he did raise the
recurring issue that the bill needed to address enforceability of protection
orders, he described the bill as being a step towards breaking the cycle of
violence.136 The cycle may begin with economic issues or addictions in a
family, he explained, and should be addressed with better resources
available for individuals, taking interventionist steps and providing
education.137
Mr. Shannon Martin, Progressive Conservative member, suggested
that putting Bill 11 forward was a worthy goal.138 He cautioned that
while the bill does not guarantee that offenders will abide by protection
orders, the provision for the seizure of firearms is a new protective tool for
victims.139 Furthermore, Mr. Martin emphasized his satisfaction with the
definition of domestic violence being expanded to include electronic
media forms.140 Outside of the bill, he urged that resources be available to
individuals who leave their abusive spouses in order to help prevent the
cycle of violence as well as for perpetrators who want to make changes.141
Mr. Mackintosh closed the debates by revealing that Judge Martin of
the Provincial Court of Manitoba had very recently demanded more
support for women in the province after hearing five domestic violence
homicides against women.142 While Mr. Mackintosh conceded that the act
requires continued improvements, the legislation is, in his opinion, as
strong as it can be with regard to the Constitution.143
134
Ibid.
135
Ibid at 875-877 (Reg Helwer).
136
Ibid at 875.
137
Ibid at 875-876.
138
Ibid at 878 (Shannon Martin).
139
Ibid.
140
Ibid at 879.
141
Ibid at 880.
142
143
Ibid at 881.
VI. EFFECTS OF THE BILL
A. Short Term Effects

1. Increased Protection for Domestic Violence and Stalking Victims
As previously mentioned, Mr. Mackintosh expects the bill will make it
easier for victims to seek protection against their domestic violence
offenders and stalkers. He bases this expectation on the new language of s.
6(1), which reduces the requirement to demonstrate imminent and
immediate need of protection to showing urgent and serious
circumstances. Further, he argues that the mandatory risk factors to
consider and the removal of certain bars to granting a protection order
will contribute to the increase in orders being granted. If his expectations
prove accurate, some may welcome the additional protection orders being
granted, while others may be skeptical that the legislation is, in effect,
overly broad and results in orders being granted in inappropriate cases. To
date, however, it is still uncertain whether, in practice, the amendments
will in fact lead to more orders being granted.
Considering Mr. Mackintoshs expectations, the removal of the bars to
obtaining an order could arguably lead to more protection orders being
granted where appropriate. This is because the respondent being
incarcerated has historically prevented subjects from being granted orders
against the respondent.144 On the other hand, it is uncertain how effective
the language change in s. 6(1) will be in practice. Considering that the
justices of the peace who are granting or denying orders are not changing,
it is yet to be seen whether this amendment will change their decision
making process. This is especially so considering legal scholar Cheryl
Laurie argued, regardless of the intent of the law, the individuals making
the decision have a significant impact on the outcome of cases.145 Finally,
the necessity to take into account certain known risk factors may have the
effect of changing the mindset of the justices of the peace when making
their determinations, however, it is still within their discretion to reject
the application even when the factors are considered. Perhaps the most
encouraging amendment is the requirement that decision makers give oral
144
Hansard December, supra note 41 at 404.
145
Cheryl Laurie, supra note 15 at 34.
reasons for their decisions. This requires the justice of the peace to be held
accountable for taking into account the risk factors, the severity and
urgency of the circumstances, and the removal of the bars to granting the
orders. It is less likely that the justices of the peace will be able to curtail
the new process because of this amendment but it is the most promising
step towards major change.
2. The Justice System

While the bill may not affect the number of protection order
applications being filed, if the legislation does what Mr. Mackintosh
professes, it will result in more successful applications. An increase in
protection orders will likely result in additional breaches of these orders
and an increased workload for police officers, Crown Attorneys, and the
courts. Additionally, this influx in orders may contribute to backlog in the
Provincial Court, the necessity for additional police officers, and
overcrowding in Manitoba jails.146 Furthermore, if additional GPS
monitoring of offenders is introduced, fulfilling this promise may require
additional personnel to execute the program. Therefore, if the bill
provides the result that Mr. Mackintosh expects it to, it begs the question,
is our system equipped to deal with it?
3. The Role of the Chief Firearms Officer

Creating a more expansive role for the chief firearms officer will
effectively create a twofold effort between the provincial and federal
governments to combat the issue of domestic violence and stalking in
Manitoba. Currently, the act does not make it mandatory to involve the
chief firearms officer and thus, with this amendment, the decision making
and administrative power of the chief firearms officer is seemingly
strengthened. In addition, since the bill requires that the respondent
deliver up his or her firearm(s) to a peace officer, it follows that the chief
firearms officer and the provincial police force must work in concert to
execute the proposed firearms provisions.
146
Jacques Marcoux & Caroline Barghout, Manitoba jails bursting at the seams even
though crime rates continue to fall, CBC news (29 October 2015), online:
<http://www.cbc.ca/news/canada/manitoba/manitoba-jails-busting-crime-rate-falling-
1.3293068>.
B. Long Term Effects

1. Firearms Monitoring
Doubts have been raised with respect to the value of seizing the
respondents weapons when a protection order is first granted. Will this
approach effectively protect victims from being injured or killed at the
hands of their domestic abusers or stalkers? Mr. Goertzen argued that
continuous monitoring would be necessary to ensure that respondents do
not simply acquire additional weapons after the fact.147
To begin, it is encouraging that the bill requires dangerous parties to
deliver up their weapons and to notify the chief firearms officer of each
protection order involving a firearm. This ensures that the respondents
activity with respect to the legitimate possession of a firearm after the fact
will be monitored. On the other hand, the acquisition of non-restricted
firearms,148 or firearms through illegal means or through a third party is an
issue that the bill does not seem to address. A more active role for peace
officers and the ability to search the respondents for illegal possession on a
continuous basis would be required to monitor this activity. The question
of whether there are sufficient resources to support this scheme arises. If
the existing scheme cannot support this additional undertaking, it may be
appropriate to establish a special division or body which would be tasked
with carrying out this monitoring. This would create an increased
monetary burden.
2. Privacy Concerns
The bill does not expressly include provisions considering the use of
GPS monitoring for tracking respondents. Mr. Mackintosh did, however,
announce to the public when introducing the proposed legislation that
using GPS monitoring with respect to offenders would be considered in
conjunction with the bill.149 This announcement posed a concern for
certain ministers during the second reading, as set out above.
147
Hansard December, supra note 41 at 411 (Kelvin Goertzen).
148
Bill C-19, An Act to amend the Criminal Code and the Firearms Act, 1st Sess, 41st Parl
2012. This bill removed the requirement for registration of non- restricted firearms.
149
The Canadian Press, Manitoba beefs up protection orders with firearm ban, GPS
The desire to introduce GPS monitoring in conjunction with the bill,

especially in the case of ex parte orders, brings The Privacy Act into play.150
This act prevents violations of privacy, including for example,
surveillances, which are substantial, unreasonable, and without claim of
right.151 One could argue that pursuant to the current legislation, which
requires respondents to apply to set aside ex parte orders, GPS monitoring
of said respondents prior to their appearance in court is a substantial and
unreasonable violation of privacy. On the other hand, if peace officers are
granted the power to carry out this type of monitoring under the
Regulation, they will, arguably, be armed with a valid defence pursuant to
s.5 (e) of that The Privacy Act. Section 5(e) provides a defence against an
alleged privacy violation where the act was that of a peace officer acting in
the course of his duties and that it was neither disproportionate to the
gravity of the subject to investigation nor committed in the course of a
trespass; and was within the scope of his duties or within the scope of the
investigation, as the case may be, and was reasonably necessary in the
public interest.152
At first glance, one can readily acknowledge the public interest in GPS
monitoring of respondents given their risk of violence evidenced by the
Runke and Keeper tragedies. Conversely, one can imagine circumstances
in which malicious orders are granted ex parte and respondents are
surveilled unknowingly before they are able to seek that the order be set
aside. Therefore, the introduction of this technology into the legislative
scheme should be approached cautiously and may be an issue ultimately
decided by the judiciary.
In any event, GPS monitoring was not included in the legislation or
its regulations.153 Therefore, Mr. Goerzten was perhaps correct in his
suspicion that the NDP Government primarily made this announcement
to obtain favourable votes in the provincial election of 2016.
monitoring CTV News Winnipeg (30 November 2015), online:

<http://winnipeg.ctvnews.ca/manitoba-beefs-up-protection-orders-with-firearm-ban-
gps-monitoring-1.2680034>.
150
The Privacy Act, CCSM c P125.
151
Ibid, ss 2(1) and 3.
152
Ibid, s 5(e).
153
Domestic Violence and Stalking Regulation, Man Reg 117/99.
VII. LOOKING OUTSIDE OF THE BILL
A. Enforcement of Protection Orders

Camille Runkes case highlights an issue with granting protection
orders that is not dealt with in the bill or the act. Camille engaged law
enforcement 22 times within the year that she was granted a protection
order against her husband.154 These engagements involved her husband
who was in breach of the protection order on a number of occasions.155 It
is unclear why her husband was not further monitored or incarcerated
after the continued breach of the order to increase the protection of
Camille. This case calls into question whether protection orders are being
sufficiently enforced, and if so, whether this enforcement is creating
enough protection for subjects.
The Department of Justice Canada has stated that spousal abuse
policies and legislation reports throughout the country have revealed a
significant concern associated with the enforcement of breaches of civil
orders.156 Therefore, it is uncertain whether the granting of additional
protection orders will result in victims being increasingly protected against
their assailants. It would be encouraging if the bill specifically addressed
this issue or if Mr. Mackintosh, in discussions, had highlighted this
problem and provided potential solutions. The concern with enforcement
of protection orders brings into question the effectiveness and necessity of
the act and any amendments thereto.
B. The Necessity of Bill 11

Statistics Canada reveals that over the past 10 years, there has been a
decline in self-reported spousal violence. In its most recent General Social
Survey on victimization, it indicated that of those "who had a current or
former spouse or common law partner, about 4% [] reported having
been physically and/or sexually abused by their partner during the
154
Supra note 39.
155
Ibid.
156
Canada, The Department of Justice, Final Report of the Ad Hoc Federal-Provincial-
Territorial Working Group Reviewing Spousal Abuse Policies and Legislation, online:
<http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/pol/spo_e-con_a.pdf> at 54.
preceding five years" as compared with 7% in 2004.157 In fact, the largest

declines were seen in Manitoba, Saskatchewan, BC, and Alberta.158
Therefore, the bill was introduced at a time when statistically, the situation
with respect to domestic violence offences in Manitoba was seemingly
improving. This highlights the Legislative Assemblys reaction to certain
tragic and highly publicized incidents in which the legislation did not live
up to its mandate. While it is difficult to argue that strengthening civil
protective legislation is a poor initiative, these statistics indicate that public
perception and outcry concerning an issue can fuel the desire for
legislative change.
On the other hand, although these statistics reveal a decline in spousal
violence, it is uncontroverted that there are many cases of stalking and
domestic violence in Manitoba and that, as highlighted above, some result
in serious bodily harm and death. It is unclear whether having a
protection order in place can effectively prevent a respondent from killing
their victim. It seems plausible that those who are intent on killing will not
be prevented by a court order even if the bill is passed and the legislation
is strengthened. In support of this, Professor Sanjeev Anand argued that
the protective value of court orders whether in the form of restraining
orders, peace bonds, recognizances, or probation orders may be more
illusory than real, at least as far as former intimate stalkers are
concerned.159 Moreover, Dr. Neilson urged that we know that many,
perhaps most, perpetrators of coercive [domestic violence] fail to comply
fully with civil restraining and civil protection orders160 Dr. Neilson stated
that, while protection orders are helpful for reducing the severity and
frequency of abuse and violence, deterring some perpetrators entirely,
particularly if intervention is early, sending a message that the legal
system will not tolerate domestic violence [and] encouraging use of safety
157
Statistics Canada, Family violence in Canada: A statistical profile The Daily (21
January 2016), online: <http://www.statcan.gc.ca/daily-
quotidien/160121/dq160121b-eng.htm>.
158
Ibid.
159
Sanjeev Anand, Stopping Stalking: A search for Solutions, A Blueprint for Effective
Change (2001) 62 Sask L Rev 397 at 425.Notably, this article dealt with the Criminal
Code provisions dealing with stalking [Sanjeev Anand].
160
Neilson, supra note 47 at 8.
planning and enhancing public confidence in the legal system, they may
be ineffectual in other cases.161
It is important to consider what alternative measures could be taken to
help prevent the death of individuals when protection orders are simply
not sufficient. GPS monitoring of offenders was presented above as an
additional measure to simply granting a protection order when the bill was
introduced. In addition, Dr. Neilson indicated that Criminal Code options
with close supervision are needed in addition to civil protection in
circumstances where respondents disregard the law and have mental
health issues.162 Other alternative measures may include, for example,
psychiatric treatment for offenders with mental disabilities163 and
providing subjects with increased police protection and domestic violence
shelters.164
C. Gun Control
The bill also calls attention to the NDPs position in favour of a more
highly regulated firearms system. First, this is apparent as the bill makes it
mandatory for protection and prevention orders to include a direction to
deliver up or have weapons seized within the respondents possession.
Second, it requires that the chief firearms officer be involved with each
protection order, thereby further monitoring firearms activity. On a
federal level, this bill would be inconsistent with the Conservative
governments stance which was illustrated by the dismantling of the long-
161
Ibid; U.S. Department of Justice, Office of Justice Programs, Stalking and Domestic
Violence: The Third Annual Report to Congress under the Violence Against Women Act
(Washington, D.C.: Violence Against Women Grants Office, 1998) reported only 1%
of victims found that stalking ceased after the conviction of their stalker under
criminal harassment legislation. While outside of the jurisdiction, it is reasonable to
conclude there is some correlation in this finding and the circumstances in Manitoba.
162
Neilson, supra note 47 at 10.
163
Sanjeev Anand, supra note 159 at 424 revealed that treatment programs up to 2001
for offenders convicted under Criminal Code harassment provisions did not show
noticeable improvements in recidivism rates.
164
Sanjeev Anand, ibid at 425.
gun registry by Stephen Harpers government in 2011.165 Following twelve

years of Conservative Government in Canada, it is open to question
whether Prime Minister Justin Trudeaus government will follow in former
Liberal leader Jean Chretiens footsteps and Canada will see further gun
control throughout the Country. Accordingly, the provisions of Bill 11
could be foreshadowing what is to be expected in terms of gun control on
a federal scale.
VIII. CONCLUSION
Bill 11 was introduced when Manitoba was grieving the loss of two
women as a result of domestic violence and stalking. The framework set
out by The Domestic Violence and Stalking Act should have been the
mechanism that protected these women from their assailants, and instead,
it seemingly failed them. Therefore, Mr. Mackintosh was correct in seeking
to amend the act to provide greater access to protection and prevention
orders and to strengthen gun control measures to further protect subjects.
While these changes are encouraging, concerns have been raised with
respect to the continuous monitoring of weapons possession, the costs
associated with granting additional protection orders, and the use of GPS
monitoring as being an empty promise and a privacy violation. Apart from
the substantive aspects of the bill, the enforceability of protection orders
was highlighted as an ongoing struggle and alternative measures for
addressing domestic violence and stalking were considered necessary. To
conclude, the consensus from within the Manitoba Legislative Assembly is
that Bill 11 is a welcomed addition in the fight against domestic violence
and stalking; however, it is unquestionable that additional statutory
protection is on the horizon.
165
Paul Daly, Dismantling Regulatory Structures: Canadas Long-Gun Registry as Case
Study (2014) 33:2 NJCL 177.
Bill 5: The Police Services Amendment
Act (First Nation Safety Officers)
*
D A NIE L L E M AG N IF I CO
I. INTRODUCTION
P
olicing in First Nations communities in Manitoba has always been a
contentious issue. These communities are exposed to many unique
geographical and social issues and despite the need for continued
police presence, the model has always seemed to fall short. Although the
Royal Canadian Mounted Police (RCMP) provide primary policing
services to many First Nations communities in Manitoba as the provincial
police service, the issue of continued police presence persists. The Band
Constable Program (BCP) was introduced in 1965 in an attempt to fill this
gap and was intended to enhance primary police services; however this
federally funded program was unilaterally terminated, effective March 31,
2015.
There have been many concerns with deficiencies in the BCP for some
time, but regardless of its effectiveness, or lack thereof, it is unquestionable
that the program would need to be replaced. Bill 5, The Police Services
Amendment Act (First Nation Safety Officers),1 was proposed to amend The
Police Services Act2 (PSA) to create safety officers to replace the band
constables.
This paper will outline Bill 5 and is divided into eight sections.
Sections I through III will provide introductions generally, on policing and
to Bill 5. Section IV will detail the legislative debate surrounding Bill 5.
*
J.D. (2018).
1
Bill 5, The Police Services Amendment Act (First Nation Safety Officers), 4th Sess, 40th Leg,
Manitoba, 2014 (assented to 30 June 2015) [Bill 5].
2
The Police Services Act, CCSM c P94.5.
Section V will address varying opinions on Bill 5. Section VI will discuss

the jurisdictional issue with policing and section VII will consider whether
the new program created by Bill 5 adequately addresses the deficiencies in
the BCP. This is followed by a brief conclusion on the implications for the
future in section VIII.
II. BACKGROUND
A. Policing in Manitoba
In Manitoba, policing is governed by legislation and/or contractual
agreements. This section briefly outlines policing in Manitoba to provide
some context to where policing in First Nations communities fits into this
larger picture.
1. The Police Services Act (PSA)

The Police Services Act3 (PSA) was assented to on October 8, 2009,
replacing The Provincial Police Act. Part 3 of the PSA outlines the
responsibility for policing in Manitoba. The policing options vary
depending on if the area is classified as a large urban municipality (with a
population over 5,000),4 mid-sized urban municipality (with a population
between 750 and 5,000),5 or another area in Manitoba (which includes
municipalities with under 750 people, rural municipalities and areas in
Manitoba that are not municipalities).6
An urban municipality with over 5,000 people may establish its own
police service, enter into an agreement with the Government of Canada to
have the RCMP provide policing services, create a regional police service,
or enter into an agreement with a neighboring municipality to use that
municipalitys police force.7 Mid-sized urban municipalities have the same
options available as large urban municipalities, however when entering
into an agreement with the Government of Canada to have the RCMP
3
Bill 16, The Police Services Act, 3rd Sess, 39th Leg, Manitoba, 2009 (assented to 8
October 2009), SM 2009, c 32.
4
Ibid, s 13(1).
5
Ibid, s 13(2).
6
Ibid, s 14(1).
7
Ibid, s 13(1)(a)(c).
Bill 5: Police Services Amendment Act 89
provide policing services, the agreement will be made under section 18(1)
of the PSA, which states that the RCMP would act as a provincial police
service.8
The Minister must ensure that policing services are provided in urban
municipalities with fewer than 750 people, and rural municipalities.9
These municipalities still have the same options as large and mid-sized
municipalities but they need not enter into an agreement with the
Government of Canada, if they wish to have the RCMP provide the
services. If they do not exercise these other options, the Minister is
responsible for policing the area.10 The Minister must ensure that policing
services are provided in any part of Manitoba that is not in a
municipality.11
2. Police Service Agreements

Police service agreements outline the duties and responsibilities of
the RCMP in financial, operational, and administrative areas within the
provisions of the provincial and municipal policing services.12 Provinces
and municipalities consult with the RCMP to set out the level of
resources, budget and policing priorities and the RCMP will deliver the
services within that budget.13
Under the Provincial Police Service Agreement (PPSA), the RCMP will
provide policing services pursuant to section 18 of the PSA as the
Provincial Police Service. This agreement is 20 years in length and is cost-
shared 70/30 between the provincial and federal government,
respectively.14 Municipal Police Service Agreements (MPSA) are used by
municipalities with a population over 5,000, since they do not qualify to
8
Ibid, s 18(1).
9
Ibid, s 14.
10
Ibid, s 14 (a)(b), s 14(2).
11
Ibid, s 14(1)(c).
12
Royal Canadian Mounted Police, Contract Policing (30 October 2013), RCMP
(website), online: http://www.rcmp-grc.gc.ca/ccaps-spcca/contract-eng.htm [RCMP
Website].
13
Ibid.
14
Ibid.
use the RCMP under section 18 of the PSA.15 The cost-share of these
agreements depends on factors such as population size,16 and they are also
20 years in length.17
B. Policing in First Nations Communities in Manitoba

1. The Police Services Act (PSA)
According to section 45(1) of the PSA, a First Nation Police Service
can be established by one or more First Nations entering into an
agreement with the provincial and federal governments.18 This type of
standalone police service is under-exercised as an option in Manitoba, with
only one regional Aboriginal police service operating in the province. It is
unclear as to why this is the case. First Nations in Manitoba rely almost
exclusively on the RCMP to provide primary policing through the
Provincial Police Service Agreement (PPSA).
2. The Band Constable Program (BCP)

The BCP is a legacy program that was first developed in 1965. As will
be discussed in section VII, the powers and duties of band constables were
limited.19 In 1992, after reviewing policies and programming in First
Nations communities, a decision was made to form the First Nations
Policing Program (FNPP).20 Funding for the BCP was then frozen,
responsibility switched from the Department of Indian and Northern
Affairs (INAC) to the Solicitor Generals Department and the program
was to be phased out.21 First Nations could instead apply to be funded
15
Supra note 2, s 13(1)(b).
16
RCMP Website, supra note 12.
17
Ibid.
18
19
Manitoba, Provincial Court: Report on the Inquest and Recommendations of Judge
Malcolm McDonald, An Inquest into the Death of Brian McPherson, (9 February 2016) at
para 65, online:
http://www.manitobacourts.mb.ca/site/assets/files/1051/brian_mcpherson_inques
t_-_feb_9_2016_mcdonald_amended.pdf at para 65 [McPherson Inquest].
20
Ibid at para 66.
21
Ibid at para 67.
through the FNPP.22 Although the funding of the BCP program was
frozen in 1992 upon the development of the FNPP, many First Nations in
Manitoba continued to use the BCP. The Government of Canada, which
funded the BCP 100%, unilaterally discontinued its funding, effective
March 31, 2015.23 Up to the date of cancellation, as many as 31 First
Nations in Manitoba still relied on this program.24
3. Federal First Nations Policing Program (FNPP)

The FNPP made Canada the first Country to develop a
comprehensive national policing strategy for Aboriginal peoples.25
Malcolm McDonald, the judge in the Brian McPherson Inquest
summarized the development of the FNPP:
The FNPP was born out the conclusions of the policy review conducted by the
Government of Canada in 1991. The review occurred close in time to the
recommendation of a number of inquiries across the country including the
Aboriginal Justice Inquiry in Manitoba. The conclusion was that aboriginal
communities were receiving inadequate and culturally inappropriate policing
both in manpower and in responsiveness to the needs of the communities. The
FNPP was developed to address the deficiencies and to supplement the core
26
policing provided by provincial police forces.
Through this program, First Nations have two options for funding
police services. They could either enter into an agreement to create a
standalone police service, such as the Dakota Ojibway Police Service
(DOPS), or enter into a Community Tripartite Agreement (CTA) to have
policing services provided in their community.27 The majority of
agreements under the FNPP in Canada are CTAs. In these cases the
22
Ibid.
23
Ibid at para 71.
24
Chinta Puxley, Manitoba wants more money to finance policing for First Nations,
CBC News (30 December 2015), online:
http://www.cbc.ca/news/canada/manitoba/manitoba-wants-more-federal-money-to-
finance-policing-for-first-nations-1.3384165 [Manitoba Wants More Funding].
25
Lithopoulos & Ruddell, Aboriginal Policing in Rural Canada: Establishing a
Research Agenda (2013) 2:1 International Journal of Rural Criminology 101 at 102
[Aboriginal Policing in Rural Canada].
26
Supra note 19 at para 119; See also Aboriginal Policing in Rural Canada, ibid at 105.
27
Supra note 19 at para 67; See also Public Safety Canada, Aboriginal Policing: First
Nations Policing Program (9 December 2015), PSC (website), online:
http://www.publicsafety.gc.ca/cnt/cntrng-crm/plcng/brgnl-plcng/index-eng.aspx.
RCMP will try to fill the on-reserve positions with Aboriginal officers.28
First Nations with standalone police services under the FNPP are expected
to establish a police commission, while those First Nations under CTAs
are expected to maintain a Community Consultative Group as a liaison
between the band, police, and community.29 The purpose of the FNPP is
to enhance, rather than act as a substitute for core policing services.30 52%
of this program is funded by Canada and 48% is funded by Manitoba.31
As of 2014, Manitoba had one standalone police service and only
eight First Nations with CTAs, leaving as many as 55 First Nations
without enhanced police services under the FNPP.32 Around 2006, funding
under the FNPP was frozen for a 5-year period, followed by another 5-year
period in 2013.33 Consequently, First Nations that had not made previous
agreements under the FNPP would be denied, and would have to rely on
funding under the BCP at the 1992 frozen levels.34 This funding freeze
would make it impossible to have the BCP phased out in a way that did
not have adverse impacts on the First Nations relying on the BCP. Due to
the high number of First Nations in Manitoba that had not entered into
agreements under the FNPP before this funding freeze, cutting the BCP
had disproportional effects on First Nations in Manitoba.35
III. SUMMARY OF THE BILL

Bill 5 enables a First Nation safety officer program [FNSOP] to be
established by a First Nation or an entity that represents a group of First
Nations.36 This program will replace the BCP and provide community
based police services to First Nations under individual operating
agreements.
28
Supra note 25 at 107.
29
Ibid at 108.
30
Supra note 19 at para 83.
31
Ibid.
32
Ibid.
33
Ibid at para 70.
34
Ibid.
35
Ibid at para 108.
36
Bill 5, supra note 1, explanatory note.
The explanatory note for Bill 5 outlines the role of the safety officers
as follows:
First Nation Safety Officers [FNSOs] will deliver crime prevention programs,
connect persons in need with appropriate social services and provide information
to the local policing authority on public safety issues in First Nation
communities. [FNSOs] may also provide general assistance to police officers,
exercise prescribed powers and enforce specific provincial enactments. 37
Bill 5 also legislates what qualifications and training safety officers
must have, the powers afforded to them, and what is required in the
operation agreement between each First Nation, the Minister, and the
RCMP. The next section, with respect to the legislative debate around Bill
5, will speak to the bill in some detail.
IV. LEGISLATIVE DEBATE
A. Throne Speech
The Throne Speech briefly addressed Bill 5 by stating that the
government was working with First Nations to address the federal
governments cut of the BCP to ensure that First Nations have access to
community policing.38
B. First Reading
Minister of Justice and Attorney General, New Democratic Party
(NDP) member, Honourable James Allum (Mr. Allum) introduced Bill 5
on November 26, 2014.39 When introducing the bill, Mr. Allum stated
that the amendments creating First Nation safety officers would help
address the significant public safety challenges resulting from the federal
government's unilateral decision to terminate the [BCP].40 Mr. Allum
briefly discussed the bill, stating that the legislation would create a
framework where First Nations can enter into agreements with Manitoba,
37
Ibid.
38
Manitoba, Legislative Assembly, Throne Speech, 40th Leg, 4th Sess (20 November
2014), online: http://gov.mb.ca/thronespeech/thronespeech_2014.html.
39
Manitoba, Legislative Assembly, Hansard, 40th Leg, 4th Sess, No 5 (26 November
2014) at 131 (Hon James Allum).
40
Ibid.
Canada and the local policing authority to create safety officers. He stated
that the FNSOP would replace and improve41 the BCP and would
emphasize a holistic community-based approach to First Nations policing
which is adaptive to the diverse characteristics and needs of each
individual First Nation community.42
The motion was adopted without further debate.43
C. Second Reading
On December 4, 2014, seconded by the Minister of Conservation and
Water Stewardship, the Honourable Gord Mackintosh (Mr. Mackintosh),
Mr. Allum moved to have Bill 5 read a second time.44 Speaking for his side
of the House, Mr. Allum voiced his disappointment with the federal
governments decision to terminate the BCP and the deadline that such
cancellation would take effect.45 He stated that due to this decision, an
immediate legislative solution was necessary, and made a point to refer to
the cut as the federal government balanc[ing] their budget on the backs
on Manitobans, while mentioning the 2006 to current freeze on the
FNPP.46
Mr. Allum went on to say that the bill reflects feedback from First
Nations leaders for a program that will address the unique needs of First
Nations communities. He described the bill as framework legislation,
speaking to its flexibility where agreements entered into by an individual
First Nation can be tailored to meet their needs.47 Mr. Allum stated the
purpose of the bill, which is to have safety officers work with local police
to enhance public safety.48 He further discussed the safety officers role as
implementing crime prevention strategies and initiatives, connecting
persons in need with social service and community resources and
41
Ibid.
42
Ibid.
43
Ibid.
44
Manitoba, Legislative Assembly, Hansard, 40th Leg, 4th Sess, No 11B (4 December
2014) at 390 (Hon James Allum) [Bill 5 Second Reading].
45
Ibid at 391.
46
Ibid.
47
Ibid.
48
Ibid.
maintaining a visible presence within the community.49 Through the

consultations with First Nations, the safety officers may also enforce band
by-laws and specific provincial statutes that are named in the regulation
and they will have peace officer status while enforcing those political-
provincial statutes.50 They may further assist the local police service in
non-criminal matters.51
Mr. Allum spent some detail discussing the contractual agreement side
of the legislation. He emphasized that each FNSOP must be based on an
agreement between a First Nation or entity representing a group of First
Nations, the local policing authority, the government of Manitoba and the
Government of Canada.52 He spoke to the agreement addressing the
operation of the program, including management, financing, direction
and supervision of the safety officers, the relationship between the local
police and the safety officers and the process for dealing with complaints.53
Under this legislation, safety officers are employees of the First Nation.54
Mr. Allum went into some detail about what this means exactly:
First Nations will appoint First Nation safety officers and will be responsible for
ensuring that they perform their duties and exercise their powers in a proper
manner. First Nations will also be liable for the actions of their First Nation
safety officers. Rules outlining qualifications, training, duties, equipment, and
uniforms will also be prescribed in regulation.55
Mr. Allum ended by stating his partys commitment to enhancing
public safety in all communities, and the urgency of such legislation given
the federal governments budget cuts and the real public safety
consequences flowing from it.56
Progressive Conservative (PC) member, Mr. Kelvin Goertzen, spoke
next to the bill, suggesting that a theme of urgency would play out in the
house that day, given the timing of the house debates, and cautioned
49
Ibid.
50
Ibid.
51
Ibid.
52
Ibid.
53
Ibid.
54
Ibid.
55
Ibid.
56
Ibid at 391392.
against making decisions based on this alone. He instead called for a

proper review and discussions with stakeholders.57
NDP member, Mr. Andrew Swan took the defence by pointing out
that Mr. Goertzen ignored the public safety issue of the BCP coming to an
end in a few months time, and discussed the unique geographical issues
these regions face in getting resources.58 He reiterated what Mr. Allum
stated regarding the legislation being a response to the unilateral decision
of the federal government to cancel the BCP, which had been operating in
the province since 1969.59
NDP member Mr. Clarence Pettersen went on record supporting the
bill, reiterating the role of the safety officers as stated by Mr. Allum and
noting that at times it can take the RCMP two or three days to respond to
issues in First Nations communities, some of which have a population
between 1500 and 3000, and do not have RCMP offices.60
Liberal member Honourable Jon Gerrard (Mr. Gerrard) agreed with
the substance of the bill but seconded not rushing it, and suggested to
have committee meetings and hearings, providing individuals with notice
and then having a third reading when the house would return in March.61
PC member Mr. Wayne Ewasko, seconded by PC member, Mr. Shannon
Martin, moved to adjourn the debate and the motion was agreed to.62
The debate resumed on June 18, 2015, where PC member Mr. Stuart
Briese discussed the bill further.63 This included how the funding between
the federal and provincial governments would be shared, and how the
province of Manitoba would take over policing in First Nations
communities, as well as create a training program for safety officers.64 He
expressed his concern over the costs associated with the program, and
considering that 31 First Nations are currently under the BCP, he
57
58
Ibid (Andrew Swan).
59
Ibid.
60
Ibid at 394 (Clarence Pettersen).
61
62
Ibid (Wayne Ewasko).
63
Manitoba, Legislative Assembly, Hansard, 40th Leg, 4th Sess, No 49B (18 June 2015)
at 2010 (Stuart Briese) [Committee Hearing].
64
Ibid at 2011.
estimated that the program would cost a total of three million dollars.65
He restated the unique geographical and safety issues that many of these
First Nations communities face and concluded by saying that the bill may
be one small piece of the puzzle in addressing issues such as high crime
rates.66
The motion on second reading was adopted by the house.
D. Committee Hearing
On June 24, 2015, Bill 5 went to the Standing Committee on Social
and Economic Development.67 Mr. Allum reiterated what was said in the
throne speech and earlier debates regarding the bills purpose and the
roles of the FNSOP that the bill would create.68
Mr. Briese went on record again to speak to his concerns regarding
escalating costs of the program and to the fact that these costs were not
being discussed upfront.69 The debate concluded quickly and no other
members spoke to the bill.
E. Report Stage Amendment, Third Reading & Royal Assent

On June 30, 2015, seconded by the Honourable Steve Ashton (Mr.
Ashton), Mr. Mackintosh moved to have the bill amended as follows:
THAT Bill 5 be amended in Clause 2
(a) in the proposed subsection 77.12(1) by striking out ", the Government of
Canada"; and
(b) by adding the following after the proposed section 77.12:
Requirement for agreement with Government of Canada77.12.1 The minister
must not enter into an agreement under section 77.12 unless there is an
agreement in place between the Government of Manitoba and the Government
of Canada respecting the operation of First Nation safety officer programs in
70
Manitoba.
65
Ibid.
66
Ibid.
67
Manitoba, Legislative Assembly, Standing Committee on Social and Economic Development,
40th Leg, 4th sess, Vol LXVII No 4 (24 June 2015) at 90.
68
Ibid (Hon James Allum).
69
Ibid (Stuart Briese).
70
Manitoba, Legislative Assembly, Hansard, 40th Leg, 4th Sess, No 55 (30 June 2015) at
2284 (Hon Gord Mackintosh).
Mr. Mackintosh characterized the amendment as a minor one that

would change the requirement for the Government of Canada to enter
into individual agreements with both the province and First Nations to
the Government of Canada having to enter into a single agreement with
the province instead.71
In speaking further about the amendment he stated: The amendment
acknowledges Canada's role and responsibility with respect to First
Nations and the need for the federal government to partner with the
Province, but it makes a procedural change that is intended to streamline
the agreement-making process.72
Mr. Gerrard went on record to say that he viewed the amendment as
reasonable, stating that so long as this was not going to be used to exclude
First Nations from the program, they would not be opposed to the
amendment.73 The motion was ultimately adopted.74
Mr. Ashton, seconded by Mr. Mackintosh, moved to have the bill read
for a third time.75 Mr. Briese went on record voicing his concerns about
the safety officers duties, and again about the funding of the program.76
He pointed out worries with the new training regime and potential
increasing costs as more First Nations join the program, and with regards
to cost-sharing, commenting that the federal money was not guaranteed.77
Mr. Gerrard went on record to say that the bill should have been
passed prior to March, when the BCP was set to end.78 He then put
forward his hopes that the provincial government would work alongside
First Nations to ensure the effectiveness of the program in serving its
functions and to help keep First Nations communities safer and
healthier.79
71
Ibid.
72
Ibid.
73
74
Ibid.
75
Ibid (Hon Steve Ashton).
76
Ibid (Stuart Briese).
77
Ibid.
78
79
Ibid.
Bill 5 received Royal Assent on June 30, 2015.80
V. OPINION
At the provincial level, the First Nation Safety Officer Program
(FNSOP) is viewed positively. NDP Aboriginal and Northern Affairs
Minister Eric Robinson issued the following approving statement:
Safety is a big concern in many of our communities, which is why the First
Nations Safety Officer Program has been established to replace the Band
Constable program cancelled by the previous federal government. [] I am
pleased that we are moving forward to ensure safety officers will be equipped
81
with the training they need to help keep their communities safe.
The provincial government has at times been apprehensive with

regards to potential cost and funding issues of the bill.82
Grand Chief Sheila North Wilson of Manitoba Keewatinowi
Okimakanak (MKO), a lobby group representing Manitobas northern
chiefs, referred to the change from band constables to safety officers as a
demotion.83 In her opinion, this version of the program simply leaves
officers as the eyes and ears of the RCMP, without any real authority to
detain and arrest people for the safety of the community.84 This concern
has been echoed by other First Nations leaders.85
One of the main concerns is related to special constables (appointed
by the provincial government) being able to be part of the PPSA.86 Band
80
Ibid at 2298.
81
Government of Manitoba, News Release, Province Launches Training For First
Nations Safety Officers (13 January 2016), online:
http://news.gov.mb.ca/news/index.html?item=37276&posted=2016-01-13 [Safety
Officer Training News Release].
82
Committee Hearing, supra note 63. See also Manitoba Wants More Funding, supra note
24.
83
Manitoba Wants More Funding, ibid.
84
Ibid.
85
Chinta Puxley, Manitoba to replace front-line band constables after Ottawa cancelled
program, CTV News (26 November 2014), online:
http://winnipeg.ctvnews.ca/manitoba-to-replace-front-line-band-constables-after-
ottawa-cancelled-program-1.2120802 [MB to Replace Band Constables].
86
Molly Gibson Kirby, MKO concerned over legislation to replace band constables,
councils thought that appointed special constables could assist in criminal

law matters (which was not the case), and Manitoba made a decision to no
longer make these appointments.87 It remains the provincial governments
position that special constable appointments should not be made and
that a special constable appointment cannot confer peace officer status
unless specifically provided for in legislation.88
Previous Grand Chief David Harper spoke to the skepticism that
Aboriginal leaders had about Bill 5 with respect to the dependence on the
support of the federal government that had not been assured.89 He further
stated that Chiefs of the affected communities were not consulted on the
new program.90 It is interesting that Mr. Harper claims that no
consultations took place with affected communities on the program in a
news article published on November 26th 2014, since during second
reading on December 4th of 2014, Mr. Allum stated that the bill reflects
feedback from First Nation leaders for a program that will address the
unique needs of First Nation communities, as well as the safety officers
powers to enforce band by-laws and specific provincial statutes and having
peace officer status while enforcing them.91
A lack of consultations continues to be an issue with decisions
involving First Nations. Mr. Harper states that no consultations were
made with MKO with the proposal of the Police Service Act (PSA) in 2009,
or with the Provincial Police Service Agreement (PPSA) negotiations and
renewal in 2012, and despite the fact that primary policing services to First
Nations are almost exclusively delivered under the PPSA, the agreement
does not mention Aboriginal policing. 92 According to MKOs website, it is
their view that under the PSA safety officers should be given peace officer
Thompson Citizen (11 December 2014), online:

http://www.thompsoncitizen.net/news/nickel-belt/mko-concerned-over-legislation-
to-replace-band-constables-1.1661059 [MKO Concerned Over Legislation].
87
88
Ibid at para 89.
89
MB to Replace Band Constables, supra note 85.
90
Ibid.
91
Bill 5 Second Reading, supra note 44 at 391 (Hon James Allum).
92
Supra note 86.
status while enforcing secondary policing services and that all of the costs
of the safety officers should be under the PPSA instead of the FNPP.93
Despite this, on January 16, 2015, current MKO Grand Chief Sheila
North Wilson had positive things to say as training of the safety officers
had been announced and the program appeared to be moving ahead
quickly.94 She acknowledged the new program as a step toward public
safety on First Nations that will provide safety officers from the
communities with the necessary training to achieve that goal.95
Kevin Brosseau, the RCMP D Division Commanding Officer
Assistant Commissioner at the time, stated that the RCMP looked forward
to the new partnership with the First Nation Safety Officers, adding,
They will be an important resource for communities and will work closely
with RCMP officers across Northern Manitoba to prevent crime and
enhance public safety.96
VI. THE JURISDICTIONAL DISPUTE

Responsibility for policing on reserves has always been a contentious
issue between the provincial and federal governments. The positions taken
appear to stem largely out of the constitutional division of powers
attributed to each of them. Under section 91(24) of the Constitution Act,
the federal government is responsible for Indians, and Lands reserved for
the Indians97 whereas policing is a provincial responsibility under section
92(14).98
As Judge McDonald noted in the Brian McPherson Inquest:
93
Manitoba Keewatinowi Okimakanak, Policing MKO (website), online:
http://www.mkonation.com/policing.html.
94
Ian Graham, First Nation safety officers being trained in Thompson, Thompson
Citizen (14 January 2016), online: http://www.thompsoncitizen.net/news/nickel-
belt/first-nation-safety-officers-being-trained-in-thompson-1.2150968.
95
Ibid.
96
Ibid.
97
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II,
No 5, s 91(24).
98
Ibid, s 92(14).
The evidence in this inquest has revealed that a stumbling block for the
implementation of past inquest recommendations respecting the condition of
band run cells is that no senior level of government has taken responsibility for
the maintenance, upkeep and supervision of detention cells on band land. The
province has taken the position that such cells were part of the band constable
program and hence outside the jurisdiction of the province. Canada takes the
position that it provided funds to the Band Constable Program and had no
99
supervisory duty.
This disagreement is not unique to policing and unfortunately crosses

many other areas when it comes to resource allocation and providing
services to First Nations communities. This issue was addressed in the
recent Canadian Human Rights Tribunal (CHRT) case brought by the
Caring Society with respect to child welfare laws in the province of
Ontario. The issue in this case was whether the activities of Aboriginal
Affairs and Northern Development Canada (AANDC), now known as
Indian and Northern Affairs Canada (INAC), discriminated against First
Nations children on the basis of race and/or national or ethnic origin, by
providing inequitable and insufficient funding for child welfare services on
reserves.100 The federal government was found to be discriminating in this
way.
AANDC argued based on NIL/TU,O Child and Family Services Society v.
B.C. Government and Service Employees' Union that child welfare services was
a provincial matter and that it only became involved in First Nations
child and family services as a matter of social policy under its spending
power.101 The CHRT rejected the idea that funding cannot be a service
and stated that the evidence in this case indicates the essential nature of
the assistance or benefit offered by AANDC for the provision of child
and family services on First Nations reserves is something more than
funding.102
When discussing AANDCs role, the CHRT stated that:
99
100
First Nations Child and Family Caring Society & Assembly of First Nations v Attorney General
of Canada (Representing the Minister of Indian Affairs and Northern Development Canada)
2016 CHRT 2 at paras 5 & 6 [Caring Society Case].
101
Ibid at para 34.
102
Ibid at para 45.
Instead of legislating in the area of child welfare on First Nations reserves,

pursuant to Parliaments exclusive legislative authority over Indians, and lands
reserved for Indians by virtue of section 91(24) of the Constitution Act, 1867,
the federal government took a programing and funding approach to the issue. It
provided for the application of provincial child welfare legislation and standards
for First Nations on reserves through the enactment of section 88 of the Indian
Act. However, this delegation and programing/funding approach does not
103
diminish AANDCs constitutional responsibilities.
There are many parallels between the AANDCs First Nations Child
Family Services (FNCFS) Program and the Federal Governments First
Nations Policing Program (FNPP), under which the First Nation Safety
Officer Program (FNSOP) will be funded. AANDC provides funding to
FNCFS Agencies through cost-share agreements under the Canada-wide
FNCFS Program.104 This is similar to Public Safety Canada providing
funding to First Nations in the FNSOP under the FNPP. These programs
also share objectives like cultural appropriateness,105 with a goal of
safety,106 and were born out of similar concerns.107
The CHRT also found that Jordans Principle was not being applied
properly.108 This principle is designed to address issues of jurisdiction
which can result in delay, disruption and/or denial of a good or service for
First Nations children on reserve.109
The principle provides that:
where a government service is available to all other children and a jurisdictional
dispute arises between Canada and a province/territory, or between departments
in the same government regarding services to a First Nations child, the
government department of first contact pays for the service and can seek
103
Ibid at para 83.
104
Ibid at para 46.
105
Ibid at para 52. See generally: Canada, Public Safety Canada, 2009-2010 Evaluation of
the First Nations Policing Program (Ottawa: Evaluation Directorate Public Safety Canada,
2010) [Evaluation].
106
Caring Society Case, ibid; Evaluation, ibid.
107
Caring Society Decision, ibid at para 50. See also supra note 19 at para 119 & supra note
25 at 105.
108
Caring Society Decision, ibid at para 458.
109
Ibid at para 379.
reimbursement from the other government/department after the child has

110
received the service.
On the Government of Canada (Indigenous and Northern Affairs)

website, Jordans Principle is framed as applying in the context of health
and social programs, in individual cases of discrimination, and where the
child has multiple disabilities requiring services from multiple providers.111
The CHRT broadened Jordans Principle, stating that the narrow
interpretation of Jordans Principle by AANDC and Health Canada
ignores a large number of disputes that can arise and need to be
addressed under this Principle.112 The federal government has since
announced that it will provide 382 million dollars to ensure children get
specialized medical care when they need it; however some criticize the
narrow application of the funding to health and social services alone as
opposed to all public services.113
Extending Jordans Principle to more cases has the potential for
positive changes with respect to many social and health programs delivered
to First Nations that lack the appropriate resources due to jurisdictional
disputes. Having this principle extend to policing services would be good
practice. This is especially true given Aboriginal peoples
overrepresentation in the justice system. The Aboriginal population in
Canada is on average very young (46.2% of the population is under 24
years of age), which has implications for justice systems since the
population aged 15-24 generally has higher involvement in crime.114 We
also see a cross between child welfare and policing in family violence
situations. One study found that Aboriginal women were three times more
likely to report being the victim of spousal violence than non-Aboriginal
110
Ibid at para 351.
111
Government of Canada, Indigenous and Northern Affairs Canada, Jordans Principle (3
February 2016), INAC (website), online: https://www.aadnc-
aandc.gc.ca/eng/1334329827982/1334329861879.
112
113
APTN National News, Is the federal government really funding Jordans Principle?
Cindy Blackstock doesnt think so, APTN National News (7 July 2016), online:
http://aptn.ca/news/2016/07/07/is-the-federal-government-really-funding-jordans-
principle-cindy-blackstock-doesnt-think-so/.
114
N.A. Jones et al, First Nations Policing: A Review of the Literature (2014) Regina,
SK: Collaborative Centre for Justice and Safety at 10 & 12.
women in the past 5 years.115 These types of issues suggest that resources
for community policing initiatives are important and a lack of funding can
result in harm to children in First Nations communities.
VII. AN ADEQUATE SOLUTION?

Before discussing the new First Nation Safety Officer Program
(FNSOP) which replaces the Band Constable Program (BCP), it is helpful
to address some of the shortfalls of the First Nations Policing Program
(FNPP) under which the new FNSOP will operate.
A. First Nations Policing Program

The FNPP set out to address many concerns regarding policing in First
Nations communities. The Department of Indian Affairs and Northern
Development (DIAND) identified the following shortcomings with
Aboriginal policing after consultations with stakeholders from Aboriginal
communities:
a. Chronic under-policing reflected by a lack of regular police presence
and a poor response time to incidents;
b. A lack of preventive patrol and crime prevention programs in such
critical areas as family violence and substance abuse;
c. A lack of understanding of, and sensitivity to, Aboriginal culture by
non-Aboriginal police officers;
d. Absence of a clear federal policy, leadership, and professional
standards across Canada;
e. Confusion over jurisdiction and responsibilities with and between
governments;
f. Absence of provincial legislation providing for the establishment and
regulation of Aboriginal police services; and
116
g. Insufficient and inequitable funding of Aboriginal policing.
According to one article, any critical review of the FNPP is almost

completely absent and this lack of scholarly interest is rather surprising
considering that Canadas Aboriginal peoples have a high involvement in
crimes reported to the police and are disproportionately incarcerated.117
115
Ibid at 13.
116
Supra note 25 at 105.
117
Ibid at 105.
Much of the review of the FNPP is found in reports released by the federal
government.118
Although the issues with Aboriginal policing set out by DIAND were
identified many years ago, they largely still persist today in the FNPP
framework. A recent report released by Public Safety Canada (PSC)
uncovers some of these shortfalls. The report states that PSC failed to
implement and administer the FNPP in a manner that promoted
partnerships based on trust, mutual respect, and participation in decision-
making.119 Negotiations with communities when establishing and
renewing agreements were limited120 and, based on information from all
lines of evidence, contribution agreements are not an ideal funding model
that lends itself to the delivery of a service like policing that requires long-
term planning.121
Each FNPP community that operates under a Community Tripartite
Agreement (CTA) is required to maintain a community consultative
group, but only 60% of these communities have such groups.122 Some
reasons for not meeting this requirement, as highlighted in a 2010
comprehensive review were lack of funding for members; lack of training
for new or existing members; disinterest among community volunteers in
participating on advisory bodies; language barriers; and a lack of capacity
at the community level to understand the requirements for governing.123
In a 2010 report, cultural appropriateness, responsiveness and
accountability in police services were all found to require improvement.124
Police Officers working under SAs noted a lack of resources available to
them while those working under CTAs have access to RCMP resources for
tools and training.125 Notwithstanding this, only 53% of officers operating
118
Ibid.
119
Canada, Public Safety Canada, 2014-2015 Evaluation of the First Nations Policing
Program, (Ottawa: PSC, 17 March 2016) online:
http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/vltn-frst-ntns-plcng-2015/vltn-frst-
ntns-plcng-2015-en.pdf at ii.
120
Ibid at 17.
121
Ibid at 21.
122
Ibid at 17.
123
Ibid at 18.
124
Ibid at 19.
125
Ibid at 20.
under CTAs said that their time was dedicated to the community they
serve as compared to 85% of officers working under a Self-Administered
Agreement (SA).126 With a lower level of dedication, opportunities for
community engagement and responsiveness are lost.127 It would appear
that each of the two types of agreements that operate under the FNPP
possess a quality necessary for success that the other is lacking.
The FNPP is also not accessible to all communities. In 2013-14, only
60% of Aboriginal communities in Canada were utilizing the program and
to add to this issue, the funding freeze leaves little opportunity to expand
the program further.128 This is contrary to the original 1991 policy goal to
cover 100% of First Nation and Inuit Communities.129 Ultimately, the
FNPP fails to meet both its broad policy objectives as well as the objectives
found under its terms and conditions.
A 2008 report out of Saskatchewan discusses the concept of plural
policing, finding that there are benefits to using peacekeepers.130 The
report states that replacing band constables with fully functional
professional police was causing problems in remote or smaller
communities, where it was not feasible to locate detachments.131 In this
sense, the supplemental police services provided by band constables are
crucial to some communities. The report therefore argues for peacekeepers
to be incorporated into the FNPP framework as a supplementary
component.132
Interestingly, the type of framework that the report is arguing for is
reflected in the new FNSOP. It will operate under the FNPP to
supplement policing services in communities that choose or are able to opt
into the FNSOP. This is to say that the safety officers operate separately
126
Ibid.
127
Ibid.
128
Ibid at ii.
129
Ibid at 15.
130
George S. Rigakos, Plural Policing in Saskatchewan First Nations (2008) Report
submitted to the Aboriginal Policing Directorate of Public Security and Emergency
Preparedness Canada 1, online:
http://www.academia.edu/9490368/Plural_Policing_in_Saskatchewan_First_Natio
ns.
131
Ibid at 108.
132
Ibid at 109.
from any SA or CTA based policing agreement where full-fledged police

officers provide primary policing services to the community in question.
While this model may help address some of the issues around funding for
standardized training, better equipment and uniforms, as well as allow for
more formalized information sharing with the RCMP, many concerns still
exist.133 This is especially so, given the deficiencies found with the FNPP in
its current review.
B. Band Constable Program

There have been many Inquests over the years involving the BCP134
and yet no real changes have been made to address the identified
shortcomings. This section will focus on the Brian McPherson Inquest
since it took place around the time that the BCP was set to be cut and Bill
5 was proposed. In this sense, it provides a good context to contrast the
deficiencies existing with the BCP against the new FNSOP framework.
After Brian McPherson died in the custody of the band constables on
Garden Hill First Nation, an Inquest was called to look into the
circumstances surrounding his death. Testimony by various witnesses
painted a picture of a rundown, makeshift holding cell area.135 Other
testimony revealed a failure of those detained to be read their Charter
rights and that eight persons were detained overnight in a crowded 2X4
metre cell.136
It was not until the morning that Mr. McPherson was discovered
dead.137 The two securities working were volunteers to assist the band
constables in making arrests who had not received any law enforcement
training.138 The band constable who detained the group of individuals had
133
Ibid.
134
See e.g. Manitoba, Provincial Court: Report on the Inquest and Recommendations of
Judge Janice L. leMaistre, An Inquest into the Death of Darlene Rose Owens, May 11,
2009; Accord Manitoba, Provincial Court: Report on the Inquest and
Recommendations of Judge Tracey Lord, An Inquest into the Death of Calvin Waylon
McDougall, July 23, 2015.
135
136
Ibid at paras 15 & 16.
137
Ibid at para 16.
138
received no formal training aside from on the job self-defence.139 Simple

police procedure such as the use of warrants, note taking, and advising
arrestees of their Charter rights, were not exercised.140 It was also found
that there was no formal training as a guard or on what to do in
emergency situations,141 nor was there counselling for trauma in situations
like this one.142
The McPherson Inquest referred to one band constables testimony
regarding her training:
She described the course as consisting of training in self-defence, car chase
techniques, how to write reports and statements, and how to handle prisoners.
When asked how much time was spent on handling prisoners, she described it as
being 20 minutes. When asked by inquest counsel what instruction was given
to her on the powers of arrest, she described being given a small book but that
143
she never uses it when she goes on a call because she has lost the book.
There was a lack of oversight with the BCP. Public Safety Canada did
not exercise on-site inspections to ensure compliance with the terms, and
self-reporting by First Nations was relied on.144 Public Safety Canada has
taken the position that it has no responsibility for the supervision of
detention cells and rather acts as a funding body.145 The provincial
government takes the position that Manitoba did not have any
involvement in the training of band constables and that this was a federal
responsibility.146 The province recognized shortcomings of the BCP, such
as qualifications, training and retention, and that fixing the BCP was
not the appropriate response to the gap in policing services in First
Nations communities.147
In recalling the evidence of Mr. Lewis (Director of Policing in
Manitoba), the Inquest judge stated [Mr. Lewis] asserted the program was
139
Ibid at para 22.
140
141
Ibid at para 37.
142
Ibid at para 38.
143
Ibid at para 29.
144
Ibid at para 71.
145
Ibid at para 77.
146
Ibid at para 88.
147
Ibid at para 90.
flawed from the start and that it was implemented with no provision for
ongoing professional supervision or training, no structure for effective
discipline and or a complaint mechanism and no impartial civilian
oversight.148
C. First Nation Safety Officer Program

Through the Brian McPherson Inquest, five main deficiencies with
the BCP can be easily identified. These are oversight, accountability,
powers, training and funding. This section will discuss how Bill 5 seeks to
address these issues, while paying particular attention to the gaps that may
still exist.
The most noteworthy difference between the BCP and the new
FNSOP is that there is now a clear legislative framework. As we will see,
many elements of the BCP remain unchanged; however this clear
framework may arguably make the difference when operating agreements
are in place.
1. Oversight and Accountability

The legislation sets out elements of the program that must be included
in the FNSOP Agreements:
a. management of the program;
b. financing of the program;
c. the direction and supervision of FNSOs;
d. the relationship between the local policing authority and FNSOs;
e. the area where FNSOs are authorized to perform their duties and exercise
their powers;
f. the process for dealing with complaints respecting the conduct of FNSOs;
149
g. termination of the agreement.
Although this appears to provide a more solid framework, a

comparison between the previous BCP Agreement and the new FNSOP
Agreement, both of which were released by Manitoba Kewatinowi
Okimakanak (MKO), shows no real difference. In fact, many of the clauses
in the BCP Agreement150 and the FNSOP Agreement151 use very similar
148
Ibid at para 109.
149
The Police Services Act, CCSM c P94.5, s 77.12(2), as amended by Bill 5, The Police
Services Amendment Act, s 2.
150
Contribution Agreement for the Band Constable Program, Between Canada and
[redacted] as Represented by the Chief and Council (1 April 2007) online:
language. These two agreements will be compared here to further illustrate

this point. Regarding the complaint process, the FNSOP Agreement only
states that the First Nation must develop and implement a process that is
responsive, timely, fair, independent and transparent.152
Bill 5 legislates that First Nation safety officers are employees of the
operator of the program, who in turn is responsible for ensuring that
its officers perform their duties and exercise their powers in a proper
manner.153 This is followed by a liability clause where the First Nation is
liable for the acts and omissions of its officers in the performance or
exercise, or intended performance or exercise, of their duties and
powers.154 This is also seen in the FNSOP Agreement, which states that
Manitoba will not be liable for any injury, including death, any loss or
damage to property, or for any other obligation incurred, including loans
and capital leases.155 Clauses with similar effects can be found under
section 8 of the BCP Agreement.156 Although the provincial government is
making each First Nation responsible for the program here, the case of
Eldridge v. British Columbia makes it clear that a government cannot dispose
of its constitutional responsibility by delegating the implementation of
their policies and programs to private entities.157 The Caring Societys
recent CHRT case also mentions this in the context of the federal
<http://www.mkonation.com/uploads/7/2/9/9/72991287/2007-
2009_band_constable_program_contribution_agreement_[public_safety_canada]_ocr
_red.pdf > [BCP Funding Agreement].
151
Agreement for the Operation of the First Nations Safety Officer Program, Between
Manitoba and [redacted] as Represented by the Chief and Council (17 April 2015) at
9.2 online: <http://www.mkonation.com/uploads/7/2/9/9/72991287/manitoba-
first_nation_first_nation_safety_officer_funding_agreement_ocr_red_[april_17_2015]
.pdf> [FNSOP Operation & Funding Agreement].
152
Ibid, Part B4.
153
154
Ibid.
155
FNSOP Operation & Funding Agreement, supra note 151 at 9.2.
156
BCP Funding Agreement, supra note 150.
157
[1997] 3 SCR 624 at para 42, 151 DLR (4th) 577.
government delegating the implementation of child and family services

to the FNCFS agency or the province.158
Bill 5 legislates that [t]he operator of a First Nation safety officer
program is required to provide requested documents and information to
the Director (of Policing) with respect to the operation of the program
and its officers.159 The Court in the Brian McPherson Inquest expressed
concerns over the proposed sections 77.18 and 77.19 of Bill 5 stating that:
These proposed enactments result in very little direct supervision of the officers
by anyone other than their employers [] The concern is that the requirements
to provide information and documents to the director on his or her request will
be too little too late as demonstrated by the ineffective self-reporting regime put
160
in place by the Federal Government on the band detention cell issue.
Clause 8.3(c) of the FNSOP Agreement outlines the requirement of

the First Nation to provide financial statements with respect to the
program.161 Once again, this follows the requirements as set out by the
BCP Agreement.162 The parallels between the BCP Agreement and the
FNSOP Agreement with respect to oversight and accountability are
concerning. The legislation suggests that more detail would be required.
Since the FNSOP Agreement was released in April of 2015 before Bill 5
had been passed, perhaps more information will be included in these
agreements moving forward. As it stands now, the element of flexibility to
the needs of the individual First Nation, as discussed by Mr. Allum,
appears to be lacking in the new FNSOP Agreement.
These concerns aside, the provincial government did take the
initiative to arrange these agreements prior to Bill 5 passing. This ensured
that First Nations were not left without funding until the new program
began. Further steps have been taken and a Director of First Nations
Policing has been hired by the Province of Manitoba.163
158
Caring Society Case, supra note 100 at para 84.
159
The Police Services Act, CCSM c P94.5, s 77.19, as amended by Bill 5, The Police Services
Amendment Act, s 2.
160
161
FNSOP Operation & Funding Agreement, supra note 151 at 8.3(c).
162
BCP Funding Agreement, supra note 150 at 7.3(c).
163
The Aboriginal Justice Implementation Commission, Final Report, Policing (29 June
2011) at s 3, ch 7, online: http://www.ajic.mb.ca/reports/final_ch07.html.
2. Powers
As was the case with the BCP, safety officers can enforce band by-laws.
This is something that is now legislated under section 77.17. A new
development with the FNSOP is the ability of the safety officers to enforce
certain provincial statutes with peace officer status.164 These statutes are
outlined in the regulation165 and must be included in the agreements
entered into under section 77.12(1).166 Peace officer status is only granted
while enforcing these prescribed statutes under the regulation.167 Although
at one time band constables could obtain status as peace officers by
appointment, issues were identified with this system and the province has
since stopped making appointments. Many of the critiques from First
Nations regarding the new program were with respect to peace officer
status not being granted to safety officers while they are performing all of
their duties.168 This is a valid concern and the reasoning for only including
certain provincial statutes is unclear. Notwithstanding this, even limited
peace officer status through legislation is a marked improvement from the
powers that band constables had under the BCP.
As outlined in the regulation, safety officers can carry and use
handcuffs, a defensive baton and an aerosol weapon while on duty.169
They may also provide assistance to the local police service if requested,
except for criminal law matters.170 Although this is a step forward, many
gaps still exist. For example, the fact that safety officers have no power
regarding criminal law enforcement is in itself a concern. Part B11(4) of
the FNSOP Agreement states that:
First Nations safety officers will only respond to calls for service from the public
that involve non-violent, non-threatening activities which implicate no
164
The Police Services Act, CCSM c P94.5, ss 77.15(1) & (2), as amended by Bill 5, The
Police Services Amendment Act, s 2.
165
Man Reg 229/2015, ss 4 & 5.
166
Ibid, s 6.
167
The Police Services Act, CCSM c P94.5, ss 77.16(2) & (2), as amended by Bill 5, The
Police Services Amendment Act, s 2.
168
MKO Concerned Over Legislation, supra note 86.
169
Supra note 165, s 8.
170
The Police Services Act, CCSM c P94.5, s 77.16, as amended by Bill 5, The Police Services
Amendment Act, s 2.
foreseeable risk of injury for the safety officer(s) or for the public in general.
Every other case will be referred to the Police Service of Jurisdiction.171
This fails to address many of the important challenges regarding
policing in First Nations territories, such as increasing crime rates and the
infeasibility of the RCMP to maintain a continued presence when
providing primary policing services, or have speedy access to the area upon
criminal law issues arising. Thus, although the program will improve
police presence, which may help crime prevention, it does not solve the
issue of poor response times in matters that are beyond the scope of the
power of safety officers. The Director of Policing in Manitoba advised that
a strategic review respecting policing in the province is underway
including reviewing the deployment of RCMP personnel and resources,
and acknowledged that a gap in police coverage exists, stating that this is
unavoidable and that the current measures are preferable to doing
nothing.172
3. Training
The legislated training requirement is where the largest improvement
appears. Bill 5 imposes minimum qualifications on safety officers under
section 77.14(2) which are prescribed by regulation.173 A safety officer
must be at least 18 years of age, a Canadian Citizen or Permanent
Resident, and hold a valid class 5 drivers licence.174
Under section 77.14(3), Bill 5 requires that training be completed in
the areas of crime prevention, public safety, victim and social services and
other related matters.175 Specific training areas are prescribed in the
regulations and a person must receive this training before they can be
appointed as a safety officer:
a. public safety and crime prevention;
b. victims' services and social services;
c. enforcement of provincial enactments;
171
FNSOP Operation & Funding Agreement, supra note 151, Part B11(4).
172
173
174
Supra note 165, s 2.
175
d. arrests, searches and seizures;

e. use of force and officer safety;
176
f. note-taking, report writing, interview basics and court preparation.
The training can be provided by the RCMP, Winnipeg Police Service,

Brandon Police Service, the Manitoba Department of Justice, or a service
provider approved by the Minister.177 On January 13, 2016, the province
announced that a three week training course would be provided to 100
prospective safety officers over the next few months in the required
areas.178
The issue of the operation and use of detention facilities is not
addressed directly through the legislation, although it could fall under one
of the above mentioned requirements to be outlined in the agreements,
such as arrests.
Training under the new FNSOP is a substantial improvement and
Manitobas swift implementation of the training program is a positive sign.
There has also been praise of a new training program being developed at
Holland College Institute. Ron D. Spence, deputy chief of Nelson House
Cree Nation, spoke of his excitement to have a hand in helping to develop
the curriculum of the 36-week program alongside the Holland College
Institute and elders from the community.179 Although this training is a
substantial improvement and could possibly be the driving force in the
success of the new program, its reliance on uncertain and potentially
inadequate funding raises some concern for the future.
The Court in the Brian McPherson Inquest stated:
The evidence of Sergeant Huff [] made clear another difficulty arising from the
use of an undertrained and unsupervised police force that being that the
RCMP will not make their detention facilities available when they believe a
detainee may have been detained unlawfully. RCMP detention facilities which
are inspected, up to code, and presumably staffed by trained guards and matrons
will not be made available to those detainees brought into custody by band
176
177
Ibid, s 3(2).
178
Safety Officer Training News Release, supra note 81.
179
Colin MacLean, Police Academy, Manitoba First Nations to create new policing
program, The Guardian (7 April 2016), online:
http://www.theguardian.pe.ca/News/Local/2016-04-07/article-4490335/Police-
Academy,-Manitoba-First-Nations-to-create-new-policing-program/1.
constables or securities without powers to detain persons beyond those of an

ordinary citizen.180
A further concern was expressed over the training of matrons and
guards for detention facilities used by [safety officers] and regulations
respecting the building, maintenance, and operation standards for such
facilities.181 In response to the issue of a First Nation not being allowed to
use the RCMP detention facility in one northern community, the RCMP
stated that there were no band constables on the reserve with the
appropriate training.182 This suggests that inadequate training has in the
past, been a barrier for First Nations to use the RCMP detention facilities.
These make-shift detention facilities were used by Garden Hill,
whose funding (for the BCP) was cut-off in 2012 when it came to the
attention of Public Safety Canada that the First Nation was operating an
unauthorized detention facility following Brian McPhersons death.183 The
funding was cut based on the grounds that this was contrary to the BCP
Contribution Agreement.184
It is concerning that Bill 5 does not directly address detention facilities
since this has been an issue in the past. The FNSOP Agreement does
address this briefly under Part B11 by stating:
(2) The First Nation will not authorize any of its safety officers to operate any
type of detention cells;
(3) If detention of an individual is required, the safety officer must refer these
185
cases to the RCMP at the nearest detachment [.]
Once again, the BCP Agreement contains a provision to the same

effect.186 This is to say Public Safety Canada cut Garden Hills funding
180
181
Ibid at para 115.
182
Mia Rabson, First Nation to be granted use of RCMP holding cell instead of using
makeshift jail, Winnipeg Free Press (13 January 2016), online:
http://www.winnipegfreepress.com/local/First-Nation-will-soon-get-use-of-RCMP-
holding-cell-instead-of-makeshift-jail-in-arena-365224551.html [FN Granted RCMP
Holding Cell].
183
184
Ibid.
185
FNSOP Operation & Funding Agreement, supra note 151 at 11B (2)-(3).
186
BCP Funding Agreement, supra note 150, schedule B 9.
relying on these clauses. Although it is good that the agreement disallows

make-shift cells from being created, it does not address the larger issue that
there will inevitably be times during which the safety officers will need to
detain someone where it is not feasible to wait for the RCMP. This is
problematic since funding agreements have been cancelled due to this very
issue, leaving the First Nation with no resources. In either scenario, the
safety of the community is undermined.
One article does show that the RCMP has been receptive to allowing
the safety officers to use their detention facilities, announcing that for one
First Nation, a key for the holding cell would be provided once "proper
security clearances and training were completed for all personnel
requesting access."187 Due to concerns over funding that already exist, the
use of the RCMP detention facilities is the best option with respect to
resource management. So long as training is maintained, make-shift cells
can be avoided in this way. This could help address some of the issues in
communities such as Garden Hill, which is located 600 kilometres north
of Winnipeg, with the closest RCMP detachment only accessible by plane
or boat.188 However, adequate training aside, if there is no RCMP
detention facility in an isolated community, extra resources would need to
be put into these communities so that proper detention facilities can be
created and maintained.
4. Funding
Cancellation of the BCP disproportionately affected Manitoba since
many First Nations still relied on the program, while other provinces took
advantage of the FNPP before funding was frozen. In 2006, Garden Hill
applied to the FNPP for funding, but was denied due to the freeze and
consequently had to rely on the funding under the BCP that was frozen at
the 1992 levels.189 Although the FNSOP may help put Manitoba in a more
comparable position to other provinces, there is still a question of
adequate funding.
187
FN Granted RCMP Holding Cell, supra note 182.
188
Staff, With a Report From CTVs Jill Macyshon, Manitoba First Nations
communities demand police service, CTV News (24 October 2012), online:
http://www.ctvnews.ca/canada/manitoba-first-nations-communities-demand-police-
service-1.1009770.
189
Under the new section 77.12, funding is to be set out under the
individual agreements with each First Nation.190 PC member Mr. Stuart
Briese expressed concerns in the house debates regarding the cost of the
program and the potential escalation of these costs over time. In speaking
about the cost-share, he expressed concern about getting the federal money
at all.191 This is a real worry given the fact that after the BCP was cancelled
in 1992 and the funding for the FNPP was frozen for 10 years.192 Since the
funding for the FNSOP will be distributed through the FNPP, there are
valid concerns that funding may be frozen, that escalating costs will not be
addressed and that services will once again be insufficient, leaving First
Nations at a loss.
There is also concern that the federal funding to be provided is
already insufficient. Mr. Michael Anderson, the Director of the Natural
Resource Directorate of MKO at the time, expressed this concern.193 The
federal funding was set at 1.4 million, totalling 52% of the total funding
with Manitoba providing the remaining 48% at roughly 1.3 million.194
This is an estimated total of 2.7 million. A survey completed by MKO in
2012 showed that the MKO Bands that reported (19 out of 30) had
combined expenditures of $4,526,127.00 [and] of that sum Canada
contributed $1,182,484.00 leaving the bands contributions at
$3,343,673.00.195 Given that there are significantly more First Nations
than this (about 63 in total), it is possible that the funding will be
inadequate and that some First Nations will be left out of the FNSOP.
Clause 8.2(b) of the FNSOP Agreement states that the financial
arrangement that Manitoba sets out is subject to Canadas contribution
and Manitoba reserves the right to reduce or cancel its contribution under
the agreement in the case where Canadas contribution is reduced or not
received.196
190
Supra note 2, s 77.12.
191
Supra note 70 at 2285 (Stuart Briese).
192
193
Ibid at para 101.
194
Ibid.
195
Ibid.
196
FNSOP Operation & Funding Agreement, supra note 151 at 8.2(b).
In finding that funding formulas used for the FNCFS Program failed
to meet the Programs objectives, the CHRT in the Caring Society Case
stated:
It is difficult, if not impossible, for many FNCFS Agencies to comply with
provincial/territorial child and family services legislation and standards without
appropriate funding for these items; or, in the case of many small and remote
agencies, to even provide child and family services. 197
Funding is critical to the success of public programming and without
adequate funding, such programs will inevitably remain deficient and fail
to meet the objectives they set out to meet. It is a narrow minded
argument that the federal government makes in saying that they simply
provided funding and are not responsible for these programs beyond that,
since it is the very issue of inadequate funding that prevents these
programs from operating properly in many ways.
VIII. IMPLICATIONS FOR THE FUTURE AND

CONCLUSIONS
Although the First Nation Safety Officer Program (FNSOP) does
address some of the deficiencies of the Band Constable Program (BCP),
many issues remain. It appears still that neither level of government is
willing to take responsibility over the jurisdiction of policing in First
Nations communities. This could interfere with a collaborative working
relationship between the provincial government, federal government and
First Nation party to an agreement, as it is inevitable that some sort of
issue, however big or small, will arise in the future.
Funding continues to be a concern. Inadequate funding with the BCP
was the starting point in the failure of the program. Because funding was
insufficient, training and resources were lacking as well. Inadequate
training lead to RCMP detention facilities being revoked and make-shift
detention facilities being used, which in turn led to the cancellation of
BCP agreements and, in the most extreme cases, contributed to the death
of detainees.
Interestingly, the structure of the new FNSOP is largely the same as
the BCP that it replaced. For example, the safety officers are still
197
Caring Society Case, supra note 100 at para 389.
employees of the First Nation and the FNSOP Agreement is very similar to
the BCP Agreement. This begs the question, what will be different this
time around? The legislation of the program may be a changing factor.
Further, the creation of a formal structure requiring that training be
provided by one of the specified agencies might contribute to quality and
consistency. Perhaps the powers of the safety officers becoming clearer
through the legislative framework will help bring about a more successful
program as well.
The FNSOP Agreement released prior to the passing of Bill 5 does
bring about some worry regarding termination of funding, where
Manitoba reserves the right to limit or cancel funding if the federal
government does not provide its contribution. This leaves the possibility
that First Nations may at some point be left to fend for themselves. This is
especially concerning given that the federal government has had a 10 year
freeze on the First Nations Policing Program (FNPP), the program under
which the FNSOP is funded. There is thus a real possibility of inadequate
funding and even the potential for a jurisdictional disagreement on the
sidelines.
Although there is a marked improvement with Bill 5 legislating peace
officer status for safety officers while performing certain duties, there
remains the issue of the FNSOP leaving a gap in policing services in
matters outside the safety officers jurisdiction. This fails to address
delayed response times of the RCMP in cases involving criminal law
matters in isolated communities where there are no RCMP detachments (a
situation that the provincial government acknowledges as a pitfall of the
current enhancement policing model).
A recent case of a double shooting on Manitoba's Dakota Tipi First
Nation, located about 85 kilometres outside Winnipeg highlights that
other issues exist outside the context of isolated First Nations. In April of
2016, two persons were shot and three hours passed between the first
reported sightings of the suspect and the RCMP arresting the suspect.198
The First Nation complained about poor response times, high
198
CBC News, Dakota Tipi officials criticize RCMP response to double shooting CBC
News (8 April 2016), online: http://www.cbc.ca/news/canada/manitoba/shooting-
dakota-tipi-first-nation-rcmp-update-1.3526549.
unemployment and extreme violence, and called for a casino to solve some
of these interrelated issues.199
Investing resources into First Nations that would allow them to
become more self-sufficient as communities is an appealing option.
Bringing in revenue from businesses such as casinos would create
employment opportunities for First Nations residents and attract non-
residents to the area. A solution such as this one would help alleviate the
cost pressure of First Nations policing on both levels of government, who
continue to argue over who is responsible for what and for how much.
Most importantly, it could allow First Nations to develop their own police
forces and to remove some of the public safety issues that the current
measures have been unable to address. This of course remains a challenge
in more remote communities, where economic development may not be
possible due to geographical issues. However, the development of those
First Nations that do not have these geographical barriers would arguably
help free up resources that could then be used in those isolated
communities to address the deficiencies present with the current
enhanced policing model. There is little doubt that there is a need to
consider options outside of the enhanced policing measures currently
being used, as it appears that these initiatives address only a small part of
the public safety concerns present in First Nations communities, and
ignore the larger issues with poor resource allocation in these
communities.
199
Ibid.
A Prevention Strategy: Eliminating
FASD in Indigenous Communities
B R Y A N P . SCH W ART Z , * T E R RE NCE

L A UK K ANE N * * AN D J UST INE
S M IT H * **
ABSTRACT
M
any Aboriginal1 communities in Canada appear to be
particularly vulnerable to FASD. This article proposes a
prevention strategy for eliminating FASD in these
communities. The approach has several key elements.
*
LL.B. (Queens), LL.M, J.S.D. (Yale). Asper Professor of International
Business and Trade Law. The authors wish to thank Dr. Rachel Eni for her
helpful suggestions.
**
J.D. (2012).
***
J.D. (2017).
1
We begin with a note on terminology. This article has been written over a number of
years, during which there has been a recent shift in official terminology in Canada
concerning references to First Nations, Inuit, and Metis persons and communities in
Canada. The Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK),
1982, c 11, s 35(2) defines Aboriginal People as including the Indian, Inuit, and Metis
people of Canada. In 2016, however, Canada adopted the United Nations
Declaration on the rights of Indigenous Peoples (see Declaration on the Rights of
Indigenous Peoples, GA Res 61/295 (Annex), UNGAOR, 61 st Sess, Supp No 49, Vol
III, UN Doc A/61/49 (2008) 15, Article 3). The Supreme Court of Canada used the
word "Indigenous as well as "Aboriginal" in the course of deciding that the word
"Indian" in s 91(24) of the Constitution Act should be construed as including all three
communities (see Daniels v Canada (Indian Affairs and Northern Development), 2016
SCC 12, [2016] 1 SCR 99). The government of Canada established the Inquiry into
Missing Indigenous Women and Children. We have researched and written this
article over the past five or six years, however, during which time most of the literature
and official reports were still using "Aboriginal". We decided that the title of this
study should reflect the more modern term, but that we should maintain the use of
"Aboriginal" in the main body to be consistent with the predominant usage in the
literature we cite.
The first element is a recognition that the impact of each case of

FASD can be devastating not only in terms of avoidable suffering of a
child throughout their life, but also in terms of adverse impacts on the
communities in which that child will live. Investment in prevention may
result in benefits that far exceed the costs. Secondly, every child of an
Aboriginal community is also a citizen of a province or territory and of
Canada, and the prevention of FASD should be a concern to public
authorities and all societies. In Aboriginal communities, however, the
most effective approaches may be ones in which the communities play a
lead, or even a primary role, in defining a multi-pronged strategy suited to
its individual circumstances. A pan-Canadian overall prevention strategy
that integrates individual communities might be useful, and could involve
many opportunities and incentives for individual communities to develop
strategies that are suited to their own circumstances and judgment. Lastly,
the particular prevention strategy adopted by any public authority should
consider (and can incorporate) potential for improvements at all levels,
from the cellular level in an individual to the most general level of
community developments. This article will attempt to provide a reasonably
thorough review of what efforts have been attempted to prevent FASD at
various levels (from micro- to macroscopic), and what has proved effective
in practice.
Regardless of which strategies are implemented, all strategiesfrom a
pan-Canadian framework (or from individual community strategies within
that framework) should include clearly and numerically defined targets
(such as reducing incidence of FASD per birth by a certain percentage in a
certain amount of time) and empirical monitoring of outcomes.
I. INTRODUCTION
When a pregnant woman drinks, the alcohol consumed may act as a
teratogen and damage her fetus. The negative consequences of this
damage may be permanent. However, this damage is also wholly
preventable. The effects of alcohol exposure on the fetus are collectively
referred to under the umbrella term Fetal Alcohol Spectrum Disorder
(FASD), and its costs are enormous to families, communities, and affected
individuals.
The solution might seem simple: help pregnant women abstain from
drinking. However, the causes and biological mechanisms behind FASD
Eliminating FASD 125
are far more complicated than women simply being unwilling or unable to
abstain from drinking alcohol. Alcohol leads to prenatal damage through a
number of pathways, and its effects are caused by the interrelationship of
many factors, such as poor nutrition, poly-substance use, and maternal
stress. These factors are often compounded by low socioeconomic status,
poverty, a lack of support networks, inaccessible health services, and
cultural barriers. To prevent FASD, these factors must be addressed at
individual and community levels.
Aboriginal communities seem to be among those particularly
vulnerable to the incidence of FASD. As a result, this paper will focus on
how these communities might best develop strategies to achieve concrete
and measurable improvements within a reasonable time frame.
Community health interventions have proven successful in dealing
with stubborn and pervasive health issues. For example, in North Karelia a
multidimensional strategy aimed at promoting heart health and preventing
chronic disease helped to achieve a 73% reduction in heart disease
mortality within a particular age cohort.2 The North Karelia strategy
involved simple, wide-reaching, and easy-to-adopt interventions. The
prevention strategy described in this paper recommends a similar tactic,
hypothesizing that targeting FASD through its root causes of overall poor
community health and substance abuse will benefit the entire community,
as well as reduce FASD prevalence. A similar approach was taken with the
Lake Alkali sobriety movement and was extremely effective.3 These
community health interventions will be discussed in more detail
throughout the paper as each exemplifies the multitude of ways in which
FASD prevalence within Aboriginal communities could potentially be
reduced. Substance abuse and poor living conditions are recognized
problems within many Aboriginal communities and are strongly linked to
residential school abuses and the high percentages of Aboriginal people
involved with the criminal justice system.4 These underlying contributors
2
Lindsay McLaren et al, Out of Context? Translating evidence from the North Karelia
project over place and time (2007) 22:3 Health Education Research 414 at 414.
3
See Section X, Learning From Successes for a more detailed discussion on the Lake
Alkali sobriety movement.
4
Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for
the Future: Summary of the Final Report of the Truth and Reconciliation Commission of
Canada (Winnipeg: 2015) at 174-178, online:
of FASD, as well as the disorder itself, have been explicitly acknowledged

within the Truth and Reconciliation Commissions recommendations.
The Commission recommended that the government recognize the need
to address and prevent FASD and develop [] preventative programs that
can be delivered in a culturally appropriate manner.5 This paper aims to
establish the framework for a provincial or Canada-wide prevention
strategy with the ultimate goal of achieving a significant decrease in FASD
prevalence.
Suggested recommendations for decreasing FASD prevalence range
from the microscopic biological perspective to a macro-level policy
perspective. Accordingly, the framework will first examine FASD as a
biological mechanism, including its symptoms, effects, and causes. A
thorough understanding of how FASD affects the individual on a
biological level opens the door for possible prevention strategies at the
microscopic level. Such strategies include nutritional supplementation,
pharmacological interventions, and the cessation of smoking. The
individual will then be discussed in terms of relationships with providers
of health services. These service-based interventions range from pre-
pregnancy screening to determine who is at risk of having an FASD-
affected birth and preparing health professionals for these encounters, to
preventing unplanned pregnancies and the benefits of using non-
traditional health resources. From this point, the individuals relationships
with those in the surrounding community are used to determine how
communities can become better educated about the causes, risks, and
effects of FASD. This discussion will be heavily centered on educational
facilities within the community, which can be used to directly deliver
information to community members or as a hook to draw people to
access care and information. The significance of targeting not just women,
but also their partners, whose relationships directly affect women at risk of
having a child with FASD, will also be discussed. Lastly, FASD will be put
into a macroscopic perspective involving public policies on a provincial or
<http://www.trc.ca/websites/trcinstitution/File/2015/Honouring_the_Truth_Recon
ciling_for_the_Future_July_23_2015.pdf> [TRC Summary].
5
Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for
the Future: Calls to Action (Winnipeg: 2015) at 4, online:
<http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_En
glish2.pdf>.
national level. Policies encouraging social assistance dependency and

deadbeat dads may stimulate FASD risk factors. Coercive government
interventions, which have been adopted in the United States, will also be
discussed as a possible intervention option, though such interventions
pose several issues from a practical perspective.
As a whole, this culmination of programs will be referred to
throughout the paper as a comprehensive prevention strategy, but it
should be stated at the outset that there is no silver bullet for FASD
prevention. This paper sets out a number of possible programs that can be
variously combined and integrated as part of an adopted strategy used by a
particular community. A provincial or national project would incorporate
and coordinate various community strategies. Some programs would be
planned and delivered at the community level, while some might be
provincial or nation-wide in their scope. To reach its goal, a provincial or
national project must establish sustainable community programs that span
across generations and that will continue within communities in order to
create effective, long-term changes. For some communities, certain
strategies in this paper will not be relevant while other communities may
have experience with effective strategies that are not mentioned. As such,
this paper should be treated as a jumping-off point for the development of
a community prevention strategy within various communities, as its final
form may be quite different from the initiative described here.
This paper is written without a specific community in mind; experts
and leaders within a community that wish to implement a community
strategy will be the best judges of which aspects of FASD prevention
require immediate attention and which interventions are not feasible
within a community. The project is flexible, with its final shape and
composition determined by the community that implements it.
A. What is FASD?
FASD refers to the range of birth defects that result from prenatal
alcohol exposure and includes a number of sub-classifications. It is not a
problem unique to Aboriginal populations, though these populations will
be the focus of the paper. For the purposes of FASD prevention policy,
literature is relevant if it refers to any classification on this spectrum,
including Fetal Alcohol Syndrome (FAS), Partial FAS (p-FAS), Alcohol
Related Neurodevelopmental Disorder (ARND), Alcohol Related Birth

Defects (ARBD), and Fetal Alcohol Effects (FAE).6 At the extreme end of
the spectrum, FAS involves dysmorphic characteristics, growth problems,
and central nervous system abnormalities (structural, neurological, and
functional).7 At the other end of the spectrum, prenatal exposure increases
the risk of depression and low self-esteem and may affect executive
functions such as impulse control and decision-making skills.8 The
separate diagnostic criteria that exist for the subsets of FASD are similar,
but not identical, while certain features are ambiguously broad or develop
later in life.9 The difficulties that exist in diagnosing FASD may result in
undiagnosed individuals receiving inadequate care and unfair treatment in
the criminal justice system. It may also result in under-reported FASD
prevalence statistics.
B. The Biological Mechanism of FASD

Two issues exist in identifying the mechanisms of FASD: alcohol may
operate at different biological levels, or it may act upon general processes
common to all cells.10 These characteristics make it difficult to understand
exactly what biological pathways and cell processes are being affected by
alcohol, as well as what pathways are the best targets for pharmacological
solutions. However, it is thought that the detrimental effects of alcohol on
the fetus are a result of a combination of alcohol-induced fetal hypoxia
and free-radical oxidative stress.11
6
Michael Pacey, National Collaborating Centre for Aboriginal Health Fetal Alcohol
Syndrome & Fetal Alcohol Spectrum Disorder Among Aboriginal Peoples: A Review
of Prevalence (2009), Prince George, BC: National Collaborating Centre for Aboriginal
Health at 2-3, online: http://www.nccah-
ccnsa.ca/Publications/Lists/Publications/Attachments/34/2010_01_27_FASDAbori
ginalReviewPrevalence_EN_Updated_Web.pdf [Pacey].
7
Louise R Floyd et al, Recognition and Prevention of Fetal Alcohol Syndrome (2005)
106:5 Obstetrics & Gynecology 1059 at 1061.
8
Janet R Hankin, Fetal Alcohol Syndrome Prevention Research (2002) 26:1 Alcohol
Research & Health 58 at 59.
9
Pacey, supra note 6 at 2526.
10
Ernest L Abel & John H Hannigan, Maternal Risk Factors in Fetal Alcohol
Syndrome: Provocative and Permissive Influences (1995) 17:4 Neurotoxicology &
Teratology 445 at 452 [Abel 1995].
11
Ibid.
Hypoxia occurs when tissues lack oxygen and is the most common
cause of cellular damage.12 Oxygen is delivered to the fetus through the
umbilical cord, but even low levels of alcohol can constrict umbilical cord
arteries.13 The oxygen content of the blood that does get through the
umbilical cord has been reduced during the mothers metabolism of the
alcohol.14 Although a fetus can somewhat adapt to low blood oxygen
levels, this adaptation is limited and the hypoxia causes a cascade of cell
impairment, specifically affecting the brain and developing organs.15
Free oxygen radicals are produced during normal cell metabolism and
scavenged by antioxidant enzymes.16 Because free oxygen radicals are
molecules with unpaired electrons, they are unstable and can be highly
damaging to cells.17 Cell damage from alcohol could arise either from an
increased production of these free oxygen radicals or decreased production
of cellular defence protectants.18 Altering the balance of these cells causes
oxidative stress which disrupts their cellular integrity.19 This damage can
occur independently of hypoxia and is exacerbated by deficiencies in
antioxidant nutrients.20 These biological mechanisms occur as a direct
result of the provocative causes of FASD through biological conditions
such as high blood alcohol levels and decreased antioxidant status. These
provocative causes are themselves the result of a number of permissive
factors, including alcohol intake patterns, socioeconomic status, and
smoking.21
The mechanisms underlying FASD have been studied in non-
mammalian and mammalian models, ranging from zebrafish and chick
embryos to mice, sheep, and nonhuman primates.22 Though useful in
12
Ibid.
13
Ibid.
14
Ibid.
15
Ibid.
16
Ibid at 453.
17
Ibid.
18
Ibid.
19
Ibid.
20
Ibid.
21
Ibid at 446448.
22
Sarah Cavanaugh, A transition in fetal alcohol syndrome research: The shift from
studying the teratogenic effects of alcohol upon a developing embryo or

fetus, there are several limitations to FASD biological research. In
mammalian models that better replicate human reproduction, interactions
with anesthetics and alcohol, as well as fear responses and restraint stress
may confound collected data.23 The velocity of brain growth between
mammalian models also differs from human brain growth;24 this is a
significant issue with studying the biological mechanisms of FASD, as
alcohol-related effects on fetal brain development are perhaps the most
harmful effect. Lastly, the effects of alcohol abuse are unique to humans.
Experimental animals do not consume ethanol, metabolize ethanol
differently, get ethanol through other means (such as injection), and have
different physiological environments than humans.25 As of yet, no animal
model or combination of models thereof has been developed that includes
all of the FASD diagnostic criteria exhibited in humans.26
Alcohol consumption is commonly measured in terms of average
number of drinks per day.27 This is not helpful for gauging the risk that a
womans child will have FASD as it does not effectively measure drinking
patterns. Average daily consumption of one drink per day may describe
someone who has a glass of wine with dinner, but it also describes
someone who has seven drinks in one night while abstaining for the rest
of the week. The latter is binge drinking and causes a spike in the blood
alcohol level (BAL) that is more likely to damage the fetus.28 Once a
toxicity threshold has been exceeded, the fetal damage is a function of the
amount of exposure to the alcohol: exposures to short but high BALs are
expected to cause more cellular damage than prolonged, lesser exposures.29
Along with higher volumes of alcohol consumed, a mother who drinks
animal modeling to human intervention (2015) 5:2 Alcohol & Alcoholism 251 at
252253.
23
Ibid at 253.
24
Ibid.
25
Ibid.
26
Timothy A Cudd, Animal model systems for the study of alcohol teratology (2005)
230:6 Exp Biol Med (Maywood) 389.
27
Abel 1995, supra note 10 at 446.
28
Ibid at 446-447.
29
Ibid at 447.
during the first trimester of the pregnancy is at the highest risk to have a
child with alcohol-related physical features and deficiencies.30
C. Rates of Alcohol Use Among Women

Alcohol consumption during pregnancy is necessary, but not
determinative to having a child with FASD; some women may drink
alcohol during pregnancy, but not present a child with FASD. As
previously mentioned, it is the volume and timing of alcohol consumed by
the mother during the pregnancy as well as other permissive factors such
as poor nutrition that affect the severity of FASD in her child. These
permissive factors are important and will be addressed later in the paper as
potential areas for FASD interventions, but the focus of FASD prevention
should be on alcohol use among women of childbearing age. Are women
becoming more dependent on alcohol as a coping substance, particularly
those within Aboriginal communities where FASD is expected to be most
prevalent? If so, why?
This is important to address because if alcohol use amongst women is
rising, particularly in younger cohorts, or if binge drinking patterns are
increasing, FASD rates may increase as a result.31 Also, addressing
overconsumption of alcohol will simultaneously address its related diseases
and conditions. Twenty-five chronic diseases and conditions are entirely
attributed to alcohol; it also plays a role in risks for certain cancers,
tumours, neuropsychiatric conditions, and various cardiovascular and
digestive diseases.32 Womens bodies react differently to alcohol and face
higher risks than mens due to experiencing alcohol-related problems at
30
Bonthius DJ & West JR, Alcohol-induced neuronal loss in developing rats: Increased
brain damage with binge exposure (1990) 14:1 Alcohol Clin Exp Res 107; Susan
Maier & James West, Drinking patterns and alcohol-related birth defects (2001)
25:3 Alcohol Res & Health 168 at 173.
31
Centre for Addiction and Mental Health, Fetal alcohol spectrums disorders (FASD):
An under-recognized issue, which may be on the rise globally (2014), online:
<http://www.camh.ca/en/hospital/about_camh/newsroom/news_releases_media_ad
visories_and_backgrounders/current_year/Pages/Fetal-Alcohol-Spectrum-Disorders-
(FASD)-An-under-recognized-issue,-which-may-be-on-the-rise-globally.aspx>.
32
Kevin Shield, Charles Parry & Jrgen Rehm, Focus on: Chronic diseases and
conditions related to alcohol use (2014) 35:2 Alcohol Res: Current Reviews 155 at
155.
lower drinking levels, with lower body weight, and lower body water
percentages causing higher blood alcohol concentrations.33
In a cross-national literature review by Keyes et al., evidence pointed
towards younger North American cohorts, particularly those after World
War II, being more likely to engage in heavy episodic drinking and
development of alcohol-related disorders.34 There is also evidence of a
narrowing gender gap for heavy drinking and alcohol disorders as these
outcomes are increasing in prevalence for women in younger birth
cohorts.35 This literature also examines the question as to why these cohort
differences exist. Firstly, endogenous mechanisms such as social norms
and the social transmission of alcohol consumption behaviours may be
changing as social norms shift towards increased heavy episodic drinking.36
Secondly, an examination of exogenous mechanisms such as policies,
laws, and economic factors demonstrate that the problems of alcohol
consumption are increasing despite increasingly strict policies.37 These
mechanisms do not operate independently and more data is needed to
formally disentangle these relationships.38
To effectively address alcohol use disorders among women, the reason
behind the alcoholism must be analyzed. Alcohol-abusing women tend to
internalize their feelings and use alcohol as a coping mechanism.39 They
also show higher rates of anxiety and depression than men and often have
secondary disorders such as mania, major depression, panic disorder, and
phobic disorder.40 Women are likely to define themselves in relation to
others, leading to guilt and shame when they fail to fulfill their expected
33
National Institute on Alcohol Abuse and Alcoholism, Women and Alcohol (August
2013), online:
<http://pubs.niaaa.nih.gov/publications/womensfact/womensFact.pdf>.
34
Katherine Keyes, Guohua Li & Deborah Hasin, Birth cohort effects and gender
differences in alcohol epidemiology: A review and synthesis (2011) 35:12
Alcoholism: Clin Exp Res 2101 at 2101.
35
Ibid at 2106.
36
Ibid at 2108.
37
Ibid at 2109.
38
Ibid.
39
Linda Beckman, Treatment needs of women with alcohol problems (1994) 18:3
Alcohol, Health Res World 206.
40
Ibid.
social roles and may drink when they are having problems in relationships
with significant others or family members.41 As will be discussed later in
this paper, Aboriginal women face life stressors that put them at even
greater risk of developing alcohol use disorders and face significant
barriers to accessing treatment for alcohol use.
D. Risk Factors
There are several risk factors involved with FASD. These causal
connections have been recognized within literature, but because of so
many confounding factors, it is difficult to determine exactly what
combination of factors will either produce or increase the severity of
FASD. Cross-substance abuse and individual variations in how alcohol is
metabolized can make connecting FASD to its causes particularly difficult.
However, cases of FASD identified in studies often involve mothers
uniformly characterized by poverty.42 Low socioeconomic status by itself
is strongly correlated to adverse pregnancies, FAS, and other factors that
lead to FASD such as poor nutrition, inner city residency, psychological
stress, smoking, and poly-drug use.43 There is also evidence that genetic
factors can influence vulnerability to FAS and hypotheses that biological
factors related to race are major contributors to FAS.44 However, FAS
predominantly occurs in low socioeconomic status populations regardless
of race.45 A higher prevalence of FAS among certain racial groups is more
likely to reflect a socioeconomic status rather than a genetic predisposition
to the effects of FAS. As it stands, there is not a strong evidentiary link
between populations such as African- or Native Americans to be at greater
risk for FAS than Caucasian-Americans because of genotypic population
differences.46
41
Heidi van der Walde et al, Women and alcoholism: A biopsychosocial perspective
and treatment approaches (2002) 80:2 Spring J Counselling Development 145 at 147
[Walde].
42
43
Ibid at 449.
44
Ibid at 447-448.
45
Ibid at 449.
46
Ibid at 447.
The prevalence rates of FASD vary wildly across different

socioeconomic and cultural groups. Rates even vary among groups with
similar levels of alcohol consumption; prenatal alcohol exposure alone is
therefore not enough to estimate risk for adverse birth outcomes.
Researchers have determined several maternal risk factors that are
associated with FASD, including advanced maternal age, number of
pregnancies, previous births of children with FASD, living with a partner
who drinks, and poverty/low socioeconomic status.47 Psychological distress
has also been linked to FAS: in a study by Kessler et al., social phobias,
simple phobias, depression, and drug dependence were highly predictive
of future alcohol abuse.48 Stress can enhance alcohols toxicity and may
initiate or encourage continued alcohol abuse.49 An increased
dependency on alcohol will likely make it more difficult for a woman to
abstain from drinking during pregnancy.
Much of the variable impact of FASD is related to the environmental
or sociological factors affecting alcohol use. There is a web of risk factors
that correlate to alcohol use and to each other, including: smoking,
unemployment, poverty/low socioeconomic status, low education levels,
unplanned or unwanted pregnancy, physical and sexual abuse,
partner/family/community substance use, poor nutrition, access to
prenatal care, and geographical isolation.50 Notably, smoking by itself
contributes to adverse pregnancy outcomes and is overwhelmingly
correlated with poverty.51 Smoking contributes to hypoxia and is a major
cause of low birth weight; the negative effect of smoking on a pregnant
womans body increases the destructive effects of alcohol.52 A notably
47
Phyllis Lewis, Virginia Shipman & Philip May, Socioeconomic status, psychological
distress, and other maternal risk factors for fetal alcohol spectrum disorders among
American Indians of the Northern Plains (2011) 17:2 American Indian & Alaska
Native Mental Health Research: The J of the National Center 1 at 2.
48
Caroline Tait, Fetal Alcohol Syndrome Among Aboriginal People in Canada: Review and
Analysis of the Intergenerational Links to Residential Schools, (Ottawa: Aboriginal Healing
Foundation, 2003) at 151 [Tait 2003].
49
Ibid at 151.
50
Ibid at 80, 151.
51
Ibid at 147.
52
Ibid.
larger amount of alcohol must be consumed to cause a significant decrease

in birth weight when a woman is not smoking during pregnancy.53
Based on these risk factors and the strong connection of FASD to
socioeconomic status, alleviating harmful socio-behavioural factors,
unplanned pregnancies, and alcohol use should be primary goals of the
prevention strategy. A comprehensive prevention strategy will have
positive effects throughout targeted communities if it focuses on the
environmental context in which high rates of FASD occur. For example,
improved nutrition in communities will mitigate other negative birth
outcomes in addition to those related to FASD; it will also help address
other health issues affecting communities with poor nutrition such as high
rates of malnutrition or diabetes. Reductions in cigarette smoking will
reduce negative birth outcomes as well as improve community health and
lessen individual financial strain. Other such examples include better
access to health services and increasing community support systems that
address the underlying issues that lead to substance abuse.
E. The Cost of FASD

Numerous studies have attempted to estimate the cost to society of
FAS and FASD. A Canadian cross-sectional survey of 148 parents of
children with FASD ages 1-21 years in urban and rural communities led to
a total adjusted annual expenditure of $14,342 per child based on the
2006 dollar value.54 The cost components of this estimate were medical,
education, social services, direct costs to the patient and his/her family,
productivity losses, and externalizing behaviours.55 The authors of this
study used a conservative estimate of FAS/FAE prevalence in the general
population to determine the potential annual costs for Canadian children
ages 1-21 years to be roughly $344,208,000.56 It should be noted that this
study was later revised to reflect more current statistics and found total
adjusted annual costs associated with FASD to be $21,642 at a 95%
53
54
Brenda Catherine Stade et al, The burden of prenatal exposure to alcohol:
measurement of cost (2006) 4:5 J Fetal Alcohol Syndrome.
55
Ibid.
56
Ibid.
confidence interval.57 The estimated costs do not include the damage

suffered by the victims of crimes perpetrated by those with FASD nor the
costs to the criminal justice system. The legal system costs have also been
neglected in this FAS/FASD cost estimate.58 However, using the original
estimate from Stade et al. of $344,208,000, approximate costs of raising
Aboriginal children 0-19 years of age affected by FAS/FAE has been
extrapolated to roughly $18,056,000.59 These costs are affected by
geographic location, age of the child, and severity of the illness, as well as
the choice of prevalence estimate used.60
Because of the behavioural issues associated with FASD, there is a
suspected high prevalence of FASD within the criminal justice system.61 A
literature review by Popova et al. helps to paint the picture of the
significant costs incurred as a result of FASD prevalence in the criminal
justice system. Popova estimates that the number of youth offenders with
FASD on any given day in 2008-2009 ranged from 207-423; adult
offenders with FASD was estimated to be 3686.62 In 2010/2011, the
average cost for a federal inmate was $357/day while provincial or
territorial inmates cost on average $171/day.63 Daily inmate costs for
provincial or territorial inmates exclude data from the Yukon and
57
Brenda Catherine Stade et al, The burden of prenatal exposure to alcohol: revised
measurement of cost (2009) 16:1 Can J Clin Pharmacol 91 at 98.
58
Diane K Fast DK & Julianne Conry, Fetal alcohol spectrum disorders and the
criminal justice system (2009) 15:3 Developmental Disabilities Res Rev 250 at 251.
59
60
Ibid.
61
TRC Summary, supra note 4 at 174175.
62
Svetlana Popova et al, Fetal alcohol spectrum disorder prevalence estimates in
correctional systems: a systematic literature review (2011) 102:5 Canadian J Public
Health 336 at 338. The range for FASD prevalence in the custodial correctional
population was calculated by multiplying the lowest (10.9%) and highest (22.3%)
estimated percentages of FASD prevalence with the number of youth in the
correctional population (N = 1,898). The estimated number of adult offenders with
FASD was calculated by multiplying the percentage of adults with FASD (9.9%) with
the number of adults in the custodial correctional population (N = 3,686).
63
Statistics Canada, Adult correctional statistics in Canada, 2010/2011, by Mia
Dauvergne (Ottawa: Statistics Canada, 2012), online:
<http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11715-eng.pdf>.
Nunavut.64 By addressing FASD preventatively, before those affected with

FASD become involved with the criminal justice system, the total cost of
housing prisoners could be reduced and the population of prisons
somewhat decreased. This is particularly important as incarceration rates
have increased despite a decrease in crime rates.65 The Correctional
Service of Canadas federal budget has recently increased by 40% over a
five year period, mostly to build new cells, but a significant proportion of
inmates are still double-bunked in cells.66
There is an evidentiary predicament with cases involving offenders
who have a diagnosis of FASD: how can they demonstrate that their
condition effectively limited their ability to foresee the consequences of
their actions? This is particularly the case for those with previously
undiagnosed FASD. Part of the difficulty with submitting an FASD
diagnosis as evidence of the disorder affecting an accuseds state of mind is
that FASD is difficult to diagnose, has a wide spectrum of characteristics,
and evidence of maternal alcohol abuse during pregnancy may be difficult
to confirm. As a result, claiming an FASD diagnosis as a defence may be
viewed by the prosecution and judge as an excuse for getting a lighter
sentence. For example, in R v. Manitowabi, defence counsel put forth the
argument that since FASD can impair ones ability to foresee the
consequences of ones actions, it may provide reasonable doubt as to
whether the accused had the required mens rea to commit the crime and
foresee the probable consequences of his actions.67 The appellate judge
held that although the appellant suffered from FASD, it failed to provide
a basis upon which a trier of fact could reasonably conclude that the
appellants FASD had an effect on his understanding of the probable
consequences.68 In this case, evidence of maternal alcohol abuse during
64
Ibid.
65
Maureen Brosnahan, Canadas prison population at all-time high, CBC News (25
November 2013), online: <http://www.cbc.ca/news/canada-s-prison-population-at-all-
time-high-1.2440039> [Brosnahan].
66
Ibid.
67
2014 ONCA 301 at para 4, 2014 CarswellOnt 5078.
68
Ibid at para 6.
pregnancy could not be confirmed and the doctor could only conclude
that the appellant may be suffering from FASD.69
In another case, R v. Ramsay, the sentence of an appellant with FASD
was influenced by the aggravating factors of a previous criminal record and
second set of criminal offences committed while on judicial interim
release;70 both of these factors may have been similarly affected by
impaired decision making as a result of FASD. Costs to the criminal
justice system and offenders with FASD are unlikely to be reduced by
adopting a Gladue-like approach for those with FASD as it does not solve
the difficulty of proving an individuals FASD. This approach may also
provide too much leniency to offenders with minor FASD impairment.
FASD prevention is a more logical and straight-forward solution to
reducing the number of offenders with FASD and costs to the criminal
justice system while maintaining the justice systems integrity.
Although Popova et al.s review did not involve a thorough analysis of
Aboriginal offenders with FASD in the criminal justice system, it can be
hypothesized that a significant proportion of those with FASD in the
criminal justice system are Aboriginal. The number of visible minorities in
Canadian prisons has increased by 75% during the past decade.71 This is
based on the presumed high prevalence of FASD in Aboriginal
populations and the over-representation of Aboriginal people in the
criminal justice system.72 In 2013, 61% of inmates in Manitoba were
Aboriginal offenders.73 This hypothesis is supported by the conclusions
found in a study done by MacPherson and Chudley involving Manitobas
Stony Mountain Institution. In this study, 66% of the participating
prisoner population identified themselves as Aboriginal and the incidence
of FASD was found to be 10 times that of the general population.74
69
Ibid at para 33.
70
2012 ABCA 257 at para 10, 2012 CarswellAlta 1504.
71
Brosnahan, supra note 65.
72
Canada, Correctional Service, Demographic Overview of Aboriginal Peoples in Canada and
Aboriginal Offenders in Federal Corrections, modified 2013-08-15 (Ottawa: CSC), online:
<http://www.csc-scc.gc.ca/aboriginal/002003-1008-eng.shtml>.
73
Ibid.
74
Patricia MacPherson & Albert Chudley, FASD in Correctional Population:
Preliminary results from an incidence study (Powerpoint presentation delivered at
the 2nd International Conference on FASD: Research, Policy, and Practice around the
Another study in BC examined youth who were ordered to attend a Youth

Sexual Offence Treatment Program; the authors found that 27% of
Aboriginal youth participating in the program were diagnosed or
suspected to have FASD compared to 4.3% of non-Aboriginal youths.75
However, this higher proportion of Aboriginal Canadians with FASD may
simply be because of the unequal and small sample size due to the over-
representation of Aboriginal people in this prison population. There has
been little research completed on the incidence of FASD in prison
populations, despite substantial evidence suggesting a link between FASD
and crime.76
There is also the issue of the immeasurable human cost incurred by
individuals affected by FASD and their families. Alcohol use can affect the
childs ability to bond with his or her mother, father, and extended
family.77 A child affected with FASD will face, depending on the severity
of the disorder, a variety of social, psychological, and physical challenges.
This child may have difficulty in school, both socially and academically,
which may later affect his or her pursuit of higher education or careers.
Specific costs on individual families such as feelings of guilt and shame,
financial strain, child-related stress, and effects on the family climate and
marriages are also difficult to measure.78 The true costs of FASD are much
broader than those prevalent in research studies, causing an underestimate
of the need for effective FASD prevention projects.
World, Victoria, BC, 7-10 March 2007), online:

<events.onlinebroadcasting.com/fas/090707/ppts/correctional.ppt>.
75
Rojas EY & Gretton HM, Background, offence characteristics, and criminal
outcomes of Aboriginal youth who sexually offend: A closer look at Aboriginal youth
intervention needs (2007) 19:3 Sex Abuse J Res Treat 257 at 274.
76
Fred Boland et al, Fetal Alcohol Syndrome: Implications for Correctional Service (Ottawa:
Correctional Service Canada, 1998), online: <http://www.csc-scc.gc.ca/research/r71e-
eng.shtml>.
77
Aboriginal Approaches to Fetal Alcohol Syndrome/Fetal Alcohol Effects, ed by Kim
Anderson (Toronto: Ontario Federation of Indian Friendship Centres, 2002) 1 at 4,
online:
<www.ofifc.org/sites/default/files/docs/20080101_Aboriginal_Approaches_FASD.p
df> [Anderson].
78
Heather Olson et al, Family Matters: Fetal Alcohol Spectrum Disorders and the
Family (2009) 15:3 Developmental Disabilities Res Rev 235 at 236.
Part of any successful prevention project must be the gathering of

information about the incidence and costs in all dimensions of FASD. A
provincial or national prevention project should include, as a fundamental
effort, measures to greatly increase the gathering and reporting of all
aspects of FASD, including diagnoses; identification by schools of the
number of students who are diagnosed with FASD or provided with
services to assist them in this regard; the numbers of offenders within the
criminal justice system who have FASD and estimate of the cost of their
interaction with the system; and costs of victims of crime.
F. Barriers to Successful FASD Prevention

There are a number of barriers to effective treatment of substance use
for high-risk women. Some of these barriers are within the medical
profession itself.79 Service workers dealing with prenatal care may not
inquire about alcohol use or provide information regarding the negative
effects of alcohol on birth outcomes. A study by France et al. on barriers
perceived by health professionals in addressing alcohol usage among their
patients found four themes.80 The first theme was health professionals
perceptions of patients: either professionals felt that their patients did not
drink and knew not to drink, or felt that women who drink at high-risk
levels have concurrent contextual issues that the professionals did not feel
comfortable addressing.81 The latter was also at play in the second theme:
professionals prioritization of their practice. Professionals perceived that
the burden of consultation about alcohol issues was too large and the
ability to properly deal with alcohol use was limited by time constraints
and other higher priority issues.82 Third was concerns for the client and
the professional relationship, as the studied health care professionals felt
that asking about alcohol use could add to the anxiety or guilt felt by
women who expressed concern about alcohol use prior to their own
knowledge of their pregnancy, or interfere with trust-building between
79
France K et al, Health professionals addressing alcohol use with pregnant women in
Western Australia: Barriers and strategies for communication (2010) 45:10
Substance Use & Misuse 1474.
80
Ibid at 1479.
81
Ibid at 1479-1480.
82
Ibid at 1481.
physicians and patients.83 Lastly, health professionals felt that they lacked
the skills and resources to properly manage alcohol-related interventions.
This prevented them from raising the issue of alcohol with pregnant
women as they lacked confidence in both the ability to support pregnant
women drinking at high levels, and the available referral options.84
Women at risk of giving birth to a child with FASD also face
significant barriers which can be categorized as system-level, program-level,
and personal/social.85 System-level barriers make it difficult to develop and
link comprehensive programs that support women, such as housing and
health care; program-level barriers present access and coordination issues;
and personal/social barriers affect womens abilities to benefit from
support and prevention services.86 System-level barriers may pose one of
the most significant barriers to pregnant women and mothers who have
substance abuse problems in that there is a fear of child apprehension by
social services if she seeks help for her problems.87 Also, pregnant women
with substance abuse issues often have multiple intersecting problems;
programs and support systems created to help pregnant women address
alcohol use may have narrow mandates that are incapable of dealing with
more than one issue.88
Though alcohol is the teratogen responsible for FASD, the prevalence
of FASD in Aboriginal communities is a more complex matter. It is not
simply the case of convincing pregnant women to stop drinking, as FASD
is not exclusively the result of a lifestyle choice. Other issues such as
income inequality, poverty, and social exclusion directly affect Aboriginal
populations and contribute to barriers in preventing FASD. For
Aboriginal women who are pregnant and abusing substances, more
specific barriers to FASD prevention exist: fear of child apprehension,
availability of prenatal care and childcare, stigma of being a pregnant
83
Ibid.
84
Ibid at 1482.
85
Nancy Poole & Amy Salmon, Barriers to Accessing Support for Pregnant Women
and Mothers with Substance Use Problems British Columbia Centre of Excellence
for Womens Health, 2007, 1 at 1 [Poole].
86
Ibid.
87
Ibid at 2.
88
Ibid.
addict, and barriers to treatment programs are only a few examples.89 A

comprehensive prevention strategy must be designed with the existence of
these barriers in mind and take positive steps to help both health
professionals and women in need of services overcome them.
II. CONTEXT: ABORIGINAL COMMUNITIES
A. Prevalence in Aboriginal Communities

Somewhat of a contradiction exists with regard to the prevalence of
FASD in Canadian Aboriginal communities: while there is widespread
recognition that FASD is prevalent and represents a serious threat to
Aboriginal health, there is inconclusive epidemiological evidence about
the incidence of both FAS and FASD in Aboriginal communities and
Canada at large.90 Several difficulties exist in estimating prevalence of
FAS/FASD rates, including but not limited to: case ascertainment,
misclassification of exposure and risk, denominators or population at risk,
source of data, timing of case ascertainment, sample size, geographic
biases, and assumptions of homogeneity.91 These are largely the result of
the wide range and delayed onset of FAS/FASD symptoms, vague
classification of the illness, and studies that focus on particular geographic
populations, many of which are known to have a clear public health
concern regarding high rates of FAS/FASD.92 Despite difficulties in
measuring prevalence rates due to the variables involved in FAS/FASD
and its measurement, several studies have attempted to estimate the rates
of FAS/FASD through passive surveillance as well as clinic- and
population-based studies.93
89
Saskatchewan, Commission on First Nations and Mtis Peoples and Justice Reform,
Fetal Alcohol Spectrum Disorders and the Justice System by Rae Mitten (CFNMPJR, 2004),
s 9 at 15.
90
91
Ibid at 810.
92
Ibid.
93
Ibid at 8.
Authors Year Location Variety Rate

Published (per 1000 live
births)
Williams et al.94 1999 NE MB FAS Incidence: 7.2
Square95 1997 MB First FAS + Prevalence: 100
Nations reserve partial FAS
Chudley96 1997 MB FAS Prevalence: 61
MB FAE Prevalence: 33
Asante and 1985 Northern BC FAS + FAE Prevalence: 25
Nelms-Maztke97 Yukon FAS + FAE Prevalence: 46
Robinson et 1987 BC Aboriginal FAS Prevalence: 190

al.98 community
Habbick et al.99 1996 SK (1988-1992) FAS Prevalence: 0.589

SK (1973-1977) FAS Prevalence: 0.515
Table 1: Demonstrating the range in FAS rates across Aboriginal studies in
Canada.100
There are currently no national statistics on FASD rates in Canada,

but estimates have been made based on representative samples for
Aboriginal communities.101 These estimates cannot be generalized to other
94
Williams R, Odaibo F & Mcgee J, Incidence of fetal alcohol syndrome in
Northeastern Manitoba (1999) 90:3 Can J Public Health at 192-194.
95
Square D, Fetal alcohol syndrome epidemic on Manitoba reserve (1997) 157:1 Can
Med Association J 59-60 [Square, 1997].
96
A E Chudley et al, Fetal Alcohol Spectrum Disorder: Canadian guidelines for
diagnosis (2005) 172 (Supp) Canadian Medical Association Journal S1-S21, cited in
97
Asante KO & Nelms-Maztke J, Report on the survey of children with chronic handicaps and
fetal alcohol syndrome in the Yukon and Northwest British Columbia (Whitehorse: Council
for Yukon Indians, 1985), cited in Pacey, supra note 6 at 19.
98
Robinson GC, Conry JL & Conry RF, Clinical profile and prevalence of fetal
alcohol syndrome in an isolated community in British Columbia (1987) 137:3 Can
Med Association J 203 at 205.
99
Habbick BF et al, Foetal alcohol syndrome in Saskatchewan: unchanged incidence in
a 20-year period (1996) 87:3 Can J Pub Health 204.
100
Table largely adapted from Pacey, supra note 6 at 18-19.
101
Canada FASD Research Network, FASD Fact Sheet, (accessed 31 August 2016)
communities or Canadian populations, but can give an approximation of

the prevalence of FASD seen in Aboriginal communities (see Table 1). It is
estimated that the prevalence of FAS/FAE in high-risk populations,
including First Nations and Inuit communities may be as high as 1 in 5.102
The rates of FAS/FAE in some First Nations and Inuit communities are
much higher than the national average which is estimated to be
somewhere between 123-740 FAS and 1000 FAE babies born each year.103
FAS/FAE has been termed a northern epidemic and $1.7 million in
funding is reported to be made available every year to support a new
initiative addressing FAS/FAE impact on First Nations and Inuit reserve
communities.104
B. Poverty
High rates of alcohol use have been correlated with low
socioeconomic conditions such as low income, education, and
occupational status.105 Though there is not one direct cause of FASD, the
link between poverty and alcohol makes low socioeconomic status a
significant factor. Social factors are thought to be directly linked to
physical and mental health problems, family dysfunction, violence, poor
education, and crime, all of which are associated with pregnancy and
substance abuse.106 In addition, factors related to poverty are either directly
provocative or exacerbate other provocative factors for FAS; this includes
inadequate diet or poor nutrition, inner-city residency, psychological
stress, high parity, smoking, and drug abuse.107 Aboriginal women in
particular have disproportionate experiences with poverty, poor nutrition,
online: < http://canfasd.ca/media/fasd-fact-sheet/>.

102
BC FAS Resource Society, Community Action Guide: Working together for the prevention of
FASD (BC Ministry for Children and Families, 1998) at 14.
103
Canada, Health Canada, It Takes a Community: Framework for the First Nations
and Inuit Fetal Alcohol Syndrome/Fetal Alcohol Effects Initiative, prepared by the
FASE/FAE Technical Working Group (Ottawa: Health Canada, 1997) at 1, online:
<http://www.turtleisland.org/healing/fasfae1.pdf> [Community].
104
Ibid at 5.
105
Tait 2003, supra note 48 at 34.
106
Ibid at 92.
107
and social isolation and are the poorest and most marginalized group in
Canada.108 A Manitoba study on alcohol abuse and pregnancy exemplifies
this in its finding that the majority of women living in extreme poverty are
Aboriginal.109 This low socioeconomic status results in limited access to
prenatal care, addictions treatment, and other health care services,
especially for geographically isolated communities. It is also related to the
inaccessibility of proper nutrition that may aggravate FASD birth
defects.110
C. History of Abuse and Human Rights Violations

The arrival of settler populations and the imposition of certain
government policies, such as residential schools, have had a number of
adverse impacts on Aboriginal communities. Many children in these
schools suffered a range of human rights violations including psychological
and sexual abuse.111 These experiences contribute to psychological
problems later in life. For example, males who were sexually abused as
children are commonly diagnosed with numerous disorders, including
antisocial personality disorder, alcohol and drug use, anxiety, PTSD, and
lifetime affective disorders.112 Children in residential schools who were not
abused physically or sexually still suffered emotional abuse as they were
forcibly taken from their families and encouraged to feel shame about
their heritage and adopt another cultures customs and practices.113 The
human rights of the families were also violated in that they were denied
the right to raise their own children by their own culture and traditions.114
108
Tait 2003, supra note 48 at xx.
109
Caroline Tait, A study of the service needs of pregnant addicted women in Manitoba
(Winnipeg: Prairie Womens Health Centre of Excellence (PWHCE), 2000) at 37,
online: <http://www.gov.mb.ca/health/documents/PWHCE_June2000.pdf> [Tait
2000].
110
Anna Patten et al, Nutritional supplementation and fetal alcohol spectrum disorder (Canada
FASD Research Network).
111
Deborah Chansonneuve, Addictive Behaviours Among Aboriginal People in Canada
(Ottawa: Aboriginal Healing Foundation, 2007) at 12 [Chansonneuve].
112
113
Ibid at 54.
114
Ibid.
This history must be acknowledged in any project that attempts to

involve Aboriginal communities as it impacts and shapes present-day
Aboriginal communities. The intergenerational impacts from the
residential schools are linked to the increased rate of discord in Aboriginal
communities.115 Aboriginal children who were forcibly removed from their
families to be civilized in residential schools had their attachments to
family and community severed. Consequently, as many of these children
reached adulthood, they had not been taught parenting, relational, and
social skills, and had difficulty creating relationships with others.116 The
mental health of children is shaped by how their anxieties regarding
abandonment and separation are dealt with: a child in distress who is then
calmed learns to internalize the caregivers external soothing so that he or
she can self-soothe.117 Children who are instead punished for expressing
separation anxiety or abused at a young age may develop attachment
disorders that can lead to addictive behaviours as a means of coping with
emotional pain.118
Child maltreatment is recognized as being related to a higher risk of
adolescent and adult alcohol consumption and disorders, but it is only
one of the recognized stressors that influence alcohol use disorders.119
Other stressful life experiences may also be related to alcohol use, such as
common stressful life events experienced by adults in interpersonal,
occupational, financial, and legal domains, as well as minority stress.120
Although what is considered to be sufficiently stressful may be
subjective, it is generally accepted that Aboriginal peoples have been
widely impacted by one or more stressful life experiences.
Some acute stressful life events common in epidemiologic research of
stress and alcohol include: death or serious illness of a family member or
115
Ibid at 17.
116
Ibid at 15.
117
Ibid at 19.
118
Ibid at 20.
119
Katherine Keyes, Mark Hatzenbuehler & Deborah Hasin, Stressful life experiences,
alcohol consumption, and alcohol use disorders: the epidemiologic evidence for four
main types of stressors (2011) 218 Psychopharmacology 1 at 2, 5 [Keyes 2011].
120
Ibid at 2. Minority stress is defined as exposure to specific stressors that result from
minority status, especially prejudice and discrimination events, ibid at 8.
close friend; major financial crisis or difficulties paying bills; breakup of a

romantic relationship; interpersonal problems; trouble with the police;
and being a victim of a violent crime.121 Though anyone is at risk for these
problems, Aboriginal people are statistically more likely to experience
some of these stressful life events than non-Aboriginal people. In 2009,
more than one-third of the Aboriginal population reported having been
the victim of a crime compared to one-quarter of non-Aboriginal people.122
Aboriginal people are also more likely than non-Aboriginal people to be
the victim of non-spousal violence, to experience multiple victimizations,
and be sexually or physically assaulted by their spouse.123 In all provinces
and territories, there is a larger representation of Aboriginal adults in
correctional services than in the general population.124 This representation
extends to the female population as well: more Aboriginal female
offenders are represented among the female correctional population than
Aboriginal males within the male correctional population.125 As for
financial crises, these are likely to be relatively common among Aboriginal
women. The median income of Aboriginal women in 2005 was $5,000
less than that of non-Aboriginal women and $3,000 less than Aboriginal
men.126 Lastly, Aboriginal women may be more likely to experience stress
related to the illness or death of a loved one. In 2006, a smaller
proportion of Aboriginal people reported excellent or very good health in
comparison with the general population.127 Generally, Aboriginal people
have poorer health than the general Canadian population, with higher
121
Ibid at 7.
122
Statistics Canada, Violent victimization of Aboriginal people in the Canadian
provinces, 2009, by Samuel Perreault (Ottawa: Statistics Canada, 2011), online:
123
Ibid.
124
Statistics Canada, The incarceration of Aboriginal people in adult correctional
services, by Samuel Perreault (Ottawa: Statistics Canada, 2009), online:
<http://www.statcan.gc.ca/pub/85-002-x/2009003/article/10903-eng.htm>.
125
Ibid.
126
Statistics Canada, First Nations, Mtis and Inuit Women, by Vivian ODonnell and
Susan Wallace (Ottawa: Statistics Canada, 2011) at 33, online:
<http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11442-eng.pdf>
[ODonnell and Wallace].
127
Ibid.
prevalence of risk factors underlying health conditions and barriers to

addressing health issues.128
Aboriginal people are also likely to experience stressors through
prejudice and discrimination events; these stressors can range in severity
and are linked to higher risks of substance use disorders.129 As Aboriginal
women will experience a combination of discrimination based on their
gender as well as race, their risk of developing a disorder is even higher, as
research shows that the risk increases as a function of the number of
domains in which discrimination was reported.130
Victimization by way of child maltreatment may be linked to alcohol
use. Child maltreatment can range from mild to severe emotional or
physical threats. It can also be acute or chronic throughout childhood.
Though genetic predisposition may confound the relationship between
child maltreatment and increased risk for substance use disorders, some
studies have controlled for this familial history and still indicate the
relationship.131 However, sexual abuse itself may not be an independent
predictor of adult alcohol dependency or abuse.132 Theoretical connections
between childhood abuse and alcoholism in women may be facilitated by
low self-esteem and withdrawing from normative friend circles into fringe
groups, which may be more likely to value heavy drug and/or alcohol
use.133 Research indicates that Aboriginal women in Manitoba are
uniquely vulnerable: they experience higher levels of alcohol abuse as a
result of childhood or adult abuse.134 The link between abuse and FASD is
exemplified in a study by Jasinski et al. in which African-American women
128
The State of Knowledge of Aboriginal Health: A review of Aboriginal Health in
Canada (Prince George, BC: National Collaborating Centre for Aboriginal Health,
2012), online: <http://www.nccah-
ccnsa.ca/Publications/Lists/Publications/Attachments/52/SOK_report_EN_web.pdf
>.
129
Keyes 2011, supra note 119 at 9.
130
Ibid.
131
Ibid at 5.
132
Tait 2003, supra note 48 at 45-50.
133
Brenda A Miller, William R Downs & Maria Testa, Interrelationships between
Victimization Experiences and Womens Alcohol Use (1993) 11 J Studies on Alcohol
Supplement 109 at para 29.
134
who were physically abused as children were 6.5 times more likely to
engage in binge drinking, and those who experienced multiple sexual
victimizations were four times more at risk for binge drinking behaviours
than women who had experienced a single instance of sexual abuse.135
Although few studies examine substance abuse during pregnancy and its
relationship to physical and sexual abuse, there is evidence that women
deemed to be high risk commonly suffer child and adult abuse.136
D. Stigma
A prevention strategy should aim to avoid implementing initiatives
that will stigmatize Aboriginal community members. The issue of alcohol
abuse in many Aboriginal communities has received significant public
attention and resulted in the drunken Indian stereotype that has
become common in Canadian society.137 This stereotype implies that
Aboriginal people are irresponsible and reckless with regard to their
alcohol consumption for reasons that are genetic or inherent in traditional
Aboriginal culture.138 A prevention strategy should avoid this stereotype
and aim to dispel it among its participants and within the community. It
should recognize the alcohol abuse seen in many Aboriginal communities
occurs for a variety of reasons; it is difficult to determine why a certain
group of individuals may or may not abuse alcohol. Aboriginal people do
not appear to be biologically susceptible to alcohol or alcohol abuse; this
susceptibility has not been proven in scientific literature and biological
racial classifications are difficult, if not impossible, to empirically apply in
research.139
135
Jana L Jasinski, Linda M Williams & Jane Siegel, Childhood Physical and Sexual
Abuse as Risk Factors for Heavy Drinking among African American Women: A
Prospective Study (2000) 24:8 Child Abuse & Neglect 1061 at para 26.
136
137
Ibid at 23-24.
138
Ibid.
139
Ibid at 19-23. See page 20 specifically: many alcohol studies in the 1970s focused on
race and metabolism. The most well-known of these was a study by Fenna et al. in
1971. In this study, Inuit and Indian hospital patients were compared to Euro-
Canadian volunteers. To examine the rate of metabolism of alcohol, rates of sobering
up were compared between Aboriginal and non-Aboriginal participants. The study
found that Inuit and Indian patients had slower rates of disappearance of blood
alcohol. The implication was that Aboriginal drinkers took a longer time to sober up.
Aboriginal women in particular are faced with individual and

institutional discrimination and disadvantages on the basis of race, gender,
and class.140 This stigma is further increased when Aboriginal women
have substance abuse problems.141 This public perception not only affects
the mental well-being of these women, but also prevents them from
accessing care or assistance when they are pregnant and abusing
substances. Aboriginal women who have substance abuse problems should
not be portrayed as weak or deviant by prevention initiatives; the choice
to consume alcohol during pregnancy should instead be acknowledged as
one that is more complicated.142 Aboriginal women will more positively
receive service providers who approach them in a non-judgmental manner,
who are respectful, and who include them in decisions.143 This approach
should be adopted by all those involved in prevention strategies to achieve
effective and respectful communication towards Aboriginal women who
are at risk of having children with FASD. Most importantly,
discriminatory judgments towards Aboriginal women should be avoided.
Some women may perceive the threat of child services apprehending her
child as a greater risk than not seeking treatment for her substance abuse;
discriminatory attitudes and a lack of understanding discourage at-risk
women from seeking services or attempting to change behaviours.144
III. PROJECT TARGETS

In this section, we outline the components of what we believe is
required to create an effective prevention strategy for the prevention of
FASD in Aboriginal communities [the Project]. The Project includes
interventions on a spectrum from micro- to macroscopic, and combines
community-based campaigns with those offered by services available
generally to all Canadians, such as government programs and educational
The Alberta study, however, was not corroborated by subsequent studies in other
Aboriginal groups, some of which actually showed opposite results.
140
Ibid at para 26.
141
Ibid.
142
Ibid at 164.
143
Ibid at 178.
144
Ibid at 182.
institutions, in an effort to create a collaborative, self-sustaining program

that will result in a decrease of FASD rates and improved birth outcomes.
Intervention Short Term Long Term

Nutritional Creation of a school-based Increased nutritional awareness
nutrition education and provision among youth and community
program
Family-based dietary intervention Improved nutrition in targeted

program homes
Community meals program Improved access to nutrition for
the community
Accessible grocery store or farmers
market
Primary Consultation, planning and design An iterative campaign that evolves

Education of general FASD education based on feedback from
campaign community and leaders
Launch of general campaign to raise High level of campaign recall;
awareness about FASD and support significant improvement in
for local programs knowledge of FASD and how to
prevent it
Launch of specific campaign Increased knowledge of FASD

targeting at-risk community prevention resources in the
members; would contain community by service workers
information about how to access all and community leaders; increase
community services and partners in knowledge and access for at-risk
FASD Prevention community members
Screening Accessible screening of women of Screening of all community

child-bearing age and referral to members in contact with service
appropriate programs professionals and referral to
appropriate programs; reduced
drinking levels in screened
individuals
Brief Health and service professionals Improved cultural awareness

Interventions trained in culturally appropriate among professionals; more
brief interventions effective use of intervention
program for individuals
All women who score sufficiently Reduce risk of FASD in majority

high on screening offered brief of women who receive brief
interventions interventions; monitor efficacy of
specific intervention programs
Case Formation of a case management Establish trusting relationships

Management/ training program or partnership between women and mentors;
Mentoring increase involvement in support
services
Midwifery Training or partnering with a Increase births that occur in the

midwifery program to develop community; increase mothers
capacity within the community control over birth process
Treatment Creation of a local treatment centre Increase access to treatment; offer

Centre or partnership with existing collaborative treatment programs
treatment centre (must be nearby available in one central location
community)
Create and implement child care All women who require

and transportation program for transportation or child care to
women accessing treatment access treatment are able to
Address high turnover rates of Decrease loss of programming

professionals in community services goals and service history; increase
by improving information carry- efficacy of services and training
over
Partner Increased awareness of impact of Increased willingness to abstain

Targeting partners behaviours on at-risk from alcohol during pregnancy;
women; pregnant womens partners increase in community role
counselled on FASD models
Education Designation of a facility which Increase in those seeking

offers comprehensive family and treatment/support who would
community-based services, otherwise forgo it; improve
including a focus on early relationships between parents and
childhood education and childcare children
Design and implement Increased knowledge about FASD

programs/workshops for students and prevention; significant
about alcohol use and avoiding reduction in unplanned
unplanned pregnancy; provide pregnancies among youth;
information about FASD and reduction in binge drinking
prevention behaviours among youth
Design and implement a Improved graduation rates; give

collaborative learning partnership opportunities for students in their
program with a university communities to work with health
and education programs
Final Project Significant reductions in children born with FASD;

Goals Birth weights and negative birth outcomes that are closer to
the national average;
100% service access for women at risk;
Fully integrated collaborative partnership between services;
A self-sustaining program that trains new service professionals
in the community; and
Overall increased knowledge of causes and effects of FASD
IV. APPROACH OF THE PREVENTION STRATEGY
A. Adopting a Multi-Pronged and Coordinated Strategy

Aboriginal communities face numerous social and health issues, the
existence of which has led to fragmented, ineffective services. Gaps in
services are among the most significant barriers to population health tions
communities.145 Moreover, administrators in Aboriginal communities
have expressed frustration with this model in which individual service is
based on a specific need or problem, rather than on the functioning of
the whole person.146
A prevention project would not view FASD as a narrow-focused
problem affecting an individual mother and child. FASD is a complicated
issue affecting individuals, families, and communities; it is not possible to
prevent FASD in isolation. FASD prevention requires the entire
community and partnerships between multiple service providers working
together to promote continuous and better-coordinated services. Women
who drink alcohol during pregnancy are often dealing with issues of
poverty, abuse, and mental health issues; thus interventions must take a
comprehensive approach. By viewing FASD prevention through an entire-
community lens, a prevention strategy will create and nurture collaborative
partnerships whose functions transcend single issues.
145
Ibid at 80.
146
Jessica Ball, Centring Community Services Around Early Childhood Care and
Development (2009) 1:4 Child Health & Education 183 at para 6.
From 2002 to 2003, Health Canada consulted with organizations

across Canada to discuss a Framework for Action on FASD. 147 The
feedback and advice on the draft Framework has been taken into account
in writing this prevention strategy proposal. The exception to
incorporating this feedback are statements directed towards providing
more support to those already affected with FASD as this Project focuses
primarily on preventing rather than alleviating the effects of FASD. This
focus will more effectively separate the variety of core needs involved with
FASD.148 The prevention strategy also addressed facilitating community
action rather than directing it, suggesting potential roles for various groups
within action plans in a flexible manner, and ensuring women are not
targeted as the problem.149 The prevention strategy has also incorporated
the need for creating a positive vision; streamlined and clear goals; strong
guiding principles; an appreciation of the underlying causes of FASD,
social stigma of drug and alcohol use; and sensitivity to those affected by
FASD.150 By examining gaps in past FASD initiatives, this prevention
strategy aims to avoid the shortcomings of similar projects and establish
collaborative, respectful relationships with organizations across Canada
who share an interest in addressing FASD.
B. Holistic Approach
FASD prevention efforts in Canada should be guided by principles
such as raising awareness, reaching those at risk, working with those
affected, and creating linkages between related programs and initiatives.151
These support the view of health, widely held among members of
Aboriginal communities, as one of holistic wellness, and stress the
importance of collective approaches that integrate the individual with
community and family. Prevention strategies should acknowledge the
uniqueness of each Aboriginal community as each community faces its
147
Public Health Agency of Canada, Fetal Alcohol Spectrum Disorder (FASD): A Framework
for Action (Ottawa: Public Health Agency of Canada, 2003), at 22, online:
<http://www.phac-aspc.gc.ca/publicat/fasd-fw-etcaf-ca/pdf/fasd-fw_e.pdf>.
148
Ibid at 24.
149
Ibid.
150
Ibid at 24-25.
151
Community, supra note 103 at 4-6.
own issues, has its own capabilities and expertise, and will prioritize the
many prongs of FASD prevention differently. Initiative participants should
have active roles in individual projects and activities, including but not
limited to planning, carrying out, and evaluating the initiatives.152
Furthermore, expectations and requirements for initiatives such as the
prevention strategy must be flexible and allow each community to tailor
the initiative to its diverse needs and circumstances.153 Lastly, the
prevention strategy should meet the social, cultural, and language needs of
the target groups in these communities: tools and resource materials must
be culturally sensitive, user-friendly, easily understood, and translated
when appropriate.154
While respecting and engaging the perspectives of Aboriginal
communities is crucial, a prevention strategy cannot necessarily rely
exclusively on the measures that are adopted by communities. Every
resident of an Aboriginal community is also a resident of a province and
of Canada, and every child in an Aboriginal community has a right to
their concern. Public authorities at the provincial and federal levels must
be prepared to not only contribute funding to programs at the community
level, but to provide programs in respect of activities that are outside of the
territorial or legal jurisdiction of a community. Federal and provincial
authorities may have to provide directly for programs in some areas where
a community has jurisdiction, but is not open to providing programs that
supplement actions that are selected by communities. They may also have
to step in more extensively where a local community, for reasons such as a
dysfunctional political culture, is not able to develop a reasonable program
of FASD prevention.155 Such government interventions should be
152
Ibid at 8.
153
Ibid.
154
Ibid.
155
For example, see Hamilton Health Sciences Corp v DH, 2014 ONCJ 603, 123 OR (3d),
wherein Justice Edward found that the right to pursue traditional medicine instead of
the course of prescribed treatment (chemotherapy) was a constitutionally protected
Aboriginal right. Justice Edward later clarified his decision (see: 2015 ONCJ 229) to
specify that the right to use traditional medicines must remain consistent with the
principle that the best interests of the child remain paramount, suggesting there may
be an implicit limitation on Aboriginal rights when it comes to the wellbeing of
children. The clarification also stated that the Haudenosaunee have both an
Aboriginal right to use their own traditional medicines and health practices, and the
cautious, however, in light of a past history in Canada of many policies by

outside authorities that have been oppressive, discriminatory, ineffective,
or counterproductive, such as many aspects of the residential schools
policy. Outside government interventions should operate to every
reasonable extent in a way that is collaborative and supportive of
Aboriginal communities. This will help to build trusting relationships
both within and outside the community, as well as support democratic
decision-making within the community and self-determination.156
C. The Importance of the Aboriginal Perspective

It is essential that the initiatives resulting from the prevention strategy
are based on Aboriginal values and perspectives on health and community.
Multi-component, community-wide initiatives that raise awareness and
reduce alcohol consumption among pregnant women are often effective.157
These types of initiatives require solidified organizational structures to
assist the project within the community as well as a core group of
community members who are invested and involved in the projects
implementation.158 The reason for the common use of this style of
initiative amongst Aboriginal communities or populations with a wide
proportion of Aboriginal members is likely because they involve and
engage community members and pay due attention to local and cultural
beliefs.
It is paramount to the success of projects such as this prevention
strategy that the Aboriginal culture and way of life is appropriately
same right as other people in Ontario to use the medicines and health practices
available to those people. See also (Joint Submission of the Parties at 2-3), online:
<http://www.blg.com/en/NewsAndPublications/Documents/HHSC_v__DH_-
_Joint_Submission_-_APR2015.PDF>. This decision has been highly criticized. See,
for example: Asher Honickman, Asher Honickman: A questionable judgment on
traditional medicine, National Post (21 November 2014), online:
<http://news.nationalpost.com/full-comment/asher-honickman-a-questionable-
judgment-on-traditional-medicine>.
156
Self-determination and circles of democracy are two of four core recommendations for
Frameworks for the Future. Social and economic developments should also be
promoted. Wanda McCaslin, & Yvonne Boyer, First Nations Communities at Risk
and in Crisis: Justice and Security (2009) 5:2 J Aboriginal Health 61 at 79.
157
Tait 2003, supra note 48 at 166-67.
158
Ibid at 167.
respected and preserved. Ignorance towards Aboriginal cultures and beliefs

is likely to result in feelings of oppression and paternalism, ultimately
negating the positive progress made with local Aboriginal communities.
Interviews should be conducted within the community to establish the
expectations, needs, and desires of that particular community. These
should include, but not be limited to women of childbearing age,
community leaders, and youth. Women of childbearing age are the
targeted group for many of the interventions discussed in the paper since
their feedback can help to tailor the initiative so it is more responsive to
their needs and ultimately more effective. Community leaders are essential
to the prevention strategy since they can help engage community
members, and know what resources are already available or need to be
made available. Lastly, to create permanent changes, FASD prevention
must engage multiple generations. Women who are presently at risk for
having a child with FASD will not always be of childbearing age, and
without intervention the issues they face will carry on to the next
generation. It is important to engage youth early in their lives in order to
target substance use and underlying social issues that lead to women
becoming at-risk for FASD births.
The Project requires that members of the involved community
perceive FASD to be a problem no matter what the prevalence is; its
strategy must be driven by a local desire to implement programs that
reflect local priorities if it is to be successful. Community-fitting
approaches are more likely to be effective than top-down, expert-driven
strategies purported to be best practices and imported from other
contexts.159 Community-based healing models have proven to be successful
with regard to addictions prevention and intervention programs in
Aboriginal communities.160 These models counter the impacts of
residential school abuse and colonization through four strategies:
(1) Restoring a sense of belonging through pride in identity, family,
community, and ancestry;
(2) Restoring the wisdom of traditional teachings, practices, and medicines that
promote balance health for the mind, body, heart, and spirit throughout
the lifespan;
159
Ibid.
160
Chansonneuve, supra note 111 at 34-35.
(3) Providing opportunities to practice new ways of thinking, behaving, and

living with others who are also committed to balanced health; and
(4) Restoring the roles of women and Elders and strengthening the capacity of
individuals, families, and communities to resolve their own problems.161
In developing best practices to FASD prevention, the guidelines set
out in The Aboriginal Healing Foundation Research Seriesan in-depth
publication that heavily guides this proposalshould be followed.162
Prevention strategy initiatives should explain how and why these are the
preferred prevention mechanisms with reference to scientific evidence and
the perspectives of relevant parties, should be sensitized to the specifics of
Aboriginal people rather than the general population, and implement
traditional Aboriginal knowledge.163
D. Harm Reduction
The Project embraces harm reduction principles, as the smaller gains
experienced in harm reduction outcomes can effectively treat short-term
mental and physical health problems while serving as a jumping off point
for a longer-term individual health plan.164 The principle of universal
access to all programs means that people should not be denied access to
services even if they are unable to fully abstain from alcohol or other
substances. Some examples of harm reduction include counselling,
tapering-off programs, and buddy systems.165 Even if a woman is unable
to abstain completely, reducing alcohol intake will still lead to fewer
negative birth outcomes and an improvement in that womans health.
Prevention efforts must be capable of assisting women even if they present
to service workers while abusing alcohol. Women who are unable to stop
drinking completely, particularly those of childbearing age, are the most in
need of assistance and the Project must be capable of meaningfully
engaging with them. Lastly, the harm reduction approach aligns with an
Aboriginal approach to addictions in that it recognizes the inherent value
and worthiness of all human beings; does not judge behaviour but
161
Ibid at 35.
162
Tait 2003, supra note 48.
163
Ibid at 159-160.
164
Chansonneuve, supra note 111 at 31-34.
165
Ibid at 34.
encourages safety and self-respect in decision-making; and emphasizes

building on successes, learning from mistakes;[sic] and proceeding at an
individuals own pace.166
E. Data Collection
In order to determine the success or failure of a specific intervention
as well as that of the prevention strategy as a whole, relevant information
must be collected at all project levels with the informed consent of
participants. Without adequate information collection, intervention
efforts are likely to fail because they cannot effectively measure the
programs impact or success nor determine what areas of the program
require changes in order to succeed.
Organizations often receive funding to develop intervention
programming, but the formal evaluation of such programs is equally
important.167 A common evaluation framework is required for the future
comparison of performances of different initiatives with regard to cost and
efficacy; the prevention strategy must decide upon a method of formal
evaluation upon its outset. The framework used to assess the Millennium
Development Goals (MDGs) may be useful to adopt in the Project for
measuring large-scale effectiveness: its evaluation framework includes a
conceptual model outlining pathways expected to affect the MDGs, lists
standard indicators of measurement with clear measurement plans, and
provides guidelines for compatible evaluation designs.168 Traditionally,
health-programme evaluations have used experimental approaches in
which those who received intervention efforts are compared with those
who did not.169 This is problematic in that it ignores external factors such
as socioeconomic fluxes, changes in existing health services, and other
health interventions present in the same area. It also does not account for
166
Ibid.
167
Alberta Centre for Child, Family and Community Research, Advancing the Fetal
Alcohol Spectrum Disorder (FASD) Research Agenda A Compendium of Research and
Knowledge Mobilization Project Summaries, at 13 online: <https://policywise.com/wp-
content/uploads/2016/08/FASD-Research-Summary-Report.pdf>.
168
Cesar G Victoria et al, Measuring Impact in the Millennium Development Goal Era
and Beyond: A New Approach to Large-Scale Effectiveness Evaluations (2011) 377
Lancet 85 at 85.
169
Ibid.
pre-existing baseline levels and trends in key indicators that affect initiative
impact.170 Similarly, programme evaluations that focus on a before-and-
after design cannot determine what changes are attributable to the
programme or other factors.171
Instead, the focus should be on trying to understand why programmes
have been carried out in some areas rather than others, and which of the
various programmes works best in a given area.172 The manner in which a
community is selected to receive programming must be well-documented;
pre-existing baseline data that will be used in impact indicators can be
gathered at the community level.173 Different indicators can be
continuously monitored while integrating relevant information from
different existing databases to create the foundation for evaluations, and
new information about program implementation can be incorporated
throughout the program.174 Additional data collection through various
methods (i.e. sampling, household surveys, health-facility assessments, etc.)
should not be solely focused on measurements reflecting end goals (i.e.
reduced incidence of FASD) because the documentation of inputs,
training, supervision, quality of care, and delivery channels is essential for
understanding why programmes succeed or fail.175 By focusing on more
minute aspects of program delivery, areas that fail to be effective can either
be altered or abandoned. This approach will also show which efforts are
actually reaching the target population at the community level.176 Through
a systemic approach to prevention strategy initiatives, common barriers
and effective methods can be more easily determined, ultimately creating a
more comprehensive and valuable project.
Gaps in data, barriers to data collection, and study limitations should
be recorded, as collecting accurate data on FASD prevalence within
Aboriginal communities may be met with several barriers. Firstly,
prevalence rates in Canada are estimated since FASD is so difficult to
170
Ibid.
171
Ibid at 86.
172
Ibid at 87-88.
173
Ibid at 88.
174
Ibid at 88 and 89.
175
Ibid at 90.
176
Ibid.
diagnose.177 This may make determining a baseline for data collection

difficult, particularly in communities where FASD is likely underreported.
This in turn will affect the final program impact of reducing FASD
incidence. Also, because the number of children born with FASD requires
women to be actively having children, communities with less women of
childbearing age may pose a difficulty in creating accurate measurements
of incidence due to the small sample size. Furthermore, there are
numerous other variables at work that may affect FASD incidence. For
example, birth control programs (pharmacological, educational, or
otherwise) adopted within a community may alter the birth rate, average
age of pregnant mothers, partner attitudes towards birth control, and
alcohol use during pregnancy. Birth control programs may also have more
long-term effects that will not be measured in a short-term project.
Lessened birth rates does not necessarily mean lessened FASD incidence
within a community; detailed data collection is required to determine the
effects of such confounding variables.
Other barriers to data collection and program evaluation that should
be kept in mind during program design and development include
incomplete coalitions of service providers, high turnover rates of
community members as well as health professionals, data collection
methods that will rely on subjective interpretations, access and use of
services outside the community, community cooperation, and difficulty in
obtaining follow-ups with individuals. According to Evaluation of the Fetal
Alcohol Spectrum Disorder (FASD) Initiative 2008-2009 to 2012-2013a
publication developed by both government and non-governmental
organizationsthere are five main goals of FASD initiatives: 1) increasing
public and professional awareness as well as understanding of FASD, 2)
increasing capacity, 3) creating tools 4) expanding knowledge and 5)
supporting action.178 Data collection should aim to reflect the prevention
strategys impact on these goals. This will demonstrate how the expected
outcome of a reduced incidence of FASD will be achieved.
177
Public Health Agency of Canada, Evaluation of the Fetal Alcohol Spectrum Disorder
(FASD) Initiative 2008-2009 to 2012-2013, prepared by Evaluation Directorate (Ottawa:
Public Health Agency of Canada, 2014) at 4.1., online: <http://www.phac-
aspc.gc.ca/about_apropos/evaluation/reports-rapports/2013-2014/efasdi-eietaf/index-
eng.php#a4.1> [Evaluation of FASD Initiative].
178
Ibid at 2.2.
Information gathered should respect the relevant research protocols

for Aboriginal communities. For example, Manitoba First Nations have
adopted the principles of Ownership, Control, Access, and Possession
(OCAP) which ensure self-determination over research involving First
Nations.179 A community owns information collectively, has the right to
control all aspects of research and information management processes that
impact it, must have access to information and data about the community,
and can assert and protect its ownership.180 The communities involved
with the prevention strategy should not simply view Aboriginal
community members as research subjects, but should consult the
community in order to support its development and improve its health
and well-being.181 Benefits of OCAP include rebuilding community trust,
improved quality and accuracy of data collection, more democratic
research methods, increased participation, promoting First Nations
perspectives, and encouraging meaningful capacity development.182
Accountability protocols differ for different Aboriginal Communities;
researchers should familiarize themselves with the applicable principles at
the outset of the prevention strategy in relevant communities.183
F. Defining Success
Program success may be measured in numerous ways, from large-scale
to small-scale effects, and in a qualitative or quantitative manner. Any
measurements will be based on the needs and issues of the community in
which the project takes place. Some metrics will measure the overall
success of the program. These may include birth weights, diagnoses of
179
First Nations Information Governance Centre, OCAP: Ownership, Control, Access and
Possession, sanctioned by the First Nations Information Governance Committee,
Assembly of First Nations (Ottawa: National Aboriginal Health Organization, 2007),
online: <http://fnigc.ca/ocap.html>.
180
Ibid.
181
Ibid.
182
Brian Schnarch, Ownership, Control, Access, and Possession (OCAP) or Self-
Determination Applied to Research: A critical analysis of contemporary First Nations
research and some options for First Nations communities (2004) 1:1 J Aboriginal
Health at 32-33.
183
Framework for Research Engagement with First Nation, Metis, and Inuit Peoples (Manitoba:
University of Manitoba, 2013).
FASD, rates of alcoholism in the community and specifically among

women between 18 and 45, and dual protection rates (reduction in
alcohol use combined with increased birth control use/family planning).
Other metrics will measure the success of specific interventions related to
FASD. These may include recall of public awareness campaigns,
percentage of women accessing health care who are screened for problem
drinking, changes in drinking behaviours following brief interventions,
and percentage of those who complete treatment programs. Finally, data
may indicate the changes in the public health context of the community
that have an indirect effect on FASD: graduation and employment rates,
tobacco use, attendance at child-care facilities, or food security in the
community.
While the metrics governing overall success are important, the smaller-
scale measurements of success are necessary in order to determine which
parts of the comprehensive approach are effective and which require
changes. Specific outcomes should be identified in order to track and
analyze program impact and enhance performance measurement. To assist
in planning what the expected outcomes of specific activities will be at
different project levels, the Logic Model for the Public Health Agency FASD
Initiative may be useful in designing and monitoring an initiatives
outcomes and effects:
Figure 1: Logic Model for the Public Health Agency FASD Initiative184
V. INTERVENTIONS
FASD prevention interventions can be categorized as primary,
secondary, and tertiary. Primary prevention
Remedial: involves activities undertaken with a healthy
Preventative: population to enhance health.185 These
strategies are public-directed, but focus on
184
Figure adapted from the Evaluation of FASD Initiative, supra note 177.
185
Gary Roberts & Josephine Nanson, Best Practices: Fetal Alcohol Syndrome/Fetal Alcohol
Effects and the Effects of Other Substance Use During Pregnancy (Ottawa: Health Canada,
2001).
individual behavioural change; in the context of FASD reduction

strategies, examples include posters, warning labels, limiting alcohol
availability, and public health promotion strategies.186 Secondary
prevention refers to efforts to stop the progression of problems through
early detection and early treatment of people identified as being high-risk;
it involves brief therapeutic attention and referral to treatment services.187
Tertiary prevention focuses on minimizing damage to the fetus and
reducing the likelihood of future pregnancies being affected by alcohol use
and can involve treatment, birth control, and parenting programs.
The purpose of interventions may be to alleviate the harm caused by
FASD or to prevent further incidence. Prevention initiatives need not wait
for vulnerable groups to become pregnant or develop substance use issues
to act. The Project should be focused on helping young women avoid
unplanned pregnancy and alcohol abuse (or alternatively, plan for a
healthy, substance-free pregnancy) by understanding the reasons why these
issues occur, particularly in the context of Aboriginal communities. The
type and extent of the intervention chosen will be highly dependent upon
community involvement and cooperation, available resources, and level of
funding allocated to the project. Most interventions have been focused
upon because they are effective and practical potential solutions to FASD
prevention, such as nutritional interventions and the use of early
childhood care and development programming to lessen service
fragmentation. However, the shortcomings of potential interventions have
not been ignored. The discussion of possible interventions in this paper
will begin with those that are narrowly focused upon the individual at a
biological level, then broaden to the effects of services on individuals, then
to the effects of community campaigns, and lastly, to broad-based public
policies that are expected to affect FASD prevalence rates.
186
187
British Columbia, Ministry of Health and Ministry Responsible for Seniors, Alcohol
and Other Drug Problems and BC Women: A Report to the Minister of Health from the
Ministers Advisory Council on Womens Health, by Nancy Poole (Ottawa: November
1997) at 10.
VI. DIRECT HEALTH INTERVENTIONS
A. Pharmacological and Nutritional Intervention

1. Pharmacological Interventions
Drug therapy and pharmacological intervention are promising
treatment avenues for pregnant women with substance abuse problems
and alcohol addictions.188 If a pregnant woman also suffers from an
alcohol abuse disorder, the decision to prescribe an anti-addictive
medication must be guided after the benefits are weighed with potential
risks.189 Not everyone with addictive disorders qualifies for drug therapy;
there were no FDA-approved medications available to those dependent
on stimulants, hallucinogens, cannabis, or inhalants.190
Treatment of alcohol addictions have been somewhat successful, but
do not come without consequences. Benzodiazepines are commonly used
to treat alcohol withdrawal.191 Some studies have indicated high levels of
congenital anomalies among children born to women who used
benzodiazepines during pregnancy, although causation is unclear due to
the high incidence of other substance exposures, including alcohol.192
Benzodiazepines are one of many pharmacotherapies for alcohol addiction
that attempt to detoxify to reduce or prevent withdrawal symptoms.193
Another category of pharmacotherapy for addiction includes medications
188
Richard E Wilcox & Brian A McMillen, The Rational Use of Drugs as Therapeutic
Agents for the Treatment of the Alcoholisms (1998) 15:2 Alcohol J 161.
189
William Rayburn & Michael P Bogenschutz, Pharmacotherapy for pregnant women
with addictions, (2004) 191:6 Am J of Obstetrics & Gynecology 1887.
190
Ibid. While drugs such as methadone and buprenorphine have been used to treat
opioid addiction in women, including pregnant women, the use of such drugs is not
licensed for the treatment of opioid addiction during pregnancy. In addition, as of
2011 no licensed therapies exist for addiction or abuse of benzodiazepines, stimulants
or cannabis. See Rajashekhar Moorthy Madgula, Teodora Groshkova & Soroya
Mayet, Illicit drug use in pregnancy: effects and management (2011) 6:2 Expert Rev
of Obstetrics & Gynecology 179 [Madgula, Groshkova & Mayet].
191
Ibid.
192
U Bergman et al, Effects of exposure to benzodiazepine during fetal life, (1992) 340:
8821 The Lancet at 694.
193
Rayburn, supra note 189 at 1889.
that prevent or minimize relapse such as disulfiram.194 Disulfiram, a drug

used to assist in abstinence from alcohol, has been met with mixed results
in controlled studies of non-pregnant adults as it leads to an accumulation
of acetaldehyde when alcohol is ingested.195 Researchers theorize that
toxicity from high levels of acetaldehyde is possible among pregnant
women who drink alcohol and nonspecific foetal abnormalities have been
reported with first trimester exposure.196 Naltrexone, an opioid antagonist
that dampens the positive effect of alcohol, is also used to assist alcohol
abstinence,197 however, there is evidence that animal offspring exposed to
naltrexone have altered behaviour, and recent findings suggest that it is
less effective for women than for men.198 For women who are likely to
become pregnant and have alcohol abuse issues, as well as their partners
and the partners of already-pregnant women, pharmacological therapies
may be helpful. However, because of the risks to both mothers and fetuses,
it is recommended that psychosocial treatments such as intervention
programs be attempted prior to prescribing anti-addictive medications.199
2. Nutritional Intervention
Other than anti-addictive medications, nutrient supplementation may
prove advantageous to children exposed to alcohol while in the womb. A
number of studies have been conducted on animals to gauge the effects of
nutritional intervention on alleviating the detrimental effects of alcohol
on the fetus. Nutrient supplementation poses less of a toxicity risk to the
fetus and may be a better option in treating pregnant women with alcohol
abuse problems. For example, vitamin E has been shown to reduce
alcohol-induced cerebrovascular damage in rats, and antioxidant levels
have been shown to decrease as a direct result of ethanol exposure.200 This
194
Ibid at 1889.
195
Ibid.
196
Ibid.
197
Ibid.
198
Ibid.
199
Ibid at 1886-1887. See also Madgula, Groshkova & Mayet, supra note 190.
200
BM Altura BM & A Gebrewold, Alpha-tocopherol attenuates alcohol-induced
cerebral vascular damage in rats: possible role of oxidants in alcohol brain pathology
and stroke (1996) 220:3 Neuroscience Letters 207; H Rouach et al, Changes in
some pro- and antioxidants in rat cerebellum after chronic alcohol intake (1997) 53:4
nutritional intervention supports the hypothesis that free radical processes

are a key player in ethanol-induced brain disturbances in fetal
development.201
Study Nutrient Model Results

Ieraci and Vitamin B3 Mice Prevents alcohol-induced
Herrera202 (nicotinamide) hyperactivity and memory
impairment; protects against
ethanol-induced apoptosis
Lee et al.203 Black Ginseng Mice Restored organogenesis to
normal or higher than
normal levels after alcohol
treatment caused decreased
morphological scores
(abnormalities of embryonic
structures)
Summers, Zinc Mice Limits spatial memory
Rofe, and impairments caused by
Coyle.204 ethanol exposure; timing of
zinc administration may be
critical to limiting these
impairments
Marino, Vitamin E Rats Protective effect on neuronal
Aksenov, and loss; did not prevent alcohol-
Biochem Pharmacol 539.

201
JJ Mitchell, M Paiva M & MB Heaton, Vitamin E and beta carotene protect against
ethanol combined with ischemia in an embryonic rat hippocampal culture model of
fetal alcohol syndrome (1999) 263:2-3 Neuroscience Letters 189 [Mitchell 1999a].
202
Alessandro Ieraci & Daniel G Herrera, Nicotinamide protects against ethanol-
induced apoptotic neurodegeneration in the developing mouse brain (2006) 3:4
PLoS Med 101.
203
Se-Ra Lee et al, Black ginseng inhibits ethanol-induced teratogenesis in cultured
mouse embryos through its effects on antioxidant activity (2009) 23:1 Toxicol In
Vitro 47.
204
Brooke L Summers, Allan M Rofe & Peter Coyle, Prenatal zinc treatment at the
time of acute ethanol exposure limits spatial memory impairments in mouse
offspring (2006) 59:1 Pediatr Res 66.
Kelly205 induced learning deficits
Endres et ADNF-12 MiceImproved developmental

al.206 milestones after alcohol
insult both in quality and
earlier achievement
Thomas, Choline Rats Reduced severity of alcohol-
Abou, and related effects on birth and
Dominguez207 brain weights, alterations in
reflex development, and
most behavioural measures
Marrs et al.208 Retinoic acid Zebrafish Rescued alcohol-induced
(vitamin A) developmental defects
(characteristic phenotypical
features of FASD)
Table 2: Examples of studies on animal models that have observed
positive effects of nutrient supplementation on alcohol exposure affecting
developmental outcomes.
A more complicated issue arises when considering vitamin A

supplementation. Although alcohol is thought to negatively affect retinoic
acid metabolism, and thus positively affect neurogenesis, over-
supplementation of vitamin A can act as a teratogen.209 Furthermore, the
205
Melissa D Marino, Michael Aksenov & Sandra Kelly S, Vitamin E protects against
alcohol-induced cell loss and oxidative stress in the neonatal rat hippocampus (2004)
22:5-6 Int J of Dev Neuroscience 363.
206
M Endres et al, Prevention of alcohol-induced developmental delays and learning
abnormalities in a model of fetal alcohol syndrome (2005) 193:3 American J
Obstetrics and Gynecology 1028.
207
Jennifer Thomas, Elizabeth J Abou & Hector Dominguez, Prenatal choline
supplementation mitigates the adverse effects of prenatal alcohol exposure on
development in rats (2009) 31:5 Neurotoxicol Teratol 303.
208
James Marrs et al, Zebrafish fetal alcohol syndrome model: effects of ethanol are
rescued by retinoic acid supplement (2010) 44:7-8 Alcohol 707.
209
Mark S Ballard, Muxin Sun & Jenny Ko, Vitamin A, folate, and choline as possible
preventive intervention to fetal alcohol syndrome. Medical hypotheses (2012) 78:4
Med Hypotheses 489.
liver damage caused by prolonged alcohol use also affects appropriate

levels of vitamin A, as the mobilization of vitamin A from the liver may
increase with excessive alcohol consumption; this mobilization can itself
cause birth defects.210
Appropriate levels of vitamin A are beneficial to pregnancies while
excesses result in fetal damage; more research is required to assess the most
appropriate vitamin dosage to prevent harming the mother or fetus.211 To
avoid the harmful effects of excess vitamin A on the fetus, there is some
evidence that -carotene protects against ethanol-induced neurological
damage seen in fetuses.212 As -carotene is a precursor to vitamin A, -
carotene supplementation could be used to supply pregnant women with
an appropriate amount of vitamin A without risking teratogenic effects.213
However, supplements would not be appropriate for the general
population and could have adverse side effects on pregnant mothers who
are smokers, as -carotene supplementation among smokers is associated
with a greater incidence of lung cancer and death.214
Micronutrient supplementation may be a promising harm reduction
intervention for pregnant women who continue to drink when fetal
toxicity is not a risk. In a Ukrainian study by Chambers, moderately to
heavily alcohol-exposed pregnant women were compared to those who
were low alcohol-exposed or unexposed pregnant women; women were
210
Mary E Cogswell, Pamela Weisberg & Catherin Spong, Cigarette Smoking, Alcohol
Use and Adverse Pregnancy Outcomes: Implications for Micronutrient
Supplementation (2003) 133:5 J Nutrition 1722 at 1727.
211
Alice Rumbold et al, CA, Vitamin supplementation for preventing miscarriage
(2011) Cochrane Database Syst Rev [Rumbold].
212
J Jean Mitchell, Michael Paiva & Marieta Barrow Heaton, The antioxidants vitamin
E and beta-carotene protect against ethanol-induced neurotoxicity in embryonic rat
hippocampal cultures (1999) 17:2 Alcohol 163 [Mitchell 1999b]; Mitchell 1999a,
supra note 201.
213
Institute of Medicine, Food and Nutrition Board, Dietary Reference Intakes for Vitamin
A, Vitamin K, Arsenic, Boron, Chromium, Copper, Iodine, Iron, manganese, Molybdenum,
Nickel, Silicon, Vanadium, and Zinc (Washington, DC: National Academy Press, 2001).
214
CA Redlich et al, Effect of supplementation with beta-carotene and vitamin A on
lung nutrient levels (1998) 7:3 American Association for Cancer Research &
American Society of Preventive Oncology 211; William A Pryor, Wilhelm Stahl, and
Cheryl L Rock, Beta Carotene: from Biochemistry to Clinical Trials (2000) 58:2
Nutrition Reviews 39.
randomly assigned to one of two micronutrient groups or a standard of

care group.215 After birth, physical dysmorphological features were
examined when the children were newborns, at 6 months, and at 12
months of age.216 It was found that the alcohols effect was attenuated by
multi-micronutrient supplementation: the mothers baseline nutritional
status on select micronutrients was found to be associated with certain
alcohol-related facial features.217
3. Barriers to Interventions
There are a number of barriers to the use of pharmacological and
nutritional interventions in humans. Studies on the effects of FASD are
done via cell cultures or animal studies, both of which have limitations.
Cell culture studies allow researchers to study effects on a molecular level
and manipulate experimental conditions, but extrapolating this data to
animal models may not account for other body mechanisms that occur
simultaneously.218 Another shortcoming of this methodology is that
oxygen-free radicals that are produced in ethanol-induced oxidative stress
may have a different destructive potential in cell cultures compared to in
vivo.219 Animal models such as mice are chosen to reflect human
pathophysiology, but may have different genetic features which change
how ethanol is involved in biochemical processes; as a result, extrapolation
to human models may not be possible.220 Additionally, because there are
many biological mechanisms by which prenatal alcohol exposure damages
developing cells, and exact biochemical processes are still unknown, the
extent to which preventing alcohol from operating in a particular pathway
provides FASD protection is not clear.
215
Christina Chambers, The potential benefit of a multi-micronutrient supplement in
pregnant women who consume alcohol (2012) 34:3 Neurotoxicology and Teratology
370.
216
Ibid.
217
Ibid.
218
Cohen-Kerem Raanan & Gideon Koren, Antioxidants and fetal protection against
ethanol teratogenicity: Review of the experimental data and implications to humans
(2003) Neurotoxicology Teratology 3.
219
Ibid.
220
Ibid.
With regard to nutritional and pharmacological interventions, it is

particularly difficult for service workers in all fields to assist people with
severe substance abuse issues. Delivery of a specific vitamin to individuals
who need it may be easier said than done. Women with substance abuse
issues access prenatal care later and nutritional intervention at this point
does little to prevent the prenatal alcohol exposure that occurs before a
mother attends prenatal care or she knows she is pregnant. To address
this, one possibility is the widespread delivery of vitamin and mineral
supplementation through fortification of common foods consumed by the
entire public, but this may endanger a significant proportion of the public.
This strategy would expose a large number of community members to
possible toxicity issues in order to prevent FASD in a small subset of
people.
However, mandatory food fortification is not unheard of and should
not be immediately ruled out: the addition of folic acid to grain products
such as white flour and pasta has been a practice in Canada since
November 1998.221 Another common example is milk fortified with
Vitamin D.222 These were both governmental responses to public health
needs and significantly lessened the deficiency-diseases of neural tube
defects and rickets respectively.223 Specific fortified foods may be used to
target and benefit specific communities living in poverty who cannot
access necessary vitamins and minerals. For example, in poor rural areas of
Bangladesh, the staple carbohydrate of rice is fortified to ensure that even
those living in the poorest socioeconomic conditions can receive essential
nutrients.224 As supplementation has been shown to be influenced by
economic status and educational background, with higher levels of
221
Canada, Health Canada, Prenatal Nutrition Guidelines for Health Professionals:
Folate Contributes to a Healthy Pregnancy, (Ottawa: HC, 2009) at 3.
222
Dieticians of Canada, Food Sources of Vitamin D, (23 November 2016), online:
<https://www.dietitians.ca/Your-Health/Nutrition-A-Z/Vitamins/Food-Sources-of-
Vitamin-D.aspx>.
223
Theodore H Tulchinsky, The Key Role of Government in Addressing the Pandemic
of Micronutrient Deficiency Conditions in Southeast Asia (2015) 7:4 Nutrients
2518.
224
World Food Programme, Fortified Rice Enhances Nutrition Benefits of Social Safety
Nets for the Poorest in Bangladesh (31 July 2013), online: <
https://www.wfp.org/news/news-release/fortified-rice-enhances-nutrition-benefits-
social-safety-nets-poorest-bangladesh>.
supplementation according to higher levels of educational and economic

backgrounds, food fortification may be a better avenue for delivering
nutrients to some lower socioeconomic communities.225
Though still an important aspect of prenatal care, making food or
beverage fortification the focus of a prevention strategy may invite
continued alcohol consumption and neglects wider health determinants,
allowing serious health problems to persist in return for FASD prevention
benefits which are scientifically unknown. Until there is much more
research on toxicity and positive effects, caution with individual nutrient
delivery is required. This is particularly true with regard to fat-soluble
vitamins such as vitamins A, D, E, and K which accumulate to the point of
becoming toxic when consumed in excess, though some water-soluble
vitamins are toxic in excess as well.226 By over-supplementing pregnant
women, there is potential for teratogenicity and the negative effects of
hypervitaminosis such as those seen with vitamins A (fatigue, hair loss,
skin changes, and abdominal discomfort) and B (nausea, vomiting, and
weakness).227
4. Improving Access to Nutritious Foods: Overall Nutrition

An emphasis should instead be placed on a healthy diet generally and
could be achieved through programs based in schools, at community
centers, or through family interventions. By focusing on improving overall
nutrition rather than increased dosages of a particular nutrient, the
prevention strategy can extend benefits beyond fetal protection to positive
change for families and communities. Associations between maternal
dietary intake and adverse birth outcomes as well as between
socioeconomic and environmental factors with birth outcomes are
considered interrelated.228 As alcoholic beverages have high caloric values
and minimal nutritional benefits, those who use alcohol as a main energy
225
Lorenzo Botto et al, International retrospective cohort study of neural tube defects in
relation to folic acid recommendations: are the recommendations working? (2005)
330:571 Brit Med J.
226
Leslie Alhadeff, C Thomas Gualtieri & Morris Lipton, Toxic Effects of Water-
Soluble Vitamins (1984) 42:2 Nutrition Reviews 33.
227
Rumbold, supra note 211.
228
Kathleen Abu-Saad & Dora Fraser, Maternal Nutrition and Birth Outcomes, (2010)
32 Epidemiologic Reviews 5 at 22.
source will experience primary malnutrition.229 Proper diets may help to

reduce this as well as the secondary malnutrition that occurs as a result of
alcohol-induced inhibition of nutrient absorption.230
The prevention strategy can aim to achieve better nutrition in
communities either by making healthy choices more accessible to the
community as a whole or to individual families. For example, the SHARE-
ACTION Program includes regular home visits by dietary counsellors.231
Another innovative approach to
The SHARE-ACTION combatting inaccessible nutritious food
Program options has been developed by
In the Six Nations Reserve,
Wholesome Wave: The Fruit and
Aboriginal Health Counsellors
Vegetable Prescription Program. At-risk
made regular home visits to
patients can be given a prescription by
assist families in setting dietary
doctors so that they can purchase fruits
and physical activity goals for
and vegetables from local farmers
each household member.
markets to stay healthy.232 Wholesome
Wave also developed the Double Value
Coupon Program which provides families with access to affordable healthy
and fresh produce.233 An additional approach is the Women, Infants, and
Children Farmers Market Nutrition Program.234 Established by the United
States Congress in 1992, this program provides fresh fruits and vegetables
to participants based on certain eligibility criteria. It also provides health
care referrals and nutrition education at no cost to low-income women
who are pregnant or postpartum as well as infants and children up to five
years old at nutritional risk.235 These creative solutions for at-risk
229
230
Ibid.
231
Del Grosso P et al, Assessing the Evidence of Effectiveness of Home Visiting Program Models
Implemented in Tribal Communities: Final Report (Washington, DC: US Department of
Health and Human Services, August 2011).
232
Wholesome Wave (2014-2017), online: <https://www.wholesomewave.org/our-
initiatives>.
233
Ibid.
234
United States Department of Agriculture, WIC Farmers Market Nutrition
Program, (USDA Food and Nutrition Service, February 2015), online:
<http://www.fns.usda.gov/fmnp/wic-farmers-market-nutrition-program-fmnp>.
235
Ibid.
communities who would otherwise be unable to access healthy food

options may be viable options for some Aboriginal communities and
should be considered.
B. Smoking Cessation
Research suggests that women who drink are more likely to smoke,
and women who smoke are more likely to drink: some studies have shown
that 70 to 90% of women who reported excessive drinking were also
smokers.236 More generally, in a representative study of women of
childbearing age (18-44 years of age) with accessible health care,
approximately 12.3% reported concurrent alcohol use and cigarette
smoking; this study did not account for capability of accessing said health
care nor patterns of drinking.237 Alcohols effects on a fetus are augmented
among women who smoke. Like alcohol, tobacco smoke contains
ingredients which directly reduce blood flow and oxygen content [], and
decrease both overall nutrient availability and levels of specific nutrients
whose absence may either retard growth [] or promote teratogenesis
through free radical formation.238 This increases the risk of miscarriage,
premature birth, stillbirth, and lower birth weight and size.239
Women who smoke cigarettes and use alcohol concurrently are often
more addicted, less able to resist cross- substance craving, and less
motivated to quit.240 There is also research suggesting that smoking status
could be used as an indicator for high-risk drinking and a clinical marker
for greater possibility of relapse of those in treatment for substance or
alcohol abuse.241 Combining intervention strategies, either sequentially or
simultaneously, may be most effective in addressing this concurrent use.242
A meta-analysis literature review indicates that smoking cessation
236
James Tsai et al, Concurrent Alcohol Use or Heavier Use of Alcohol and Cigarette
Smoking among Women of Childbearing Age with Accessible Health Care, (2010)
11:2 Prevention Science 197 at 198 [Tsai].
237
Ibid at 203.
238
239
Chansonneuve, supra note 111 at 92.
240
Tsai, supra note 236 at 198.
241
Ibid at 204.
242
Ibid at 198.
interventions provided during addiction treatments led to a 25% increase

in the likelihood of long-term abstention from alcohol or illicit drugs.243
Among those who use both tobacco and alcohol, there is considerable
interest and receptiveness to such dual-recovery programs.244
Long-term change of both tobacco and alcohol use is challenging and
may require sustained and multi-faceted [sic] efforts.245 The prevention
strategy should attempt to include smoking cessation programs at every
level, from primary public education campaigns to brief interventions to
dual-recovery programs in treatment centres. Attention should be paid to
advancements in nicotine dependence treatment, particularly where it may
directly impact alcohol use. For example, a recent study by King et al. on
naltrexone in treating nicotine dependence explored its ability to reduce
alcohol consumption.246 Naltrexone was found to significantly reduce
weekly heavy drinking rates and improve quitting outcomes for smoking
among heavy drinkers; this study involved immediately sequential
treatment of nicotine patches and behavioral counseling.247 As previously
mentioned, pharmacological intervention such as this may be better suited
to at-risk women who are not yet pregnant as it may cause fetal
abnormalities.
A significant reduction in tobacco use measured by the amount of
cigarettes smoked and smoking patterns over a given period of time by at-
risk women should be the goal of this portion of the prevention strategy.
Community, family, and partner use of tobacco may be concurrently
targeted and measured in order to reduce tobacco use. This may
encourage at-risk women to decrease the amount they smoke, stop
smoking altogether through peer support, and increase overall awareness
of the negative impacts of cigarette smoking. A global study of Indigenous
communities in Australia, New Zealand, Canada, and the USA identified
243
JJ Prochaska, K Delucchi & SM Hall, A meta-analysis of smoking cessation
interventions with individuals in substance abuse treatment or recovery, (2004) 72:6
J Consulting & Clinical Psychology 1144.
244
Tsai, supra note 236 at 198.
245
Ibid at 204.
246
Andrea King et al, Naltrexone decreases heavy drinking rates in smoking cessation
treatment: An exploratory study (2009) 33:6 Alcoholism: Clinical and Experimental
Research 1044.
247
Ibid.
features associated with successful smoking cessation interventions:

successful interventions were integrated, flexible, community-based
approaches that addressed known barriers and facilitators.248 Most of the
interventions examined were multi-component and none assessed efficacy
of solely pharmacotherapy: counseling and medication for smoking
cessation used in tandem was more effective than either alone.249 Also,
enhancing cultural appropriateness of interventions was recommended as
a strategy: this included engaging in community consultation to meet the
needs of the population, conducting interventions in community-based
and culturally-safe settings, and ensuring community ownership of
programs.250
VII. SERVICE-BASED INTERVENTIONS
A. Health Professionals
Every health and service professional working in the community
should be knowledgeable about FASD and capable of directing women or
partners in need to the appropriate service partner if a woman presents
with issues outside of their area of expertise. The Society of Obstetricians
and Gynaecologists of Canada recommends that health professionals
periodically screen all women who are pregnant or of child-bearing age for
alcohol consumption; ideally this could occur prior to pregnancy to allow
women time to seek treatment.251 The prevention strategy should adopt
and expand this screening process to include an informative referral
system. By incorporating direction to appropriate services in the screening
process, more women will be informed as to where they can receive the
treatment they need and have an opportunity to ask questions about their
options. It is equally important that every service worker who interacts
with women who may have substance issues be non-judgmental and open
248
Michelle DiGiacomo et al, Smoking cessation in Indigenous populations of
Australia, New Zealand, Canada, and the United States: Elements of effective
interventions (2011) 8:2 Int J of Environmental Research of Public Health 388.
249
Ibid.
250
Ibid.
251
George Carson et al, Alcohol use and pregnancy consensus clinical guidelines
(2010) 32:8 J of Obstetrics and Gynaecology of Can S1 online: <https://sogc.org/wp-
content/uploads/2013/01/gui245CPG1008E.pdf> [Clinical Guidelines].
to assisting them. This will encourage women to follow through with other
treatment options with the program.
Women may have diverse points of entry into the prevention strategy
and will experience different barriers to accessing treatment and care at
various levels; these barriers can be classified as individual, community,
program, and systemic.252 As these barriers are intertwined, service workers
must remember to take each woman as an individual with a unique
perspective and history in order to provide the best possible care. One of
the more preventable challenges facing women seeking treatment is the
differing expectations and philosophies of agencies as well as the extensive
participation requirements of various services.253 Programs run by the
prevention strategy should aim to be as simple as possible to encourage
active participation in its services. It can do this by coordinating its services
to minimize conflicts and create easy-to-follow schedules, uniform intake
procedures, and identical regulations. As a result, participants are more
likely to be able to understand and follow the program. As many women
who seek treatment may already be mothers, service programs that require
physical presence should aim to offer simultaneous child-minding or be
delivered to the home.
Prevention strategies require health service workers to use plain
language, to be culturally sensitive, and culturally competent; health
service workers should be proactive in identifying issues that threaten
health and practice a full range of health promotion activities.254 Better
communication between health service workers and at-risk individuals is
key to creating an effective preventative program in that it will establish
trusting relationships between individuals and service workers. This will
also alleviate the stigma facing pregnant women who are substance
252
Karen Gelb & Deborah Rutman, A literature review on promising approaches in substance
use treatment and care for women with FASD (Victoria: Research Initiatives for Social
Change Unit, University of Victoria, 2011) at 20, online:
<https://www.uvic.ca/hsd/socialwork/assets/docs/research/Substance%20Using%2
0Women%20with%20FASD-LitReview-web.pdf>.
253
Ibid.
254
Dianne Kinnon, Improving Population Health, Health Promotion, Disease Prevention and
Health Protection Services and Programs for Aboriginal People (NAHO, 2002) at 31, online:
<http://www.naho.ca/documents/naho/english/pdf/research_pop_health.pdf>
[Kinnon].
abusers. Where stigma attached to pregnant use of substances increases,

high-risk women might simply move to communities where the stigma is
not as strong, and environmental risk factors and access to services are
worse. Stigma also prevents women from being honest with service
workers about their substance use.
There is also an issue with regard to mitigating the effects of those
already diagnosed in Aboriginal communities. Health professionals must
be able to more accurately assess and diagnose the wide range and severity
of symptoms included under FASD so that prevalence statistics of FASD
in Aboriginal communities are accurate and affected individuals are
referred to appropriate medical care and resources. In a study by Clarke et
al., medical practitioners in Canada were surveyed to assess their
understanding and attitudes towards the diagnosis of FASD: only 60% of
the random sample of health care respondents in that study was able to
recognize combination of growth, brain, and facial abnormalities that lead
to the most accurate assessment of FAS.255 This was despite the fact that
75% of the study participants believed that such a diagnosis was within the
scope of their practice.256
Another barrier to health services for Aboriginal communities is access
to resources. There is a shortage of health professionals in Aboriginal
communities and a need for more Aboriginal health care providers,
promotion/prevention workers, and trained health program
administrators.257 There is also an issue of access to programs:
transportation to health services and child-minding are both major cost
barriers to participating in prevention and support programs for many
Aboriginal communities.258 Simple low-cost solutions may be providing
bus tickets or day care services. Barriers to available treatment also include
an inability to provide services for pregnant women, inadequate child care,
and lack of comprehensive treatment and the ability to offer counselling in
a number of areas. Many treatment centres do not have the ability to offer
follow-up care, leading to relapse in substance abuse. Some women do not
255
Margaret Clarke et al, Approaches of Canadian providers to the diagnosis of fetal
alcohol spectrum disorders (2005) 3:2 J Fetal Alcohol Syndrome Int 1.
256
Ibid.
257
Kinnon, supra note 254 at 29.
258
Ibid at 33.
wish to enter residential programs out of fear of losing existing children,

housing, or employment.259
Yet another barrier to accessing health services involves inappropriate
locations of services, such as health services located in the same building as
child social assistance services, discouraging attendance out of fear of child
apprehension.260 Health services that operate more like places rather
than programs may be more successful: women would not be required to
attend, but can drop into the place to use its services.261 An example of
this is Winnipegs Street Connections, which provides access to various
service providers, builds positive support networks, and creates a sense of
belonging in a non-judgmental environment.262 Women-only centres
should not be overlooked: some women may not access community-based
services because they are afraid of encountering men and do not consider
them safe for themselves or their children.263 Women who wish to enter
into drug and alcohol treatment programs often have difficulty finding a
program that suits their needs. Programs may be male-only or intended
primarily for men without special knowledge or experience with womens
particular issues or needs.
An ideal component to the prevention strategy would be to train and
educate community leaders or members on health services so programs
not requiring the presence of a trained health professional could be
delivered on site. By separating these programs from those that require a
health professional such as a nurse or physician, the limited number of
professionals available could be more efficiently allocated. This would also
help to ensure that community members are actively involved in
programming, encourage ongoing participation, and safeguard the
continuation of the project.
A centre created by or partnering with this project should take the
appropriate steps to address and remove these barriers. Such a centre
259
Poole, supra note 85.
260
Aboriginal women are less likely to seek treatment for substance abuse for fear their
children will be apprehended and placed in adoptive homes or formal arrangements
of some kind. See Chansonneuve, supra note 111 at 65.
261
Tait 2003a, supra note 48 at 177.
262
Ibid.
263
Ibid at 178.
would have transportation and child care solutions for women using its
services as well as follow-up care for former patients/members. The centre
would ideally be centrally located with respect to the targeted community
and have the ability to offer counselling and care in a number of different
areas, including but not limited to other substance use, psychological care
for mental health issues, and parenting and other life skills. The centre
should combine one stop and drop in capabilities, making it feel safe
for women who worry about stigma or losing their children to visit for
whatever needs may require addressing. If the centre is incapable of
assisting in a particular area, staff should be informative and clear about
available resources.
B. Screening for Alcohol Use

Screening community members for drinking issues is an important
first step in determining which members of the community need
assistance in preventing FASD. In some cases, positive results occurred
following screening alone.264 There are three levels of screening women of
childbearing age and pregnant women for alcohol use and dependence:
- Level I: involves practice-based approach such as motivational
interviewing and supportive dialogue
- Level II: includes structured questionnaires that can involve direct
questions (TFLB) or indirect screening (AUDIT,
BMAST/SMAST, CAGE, CRAFFT, T-ACE, and TWEAK)
- Level III: uses laboratory-based tools to confirm the presence of
drug(s) and exposure levels265
Screening methods can range from very simple, such as the T-ACE
system, or offer variable complexity, such as the BMAST/SMAST
method.266 One of the more successful approaches to screening pregnant
women is motivational interviewing which has also been successful in
reducing heavy drinking among women of childbearing age.267 Staged
screening does not have to be complex and is an essential tool for
264
Grace Chang et al, A brief intervention for alcohol use in pregnancy: A randomized
trial, (1999) 94:10 Addiction 1499.
265
Clinical Guidelines, supra note 251 at S13.
266
Ibid at S16.
267
Deshpande, infra note 337 at 54.
determining which level of services and intensity of intervention will best

assist the patient in achieving reduction of unhealthy substance use. In
addition to assisting healthcare professionals with integrating alcohol
interventions into their practice,
The T-ACE System screening comes across as less
1. How many drinks does it take to judgmental and more likely to
make you feel high? Tolerance obtain accurate results if it is seen as
2. Have people annoyed you by routine questioning. Advised
criticizing your drinking? Annoyed interview techniques involve an
3. Have you felt you should cut down introductory statement, asking
on your drinking? Cut Down questions in past tense, and open-
4. Have you ever had a drink first thing ended questions to encourage
in the morning to steady your nerves or dialogue.268
get rid of a hangover? Eye Opener Screening is less likely to be
successful if it comes across as an
The first question scores 2 if the answer interrogation. It is important that
is over 2. Questions 2-4 are worth 1 screening questions come from non-
each. A score of 2 or more is positive
judgmental professionals who do
not react negatively to the patients
for risk drinking.
responses. It is advised not to ask
questions that seem accusatory or
too direct, nor should guilt-inducing statements be used as an incentive to
stop alcohol use.269 Health professionals should keep in mind that it may
not be the nature of the questions, but the manner in which they are
asked that can be perceived as threatening or confrontational.270 In
addition to presenting the screening as routine, the questions in the
screening test can be interwoven with other questions. The focus of
screening is not on forcing women to admit to drinking while pregnant,
but in assessing the patients health as a whole and finding out if a woman
needs assistance in any area. This may include substance abuse, but could
also focus on factors provoking the substance abuse and its severity.
268
Clinical Guidelines, supra note 251 at S14.
269
Ibid at S15.
270
Margaret Leslie & Gary Roberts, Enhancing fetal alcohol syndrome (FAS)-related
interventions at the prenatal and early childhood stages in Canada (Ottawa: Canadian
Centre on Substance Abuse, 2001) at 38.
C. Brief Interventions: Reducing Alcohol-Affected

Pregnancies
Brief interventions can take a variety of forms, ranging from truly brief
to a number of discussions with the patient over an extended period of
time. They may be particularly effective in motivating pregnant women to
decrease or stop substance use and should aim to focus on coping
mechanisms that are culturally appropriate and specific to local
circumstances.271 One review of the literature identified common elements
to the success of brief interventions:
Feedback: clients provided with personal and

individualized feedback
Responsibility: an emphasis placed on personal
responsibility for change and freedom of choice
Advice: supportive and clear recommendations on the
need for change
Menu: different options for clients to choose from in
order to choose change in a way that is sensible to them
Empathy: practitioner style is empathetic, warm, and
reflective
Self-efficacy: self-efficacy is reinforced272
In a study by Chang et al., the brief intervention consisted of a 45

minute session with a physician, discussing drinking goals while pregnant,
identifying risk situations, alternatives to drinking, and the
recommendation of abstinence during pregnancy.273 This brief
intervention was not more effective than screening alone: the women
reduced their alcohol consumption only as much as the control group.
However, it is well-established that brief interventions can be effective in
reducing risky drinking in clinical trials, though few address both drinking
and effective contraception through one intervention.274 Project CHOICES,
271
Tait 2003a, supra note 48 at 179.
272
Ibid.
273
Grace Chang et al, A brief intervention for prenatal alcohol use: An in-depth look
(2000) 18:4 J of Substance Abuse and Treatment 365.
274
Louise R Floyd et al, Preventing alcohol exposed pregnancies: A Randomized
a collaborative study run by several American universities, does address

both and found that a brief motivational intervention considerably
decreased the risk of alcohol-exposed pregnancies in high-risk women
through targeting a change in risky drinking and ineffective contraception
use.275 Healthy Child Manitoba launched a branch of Project CHOICES in
which women who are sexually active and drinking alcohol regularly are
offered up to four short individual sessions with a counsellor to talk about
their drinking behaviours and the use of contraception.276
An example of a more intensive brief intervention can be seen in the
Protecting the Next Pregnancy Project which was based on a cognitive
behavioural approach over a five-year period and targeted women who
drank heavily during an index pregnancy to view the effects on both the
index and subsequent infant.277 Those in the experimental group had
lower rates of risk for drinking than the control group and improved
subsequent birth outcomes.278 Another intensive intervention is Albertas
First Steps, which involves an advocacy/case management model to offer
personalized support over a three year period and actively implicates case
managers in the lives of women and their families.279 Clients showed
significant reductions in their overall needs, increases in the regular use of
a family planning method, and had only three births heavily exposed to
alcohol.280
Controlled Trial (2007) 32:1 Am J of Preventative Medicine 1 at 7.

275
Ibid.
276
Project Choices (accessed 2016), online:
<https://www.gov.mb.ca/healthychild/fasd/choices.html>.
277
Janet R Hankin, "Protecting the Next Pregnancy: Maternal Drinking and Infant
Developmental Outcomes" (Paper presented at the annual meeting of the American
Sociological Association, Atlanta Hilton Hotel, Atlanta, GA, 16 August 2003) at 5-7.
278
Ibid at 9.
279
Carmen Rasmussen et al, The effectiveness of a community-based intervention
program for women at-risk for giving birth to a child with fetal alcohol spectrum
disorder (FASD) (2012) 48:1 Community Mental Health J 12.
280
Ibid at 16, 18, 19. If each First Steps client who was a binge drinker during the index
pregnancy had had a subsequent birth heavily exposed to alcohol, we would have
expected approximately 1.66.9 births of children with FAS. Instead, only three births
were heavily exposed to alcohol, giving an expected FAS incidence of 0.140.63.
One literature review suggests that a reason for the success of brief
interventions is that they increase a patients readiness for change.281 The
motivational interviewing (MI) process focuses on patients indecisiveness
about changing drinking behaviour while maintaining an optimistic
attitude about change and avoiding arguments or evoking patient
defensiveness.282 A study done by Project Match indicates that motivational
enhancement therapy yields beneficial and relatively lasting effects, and
has been as effective in reducing drinking and related problems as more
extensive alcohol treatments.283 The specific format for MI may vary in
number and approach. For example, maximally effective interventions
involving Aboriginal women in urban settings may require accounting for
the womens specific cultural needs and characteristics in order to bridge
the cultural gap between primary care physicians and Aboriginal
patients.284 This would involve making the intervention culturally
appropriate, accessible, and non-threatening.285
An intervention program adapted from Dr. Gary Bloch at the
University of Toronto has recently begun to be implemented in Manitoba,
and focuses on the number of health risks associated with poverty. This
intervention encourages primary health physicians to screen every patient
by asking the simple question: Do you ever have difficulty making ends
meet at the end of the month?286 Patients that are living in poverty are
then directed to resources which help them learn about and access
financial benefits; examples include filing tax returns, Child Tax Benefit
281
Nancy Sheehy Handmaker & Paula Wilbourne, Motivational Interventions in
Prenatal Clinics, (2001) 25:3 Alcohol Research and Health 219 at 220.
282
WR Miller & S Rollnick, Motivational Interviewing: Preparing People to Change Addictive
Behavior (New York: Guilford Press, 1991).
283
Project MATCH Research Staff, Matching alcoholism treatments to client
heterogeneity: Project MATCH post-treatment drinking outcomes (1997) 58:1 J
Studies on Alcohol 7.
284
Paul Masotti et al, Urban FASD interventions: Bridging the cultural gap between
Aboriginal women and primary care physicians (2003) 1:17 J Fetal Alcohol
Syndrome Int at 4-5.
285
Ibid at 5.
286
The Manitoba College of Family Physicians, Poverty: A clinical tool for primary-care
in Manitoba (Manitoba: MCFP), online:
<http://www.gov.mb.ca/health/primarycare/providers/docs/clinicaltool.pdf>.
or Universal Child Care Benefit, and the Manitoba Prenatal Benefit. 287
They are also directed to resources and services such as counselling, free
tax preparation programs, and advocacy-oriented organizations.288 This
tool is beautifully simple and could be used to help Aboriginal community
members in accessing resources to aid alcohol abuse, FASD prevention,
and overall health.
Metrics used to determine the success of screening and brief
interventions may be procedural (the implementation of screening and
brief interventions) or substantive (the results among women who receive
interventions). The Project aims to screen the majority of women who are
of childbearing age so that each woman who scores sufficiently high on the
chosen test can receive follow-up care in the form of a brief intervention
program. This would be the desired minimum for follow-up care for these
women. Ideally, more follow-up would be available to suit the variety of
needs of these women. The form that this intervention takes may be
tailored to the community and its needs. The goal of these interventions is
to see a significant reduction in the amount of alcohol consumed,
incidences of binge drinking, and negative birth outcomes. As such, part
of the project will be to follow-up with those who have received
interventions to determine their efficacy.
D. Midwifery
Programs for Aboriginal midwifery are part of a safe and culturally
appropriate birth plan; midwifery is experiencing renewal in some
Aboriginal communities and may be an appropriate prevention strategy.289
An increase in midwifery may also result in fewer pregnant Aboriginal
women having to live outside their communities while waiting to give
birth. Where pre- and post-natal care is unavailable, the present practice is
to transport First Nations women at 36-37 weeks of pregnancy to a tertiary
care provincial hospital; this gives First Nations women little choice in
their childbirth experience.290 Midwifery offers Aboriginal women who
287
Ibid.
288
Ibid.
289
Tait 2003a, supra note 48 at 182-183.
290
First Nations Centre, Birthing through First Nations Midwifery Care (National Aboriginal
Health Organization, 2009) at 4.
may not normally be able to give birth in their community this option.
More access to local health workers who are trained in childbirth and
prenatal care such as midwives may also lessen the high infant mortality
rate seen in First Nations populations. For example, in 2000, the infant
mortality rate in First Nations populations was 6.2 per 1000 live births,
which is consistent with the rate among the lowest income groups in
urban Canada.291 In several provinces, Aboriginal midwifery provides for a
blend of traditional and contemporary practices to address specific
practices and needs for First Nations women.292 Knowledge and skills
pertaining specifically to FASD and substance abuse could be added to
Aboriginal midwifery programs and act as complements to a curriculum
that already has shown the ability to improve birth outcomes.
There are presently six university-based midwifery education programs
available in Canada.293 There was a program in Manitoba until 2016, but
it was cancelled due to high program costs and low graduate numbers.294
An agreement was made between the Government of Manitoba and
McMaster University, so that Manitoba students could take the rest of
their program in Manitoba through McMaster, while completing their
clinical rotations in Manitoba.295 Depending on the timeline of the
prevention strategy, this may not be a viable intervention option for
Aboriginal communities in Winnipeg. However, if possible, a community
undertaking the prevention strategy should attempt to partner with the
University College of the North and encourage community members
interested in traditional midwifery to establish an Indigenous midwifery
291
Ibid at 6.
292
Ibid at 8-9.
293
Canadian Association of Midwives, Midwifery Education, online:
<https://canadianmidwives.org/education/>.
294
Nick Martin, Only 13 Left in Midwifery Program, Winnipeg Free Press (3 January
2017), online: <http://www.winnipegfreepress.com/local/only-13-left-in-midwifery-
program-409445315.html>.
295
Nick Martin, Education Minister Looks at Expanding Midwife Programs, Winnipeg
Free Press (1 May 2017), online: <http://www.winnipegfreepress.com/local/education-
minister-looks-at-expanding-midwife-programs-420939643.html>; CBC News,
University of Manitoba Reaches Agreement on Midwifery Program with McMaster,
CBC News (5 August 2016), online:
<http://www.cbc.ca/news/canada/manitoba/manitoba-midwifery-mcmaster-
1.3709466>.
program. Involving more Aboriginal community members in this program

would benefit all parties.
E. Unplanned Pregnancy
When pregnancy is unplanned, as is often the case with teenage
pregnancies, a mother may not take steps to curb substance use as she does
not know that she is pregnant. Women whose pregnancies are unplanned
will not be in contact with health professionals to the same extent as
women planning on having children. Manitoba is above the national
average when it comes to rates of teenage pregnancies (for women aged 15
to 19), and teenage pregnancy rates increased by nearly 15% in the
province in 2013.296 Teenage pregnancies are more common among
disadvantaged teens and result in children who are more likely to
experience childhood morbidities.297 As of 2000, rates of teenage
pregnancy were four times higher among First Nations adolescents, twelve
times higher in Inuit communities, and eighteen times higher on reserves
in comparison to the general Canadian population.298 This is likely the
result of a combination of factors, including lower socioeconomic
conditions, lack of access to contraceptives, and substance use. Aboriginal
youth who frequently use alcohol and other drugs are more likely to
engage in risky sexual behaviour that leads to unplanned pregnancy.299
296
See Statistics Canada, Teen pregnancy, by outcome of pregnancy and age group,
count and rate per 1,000 women, Canada, provinces and territories, 2003 to 2004
(Ottawa: Statistics Canada), online: <http://www.statcan.gc.ca/pub/82-221-
x/2008001/tmaps-tcartes/dt-td/5202346-eng.htm>. See also Zosia Bielski, Why teen
pregnancy is on the rise again in Canada (and spiking in these provinces), Globe and
Mail (29 January 2013), online: <http://www.theglobeandmail.com/life/health-and-
fitness/health/why-teen-pregnancy-is-on-the-rise-again-in-canada-and-spiking-in-these-
provinces/article7927983/>.
297
Ontario, Ministry of Health and Long Term Care, Initial Report on Public Health
(Ottawa: MOHLTC, 2012), online:
<http://www.health.gov.on.ca/en/public/publications/pubhealth/init_report/tp.ht
ml>.
298
Emilia Ordolis, A story of their own: Adolescent pregnancy and child social welfare
in Aboriginal communities (2007) 3:4 First Peoples Child & Family Rev 30.
299
S London, Canadian Aboriginal Youth: Social, Interpersonal Factors are Key to
Sexual behaviour, (2009) 41:3 Perspectives on Sexual and Reproductive Health.
Reducing unplanned pregnancy is thus an important cornerstone of

prevention strategies.
In a 2003 survey of BC Aboriginal youth, average age 15, 34% of
young men and 35% of young women had engaged in sexual intercourse;
21% and 41%, respectively, had not used a condom during their most
recent sexual intercourse.300 Both genders likelihoods of being sexually
experienced increased with age, history of living on a reserve, and high
lifetime level of substance abuse.301 The study notes that predictors of
risky sexual behaviour [substance use and sexual abuse] are more prevalent
among Indigenous youth than among other youth and thus it is
imperative that these concerns are included in prevention planning for
Aboriginal youth, especially those on reserves.302
Factors such as feeling connected to school, having learned about the
culture from the community, volunteering, and family connections
resulted in lesser odds of risky sexual behaviour.303 Of the surveyed
adolescents, 75% of women and 55% of men reported that if they were
involved in a pregnancy, their peers would be angry.304 In general,
although unmarried youth say it is important to them to avoid unplanned
pregnancy, this priority does not necessarily translate into action. Many
who do not wish to be pregnant fail to use birth control properly and
consistently or may not use it at all. A focus group of Inuit youth gave a
variety of reasons for not using birth control when engaging in sexual
activity such as not having access to contraception, shyness in acquiring or
asking a partner to use contraception, fear of side effects, and beliefs that
the body is naturally supposed to carry a child if healthy (and should only
rely on contraceptives if the woman is unhealthy).305 Some women may
actively try to become pregnant or are indifferent to becoming pregnant
despite knowing the risks involved with a pregnancy affected by substance
300
Ibid.
301
Ibid.
302
Ibid
303
Ibid.
304
Ibid.
305
Linda Archibald, Teenage pregnancy in Inuit communities: Issues and perspectives
(Ottawa: Pauktuutit Inuit Womens Association, 2004) at 15-16.
abuse. As advanced age can be a provocative factor for FAS,306 attempts to

become pregnant while younger should not necessarily be discouraged.
Some women may desire to have a baby to meet a psychological need of
being desired and loved. Others may have been victims of sexual assault
and decide to continue the pregnancy. Ultimately, a womans desire to
have a child or continue an unplanned pregnancy should not be dissuaded
as it is a personal choice. Instead, interventions should aim to fully inform
her of the risks of alcohol use during pregnancy and unprotected sex, as
well as the benefits of having a stable support system and lifestyle in raising
a child.
A possible innovative approach to preventing FASD is supplying
Aboriginal women with a more available form of birth control paired with
information about contraceptives. This approach was recently undertaken
through the Contraceptive CHOICE Project in St. Louis through the
Washington University of Medicine.307 The project educated participants
about reversible contraception and provided them with their choice of
reversible contraception at no cost with the goal of reducing unintended
pregnancies.308 By the projects conclusion, pregnancy, birth, and abortion
rates were found to be significantly lower than national rates for sexually
active teenagers.309 An emphasis was placed on long-acting, reversible
contraceptive (LARC) methods and 72% of the teens involved chose the
use of this device in comparison to the 5% in the United States in 2009.310
These methods would not require young women to remember to book an
appointment with a doctor to receive an injection nor remember to
properly take oral contraceptive pills. This type of intervention may be an
effective way to decrease incidents of unplanned pregnancies as well as
FASD, but may be criticized in that it does not protect women from
sexually transmitted diseases nor address the main issue of alcohol abuse
and its negative consequences. Regardless of whether the prevention
strategy adopts this specific approach, it is still important to improve access
306
307
Gina Secura et al, Provision of no-cost, long-acting contraception and teenage
pregnancy (2014) 371 N Engl J Med 1316.
308
Ibid.
309
Ibid.
310
Ibid at 1320.
to contraceptives and educate women about contraceptive options and

usage. Even if contraceptives are accessible, improper usage will not
significantly reduce unplanned pregnancy rates.
In devising a solution to unplanned pregnancy, it may be helpful to
examine the large decrease in unplanned teen pregnancies in the United
States. This decrease began in the 1990s and has reached historic lows,
with lessened rates across all 50 states and among all racial and ethnic
groups.311 It is believed that the decline is primarily attributed to
improvements in teens contraceptive use, but there are other factors at
play suspected of influencing teens behaviours.312 Better sex education
programs have helped to increase public awareness about unplanned
pregnancy and the transmission of sexual diseases.313 Changing social
attitudes and family norms, such as American women getting married and
having children later in life, may also have influenced the trend.314
In an American review of media directed towards adolescents and
involving sexual activity, there were overall themes of males portrayed as
obsessed with sex and sexual performance while girls were responsible
for sexual safety and pregnancy prevention.315 Few fathers were shown as
involved in raising their children.316 Though the aforementioned methods
primarily focus on the womans role in preventing unplanned pregnancies,
it is important to include men in the equation. Using contraceptives
should not be perceived as the womans sole responsibility, as men have an
equal opportunity to encourage their partners use of birth control and
STD protection, as well as provide male contraception. Both partners
should be held accountable for making the decision to be sexually active
and educated appropriately, be it through school programs, parents, or
their own devices. As the internet increases adolescents exposure to media
sources, health information may be more accessible and provide an outlet
311
Heather D Boonstra, What is behind the declines in teen pregnancy rates? (2014)
17:3 Guttmacher Policy Rev.
312
Ibid.
313
Ibid.
314
Ibid.
315
Stacey Hust, Jane Brown & Kelly LEngle, Boys will be boys and girls better be
prepared: An analysis of the rare sexual health messages in young adolescents media
(2008) 11:3 Mass Communication and Society 3 at 14 and 16.
316
Ibid at 319.
for adolescents to ask sensitive or personal questions.317 The medical

community has emphasized that it should be easier for adolescents to
access hormonal methods of birth control and increase the use of IUDs in
young patients;318 this is exemplified in the aforementioned Project
CHOICES study.
F. Preventing Pregnancy to Reduce FASD Incidence

While the foregoing paragraph describes how access and education on
contraceptive methods has been shown to reduce unplanned pregnancy
for women in high-risk situations, the possibility must be considered that
some women will choose - or at least not plan against - having children
despite circumstances of higher risk. It is reasonable to conclude that a
woman who has children without the means to support herself, or who is
without a partner to assist with the demands of childrearing, is more likely
to be poor and stressed.319 Despite the effects resulting from less-than-
optimal circumstances, women in these high-risk conditions may
perhaps rationally, though this may not be apparent or may be to the
surprise of an outsider consider becoming pregnant as having
compelling benefits compared to waiting. A potential mother might decide
that having a child now would confer the dignity and self-esteem of
motherhood when she is not otherwise feeling respected, particularly if she
perceives that she has few or no opportunities to develop skills and a
career even if she delays pregnancy. Perceived benefits might include
bringing forward a person to love, and to love her, when she is otherwise
feeling isolated and abused; that her circumstances will attract the
attention of health care professionals, social workers, or others in helping
professions that she has thus far felt unable to access; that she might
finally have the help of government programs in supporting the
317
Ibid.
318
J Hulme et al, Barriers and Facilitators to Family Planning Access in Canada (2015)
10:3 Health & Policy.
319
Sarah Damaske, Jenifer L Bratter & Adrianne Frech, Single mother families
and employment, race, and poverty in changing economic times (2017) 62 Soc Sci
Res 120. The authors did not identify Aboriginal women as a specific subgroup in
their research, but did find that in addition to a rise in poverty among single mothers
between 2001 and 2010, maternal race attenuates the effects of poverty. It is possible
that the increased detrimental effects of poverty experienced by most minority women
found in this study could also apply to Aboriginal women.
household; and that she will be better-off (or at least not worse-off)
materially than she would be had she delayed becoming pregnant.
We would therefore suggest that a major focus of a prevention strategy
should be on ensuring that women have (and are aware that they have)
credible alternatives to having children in higher-risk conditions. A
prevention strategy in this respect in an Aboriginal community, for
example, could focus on promoting the quality and accessibility of
education and training for young people; enhancing educational and
career opportunities for members of the community both in its locale and
in other Aboriginal communities, including urban reserves and
mainstream areas; promoting awareness of career training and job
opportunities both within the community and outside of it; and
promoting visits to the community from role models who are members of
that community or of comparable ones, but who have found educational
and career opportunities in other locations, be they within Aboriginal
culture or the economic mainstream.320
In the spectrum of measures from the microscopic to the macroscopic,
and on the spectrum from individual choices to community development,
it may be that this middle ground will end up being among the most
320
Most studies in preventing pregnancy are focused on teens and adolescents. In a
study on the likelihood of teenage mothers to have a closely-spaced second birth after
the birth of their first child, Kalmuss and Namerow found that "involvement in any
schooling, and perhaps the orientation toward the future that this implies, serves as a
deterrent to a closely spaced second birth." Only teenagers who had previously given
birth were studied, but it is possible that making women aware of options and
opportunities in terms of education and employment could encourage women at high
risk of becoming pregnant and giving birth to children with FASD to delay
pregnancies until their risk levels are reduced. See Debra S Kalmuss & Pearila
Brickner Namerow, "Subsequent childbearing among teenage mothers: the
determinants of a closely spaced second birth" (1994) 26:4 Family Planning
Perspectives, online: EBSCOhost
<http://uml.idm.oclc.org/login?url=http://search.ebscohost.com/login.aspx?direct=tr
ue&db=c8h&AN=107385775&site=ehost-live>. In terms of factors that can
encourage women to delay childbearing, see Allan F Ambrose, Peter A Morrison &
Linda J Waite, "Teenagers Willing to Risk Singe Parenthood: Who Is at Greatest
Risk?" (1988) 20:1 Family Planning Perspectives 13 at 13, who find that when [first-
time teenaged mothers'] educational expectations were used as proxy measures of the
potential opportunity costs of single parenthood, the results revealed that the higher
their educational expectations, the lower their willingness to have an out-of-wedlock
birth.
effective and economic options. Assisting and supporting women who are
already pregnant is a worthy policy, but supportive interventions post-
conception may be too late to prevent harm to many children.
Furthermore, waiting until communities comprehensively improve their
social and economic conditions may take decades, especially for
communities with small populations located in remote locales with few
resources. A focus on encouraging women to choose to delay having
children where circumstances are favourable should absolutely involve
measures to improve overall growth in the community, economy, and
society, but it should also involve programs in the here and now that
attempt to maximize access to opportunities that already exist. Such
current programs can be fairly easily empirically defined and scored. For
example, a program might focus on measures such as school participation
rates, or graduation and employment rates for young people, allowing for
the impact of the program to be assessed relatively quickly (within a few
years, rather than a few decades, of initiation). Such interventions could
be run alongside longer-term community development endeavours, ideally
resulting in immediate effects in FASD reduction and compounding
effects after the successful implementation of long-term community
improvement programs.
G. Case Management
Many studies have used case management for women who are at high
risk for substance abuse during pregnancy, which may also be an effective
approach towards FASD prevention.321 These management approaches
often combine drinking secession and birth control dual protection
with assisting women with other determinants of health: it focuses on
abstinence from alcohol when pregnant, abstinence or reduction of
drinking when not pregnant, and/or birth control when not pregnant.322
To be most effective, case management should do the following: establish
trusting relationships, involve strong communication networks and
coordinated services, use written contracts, teach basic life skills, establish
close communications with clients significant others, provide
321
Philip May et al, Enhanced case management to prevent fetal alcohol spectrum
disorders in Northern Plains communities (2008) 12 Matern Child Health J 747 at
748.
322
Ibid at 749.
transportation to important appointments, support prevention advocates,

and be supervised through a strong administration.323 Some case
management may be more intensive and go beyond its basic services. For
example, in a study by Douglas-Siegel and Ryan, the effect of recovery
coaches for mothers with substance abuse problems on youth with juvenile
delinquency problems was examined. It was hypothesized that mothers
with substance abuse problems were impacting their childrens
delinquent behaviour and suggested that by assisting the mothers, the
risk of youth delinquency was reduced.324 This may be a useful avenue to
explore with the prevention strategy: using case management to involve
others who may directly influence womens at-risk behaviour, either during
or prior to pregnancy, to alleviate the risk of substance abuse while
pregnant.
H. Advocates and Mentors

Some programs have used paraprofessionals who act as care workers
and advocates for women in high-risk categories. An example of this is the
Seattle Birth to 3 Program, a five-year federally funded research
demonstration project that measured efficacy of a paraprofessional
advocacy model on high-risk mothers with substance abuse.325 Its advocates
provide services in the context of relational theory, emphasizing the
positive interpersonal relationships of women within an intervention
setting.326 Each paraprofessional had a caseload of no more than 15
women and their families for the period of three years following the birth
of a child diagnosed with FASD.327 Rather than providing direct substance
abuse treatment, the program consisted of home visitations and linking
323
T M Grant, C C Ernst & A P Streissguth, An intervention with high-risk mothers
who abuse alcohol and drugs: The Seattle Advocacy Model (1996) 86:12 Am J of
Public Health at 1816 at 1817.
324
Jonah Douglas-Siegel & Joseph Ryan, The effect of recovery coaches for substance-
involved mothers in child social welfare: Impact on juvenile delinquency (2013) 45:4
J of Substance Abuse Treatment 381.
325
Cara Ernst et al, Intervention with highrisk alcohol and drugabusing mothers: II.
Threeyear findings from the Seattle model of paraprofessional advocacy (1999) 27:1
J of Community Psychology 19 at 20.
326
Ibid.
327
Ibid.
women and their families to community resources.328 By the end of the

three-year period, 85% of clients completed some form of substance
treatment and clients with highest levels of involvement with their
advocates were more than twice as likely to have completed inpatient
treatment than those least involved.329 Similarly, women with higher levels
of advocacy involvement had higher rates of using a reliable method of
regular birth control, child custody, and abstinence from alcohol/drugs.330
Prevention strategies could adopt this approach and further it by
training community members to become paraprofessionals. These workers
can be more effective as integral members of the community who are
familiar with the communitys values, culture, needs, and its members; this
creates a strong relationship of trust between clients and paraprofessionals,
unlike a traditional social worker.331 Other benefits of using trained
community members include open and sensitive referral and assessment
processes and the incorporation of traditional spiritual values, language,
and communication styles.332
The InSight Mentoring Program is an outreach program supported by the
Manitoba government that provides intensive support on a one-to-one
basis for up to three years to pregnant women or those who have recently
given birth.333 Mentors work with women to identify personal goals,
choose a family planning method, access alcohol treatment, and get health
care for themselves and their children.334 They also connect with
community services, find transportation to appointments, and address
housing, violence, and child custody problems.335 For women who
completed the program, 98% became involved with community services
and 65% participated in addictions treatment and support programs; at its
end, 44% were using reliable contraception and 29% were not using
328
Ibid at 21.
329
Ibid at 29.
330
Ibid at 29 and 30.
331
Anderson, supra note 77 at 12.
332
Ibid at 7-11.
333
Healthy Child Manitoba, InSight Mentoring Program, online:
<http://www.gov.mb.ca/healthychild/fasd/insight.html>.
334
Ibid.
335
Ibid.
alcohol or drugs.336 The InSight Mentoring Program can be a model for a

mentorship or advocacy program and may be a promising future partner
in prevention initiatives.
The implementation of an advocacy or mentoring program takes time:
the model programs examined here take three years to complete. Within
two years of the start of a community prevention strategy, a team of
advocates or mentors should be fully trained. The team should be of such
a size that it is capable of meeting the needs of all women at high risk in
the community. This will vary depending on which community is involved
in the initiative. The number of women one mentor/advocate can
effectively service at one time without damaging client relationships
because of time and resource restraints must be determined. Mentors
and/or advocates should know how to build long-term positive and
trusting relationships with clients, link clients to community resources,
and set realistic goals.
VIII. EDUCATION AND AWARENESS

INTERVENTIONS
A. Public Education Campaigns

An educational program requires its targets to self-initiate the desired
behaviour. They are appropriate for those who change their behaviours
once they understand the positive implications of desired behaviours and
negative consequences of present behaviours.337 It assumes targeted
individuals have the motivation, opportunity, and ability to do this. 338
When developing a primary prevention strategy, it is important to
determine the target group and solicit opinions from that group in order
to design a maximally effective program. Five suggested target groups for
FASD programs are women who drink during pregnancy, women who
might be pregnant but not realize it, adolescents, partners and supporters
336
Manitoba, Healthy Child Manitoba, Insight Program (Manitoba), online:
<https://www.gov.mb.ca/healthychild/fasd/insightsp_en.pdf>.
337
Sameer Deshpande et al, Promoting alcohol abstinence among pregnant women:
Potential social change strategies (2005) 23:2 Health Marketing Quarterly 45 at 50
[Deshpande].
338
Ibid.
of pregnant women, and health services workers.339 Primary intervention is

more likely to be successful when targeting women who have not yet
reached a stage of compulsive alcoholism as they may be more able to self-
initiate due to lesser alcohol dependency. Educational programs on their
own may not be as successful with those who have developed a stage of
compulsive alcoholism as it may limit their ability to change their
behaviours. This is important to designing FASD interventions as the
compulsive, involuntary drinking and denial of the dangers of alcohol
abuse are both associated with FAS.340
Protection Motivation Theory (PMT) can be used to help identify the
variables involved in fear-appeals (a fear appeal is an informative
communication involving a threat to ones well-being) and their cognitive
mediational effects.341 PMT has been applied as a framework for health
education interventions to mediate protective health behaviour and one of
its main fields of application has been in reducing alcohol use.342 This
theory can be used to assist in achieving the goal of behavioural changes
through an educational campaign. A successful public service
announcement builds upon this theory by fulfilling six requirements:
1. The individual must feel vulnerable to the consequences;
2. The threat must be severe;
3. The response to the threat must effectively create change;
4. The individual must feel confident in their own ability to change;
5. The costs of adopting the change must be small; and
6. The rewards of not adopting the change must be small343
While the threat must be severe, studies have found that fear-based
messages may backfire whereas some focus groups of high-risk women
339
Ibid at 59.
340
341
Sarah Milne, Paschal Sheeran & Sheina Orbell, Prediction and intervention in
health-related behaviours: A meta-analytic review of protection motivation theory
(2000) 30:1 J of Applied Social Psychology 106 at 107 [Milne].
342
Henk Boer & Erwin Seydel, Protection Motivation Theory. In Predicting Health Behaviour:
Research and Practice with Social Cognition Models (Buckingham: University Press, 1996)
at 99.
343
Magdalena Cismaru, Using Protection Motivation Theory to Increase Persuasiveness of Public
Service Communications, (Regina: The Saskatchewan Institute of Public Policy,
University of Regina, 2003) at 5-6.
viewed scare tactics and overstatements as less credible.344 Similarly, mass

media messages have proven particularly effective with young adults, but
an overly strict message of the detrimental effects of alcohol on a fetus
should be avoided.345 There is also some evidence that coping-appraisal
variables are more strongly associated with intention (the strongest
predictor of behaviour) than with threat-appraisal variables.346 Coping-
appraisal involves an individuals assessment of a coping response to the
appraised threat and includes response efficacy, self-efficacy, and response
costs.347 Response efficacy involves beliefs that the recommended coping
response will effectively reduce the threat; self-efficacy involves beliefs of
whether one is able to perform the recommended coping response; and
response costs involve beliefs about the costs of performing the
recommended response.348
Messages may be specifically designed to play upon the emphasis of
these factors to most effectively impact the target audience. For example,
in a study to reduce abusive drinking in junior high students, severity and
probability of consequences were varied across messages to determine
which messages were most impactful while efficacy was held constant by
upholding abstinence as the recommended response.349 In preventing
FASD, these factors are important to recognize. Women who grow up in
communities where parents and partners regularly abuse alcohol may not
feel that alcohol has a significant negative effect on birth outcomes; it is
not perceived as a severe consequence. They may know of healthy children
who were born to drinking mothers or a womans own mother may have
consumed alcohol while pregnant. Alternatively, the fear of child social
assistance apprehending their children while a woman seeks treatment
may be perceived as a more serious cost than the potential harmful effects
344
Ellen Branco & Lee Ann Kaskutas, If it burns going down: How focus groups
can shape fetal alcohol syndrome (FAS) prevention (2001) 36:3 Substance Use and
Misuse 333 at 338-339.
345
346
Milne, supra note 341 at 133-134.
347
Ibid.
348
Ibid at 109.
349
RD Stainback & RW Rogers, Identifying effective components of alcohol abuse
prevention programs: Effects of fear appeals, message style and source expertise
(1983) 18:3 Int J of Addictions 393.
of alcohol on a pregnancy. Women with issues of depression may have low

self-efficacy and not have faith in their ability to successfully reduce
substance use. They may also have low response efficacy and may believe
that the offered programming will be ineffective.
A similar conception of public health messaging posits two main
components: the seriousness and likelihood of the threat and the efficacy
of the response.350 Efficacy must be higher than threat to have a successful
campaign.351 FASD presents a severe danger to the fetus of women who
drink during pregnancy. It is therefore tempting to increase the threat
level of educational messages. However, if the threat is perceived to be
higher than efficacy, the response is defensive: an individual responds with
avoidance, denial, anger, and rationalizing. Fear-based FASD campaigns
have potentially serious repercussions in that they can increase stigmas,
stress, and fear of disclosure of substance use during pregnancy, as well as
decrease willingness to access health/support services. Tones that are more
positive, supportive, and avoid blame strategies are likely to be more
effective.352 Messages are much more effective when they increase the level
of response efficacy by providing information about resources and
educating social supports in the community that assist women at risk.353
Health communication campaigns are most successful when focused
on large populations that are lower risk.354 Full awareness is the first step
towards achieving behavioural change, but broad awareness campaigns can
only do so much on their own, as can be seen with both posters and
warning labels on alcoholic beverages (which have limited impact on
awareness and behaviour).355 These campaigns may not be effective on
women who drink heavily during pregnancy, but may be on women
considered lower-risk.356 As such, an increase of knowledge about high risk
350
Canada, Health Canada, What We Have Learned: Key Canadian FASD Awareness
Campaigns, prepared by Wendy Burgoyne (Ottawa: HC) at 15-16 [Key Campaigns].
351
Ibid at 16.
352
Ibid at 41.
353
Ibid at 16.
354
Ibid at 36 and 5. Success is defined as measurable increases in awareness and message
recall.
355
Roberts, supra note 185.
356
Ibid at 14.
behaviour, such as the effects of fetal alcohol exposure, may not be enough
to change the behaviour.357 While broad-based community-wide education
is important for prevention in that it helps the public realize the need to
support and assist service workers and those at-risk, education campaigns
must also specifically engage high-risk groups. Effective reduction in health
risk behaviours tend to identify or target specific behaviours and
attitudes.358 Research on adolescents, a potential high-risk target group,
shows that prevention strategies more effectively change behaviour when
interactive experiences are used to teach skills that avoid unhealthy risk
behaviours.359 An example of this is messages that provide coping
techniques or point to concrete and available support services.
Before the creation of a public information campaign, organizers
should consult with members of the community, specifically those
belonging to the aforementioned targeted groups (see page 197). In
Aboriginal communities, public health campaigns may be most effective if
they directly involve local community organizations and members;
members should be involved in creating and broadcasting the health
message.360 Their input should influence the campaigns choice of media,
distribution, and message. The level of knowledge of the group of women
being targeted also affects the campaign strategy: those who do not know
the risks of FASD generally respond to an emotional appeal while those
who are thinking about changing specific risk behaviour are more likely to
respond to an educational or rational approach.361 Examples of these
would be information about the consequences of prenatal alcohol
exposure and clear direction on safe alcohol use during pregnancy
respectively.362 Identifying what the population already knows and any
misconceptions are essential in choosing an effective message.363
357
Robert G LaChausse, The Effectiveness of a Multimedia Program to Prevent Fetal
Alcohol Syndrome (2008) 9:3 Health Promotion Practice 289 at 293 [LaChausse].
358
Ibid at 292.
359
Nancy Tobler, Lessons learned (2000) 20:4 J of Primary Prevention 261.
360
361
Key Campaigns, supra note 350 at 40.
362
Ibid.
363
Ibid at 41.
In general, the campaign should provide a clear message that reflects

the communitys values while maintaining a clear identity across
Aboriginal communities (since consistent identity enhances the messages
and objectives).364 The clarity of the message is also important. Mass media
messages should not be excessively alarming. For example, the Manitoba
Medical Association released a video that resulted in the majority of
participants believing that a single drink of alcohol could harm a
developing fetus when scientific evidence does not support increased fetal
danger as a result of rare social drinking.365 Public health campaigns
directed towards decreasing drug and alcohol use by pregnant mothers
were less positively received when they presented a vague message or
focused too much on individuals rather than the community and her
family.366
Campaign planners should be aware of possible negative outcomes of
the chosen campaign. For example, awareness campaigns need to be
careful not to reinforce judgemental attitudes towards pregnant women
who continue to use alcohol as this will increase societal stigmas towards
these women.367 These stigmas may influence the attitudes of health
professionals, family members, and partners, resulting in feelings of
shame, low self-esteem, and fear of seeking treatment in pregnant women.
To combat this, messages about FASD should be well-thought out and
linked with information about how to contact service professionals
knowledgeable in FASD. When deciding on images and messages to use in
campaigns, care should be taken to ensure that they do not come across as
controversial, alienating pregnant women or misrepresenting the
message.368
Measures of success would include positive feedback in surveys (extent
to which messages were actually received, viewed positively, and thought to
have some potential practical good) and increased requests for demand for
resources to expand such programs from community leaders.369 A
364
Ibid at 40.
365
366
Ibid.
367
Key Campaigns, supra note 350 at 21.
368
Ibid at 42, 46-47.
369
Ibid at 62.
prevention initiative also aims to measure increased knowledge of FASD

and local supports as well as the reduction of high-risk behaviours among
the targeted groups exposed to the campaign. Ideally, due to the
comprehensive nature of a prevention initiative, enough data will be
collected to determine whether rates of FASD have declined or if usage of
local services has increased. This will more effectively track a campaigns
progress and its effects as well as suggest areas that require re-evaluation to
better achieve project goals. This will also more efficiently use funds and
resources.
B. Early Childhood Education and Care for Those

Affected by FASD
Early childhood education and care presents an interesting and
promising solution to the issue of fragmented services, particularly with
treatment centres, seen in some Aboriginal communities. It is also a way in
which some of the negative effects experienced by children with FASD can
be alleviated through improved nutrition, increased parent participation,
and targeted and informed childcare. A comprehensive and welcoming
system of childcare for children with FASD can also be useful for the
prevention of FASD births. Women who have previously delivered a child
with FASD and are still of childbearing age and abusing substances are at
risk of having another child with FASD. Caring for one or more children
with FASD as well as managing substance abuse issues may make it
difficult for them to become informed and subsequently seek assistance.
Additionally, lack of access to childcare is a significant barrier to treatment
for pregnant women and mothers with substance abuse problems.370
Fragmented services often result in practitioners specializing in
different domains of child and family health that are located outside of a
communitys reach, be it geographically, culturally, socially, or
administratively.371 Fragmented services may be one of the most significant
barriers to population health in these communities due to inaccessibility,
communication breakdown, and dependence on individuals and
370
Poole, supra note 85.
371
Jessica Ball, Centring community services around early childhood care and
development: Promising practices in Indigenous communities in Canada (2009) 1:4
Child Health and Education 183.
specialists own initiatives in seeking and supplying treatment.372 Also,

with practitioners acting separately rather than as a team, knowledge of
needs, goals, and service history of the community is lost when
professional staff leave the community; as Indigenous communities
experience a high turnover rate, this is particularly problematic.373
Facilities for early childhood care and education are excellent places to
focus integrated service delivery. Childrens well-being is a strongly held
cultural value and parents need and want trustworthy child care; a
reputable and accessible child care facility acts as a magnet, drawing
community members in. Women who are at risk of having another child
with FASD may be willing to engage with a child care centre in order to
provide care for their children, but not be willing to seek supports or
services for themselves. A community prevention strategy should take
advantage of this by providing accessible and non-threatening support for
at-risk women at these centres through staff that get to know parents and
draw their attention to particular programs. By identifying at-risk women
and offering support and comprehensive treatment, the prevention
strategy can support subsequent healthy pregnancies while assisting
children who need specialized care.
A notable example of this is Lilwat Nation in British Columbia:
fifteen community members enrolled in early childhood care and
development (ECCD) training and the community opened a multiplex
facility located 200 metres from the full-service school.374 The multiplex
acts as a cultural gathering place that houses a preschool program, infant
care centre, after-school care program, health services wing, and
examination room.375 The services delivered in the child-care centre are
diverse and integrated: occupational therapy, child care, developmental
monitoring, and preventive dentistry are all included.376 In the same
multiplex is a community kitchen, health information and promotion
area, health services, and family services; it also delivers programs such as
alcohol and drug counselling, parent support programs, and tobacco
372
Ibid at 184-185.
373
Ibid at 185.
374
Ibid at 194.
375
Ibid.
376
Ibid.
reduction and diabetes prevention.377 This is a prime example of using

ECCD programs and child care as an integration site for full community
programming that focuses on individuals as a whole and encourages
community members to participate in social and health programs.
This style of community services was compared across several
Aboriginal communities in Canada by researcher Jessica Ball: she observed
that the common thread is integrating service delivery with the need to
support the whole child.378 The service model for these facilities is family
and community centered and ECCD can be used to ladder community
members into language, nutrition, health, social development, and
cultural programs.379 The programs offered should be comprehensive and
population based, specifically designed to meet local needs. There are
multiple hooks suggested by Ball in her research other than the primary
offering of child care to secure families to community-based supports
aimed at overall wellness. These include involving community members in
ECCD programs and community events as mentors, helpers, and
planners, co-locating programs with cultural meeting places, and holding
open houses and family days to entice the whole community.380 This
hub model provides service delivery consistent with Aboriginal values
and increases resource efficiency, social support from and for all
community members, ladders services for children and families
(especially those at risk), enhances outreach for service providers to
individuals, and helps community capacity-building.
C. Adolescents: School Programs

Part of a comprehensive prevention strategy involves specialized
education targeted at young people who are at risk for binge drinking and
unplanned pregnancy. Adolescents should know the facts about FASD
and how to prevent it at an age prior to or when they begin to encounter
sexual activity and substance use. Teaching students about FASD can
emphasize that they, as future leaders of the community, are well placed to
work with families and community members to prevent FASD through
377
Ibid.
378
Ibid at 183.
379
Ibid at 194-195.
380
Ibid.
increased awareness, mentorship programs, or educational campaigns.

Three kinds of campaigns have been recommended to be used to prevent
alcohol use among adolescents: message campaigns for low-risk drinkers,
marketing campaigns for social drinkers, and community-based campaigns
for high-risk drinkers.381 Low-risk drinkers are more likely to drink
responsibly once they are made aware of the consequences of alcohol use,
social drinkers may respond positively to attractive social alternatives such
as after-school programs, and high-risk drinkers would benefit from a
multidisciplinary community-based approach.382
Schools are also excellent places to implement programs that address
gaps in other social determinants of health. Teaching problem-solving and
decision-making skills, helping boost self-esteem and combat depression,
and implementing a nutritional education program will help build
stronger communities as well as prevent FASD. Students should also be
involved in raising FASD awareness in the community and amongst
themselves. Peer-based and leadership programs will help to develop skills,
empower youth, and may increase the efficacy of school-based intervention
programs.383 Though more research is needed as to the most effective style
of prevention strategies for youth of child-bearing age and may vary
depending on FAS/FASD risk level, programs are more likely to be
effective if they are well planned, evidence based, and include interactive,
skill-building activities.384 A multidisciplinary approach to youth-based
programs is likely to have a positive influence on drinking behaviours.385
Educational partnerships with universities can provide valuable
training and university credit to young adults, allowing students to remain
in their home communities to provide leadership and effective services. In
addition to increasing the capacity of local services, this would effectively
increase the cultural appropriateness of services in Aboriginal
communities by train[ing] community members themselves and
involv[ing] the whole community as much as possible in the
381
Deshpande, supra note 337 at 60.
382
Ibid.
383
Lyn Boulter, "The effectiveness of peer-led FAS/FAE prevention presentations in
middle and high schools" (2007) 51:3 J of Alcohol & Drug Education 7 at 16-17.
384
LaChausse, supra note 357 at 292-293.
385
Deshpande, supra note 337 at 56.
conceptualization, delivery, application, and evaluation of training.386 A

partnership between the community and university educators can develop
locally-based delivery of university-accredited education grounded in
Aboriginal culture that qualifies students for employment in all settings.
First Nations Partnership Programs have found success using the
Generative Curriculum Model which focuses on uncovering community-
relevant knowledge sources and creating fresh understanding by using
reflection and dialogue.387 In these first partnership programs, three
quarters of the students completed the program (compared with forty
percent and below in traditional universities) and ninety-five percent of
graduates remained in their own communities.388 Sixty-five percent of
graduates introduced new programs for children, youth, and families.389
The Integrated Nursing Access Program has a similar goal of building
upon Aboriginal community values to increase community capacity,
cultural identity, and empowerment while providing educational
opportunities. Developed by the University of Western Ontario, this
program addresses the difficulty in recruiting community health nurses for
the northern Labrador region as well as the education and socioeconomic
limitations placed on northern Labrador Aboriginal peoples.390 This
program uses an approach that combines personal experience with
university skills that are learnt within a culturally-relevant context in order
to overcome such limitations.391 The first group of students had achieved a
higher retention rate (68%) compared to other access programs, indicating
the success of applying Aboriginal culture to student learning.392
Through educational partnerships, the Project can develop culturally
relevant, useful services in a small or remote community. The
386
Jessica Ball, As if Indigenous Knowledge and Communities Mattered:
Transformative Education in First Nations Communities in Canada (2004) 28:3 The
Am Indian Quarterly 454 at 456 [Ball].
387
Ibid at 460.
388
Ibid at 461.
389
Ibid.
390
Carole Orchard et al, Integrated nursing access program: An approach to prepare
Aboriginal students for nursing careers (2010) 7:1 Int J of Nursing Education
Scholarship 1 at 2-3.
391
Ibid at 6.
392
Ibid at 18-19.
contributions students can make have the potential to make remarkable

differences to the quality of life and level of accessible, culturally safe
services.393
D. Partner Targeting
Social risk factors attributed to maternal alcohol use during pregnancy
involve womens male partners.394 Male partners are involved in the
negotiation of family planning; supportive male partners can mitigate the
risk of an unplanned pregnancy and the possible use of alcohol before the
pregnancy is known.395 Male partners are also involved in the amount of
drinking that is tolerated or encouraged, and those opposed to the
womans intention to stop drinking influence her inability to reduce her
alcohol consumption.396 Paternal drinking itself is a risk factor for
maternal drinking.397 Paternal substance abuse may also be a social stressor
that affects the mother and child, leading the mother to use substances as
a coping mechanism.398 Additionally, relationship stability is a predictor of
alcohol use during pregnancy: couples with higher relationship stability are
at lower risk for maternal alcohol use.399 Lastly, physical and sexual abuses
in a relationship are also risk factors leading to women drinking during
pregnancies.400
Placing more of a focus on the roles of male partners as an FASD
prevention strategy would further involve the community and lessen some
of the negative effects male partners can have on pregnant womens
substance abuse. Support workers should encourage partners positive
involvements in social relationships with women and educate partners on
393
Ball, supra note 386 at 461.
394
The focus on male partners in this paper does not mean to exclude same-sex
relationships, but is simply focusing on research on heterosexual relationships.
395
Robin Gearing, Ted McNeill & Fernand Lozier, Father involvement and fetal
alcohol spectrum disorder: Developing best practices (2005) 3:14 J Fetal Alcohol
Syndrome Int 1 at 4 (Gearing).
396
Ibid.
397
Ibid.
398
Ibid.
399
Ibid at 4.
400
Ibid.
their abilities to limit negative influences in their relationships. For

example, men should be made aware of the effect their drinking habits
may have on their partners, how they may be encouraging alcohol use at
times when it is damaging, and how they can directly or indirectly oppose
partner abuse.401 By incorporating the role of the partner in education,
treatment, and prevention of FASD, at-risk women are more likely to be
successful in reducing alcohol consumption. Also, by promoting positive
male role models and limiting parental alcohol abuse, partners will be
better prepared to support their children in avoiding behaviours that may
encourage alcohol abuse and ultimately contribute to FASD in later
generations.
IX. POLICY-BASED INTERVENTIONS
A. Coercive Government Policies

Coercive responses are those which use the legal system to push
pregnant women into treatment in order to protect the fetus from the
effect of its mothers alcohol consumption. For the most part, these
responses have failed. In Canada, the leading relevant case, decided in
1997, is Winnipeg Child and Family Services (Northwest Area) v. G (DF).402
The Supreme Court decided that courts do not have the jurisdiction to
step into the shoes of the parent and make orders in the best interests of
a fetus.403
While the Supreme Court of Canada refused to extend the courts
parens patriae jurisdiction to fetal protection, the decision left open the
possibility that extended legislation on this matter passed by Parliament or
provincial legislatures would be constitutional.404 In the United States,
some state governments have adopted legislation that allows for the
prosecution of women who use drugs or alcohol while pregnant; the
modification of civil child abuse and neglect statutes to remove children
from their mothers care; and testing designed to catch pregnant women
401
Ibid at 7.
402
[1997] 3 SCR 925, 152 DLR (4th) 193.
403
Ibid at para 49.
404
Ibid at para 58.
who are using drugs or alcohol.405 Those in favour of such approaches

would note that government tends to react strongly to postnatal child
abuse and do not necessarily accept as an excuse the fact that the parent,
including the mother, is beset with personal difficulties such as poverty or
addiction. Furthermore, by placing an emphasis on preventing likely harm
to the future child, the government can move the issue away from one of
freedom of choice during pregnancy. Advocates for these government
interventions argue that a woman who chooses to continue a pregnancy
assumes certain obligations to refrain from causing harm to the future
child and that the states strong interest in curbing substance abuse
associated with fetal damage prevents a mother from being shielded from
government intervention.406 Arguably, if a mother can be held accountable
for child abuse, should she not also be held accountable for creating a
harmful situation for her future child? If these programs are shown to be
effective in curbing substance abuse during pregnancy and reduce the
number of alcohol-affected pregnancies, the value of the mothers privacy
and autonomy should be weighed against that of the quality of life of the
future child. As it stands, only Tennessee has specifically criminalized drug
use during pregnancy, though several other states have used criminal law
to uphold convictions that a womans substance abuse is equivalent to
child abuse.407
Coercive approaches have been met with a variety of criticisms:
coercive government intervention invades upon a womans decisional
autonomy; weighs the fetus constitutional rights as more valuable than
the womans; discourages women from seeking medical care, resulting in
increased risks to both the woman and fetus; and is a slippery slope to
forcing other medical treatment upon pregnant women.408 It may also
405
David Brody & Heidee McMillin, Combating fetal substance abuse and
governmental foolhardiness through collaborative linkages, therapeutic jurisprudence,
and common sense: Helping women help themselves (2001) 12:2 Hastings Womens
LJ 243 at 244 (Brody).
406
Susan Fortney, A jurisprudential analysis of government intervention and prenatal
drug abuse (2002) 17:1 J of L & Health 11 at 20.
407
Guttmacher Institute, State Policies in Brief: Substance Abuse During Pregnancy
(Washington, DC: Guttmacher Institute, June 2015), online:
<http://www.guttmacher.org/statecenter/spibs/spib_SADP.pdf>.
408
Lisa C Ikemoto, Furthering the Inquiry: Race, class, and culture in the forced
medical treatment of pregnant women (1992) 59:3 Tenn L Rev 487 at 496-498.
discriminate against women of lower socioeconomic classes and of racial

backgrounds prevalent in these classes. These governmental interventions
are regarded by many as ineffective because of the nature of addiction:
threatening a woman with an assortment of punitive actions is unlikely to
stop her substance abuse if she is dependent upon it.409 There is also the
issue of how the government should penalize women for drinking during
pregnancy. A monetary fine would require placing a value on the infants
quality of life, and mothers with substance abuse issues who live in poverty
would unlikely be able to afford it. Other potential punitive measures are
civil commitment or mandatory treatment. These are problematic for
mothers who already have children, forcing them to find some form of
childcare which may not be available to them due to lack of financial,
community, or familial support. Civil commitment and mandatory
treatment would also result in discrimination for substance users,
particularly for women who are already faced with discrimination for
being minorities or living in poverty. These forced treatments, if
unsuccessful, may stifle future attempts to seek treatment. Punitive
measures would absolutely deter women from seeking support for
substance abuse, prenatal care, and postnatal support for their children
affected with FASD. Lastly, a punitive system diverts money away from
addiction treatment towards law enforcement, when more funding could
lessen treatment barriers such as a lack of available centres, financial,
familial, social, and psychological barriers.410
If government interventions were considered an effective mode of
deterrence for a pregnant womans decision to use alcohol during her
pregnancy, it would be difficult to successfully carry out these punitive
measures in the case of FASD. As the causes and severity of FASD are
widely variable and FASD is difficult to diagnose, a mother with a child
exhibiting symptoms akin to FASD may be held liable for the childs
impairments despite not drinking during pregnancy. Alternatively, the
mother may have consumed alcohol during early stages of pregnancy when
she was unaware that she was pregnant, unwittingly endangering the child.
A punitive government intervention that creates the possibility of the
accused being convicted of such criminal offences, even though the trier of
409
Brody, supra note 405 at 250.
410
Ibid at 256.
fact might otherwise have reasonable doubt on his or her own, would
violate the mothers presumption of innocence under s. 11(d) of the
Charter.411 It may also infringe upon her s. 7 Charter rights by infringing
upon her life, liberty, or security.412
To justify such an infringement, the Crown would need to satisfy the
Oakes test.413 In order to meet the test, four elements would be required:
(1) the reason for limiting the right must be pressing and substantial; (2)
the measures carried out to limit the right must be rationally connected to
the objective for which it was enacted; (3) the means should impair the
right as little as possible; and (4) the more severe the deleterious effects
of a measure on individuals or groups, the more important the objective
must be.414 It is unlikely that the courts would accept such a limitation on
a womans rights: the pursuit of childrens best interests is not a principle
of fundamental justice as there is no consensus that it is essential to justice
and it fails to produce manageable standards.415 In contrast, the principles
of fundamental justice would be violated if an innocent person was
imprisoned as a result of a criminal offence.416 A woman who is addicted
to a substance and acts in a morally involuntary way may then have no
choice but to commit the crime. However, because of the broadness of this
reasoning (i.e. that substance addiction could exculpate the addicted
accused of a crime committed as a result of his or her addiction) it is
unlikely that the latter reasoning will be adopted in practice. Moreover,
there is no indication that any political party in Canada has any intention
to legislate in this way.
411
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(d).
412
Ibid, s 7.
413
Derived from the 1986 Supreme Court decision, R v Oakes, [1986] 1 SCR 103, 53 OR
(2d) 719.
414
Ibid at paras 69-71.
415
Canadian Foundation for Children, Youth and the Law v Canada (AG), [2004] 1 SCR 76 at
paras 11-12, 234 DLR (4th) 257.
416
Kent Roach, The Protection of Innocence Under Section 7 of the Charter (2006)
34 SCLR 249 at 249.
B. Encouraging Paternal Engagement

When addressing unplanned pregnancies and single parent
households, the male figure tends to disappear from the discussion. By
ignoring the role of the father in pregnancies and child rearing, effectively
promoting the deadbeat dad stereotype, interventions are missing an
opportunity to reduce stress on mothers as single parents. This is
exemplified via a recent Canadian study which sampled child protection
cases to better understand social workers practice with fathers and
categorized them as risk, asset, risk and asset, or irrelevant.417 Almost 50%
of fathers were considered irrelevant; only 50% of those perceived as an
asset to the mother were contacted, and 75% of fathers were contacted
when perceived as an asset to the children.418 Not offering fathers the
opportunity to be involved in their childrens lives when this could be
beneficial is a waste of a potentially valuable resource. There will be some
situations in which both mother and child would benefit without the
father in their lives (i.e. when he is abusive or a partnership would be
unstable or damaging to the mother and/or child). Alternatively, a capable
father may want to be in a relationship with the child and/or mother, but
the mother chooses to be a single parent for personal reasons. As the
mother knows her relationship with the father more intimately than any
social worker, this decision is ultimately the mothers and should be
respected.
The purpose of discussing this area of policy intervention is not to
debate a womans decision to include the father in raising the child, but
simply to suggest that men should be targeted in interventions and
encouraged to be responsible and supportive fathers while maintaining
positive relationships with the mother when possible. Increased reliance
on and availability of social assistance may allow family breakdown to
more readily occur as more women feel financially able to bear the costs of
a single-parent household. Some men may feel as though their role of a
provider has been replaced by government social assistance policies and
disengage from the childs life. However, total familial abandonment by
fathers may not be the most beneficial outcome.
417
Susan Strega et al, Connecting father absence and mother blame in child welfare
policies and practice (2008) 30:7 Children & Youth Services Rev 705.
418
Ibid.
In addressing paternal involvement, maternal alcohol use may be able

to be reduced, protective factors encouraged during pregnancy, and
children already born with FASD will benefit from increased familial
support. Single parents tend to be more socially isolated, work longer
hours, receive less emotional and parental support, and are more likely to
experience stressful life changes; parental effectiveness is increased with
support and reduced with stress.419 As such, a woman at risk of having a
child affected with FASD would likely benefit from the support of the
father of the child, which would reduce stress pre- and postnatally. For
example, father involvement has shown to lower the chances of premature
birth in women with chronic stress.420 This is of particular importance to
at-risk women who are struggling with alcohol as a coping mechanism as
there is evidence that those without effective coping responses are more
likely to drink when they encounter stressful situations.421 As previously
mentioned (see Partner Targeting), partners can have positive impacts on a
womans pregnancy by discouraging behaviours that will harm the fetus
such as substance use. Men who are actively involved with their children
and responsible for child care can support women both in and outside the
home. There is also evidence that positive father-child relationships can
encourage positive gender role perspectives and encourage childrens
development on multiple levels.422
However, fathers may feel as though they are in an adversarial position
to the mother and support services; they may perceive child social
assistance as an absolute power, feel a need to prove themselves as
adequate parents, and feel unsupported or discouraged to become
involved with their children.423 While choosing whether to be involved in
419
Marsha Weinraub & Barbara Wolf, Effects of stress and social supports on mother-
child interactions in single- and two-parent families (1983) 54:5 Child Development
1297 at 1309.
420
JA Gaudino, B Jenkins, & RW Rochat, No fathers names: A risk factor for infant
mortality in the state of George, USA (1999) 48:2 Social Science and Medicine 253.
421
Lynne M Cooper et al, Stress and alcohol use: Moderating effects of gender, coping,
and alcohol expectancies (1992) 101 J Abnormal Psychology 139.
422
Michael E Lamb & Catherine Tamis-LeMonda, The Role of the Father: An Introduction,
in ME Lamb, ed, The Role of the Father in Child Development (Hoboken, New Jersey:
John Wiley & Sons, 2004).
423
Susan Strega et al, Working with me, working at me: Narratives of fathers in child
welfare (2008) 19:2 J of Progressive Human Services; Speake S, Cameron S & Gilroy
his childs life is a personal decision, there are certain structural factors
that may influence a fathers decision. For example, there are few support
programs for Aboriginal fathers across Canada, with prevalence varying
from province to province.424 In a national scan of father-involvement
programs in Canada, only four programs were recognized in Manitoba in
comparison to fifteen in British Columbia.425 Barriers to these programs
included a lack of funding, program access, finding suitable outreach
workers, and attracting and sustaining participating fathers.426 Programs
encouraging father involvement must reflect the varied dynamics of family
life, particularly for Aboriginal families which do not always mirror the
typical non-Aboriginal family. In 2006, more Aboriginal teenage girls
reported to be parents than non-Aboriginal teenage girls and a larger
percentage of Aboriginal women were in common-law relationships as
opposed to marriages.427 In 2011, one-third of Aboriginal children were
living in a lone parent family, compared to 17.4% of non-Aboriginal
children; the majority of the Aboriginal children were living with a female
lone parent.428 More young families and single-parent households require
programs to be flexible to difficulties surrounding finding child support,
accommodating school commitments, lesser work experience or job
stability, and methods of reaching out to fathers who may not be actively
involved in their childrens lives.
Government policies aimed at father involvement must also support
the various types of Aboriginal families in order to be effective. For
example, young fathers are particularly likely to have limited resources to
financially support their child and may be more focused on completing
R, Young single non-residential fathers: Their involvement in fatherhood (1997) 2:3

Child Family Social Work 135; Paul Tyrer et al, Dealing with it: Experiences of
young fathers in and leaving care (2005) 35 British J Social Work 1107.
424
Jessica Ball & Sarah Moselle, Aboriginal Father Involvement Programs: National Scan
(Father Involvement Research Alliance, March 2013) at 16.
425
Ibid at 26-51.
426
Ibid at 16.
427
ODonnell & Wallace, supra note 126 at 19-20.
428
Statistics Canada, Aboriginal Peoples in Canada: First Nations People, Mtis and Inuit,
Catalogue No 99-011-X2011001 (Ottawa: Statistics Canada, 2011), online:
<http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-
eng.pdf>.
their education or gaining job experience than being involved with their
child. These men are often not married and may not be involved with the
mother of the child romantically or otherwise.429 As such, with the father
living in a separate residence from the child, he may not be able to receive
benefits that lessen the financial burden of job training or education. He
may choose to finance his own pursuits rather than child support. In
attaining postsecondary education, fathers without dependent children
living with them full-time are not eligible for supplementary funding to
assist in fulfilling their parental responsibilities while funding their
education.430 Addressing competing financial needs such as this may
encourage paternal involvement.
Employment policies may also limit how much a father can be
involved in his childs life. Fathers who work long hours, shift work, or
whose work requires long periods away from his child are less likely to be
able to see their child or opt for shared custody.431 Policies relating to
working conditions and parental leave vary according to provincial
legislation, as does available child care.432 In Manitoba, employees can
apply for up to 37 weeks of parental leave in one continuous period so
long as they have worked for the same employer for at least seven
consecutive months and are a parent through birth or adoption.433 This
results in a gap for fathers who have yet to find steady employment, or
who are temporarily or self-employed. Also, employers are not required to
pay the employee during his leave.434 As Canadian men were still earning
higher average total incomes than Canadian women in 2008,435 it is likely
429
Donna Lero, Lynda Ashbourne & Denise Whitehead, Inventory of Policies and Policy
Areas Influencing Father Involvement (Father Involvement Research Alliance, 2006) at 75
[Father Policies].
430
Ibid at 76.
431
Heather Juby, Celine Le Bourdais, C & Nicole Marcil-Gratton, Sharing roles, sharing
custody? Couples characteristics and childrens living arrangements at separation
(2005) 67 J of Marriage and Family 157 at 159-160.
432
Father Policies, supra note 429 at 30-31.
433
Manitoba, Labour and Immigration, Employment Standards (Manitoba: L&I, 31
March 2015), online: <http://www.gov.mb.ca/labour/standards/doc,parental-
leave,factsheet.pdf>.
434
Ibid.
435
Statistics Canada, Economic Well-being, by Cara Williams, Catalogue No 89-503-X
that a man will continue working while the mother takes majority or full
parental leave to lessen financial pressures. There may also be a workplace
culture that discourages men from using parental leave despite it being an
option via public policy.436
These barriers are compounded for low-income fathers. These fathers
will need to spend more time at work away from their child in order to
make ends meet. When living separately from the mother, the father may
need to move away from his child to seek more substantial employment
and then not be able to afford travel for visitations. The opposite may be
true if the mother relocates with the child, but the father must stay where
he is due to his finances or inability to find employment elsewhere. As the
workplace affects fathers physical and emotional well-being, it may act as
an enabler or barrier to how fathers engage their children beyond mere
physical availability.437 Policies assisting low-income families tend to
disadvantage fathers who are living separately from their child or residing
in a common-law relationship. Employment and Income Assistance (EIA)
can supplement low-income families, but whether one is married or in a
common-law relationship will affect how EIA is paid.438 Under the Canada
Child Benefit, to be eligible the parent must live with the child (though
this can apply to shared custody) and be the one primarily responsible for
the childs care.439 This is not uncommon of social assistance benefit
programs.440 Lastly, minimum wage levels overlook parental status,
minimizing the differences in financial needs between parents and non-
(Ottawa: Statistics Canada, December 2010), online:

436
Susan Lewis & Linda Haas, Work-life integration and social policy: A social justice
theory and gender equity approach to work and family in EE Kossek & SJ Lambert,
eds, Work and Life Integration: Organizational, Cultural and Individual Perspectives
(Mahwah, NJ: Lawrence Eribaum Associates Publishers, 2005) at 349-374.
437
G Russell & P Hwang, The impact of workplace practices on father involvement in
Michael E Lamb, ed, The Role of the Father in Child Development (New York: John Wiley
& Sons, 2004).
438
Manitoba, Labour and Immigrations, Employment and Income Assistance
(Manitoba: L&I, 2015), online:
<http://www.gov.mb.ca/fs/eia/pubs/eia_living_with_another_adult.pdf>.
439
Canada, Canada Revenue Agency, Canada Child Benefit- Before You Apply (28
June 2016), online: <http://www.cra-arc.gc.ca/bnfts/ccb/bfrppl-eng.html>.
440
Father Policies, supra note 429 at 44.
parents while leaving noncustodial fathers ineligible for increased

government resources.441
There is also room in public policy and father involvement
programming to address the barriers to child involvement faced by non-
resident fathers. Beyond physical distance, financial barriers, and limited
visitations are personal barriers such as substance abuse, street life
involvement, incarceration, and histories of violence. This is particularly
important for some Aboriginal communities as rates of substance use,
unemployment and poverty, disorganized social systems, and violence are
reported as major problems.442 By developing programs and policies that
better support fathers as well as mothers, some of these barriers could be
reduced. Perhaps most importantly, more funding should be put towards
community programming that can help fathers in overcoming personal
and systemic barriers to allow them to become more involved in their
childs life. Putting an emphasis on the relationship between the father
and his child, rather than on the father as a financial figure, may be more
effective in engaging fathers in their childrens lives and sustaining that
engagement. Child social assistance practices should work on becoming
father-inclusive by acknowledging fathers and creating plans to include
them throughout the social assistance process. They should search for
contact information for birth fathers as well as father figures, take the time
to interview these people, and engage them to identify their strengths
rather than simply identifying their weaknesses.443 Services offering
parenting programs should consider the specifics of Aboriginal
communities to best support father-child relationships. Acknowledging
and encouraging the role of the father in FASD prevention and mitigation
will likely benefit the mother, child, father, and community.
441
Ibid at 45.
442
Canada, Public Health Agency of Canada, The Human Face of Mental Health and
Mental Illness in Canada 2006 (Ottawa: PHAC, 2006) at 167-171, online:
<http://www.phac-aspc.gc.ca/publicat/human-humain06/pdf/human_face_e.pdf>.
443
Christopher Walmsley, Fathers and the Child Social Welfare System, (Federation of Child
and Family Services of BC).
C. Social Assistance Programs

1. Reducing FASD by Reducing Poverty
Poverty reduction and attempting to rectify socioeconomic inequality
is part of the most macroscopic level of analysis of any social problem,
including prevention of FASD. Issues such as poverty, stress, and poor
living conditions are embedded within the larger issue of the state of
Aboriginal communities, including issues such as generally high levels of
unemployment, and low levels of income, housing, and availability of
social services. Intervention plans could reasonably take into account
some of these very broad issues and attempt to make practical progress
with them as part of a plan specifically focused on reducing FASD. While
any intervention would have to consider the impact of economic
development (or a lack thereof) of First Nations communities on- and off-
reserves within the context of FASD prevention, and one cannot ignore
the resolution of the problem of economic development of First Nations
communities when addressing FASD, this paper will not attempt to add
significantly to the debate, but rather briefly identify some of the macro-
level issues and a range of solutions. Given that this papers focus is
specifically on the prevention of FASD, addressing strategies for taking on
these macro-level issues comprehensively would require discussion of a
much wider debate in Canada than can effectively be covered in this
paper.
Before sketching out the elements of that larger debate, two points
must be emphasized. Firstly, while socioeconomic disparity is an
overarching issue that affects many areas of FASD development and
treatment, it is not the only factor that contributes to the FASD cycle, and
therefore should not be considered as a hurdle that must be overcome
before attempting to deal with the issue of FASD. Any possible resolution
must, of course, consider the larger problem; but there are many potential
steps to prevent FASD, reviewed here, that can produce improvements as,
or even before, progress is made on these wider issues. For example,
solutions to problems that are heavily influenced by socioeconomic status,
including the provision of basic education444 and the virtual eradication of
444
United Nations Educational, Scientific, and Cultural Organization (UNESCO),
Education for All Global Monitoring Report, brochure: Education Transforms Lives
(Paris: UNESCO, 2013) (investing in education can actually prevent a variety of
some diseases,445 have been implemented even with the larger question of
economic inequality remaining unresolved.
Secondly, the pursuit of resolutions for very broad issues such as the
promotion of increased income levels and employment in Aboriginal
communities, particularly on reserve could potentially have significant
impacts on FASD prevention. Therefore, broad intervention strategies can
still be part of an overall community-based strategy for FASD prevention,
despite not being directly geared towards the prevention of that particular
disorder.446 Employment opportunities in a community can be enhanced
by community-level efforts to reduce overall poverty and unemployment,
such as by developing programs to enhance education, training, and
employment opportunities, as well as by finding ways in which to secure
the location of more employers at or near a community.447
economically disadvantageous consequences). See also GEM Report, We will never

eradicate poverty without quality education for all, World Education Blog (17 October
2013), online: <https://gemreportunesco.wordpress.com/2013/10/17/we-will-never-
eradicate-poverty-without-quality-education-for-all/> (extreme poverty cannot be fully
alleviated without improving access to education).
445
For example, providing vaccinations to highly disadvantaged communities can
effectively wipe out a disease, such as smallpox, even though a host of other challenges
remain to be addressed. Jean-Jacques Muyembe-Tamfum et al, Smallpox and its
eradication in the Democratic Republic of Congo: Lessons Learned (2011) 29
Vaccine D13.
446
For example, employment programs aimed at individuals (e.g. education or vocational
training; matching job seekers with employment opportunities; providing transport to
work sites) might be effective in reducing some risk factors. An individual who would
otherwise be at considerable risk of bearing a child with FASD might choose to
pursue training and employment before bearing children, allowing them to start a
family under less-stressful circumstances, with an income and other resources that
contribute to the ability to purchase nutritious food, travel to medical appointments,
and so on. See Jane Leber Herr, The Labour Supply Effects of Delayed First Birth
(2015) 105:5 Am Econ Rev 630 at 630. Women who become first-time mothers later
face a higher wage at their childs birth than those who become mothers earlier, and
that women who receive a college degree tend to work less for the first year after the
childs birth than before the birth, compared to women with a high-school education
who work more (ibid at 637).
447
Joan E Moss, Claire G Jack, & Michael T Wallace, Employment Location and
Associated Commuting Patterns for Individuals in Disadvantaged Rural Areas in
Northern Ireland (2004) 38:2 Regional Studies 121 at 134, online:
<www.tandfonline.com.uml.idm.oclc.org> ([C]haracteristics of labour markets in
rural areas of low population density typically demonstrate a limited diversity of
Many approaches have been proposed to combat the high levels of

unemployment and poverty in some communities, some of which focus on
transfers from federal and provincial governments to be put towards
improving health, education, and social programs,448 while others focus on
creating various forms of economic partnerships with the public sector
and private enterprises outside of the community, such as mining
companies. These solutions are not mutually exclusive, and issues exist
with both options. Concern has been expressed that increased transfers
from other governments, or resource sharing arrangements with mining
and other private developers,449 are not a sufficient solution if they merely
transmit money without generating employment, creating business
opportunities, and promoting self-sufficiency. Additionally, limiting
factors on the success of governmental interventions include concerns
about creating and reinforcing dependency, rather than encouraging the
growth of strong economies,450 while environmental concerns such as
employment and remuneration opportunities and reliance upon traditional declining

sectors. They also specify that improving mobility of rural dwellers should be a top
priority, as well as focusing employment opportunities within regional centres.)
448
Lisa L Patterson, Aboriginal Roundtable to Kelowna Accord: Aboriginal Policy Negotiations,
2004-2005 (Ottawa: Library of Parliament, Parliamentary Research Service, 2006); see
also Canada, Department of Finance Canada, Growing the Middle Class, tabled in the
House of Commons by William Francis Morneau (Ottawa: Department of Finance
Canada, 2016) at 133-148 (new educational and economic funding initiatives by the
Trudeau government); First Nations Child and Family Caring Society of Canada and the
Assembly of First Nations v Attorney General of Canada (Representing the Minister of
Aboriginal Affairs and Northern Development Canada) and Chiefs of Ontario and Amnesty
International Canada (25 August 2014), T1340/7008 at para 627, online: CHRT
<https://fncaringsociety.com/sites/default/files/CHRC%20Closing%20Submissions
_0.pdf> [First Nations Family Caring Society of Canada] (CHRT decision specifying that
First Nations children are entitled to at least the same child welfare funding and
services as those provided to all other children in Canada.).
449
The model for building Hydro projects in Manitoba now typically involves making the
community in whose traditional territories the project is located in effect an equity
partner in the project by committing to employ a significant share of Aboriginal
contractors and employees. Examples of where this has occurred include the
Wuskwatim and Keeyask projects. More information and examples of Hydro-related
settlement agreements are available at Government of Manitoba, Indigenous and
Municipal Relations (2016), Manitoba.ca (provincial government website), online:
<http://www.gov.mb.ca/ana/>.
450
Calvin Helin, Dances with Dependency: Out of Poverty Through Self-Reliance, 1st ed
damage to the natural environment and hunting areas exist as concerns

for private sector partnerships.451
Other authors have emphasized the need for more internally-
generated entrepreneurship, including the creation of formal property
rights sufficient for individuals in the Aboriginal community to be secure
in their individual ownership of a business or to use their ownership to
obtain business loans.452 Part of the solution, though complicated, is
bringing together the incompatible viewpoints held between parties who
advocate how to best solve the issue of Aboriginal inequality, particularly
for on-reserve populations.453 Government legislation and policies that
assimilate Aboriginal people into Canadian culture should be avoided, but
so should the impoverished conditions that many on-reserve Aboriginal
Canadians currently face.
One strategy that could conceivably improve economic conditions for
Aboriginal communities is increasing the level to which Aboriginal
individuals are able to self-govern. At the same time, there is conflicting
evidence that self-government may not produce sufficient material and
social improvement unless there are sufficient checks and balances with
the government, particularly with regard to separating political dealings
(Vancouver: Orca Spirit, c2006).

451
See for example Heather Myers, Changing Environment, Changing Times
Environmental Issues and Political Action in the Canadian North (2001) 43:6
Environment: Science and Policy for Sustainable Development 32.
452
See Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and
Fails Everywhere Else (New York: Basic Books, c2000) and Thomas Flanagan,
Christopher Alcantara, & Andre Le Dressay, Beyond the Indian Act: Restoring Aboriginal
Property Rights (Montreal: McGill-Queens University Press, 2010).
453
This is exemplified in the rejection of the 2004 Taxpayers reports main
recommendation of phasing out the reserve system because community-held property
is considered to be a basic tenant of Aboriginal life and reserve lands are all that is
left of the land that [Aboriginal people] used to occupy and possess. While respect
for and preservation of Aboriginal culture is a necessity, this report raises important
questions about the economic viability of Aboriginal reserves that need to be
discussed rather than dismissed. See Bill Curry, Dump First Nation reserve system,
says report CanWest News Service (of Don Mills, ON) (18 April 2004) quoting Andy
Mitchell and Phil Fontaine respectively, online:
<http://proxy2.lib.umanitoba.ca/login?url=http://search.proquest.com.proxy2.lib.um
anitoba.ca/docview/460845708?accountid=1456>.
from the administration of assistive programs.454 Ineffectual leadership or

gaps in responsibilities can lead to inefficient use of funding by band
councillors.455
Another major issue for Aboriginal communities, especially those on
reserve, is physical isolation. A report published in 2004 by the Canadian
Taxpayers Foundation shows that the Indian Act has segregated Aboriginal
Canadians by placing them on reserves, creating a system that limits their
ability to fully participate in the economy.456 The course of modern
development in Canada has seen a huge shift in population from rural
areas to urban areas; the major exception is in Aboriginal reserve
communities, where populations are often growing quite quickly in
relation to the Canadian average.457 Urbanization tends to be associated
454
Strategies like the Harvard Project endorse maintaining the integrity of Aboriginal
civil services from undue political disturbances and, as in any community, protecting
individual and minority rights from oppression by any dominant factions by utilizing
stable political institutions and policies, independent court system [sic] or other
dispute-resolution mechanisms, a capable bureaucracy and the separation of politics
from day-to-day business management. Canada, Parliamentary Information and
Research Service, The Harvard Project on American Indian Economic Development: Findings
and Considerations, by Tonina Simeone (Ottawa: Library of Parliament. 2007). For
example, there is limited accountability for the funding given to reserve Chiefs
responsible for allocating the money as there is no requirement for reserve
governments to reveal their financial records. (Fiss, infra note 456 at 3). Testimonies
also point to corruption through the band offices, such as buying votes, nepotistic
practices, and self-payment through contracts by band councillors. (Fiss, infra note 456
at 2).
455
John Kiedrowski, First Nations housing is not up to code, The National Post (11
January 2013), online: <http://news.nationalpost.com/full-comment/john-
kiedrowski-first-nations-housing-is-not-up-to-code>. Kiedrowski writes that, for
example, band councils have the responsibility of ensuring housing meets building
codes and what houses are to be repaired. Due to no access to building standards,
using unqualified workers, or poor construction practices, homes that would have
lasted decades if built properly only last a few years.
456
Tanis Fiss, Apartheid: Canadas Ugly Secret (Canadian Taxpayers Federation, 2004) at i
[Fiss].
457
As of 2011, off-reserve Aboriginal people constituted the fastest growing segment of
Canadian society, with 56% of Aboriginal people living in urban areas (compared to
49% in 1996). Canada, Aboriginal Affairs and Northern Development Canada,
Urban Aboriginal Peoples (Ottawa: AANDC, 1 December 2014), online:
<https://www.aadnc-aandc.gc.ca/eng/1100100014265/1369225120949>.
with economic growth in concentrated areas, it is easier to find others

with whom to associate for business and employment purposes; and even
with todays e-commerce capabilities, distance, and transportation costs
remain a factor in the success of enterprises.458 In some Aboriginal
communities there has been a shift of population from the traditional
reserve community to urban areas, which could conceivably result in the
loss of talent and leadership in urban Aboriginal communities and the
need to find ways of ensuring that those who leave rural Aboriginal
communities for urban centres retain productive family, cultural, and
economic contacts with their communities of origin. Furthermore, there
are significant issues of poverty among many urban Aboriginal
populations in Canada,459 and merely moving to an urban area may not
necessarily solve problems, and could in fact create other challenges, such
as feelings of isolation from the urban mainstream and separation from
family and friends in the traditional community due to a lack of support
programs and huge cultural adjustments.460
Part of an overall strategy to ameliorate conditions in traditional
communities in Canada, may in effect, take the form of robust policies to
increase physical access; this would include building high quality roads,461
improving aircraft or airship462 access, and better internet and
telecommunication infrastructure. Lowered transportation costs and
increased access could also potentially have positive downstream effects,
such as encouraging employers and services to locate to the area. Lowering
458
See for example Laura Galloway, John Sanders & David Deakins, Rural small firms
use of internet: From global to local 27:3 J of Rural Stud 254 (rural economy in
Scotland is sustained by local trade, despite the advent of ecommerce capabilities. A
balance of focus on local and external focus is recommended to maximize business).
459
Kate Rexe, A Nation in Distress: The Political Economy of Urban Aboriginal Poverty (MA
Thesis, Carleton University, 2007) [unpublished].
460
Fiss, supra note 456 at 5.
461
Northwest Territories, Department of Transportation, Investing in Roads for People
and the Economy: A Highway Strategy for the Northwest Territories, (Yellowknife:
Government of Northwest Territories, November 2000), online:
<http://www.pws.gov.nt.ca/pdf/grd/ch3/NWT%20HighwayStrategy.pdf>.
462
Barry E. Prenice & Stuart Russel, Competing Technologies and Economic
Opportunities for Northern Logistics: The Airship Solution (Paper delivered at the
44th Annual Canadian Transportation Research Forum, 2009), 44 th Annual Meeting
Proceedings 685.
the cost and improving the availability of nutritious food, and making it
easier for residents of remote communities to travel to healthcare services
or have healthcare providers visit them are other important
considerations.
Beyond improving the effects of physical isolation, improved
education, training, health and social services for members of traditional
communities can be important in promoting physical and emotional
health, and economic security. The Canadian Human Rights Commission
(CHRC) has established that Canada must ensure reasonably equal
funding for Aboriginal communities in areas such as child and family
services.463 Furthermore, physical isolation cannot be the only factor
impacting the earning power of Aboriginal Canadians, since non-
Aboriginal Canadians have higher median earnings than employed
Aboriginal Canadians both in urban ($7,083 higher) and rural ($4,492
higher) settings.464 Aboriginal Canadians who work on reserves experience
a significant level of income degradation compared to non-Aboriginal
Canadians who work on reserves, and disparities in income continue to
exist for Aboriginal groups who do not have reserves.465 The income gap
between Aboriginal and non-Aboriginal populations extends beyond this
factor. Another possible reason is the difference in education attained:
28.9% of Aboriginal people aged 25-64 were reported to have no
certificate, diploma, or degree compared to 12.1% of non-Aboriginal
people of the same age group.466 Similarly, 48.4% of Aboriginal people
aged 25-64 had a postsecondary qualification in 2011 compared to 64.7%
of non-Aboriginal people.467 This likely affects the income disparity, but it
is not the sole cause: the level of educational attainment for Aboriginal
men and women has increased, but disparity in incomes between non-
Aboriginal and Aboriginal people for education levels below a Bachelors
463
First Nations Child and Family Caring Society of Canada, supra note 448.
464
Daniel Wilson & David Macdonald, The Income Gap Between Aboriginal Peoples and the
Rest of Canada, (Ottawa: Canadian Centre for Policy Alternatives, 2010) at 13.
465
Ibid.
466
Statistics Canada, The educational attainment of Aboriginal peoples in Canada:
National Household Survey, Catalogue No 99-012-X2011003 (Ottawa: Statistics
Canada, 2011) at 5, online: <http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-
012-x/99-012-x2011003_3-eng.pdf>.
467
Ibid at 4-5.
degree persists.468 A study measuring employment in visible Canadian

minorities found that as of 1996, even with post-secondary education,
racial minorities and Aboriginal people experience lower employment
rates compared to non-visible minority Canadians, no matter the field of
study.469 Non-visible minority Canadians are also three times as likely as
Aboriginal Canadians to be in the highest income quintile despite the
same level of education.470 More available jobs with equivalent pay levels,
lesser discrimination, and abandoning Canadas assimilation-style policies
are needed to help close this gap.471
With the federal government diverting most of its funding towards on-
reserve populations, services that are frequently used by Aboriginal people
remain underfunded and not adapted to their cultural needs. Part of the
solution rests in more efficient allocation of government resources, such as
supporting Aboriginal people who choose to leave reserves. An example of
this is the Urban Aboriginal Strategy which took effect April 1, 2014 and
aims to increase the participation of urban Aboriginal populations in the
economy and support urban Aboriginal programming.472 Better support
through public policy for Aboriginal populations both on- and off-reserve
will help to alleviate the socioeconomic conditions many Aboriginal
people face and ultimately lower poor health outcomes and disease
prevalence.
In order to solve wide-scale issues like those pertaining to the
incidence, prevalence, prevention, and treatment of FASD, both micro-
and macro-level analyses must be undertaken. While part of the overall
solution must address macro-level problems such as socioeconomic
inequality and development, resolving issues fully could take decades or
generations to accomplish. As such, while addressing the issue of social
inequality is important to the eradication of FASD, this paper does not
468
Canadian Council on Social Development, Unequal Access: A Canadian Profile of Racial
Differences in Education, Employment and Income (Canadian Race Relations Foundation,
2000) at 17, online: <http://crrf-fcrr.ca/images/stories/pdf/unequal/Engfin.pdf>.
469
Ibid at 19.
470
Ibid at 22.
471
Ibid at 17 and 28.
472
Canada, Indigenous and Northern Affairs Canada, Urban Aboriginal Strategy
(Ottawa: AANDC, Modified 1 January 2016), online: <https://www.aadnc-
aandc.gc.ca/eng/1432837046128/1432837073962>.
purport to contribute to the debate of which solutions would be most

effective at reducing inequality; however, this paper does recommend that
attempting to treat or ameliorate the effects of FASD should not be
postponed until socioeconomic change can be achieved, particularly
because some health issues have been virtually resolved even though the
broader social context between Aboriginal and non-Aboriginal Canadians
remains in a less-than-equal state. Furthermore, since finding resolutions
to large-scale social issues can have a direct impact on FASD prevention,
these solutions can still be considered as part of a wider FASD prevention
program, even though they should not necessarily be considered a focus
of, or a barrier to, the prevention program itself.
D. Alcohol Regulation
As mentioned earlier in this paper, alcohol use among women is
becoming increasingly popular and is likely to increase incidences of
FASD and other diseases if not more effectively regulated (See Rates of
Alcohol Use among Women at page 131). Though the focus of this paper has
been mostly on the effects of alcohol use among Aboriginal women at risk
of having an alcohol-affected pregnancy, this problem is far wider
reaching. Those at risk of having a child with FASD are not necessarily
Aboriginal or afflicted with alcoholism. Any woman capable of having a
child and who consumes alcohol can have a child with FASD (particularly
if her consumption pattern is binge drinking). This portion of the paper is
not meant to stigmatize women who choose to use alcohol nor limit their
autonomy. Instead, it aims to propose policy changes that could benefit
Canadian society as a whole and limit the negative effects of alcohol use
experienced by women. Alcohol use is widely prevalent in Canadian
society: in 2010-2011, Canadians were reported to have spent $20.3
billion on alcoholic beverages with real direct revenues to provinces and
territories from alcohol sitting at $3.40 billion.473 However, as a result of
the wide range of direct and indirect costs related to alcohol consumption,
such as productivity losses, prevention research, enforcement, and health
care costs, it is likely that this amounts to an overall deficit of $1.15 billion
473
Gerald Thomas, Analysis of Beverage Alcohol Sales in Canada, Report 2/3 in Alcohol
Price Policy Series (Ottawa: Canadian Centre on Substance Abuse, 2012) at 9-10.
to governments across all provinces and territories.474 More effective

policies regulating alcohol use may help to prevent risky drinking patterns
before they develop, particularly in youth, and lessen governmental
financial burdens by alleviating the effects and costs of alcohol use.
In a cross-cultural study of alcohol use involving twenty-four countries,
the gender gap in prevalence rates of drinking was shown to be shrinking
in many countries from 1998 to 2006.475 The increased prevalence in
women was hypothesized to be a result of changing social roles, increased
effectiveness of marketing, or ineffective policies or programs directed at
girls.476 New product development also plays a role. For example, flavoured
alcoholic beverages are more popular among younger drinkers and females
in secondary schools students in the United States in every age group.477
This demonstrates that adult women are not the only ones hurt by alcohol
companies marketing campaigns that aim to target adults
simultaneously target youth. A study on alcohol marketing found that
television advertising reached 96% of the adult population while
simultaneously reaching 89% of youth ages 12-20.478 Similar percentages
of youth in comparison to adults were targeted through magazine
advertisements while radio advertisements were placed in programming
with a disproportionate number of listeners below the legal drinking
age.479 Other advertising outlets include sponsorship in sports events,
product placement in film and television, music, mobile phones, and
social media.480 This over-exposure to alcohol advertising may be
474
Ibid at 11-14.
475
Bruce Simons-Morton et al, Gender specific trends in alcohol use: cross-cultural
comparisons from 1998 to 2006 in 24 countries and regions (2009) 54 (Suppl 2) Int
J of Public Health 199.
476
Ibid at 206.
477
Lloyd D Johnston et al, Monitoring the future national survey results on drug use, 1975-
2006, Vol 1: Secondary School Students, (Bethesda, MD: National Institute on Drug
Abuse, 2007).
478
Center on Alcohol Marketing and Youth, CAMY monitoring report: Youth exposure to
alcohol advertising on television and in national magazines, 2001 to 2006, (Washington,
DC: 2007).
479
Ibid; Jernigan D et al, Youth exposure to alcohol advertising on the radio United
States, June-August 2004 (2006) 55:34 Mortality and Morbidity Weekly Report 937.
480
David Jernigan, The extent of global alcohol marketing and its impact on youth
(2010) 37:1 Spring Contemporary Drug Problems 57.
particularly worrisome with regard to youth. Findings show that alcohol

advertising can shape the perceptions about alcohol use among both youth
and young adults, but only youth attitudes and perceptions predicted
positive expectancies about alcohol and intentions to drink.481
Drinking culture has expanded in postsecondary environments as
well, particularly where binge drinking is promoted. Notwithstanding the
fact that, traditionally, male undergraduate students have been more likely
than women to engage in binge drinking,482 there has been an increase in
frequent binge drinking among female undergraduates.483 The motive
behind this increase is unknown, although it may be a response to shifting
traditional gender roles and the abandonment of the negative stigma
traditionally associated with womens drinking.484 One study proposed
that women who frequently binge drink are copying male drinking
behaviours not to achieve a sense of equality or power, but because these
behaviours elevated their social position and made them more sexually
appealing to their male peers.485 It may be argued that because this is a
short-lived life stage, the risks are minimal. But this is not the case. Heavy
alcohol use during college has been found to be associated with alcohol
use problems after post-secondary education,486 and women who develop
drinking problems tend to develop them more quickly than men do.487
This is coupled with womens aforementioned physiological vulnerability
to excessive alcohol use, as well as binge drinkings connection to injury,
sexual harassment and assault, violence, and academic impairment, which
481
Kenneth Flemning , Esther Thorson & Charles Atkin, Alcohol advertising exposure
and perceptions: Links with alcohol expectancies and intentions to drink or drinking
in underaged youth and young adults (2004) 9 J of Health Communication 3.
482
Patrick OMalley & Lloyd Johnston, Epidemiology of alcohol and other drug use
among American college students (2002) 14 J of Stud on Alch 23.
483
Amy Young et al, Drinking like a guy: Frequent binge drinking among
undergraduate women (2005) 40:2 J of Substance use and misuse 241.
484
Ibid at 247.
485
Ibid at 261.
486
Susan ONeill, Gilbert Parra & Kenneth Sher, Clinical relevance of heavy drinking
during college years: cross-sectional and prospective perspectives (2001) 15:4
Psychology of Addictive Behaviors 350.
487
Carla A Green, Gender and use of substance abuse treatment services (2006) 29:1
Alcohol Research and Health 55.
may all have negative implications later in womens lives.488 As alcohol

abuse has been linked to unprotected sex, it may be that binge drinking is
a risk factor for unintended pregnancies.489 One study surveying over
70,000 respondents in the United States found not only that binge
drinking is a risk factor for unintended pregnancy, but also that binge
drinkers were more likely than non-binge drinkers to expose their fetus to
risk factors for adverse pregnancy outcomes.490
Alcohol marketings effect on youth, particularly young women, and
increases in female drinking are important areas to address in regard to
FASD prevention. Encouraging excessive alcohol use, particularly binge
drinking, in women who are soon to be or currently sexually active likely
increases the risk of FASD. This is particularly true for populations where
excessive drinking is correlated with unprotected sexual activity for both
genders. There are a number of ways to regulate alcohol, some of which
are expected to be more effective than others. One proposal is altering the
drinking age to deter drinking in younger populations and college-age
drinking. The United States use of a higher minimum legal drinking age
of 21 years has been generally successful and shows an association with
lowered rates of alcohol consumption among youth and related health and
social problems.491 However, regulating minimum drinking age should not
be the primary or only defence against abusive drinking. Other controls
such as social attitudes, marketing limits, alcohol costs and availability,
and enforcement measures are also important.
A recent comprehensive comparison of provinces was conducted to
determine the efficacy of alcohol control policies across Canada and rate
the most influential policies.492 Manitoba was found to have only 45.7% of
488
Perkins HW, Surveying the damage: A review of research on consequences of alcohol
misuse in college populations (2002) 14 J of Stud on Alc Supp 91.
489
See, for example, Christiane Poulin & Linda Graham, The association between
substance use, unplanned sexual intercourse and other sexual behaviours among
adolescent students (2001) 96 Addiction 607.
490
Timothy Naimi et al, Binge drinking in the preconception period and the risk of
unintended pregnancy: Implications for women and their children (2003) 111 Suppl
Pediatrics 1136 at 1140.
491
Traci L Toomey & Alexander C Wagenaar, Effects of minimum drinking age laws:
review and analyses of the literature from 1960 to 2000 (2002) 63:2 J of Studies on
Alcohol 206 at 209.
492
See Giesbrecht N et al, Strategies to Reduce Alcohol-Related Harms and Costs in Canada: A
an ideal score and ranked 7th out of the 10 sampled provinces.493 The most
effective policies in reducing alcohol harm and consumption were
determined to be pricing, control system, and physical availability based
on the policies respective effectiveness and scope.494 Notably, young adult
drinkers have been shown to be particularly price-sensitive, suggesting
prices in general may potentially be controlling risky drinking
behaviours.495 Pricing alcohol higher based on higher alcoholic content
may be an effective strategy to deterring risky drinking behaviour as well.496
Annual adjustments to minimum prices to keep alcohol prices attuned to
inflation and establishing minimum standard drink costs for different
purchasing settings would potentially increase public health and safety as
well as public finance.497 The report recommended a minimum price of
$1.50 per standard drink from an off premise outlet and $3.00 per
standard drink for alcohol from on premise outlets.498 It also
recommended that prices be indexed to inflation and that prices be
regulated over time as well as according to strength of alcohol content.499
1. On-Reserve Alcohol Prohibition

There is the argument that Aboriginal leaders should ban alcohol on
reserves, but this may be easier said than done. A total prohibition is
bypassed by bootleggers and home-brewed alcohol so those addicted can
still obtain liquor, leaving the root problem of alcohol addiction
unsolved.500 It may also exacerbate the use of drugs on reserve as they are
easier to smuggle in and may be less expensive than smuggled alcohol on
comparison of Provincial Policies (Toronto: Centre for Addiction and Mental Health,
2013) [Provincial Policies].
493
Ibid at 49.
494
Ibid at 47.
495
Gerald Thomas, Price Policies to Reduce Alcohol-Related Harm in Canada: Alcohol Price
Policy Series, Report 3/3 (Ottawa: Canadian Centre on Substance Abuse, 2012) at 2.
496
Ibid at 3.
497
Ibid.
498
Provincial Policies, supra note 492 at 50.
499
Ibid at 50-51.
500
Banning Booze Wont Solve Problems, CBC News (1 February 2008) online:
<http://www.cbc.ca/news/canada/manitoba/banning-booze-won-t-solve-problems-on-
reserves-chiefs-1.705400>.
more isolated reserves.501 Another challenge is that there may be limited

police available to enforce the bans.502 One potential option to reduce
alcohol abuse is through the price control of alcoholic beverages; recent
studies have shown all drinking levels are responsive to price.503
Criticism aside, this proposed solution of banning liquor may not be a
viable one due to recent legislative changes. Under the Indian Act, a reserve
seeking to ban the sale, purchase, and possession of alcohol requires the
drafting of a bylaw which must be approved by the majority of residents
through a vote at a special meeting called for the reason of considering the
by-law.504
X. LEARNING FROM SUCCESSES

Preventable public health issues such as FASD and the detriment they
pose to society on both a macro and micro level are not a new source of
concern. Several projects have already been proposed and put into action
to combat FASD. In an analysis of the Public Health Agency of Canadas
FASD Initiative, six critical success factors were identified:505
- Leadership
- The ability to build strong, trusting partnerships
- Shared vision and clear roles
- The ability to make strategic investments
- Responsiveness and adaptability
- The right people with the right skills/approaches
By analyzing successful initiatives, it can be determined how these
factors operate, which approaches are most effective, and how inefficient
resource use can be avoided. The most notable findings included strong
internal leadership, effective reciprocal and respectful communication,
and providing substantial benefits for member participation. These
benefits could include building knowledge and skills in participants,
rewarding relationships, and providing leadership opportunities.
501
Ibid; Tait 2003, supra note 48 at 163.
502
Ibid (CBC).
503
504
Indian Act, RSC 1985, c I-5, s 85.1.
505
Evaluation of FASD Initiative, supra note 177.
Dedicated leadership that comes from within the community rather than
imposed from the outside is required to address specific community needs.
A community that implements a project surrounding FASD should have
someone living in or close to the community who is willing to make FASD
prevention a priority and has the knowledge and ability to coordinate each
element of the comprehensive strategy.
A. FASD Action Network

The FASD Action Network was established in Ontario in 2002 with the
purpose of promoting awareness around womens alcohol use during
pregnancy as well as prevention and support for those living with FASD.506
Health and service providers were invited to join and develop an action
plan that would include risk avoidance and reduction, enhancing health,
early interventions, and treatment/rehabilitation programming.507 The
functioning of this program has been examined by Clarke-McMullen
through the lens of the Internal Coalition Outcome Hierarchy Model,
which uses the following seven constructs to evaluate the organizations
internal processes: shared social vision, efficient practices, knowledge and
training, relationships, participation, activities, and resources.508
The first level of analysis is process-level evaluation: it focuses on
program operations, activities, functions, and the performance of the
group and involves sufficient resources, completed activities, and diverse
participation.509 One important finding was that despite not having
sufficient funding for its programming, the FASD Action Network
continued to operate by pooling funds and having all members work
together in the interest of FASD prevention, awareness, and support;
other public health coalitions with sufficient funding have failed because
of conflict, unequal work distribution, and frequent leader turnover.510 To
make do with limited resources, funds were used creatively to carry out
network activities, each member was given sufficient time to participate,
506
Donna Clarke-McMullen, Evaluation of a successful fetal alcohol spectrum disorder
coalition in Ontario, Canada (2010) 27:3 Public Health Nursing 240 at 242.
507
Ibid.
508
Ibid at 241.
509
Ibid at 243.
510
Ibid.
and projects were tagged onto existing programs wherever possible.511

Prior to taking action, problems were identified through scanning
communities to determine which community actions could resolve them,
and to set activity targets as well as yearly plans.512 Diverse participation is a
feature routinely identified in successful coalitions and was present in the
FASD Action Network: as the program grew, so did its member diversity.
The program initially consisted of a public health nurse, school team
nurse, addiction worker, consultant on womens substance use, infant
development home visitor, and Aboriginal nurse.513 It later expanded to
include childrens mental health workers, paediatricians, educators, a
geneticist, and parents of children with FASD.514
With a solid coalition base, the focus can then move to sustainable
outcomes to examine relationships, new knowledge and training for
members, and efficient collaboration practices.515 The FASD Action
Network had a strong core member group that facilitated the community
capacity-building process that involved rewarding, positive relationships; it
also had strong leadership that facilitated learning.516 Its leadership style
facilitated a reciprocal relationship between leaders and participants as
well as an opportunity to gain knowledge and expertise that could be
applied at members own worksites.517 This leadership style provided
benefits of participating in the coalition that outweighed the effort and
time commitment, thus maintaining active member participation.518
With regard to new knowledge and training, a leader may act as a resource
broker, linking the community to the appropriate partner and showing
members of the coalition where they can be most effective.519 Subgroups
formed to accomplish specific targets, but remained linked to the main
organization through shared knowledge and resources such that capacity-
511
Ibid.
512
Ibid.
513
Ibid.
514
Ibid.
515
Ibid at 244.
516
Ibid.
517
Ibid.
518
Ibid.
519
Ibid.
building activities were working on multiple levels within the

community.520 Federal and provincial connections directed some of the
goals and activities of the FASD Action Network by providing updated
information and suggestions that were subsequently worked into the
programming to increase community and member knowledge.521
The success of the FASD Action Network has some tangible lessons for
developing an FASD prevention strategy. A coalition requires strong
leadership and should engage a cross-section of interested professionals,
identify the knowledge level of the community, and raise awareness prior
to employing best practices.522 Yearly plans are important for motivating
members while funding can be found if agencies work together.523 Areas
identified for improvement within the Action Network were new member
orientation and preparation for network leaders, as well as matching lead
agency mandates to the projects in order to sustain involvement and
adoption of the program.524 Effective leadership and positive member
relations across project levels is clearly one of the most important aspects
to a successful project.
B. The North Karelia Project

The North Karelia Project was a successful community health
intervention launched in Finland in 1971 in response to having the
worlds highest rates of death from coronary heart disease.525 This project
recognized the role of lifestyle-related risk factors that increased chronic
disease rates and proposed a preventative community-based approach to
target the whole population; it would work with a range of organizations
and change general risk-related lifestyles to transform North Karelias
social and physical environment.526 The project used an integrated
approach to prevention that targeted the main common behavioural risk
520
Ibid at 244-245.
521
Ibid at 244.
522
Ibid at 246.
523
Ibid.
524
Ibid.
525
Pekka Puska, The North Karelia Project: 30 years successfully preventing chronic
diseases (2008) 53 Special Issue Diabetes Voice 26 at 26.
526
Ibid at 27.
factors for a range of chronic diseases, including unhealthy diet, smoking,

and physical inactivity.527 Significant changes were observed in risk-related
lifestyles and risk factors in the North Karelia population which continued
over a thirty-year period: the mortality rate for coronary heart disease
among working-age men in 2006 was 85% lower than the period between
1969 and 1971 and rates of stroke and tobacco-related cancers among men
have greatly diminished.528 This project exemplifies the effectiveness of
community-based approaches in chronic disease control, i.e. programs that
combine community involvement with environmental and policy-based
measures.529 The North Karelia Project employed community involvement
on multiple levels including healthcare, the food industry, local media,
and schools; building close collaborations with diverse organizations was
essential to its success.530
There are many similarities between this papers proposed FASD
prevention strategy and the North Karelia Project. Both are responses to
needs of specific communities and measure the effect of programming on
a target community. As was done with the North Karelia Project, the data
obtained in FASD community interventions from the smaller target
community could then be used to address the issue of prevention on a
national scale.531 Both projects also look beyond immediate causes and to
population risk factors and engage diverse community organizations. Also,
addressing North Karelias high rates of disease posed similar obstacles to
treating FASD in Canadian Aboriginal communities: North Karelia was a
low socioeconomic area with minimal medical resources and its local
culture was a traditional one that was resistant to change.532
There are also significant differences between the two projects, most
notably the complicated and sensitive history of Aboriginal communities
that has resulted in high rates of substance abuse and the suspected high
527
Ibid.
528
Ibid at 27-28.
529
Ibid at 28.
530
Ibid.
531
Ibid at 27.
532
Pekka Puska, Successful prevention of non-communicable diseases: 25 year
experiences with North Karelia Project in Finland (2002) 4:1 Public Health Medicine
5.
prevalence rates of FASD in Aboriginal communities. Treating a disease

caused by behaviours that involve addiction and coping mechanisms is
likely to be much more difficult than implementing simpler behavioural
changes that involve lifestyle and dietary choices. Strategies that specifically
target high-risk people and underlying causes of alcohol use should be
implemented in addition to targeting the whole community. This should
all be done while employing culturally appropriate practices and
encouraging sustainable programming within Aboriginal communities.
C. Alkali Lake Sobriety Movement

The story of Alkali Lake is an excellent example of an Aboriginal
community creating change from within to decrease its issues of substance
abuse while increasing its autonomy and building capacity. This
intervention is one solution that directly addresses internal community
problems such as substance abuse and poverty which in turn would
directly impact FASD prevalence. The sobriety movements interventions
exemplify several of those discussed in this proposal.
Prior to its sobriety movement, Alkali Lake was afflicted with
community alcoholism; the communitys foundations had been weakened
by the introduction of alcohol by European traders, easy alcohol access,
and residential school experiences.533 A small group of individuals became
sober with the support of an AA counselor who visited the community.534
Most notably were Phyllis and Andy Chelsea who brought significant
changes to the community and shifted the groups role to that of an
intervention team.535 Andy Chelsea became the Chief of the reserve and
used his authority to become the strong leader that the community needed
in order to bring about community-wide change.536 He set up weekly
alcohol awareness meetings run by counsellors who also provided
counselling to individuals and their families, launched a community
newspaper that was used as an educational tool, and generated dialogue
about community wellbeing.537 He also adopted a facilitative and
533
Michael Bopp & Judie Bopp, The Esketemc (Alkali Lake) Community Story: A Case Study
(Calgary: Four Worlds Centre for Development Learning, 2011) at 9, 11.
534
Ibid at 15.
535
Ibid.
536
Ibid at 16.
engaging leadership style to address the communitys needs and wants and
limited access to alcohol by stopping alcohol delivery services and
bootlegging.538
Andy also recognized that the social assistance relied upon by 90% of
the residents was primarily being spent on alcohol and the nearest grocery
store was severely overcharging Alkali Lake Band members.539 This made
adequate nutrition extremely inaccessible for the community. In response
to this, the Band initiated a voucher system so that individuals who were
drinking heavily would receive vouchers for food, goods, and services
rather than money, and Phyllis was trained to become the Bands welfare
aid to manage the social assistance funds and implement this change.540 A
grocery store was opened on the reserve to directly challenge the nearest
grocery stores monopoly and improve the communitys economy.541 Band
money was also allocated to encourage access to alcohol treatment such as
paying for child care arrangements, repairing a persons house when they
were away for treatment, and providing employment for those who
maintain sobriety after treatment.542
The Alkali Lake Sobriety Movement presents a clear example of the
type of community-based prevention that communities should strive for. It
was unique to that communitys needs; involved training local community
members and increasing self-sustainability; relied on strong leadership that
revolved around effective communication; and used what community
resources were available to it. This movement focused on the community-
wide pattern of living that was at the root of its substance abuse, and
remodelling the community on economic, social, political, and cultural
levels.543 Effective interventions included cultural renewal, building
learning opportunities, developing the communitys economy, and
creating alternative social and recreational opportunities;544 all of these are
537
Ibid at 17-18.
538
Ibid.
539
Ibid at 19.
540
Ibid.
541
Ibid at 20.
542
Ibid at 23.
543
Ibid.
544
Ibid at 24-27.
recommended as strategies for the present prevention initiatives. The

Alkali Lake movement also serves as a reminder that lessening substance
abuse in communities, as well as FASD, should not be expected to be a
quick fix. It will take years for positive changes to occur within
communities and to heal generation-wide abuses. It is vital that initiatives
focus on becoming self-sustaining and accepted within communities so
this change can be achieved.
XI. SUMMARY OF PREVENTION STRATEGY
A. Prevention Strategy Principles
The causes of FASD are complicated. Alcohol use alone does not cause
FASD poor nutrition, poverty, patterns of drinking, childhood and
adult abuse, and use of other substances all contribute.
FASD is expensive, but prevention is not. In addition to economic

calculations indicating the high costs of care, education, and lost
productivity, FASD places an enormous human cost on individuals,
families, and communities. Relative to these costs, prevention strategies
are a bargain.
To prevent FASD, an Aboriginal conception of health is not just

culturally appropriate, but also potentially productive. The idea of
health as total wellness that encompasses all social determinants of health
should be embraced in order to comprehensively deal with FASD and its
root causes.
Aboriginal communities face many health and social issues. FASD

prevention requires recognizing the historical reality facing Aboriginal
people and the difficulties many have had to, and continue to, overcome.
The Project can act as a lens through which defects in community health
determinants can be highlighted and as a catalyst for greater integration of
services and effective capacity-building that can improve all health
outcomes, not just those of FASD.
There are many barriers to FASD prevention. Women face significant

obstacles to accessing services. These obstacles can limit access even when
these women want to do their best to combat substance issues. Many

service professionals also find it difficult to address FASD issues, even
when they come in contact with people who need help. By recognizing
these barriers, the prevention initiatives can work to overcome them.
Each community is unique. Not only are the issues and capabilities of
each community different, but so are traditional teachings and health
priorities. The prevention strategy is intended to guide a community with
the creation of a customized FASD prevention program that fits local
needs.
Success will come largely from community-based participation. A project

will not be imposed on a community by outside experts. FASD prevention
cannot succeed without community support being integrated and without
collaborating with service partners. Project leadership must come largely
from within the community.
Goals are integral to success. The Project must have targets to aim at and
those working on the project must know whether those targets are being
met. As such, hard statistical goals and data collection are required to
ensure that the Project is operating effectively.
B. Prevention Strategy Recommendations
Prevention is comprehensive. The Project involves interventions at every

level individual, family, and community-wide.
Harm reduction is the logical strategy. Abstinence should be a goal of the

Project, but even reductions in substance use will lead to better health
outcomes for mothers and children.
FASD prevention starts before pregnancy and before addiction. An

important element of eliminating FASD is understanding why substance
use is a chronic issue and why women who use substances have unplanned
pregnancies. It is vital to involve community youth in prevention
programming in order to achieve long-term change.
Improve nutrition. Individual nutrients are not a silver bullet for FASD
prevention. However, poor nutrition remains a problem of poverty and
alcoholism that must be addressed as part of a comprehensive wellness
plan.
Public education programs can be effective. They must be carefully

planned, avoid stigma and fear, and raise awareness while directing people
to services. The more people in the community know about FASD and the
detrimental effects of substance abuse, the more support the rest of the
project will have.
Health and service workers must be trained in FASD, substance abuse,

and cultural competency. Interactions between health and service workers
with at-risk women in the community are opportunities to treat or direct
women appropriately. Negative interactions will discourage women from
seeking care and support.
Universal screening is an important first step. Screening is necessary for

determining which community members need what level of assistance.
Even without follow-up, screening can help decrease substance use.
Screening should never come across as an interrogation nor be
judgemental.
Brief interventions are non-intrusive and cost-effective. With only a few

short meetings with women at risk, brief interventions can positively
change unhealthy behaviour. Brief interventions can range in intensity
and length and should be tailored to the community involved.
Case management, advocates and mentors work on the most vulnerable.

These intensive strategies have shown success working with women at the
highest risk of having a child with FASD. Case management is an
opportunity to train community members to increase agency and
encourage positive relationships that direct at-risk women to appropriate
support.
Aboriginal midwifery leads to better birth outcomes. Expanding these

training programs in Manitoba would lead to valuable partnerships for the
prevention strategy. Training more Aboriginal midwives would allow more
women to have control over their childbirth plan and provide much-
needed pre- and post-natal care.
Treatment centres must be designed for Aboriginal women. Facilities

built for men with substance issues cannot effectively address the barriers
to treatment faced by Aboriginal women who may be pregnant at the time
of admission. Specific needs of Aboriginal women must be taken into
account when offering substance abuse treatment, such as child care and
accessibility.
Stop smoking. Smoking compounds the negative prenatal effects of

alcohol. Women who are heavy drinkers are most likely to be heavy
smokers.545 Quitting smoking not only leads to better birth outcomes, it
may also help people reduce drinking.
People around women at risk are important. The existence of social

supports and family/partner substance use are important factors affecting
a pregnant womans attempts to abstain from alcohol. A partners
attitudes towards substance use, birth control, and abuse must also be
addressed by a comprehensive prevention strategy.
Prevention can be centered on schools and education. ECCD can

hook community members who otherwise would not obtain much-
needed services. By running programs for students in primary and
secondary schools, the prevention strategy can help ladder community
members to support programs. With proper training of service
professionals, these programs will not only benefit children in the
community, particularly those with FASD, but will also increase
community capacity if service professionals are pulled and trained from
within the community.
Prevention strategies reinforce each other. These strategies work together

and have compounding effects. By combining the most appropriate
strategies for the community in question, the prevention strategy can make
545
Tsai, supra note 236.
the most efficient use of the communitys resources and address its
particular needs.
XII. CONCLUSION
This paper proposes that government, community programs, and
academic experts partner with Aboriginal communities in order to
conduct a variety of Karelia-like community health projects that are aimed
at reducing FASD. Governments would provide a substantial level of
funding to support five years of programming, which would benefit the
community involved in the project as well as provide important empirical
evidence of effective FASD interventions. Aboriginal leaders and
community members would be full partners with the projects: they must
be involved in identifying community-specific problems and needs,
implementing strategies that will most effectively target these problems,
and engaging the community in carrying out the chosen interventions.
Academic experts would help in planning and carrying out these projects,
most notably in measuring progress and data collection. Community
partners with pre-established programs would be extremely useful in
providing much-needed resources to lessen the costs of the project and
encourage its self-sustainability after the five-year program is completed.
In each pilot community, a variety of measures would be considered.
FASD is only one problem out of many social and economic issues
prevalent in various Aboriginal communities. Addressing some of the
larger socioeconomic issues is likely to assist in FASD prevention, but this
should not preclude short-term or immediate reduction interventions
from being attempted. There are multiple approaches to addressing each
problem, and it is up to the community and project leaders to decide what
the most realistic and effective solution is. Adequate nutrition is a prime
example of this: on more isolated reserves, the main source of groceries
may be a store in which fresh and wholesome food is too expensive or
inaccessible. A program that reduces the cost of wholesome food and
educates community members in nutrition might be included as an
intervention strategy. Reducing the cost of food might be accomplished by
subsidy, but it might also be accomplished on a more sustainable basis
simply by reducing transportation costs or opening a local food store. The
lack of access to safe drinking water experienced by some reserves is an
analogous issue. Focusing on basic health issues such as these are likely to
improve the effects of FASD and overall community health, because by

appropriately allocating funding towards basic nutrition, the massive costs
of widely impacting health issues that affect many Aboriginal communities
such as FASD, malnutrition, diabetes, obesity, and heart disease could be
significantly decreased.546
The prevention strategy described in this paper strives for community
capacity building and culturally appropriate practices. By requiring
community leadership, the project encourages program development from
within; this is more likely to succeed because of leaders who are deeply
connected to the community and its social assistance. Community leaders
will also be more attuned to the community needs and available resources.
Wherever possible, community members should be encouraged to become
involved in the programming as leaders. This would create positive role
models within the community, education and career-building
opportunities, and culturally appropriate programming. It would also
increase the likelihood of a self-sustainable program. Involving more
community members in intervention programs also decreases the
likelihood of negative program reception and feelings of patriarchy;
programs should be based on reciprocal feedback, understanding, and
respect between the community and outside participants. However, setting
community goals should not be an exclusive strategy; ultimately the
Canadian government should be concerned about every individual, and
the development of community goals should not preclude health services
from intervening in individual cases if there is a need to do so. While a
joint program between community leaders and outside participants is the
optimal scenario for program success, and the Canadian government
should encourage Aboriginal communities to design and deliver their own
programs, attempts to provide FASD prevention support cannot be
absolutely contingent on full cooperation of Aboriginal peoples own
government, as desirable as that is. When it is impossible to secure the
support from the communitys leaders, or through the nature of the
program, the overall strategy can include elements that are already being
offered to all Canadians (rather than being tailored to a specific Aboriginal
546
Heart & Stroke Foundation, Overweight, Obesity, and Heart Disease and Stroke, position
statement (H&SF, 2017), online: <http://www.heartandstroke.ca/-/media/pdf-
files/canada/2017-position-statements/obesity-ps-eng.ashx?la=en>.
community), or elements that focus on individual-, rather than

community-wide intervention.
Because of the comprehensive nature of this proposal, isolating the
impact of each element is likely to be challenging. Which specific
interventions or community changes result in success in increased FASD
awareness, capacity building, and reduction in FASD and substance abuse
will be difficult to measure. However, because of the multiple issues that
lead to FASD and its underlying causes, a multi-faceted approach is
required. This will not only address each community as a unique entity,
but more effectively address the multiple levels of support required in the
communities ideally covering the entirety of the micro- to macro-level
intervention spectrum. Furthermore, individual efforts may have negligible
impact on their own, but still exist as significant facets of an overall
program. Confounding variables will exist when measuring the impacts of
prevention strategy interventions; this is an acknowledged potential
shortcoming of the Project.
Regardless, program efficacy can still be effectively measured by
establishing baseline levels in the community prior to implementing
initiatives, as well as documenting inputs, training, and delivery channels
throughout the program. The focus of the Project should not just be on
the final outcome of FASD reduction, particularly as this will be a short-
term project. It should also focus on what areas of the program are most
effective to build upon these areas as things progress, or as new programs
are implemented in other communities. Effects of specific interventions
may not translate from one Aboriginal community to another because of
the respective communities unique characters. As more communities
participate in prevention strategies, more data will be available to
determine the effect of confounding intervention variables.
Because Manitobas population has a large percentage of Aboriginal
people, the choice of pilot communities could include very different
situations. According to Statistics Canada (2006), 15.5% of the provinces
population is Aboriginal with 36.3% of Aboriginal Manitobans living in
Winnipeg and 34.8% living in northern Manitoba.547 Communities will
have different access to resources and different community structures, as
547
Government of Manitoba, Aboriginal People in Manitoba, online:
<https://www.gov.mb.ca/ana/resources/pubs/abpeoplembweb.pdf>.
well as various backgrounds of Aboriginal ancestry. The most feasible place

for the Projects start is thought to be a community where there is a
political community organization already in place, solidified statistics on
membership and residency, and opportunities for provincial and federal
governments to combine expertise and resources. Ideally, the prevention
strategy would collaborate with the Assembly of Manitoba Chiefs and their
member communities. The Assembly of Manitoba Chiefs was recently
involved with an enormous survey project that addresses the health of
children, youth, and adults through a variety of health conditions, services,
and behaviours.548 There were 35 participating First Nations in Manitoba
and 80% of its target sample was reached; these were varied in population
size, location, accessibility, and language territories.549 This longitudinal
health survey would be an extremely useful resource in community
selection, measuring baseline levels, and designing effective interventions
to meet specific community needs. By establishing a relationship with the
Assembly of Manitoba Chiefs, the prevention strategy could be most
effectively placed and be guided from the start by strong community
leaders.
Another issue that must be considered is how broad a pilot should be:
should the focus be only on FASD, or more broadly on related issues, such
as minimizing health issues associated with economic conditions and
nutrition? There are trade-offs to either approach. A narrower focus may
result in more concentrated resource allocation and clearer planning and
data collection. A broader focus may do more immediate good in the
affected community, draw funding and resources from more overlapping
programs, and provide for more sustainable outcomes.
The immediate policy need is to recognize that FASD is an important
problem, particularly for low socioeconomic and Aboriginal communities.
It has debilitating impacts on individuals, families, and communities, as
well as massive costs on justice, social, and education systems. The federal
and provincial governments must make it a priority to take action,
particularly with programs such as this prevention strategy, which will have
multiple advantageous effects on community-wide health. We would
548
Assembly of Manitoba Chiefs, Regional Health Survey (Winnipeg: AMC, 2007), online:
<http://amc.manitobachiefs.com/index.php?option=com_content&view=article&id=
155&Itemid=138>.
549
Ibid.
propose that federal, provincial and Aboriginal officials as well as

academic and community experts organize a collaborative committee to
discuss the first pilot projects that could be conducted. This would include
what communities are suitable for initial selection and what kind of
funding should be made available and by whom, and in the context of
what broad objectives and processes. The next step would be identifying
clear target goals, measurement procedures, and available resources from
pre-established programs. Confronting FASD from multiple perspectives
through a collaborative approach will benefit entire communities directly,
while other communities will indirectly benefit through empirical
feedback to combatting FASD.
Wiretapping Smart Phones With
RotaryDial Phones Law: How
Canadas Wiretap Law is in Desperate
Need of Updating
*
A NN E T UR NE R
The task of adapting laws that were a product of the 1970s to a world of smartphones
and social networks is a challenging and profoundly important one.
Justice Moldaver, R. v. Telus Communications Co.
I. INTRODUCTION
W
hen Canadas wiretap law was enacted in 1974, the standard
method of communication was a rotary dial phone, attached to
the wall within someones home. Phones the size of credit cards
that would be carried in someones pocket everywhere they went, and that
would contain information about someones entire life were the topic of
science fiction. Computers were the size of entire houses and the notion
that soon everyone would have at least one computer in their home by
which they would be able to send messages to friends around the world
and search for reams of information on any topic imaginable was beyond
the average persons wildest dreams. As a result, Canadas wiretap law
contemplated the electronic eavesdropping on one suspects land-line at
their home or office to others using the same technology. While that was
*
LL.B. (2002), LL.M (2016). The views expressed in this paper are the authors alone
and do not represent the views or positions of the Public Prosecution Service of
Canada or the Government of Canada. Portions of this paper were originally
submitted as my Major Research Paper for my LL.M. at Osgoode. I would like to
thank my husband, Paul Cooper, and family for their support while completing my
LL.M as well as my colleagues at the Winnipeg PPSC office. A special thank-you to
Jodi Turner who was invaluable in assisting me with finding obscure articles and cases.
just fine in 1974, it is no longer adequate or usable today. The legislation

is so out of date to the point of being technological ancient history.
There are two main dilemmas that law enforcement faces in their
efforts to wiretap: one is legislative and the other is jurisprudential. First,
Canadas wiretap legislation looks almost exactly today as it did in 1974.
While aspects of the Criminal Code1 have been updated and revamped,
Part VI of the Code has not kept up with the modern realities of
communication. Second, the assessment of an individuals reasonable
expectation of privacy often remains based on an analysis that tests
whether someone can reasonably expect privacy within a certain location
(i.e. a search warrant executed at someones home). Courts are now being
asked to assess a reasonable expectation of privacy in circumstances where
police are able to use ever-changing technology to track, intercept, and
search individuals or their property. The task of adapting laws that were a
product of the 1970s to a world of smartphones and social networks is a
difficult but important one. The test of a reasonable expectation of privacy
has to be assessed with a more realistic test that incorporates technology
and its abilities.
A great number of challenges arise. The simple realities of allowing
law enforcement to access and intercept the private and intimate
conversations of Canadians are, by their very nature, going to be in
conflict with Charter2 principles against unreasonable search and seizure.
However, law enforcement needs to keep up with the evolution of
increasingly sophisticated and secretive technology, and needs techniques
to do so.3
Law enforcement officials complain that the criminals ever-increasing
use of technology has impeded the ability of police to effectively investigate
crime and they have issued several pleas to legislators and the courts to
even the playing field.4 On the other hand, privacy advocates claim that
1
Criminal Code, RSC 1985, c C-46, s 183 [Criminal Code].
2
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
3
Yoni Rahamim, Wiretapping and Electronic Surveillance in Canada: The Present
State of the Law and Challenges to the Employment of Sophisticated and Intrusive
Technology in Law Enforcement (2004) 18 Windsor Rev Legal Soc Issues 87.
4
See for example: Canadian Association of Chiefs of Police, Remarks by Chief
Constable Jim Chu, Presentation to Standing Senate Committee Legal and
Wiretapping Smart Phones 251
digitization has been a boon for state surveillance and they demand that
legislators and courts forestall Big Brothers advance.5
Canadian wiretap legislation desperately requires amendments based
on the practical realities of ever-changing technology. Since technology
changes so quickly, it would be next to impossible for legislators to
anticipate every possible tool or technique that law enforcement may be
able to employ in serious criminal investigations. The wording of
legislation should be sufficiently open so as not to limit law enforcements
ability to use new tools.
It remains difficult, however, for legislation to adequately predict all
possibilities. Therefore, jurisprudence is also required to play a role.
Courts must constantly re-assess how a reasonable expectation of privacy is
viewed and analyzed in the face of new technology. What is most difficult
is providing consistency in the test to be applied so that law enforcement
can have some predictability in how their tools and techniques can be
used in compliance with the standards required by the Charter, particularly
s. 8.6
This paper will outline the history of Canadian wiretap law and its
early reliance on the American legislation that came before it. It will then
examine the current Canadian wiretap legislation of Part VI of the
Criminal Code and propose several ways in which the legislation can be
reformed and clarified. The paper will also address some of the attempts
made by Parliament at the modernization of warrant legislation within the
Criminal Code through the introduction and enactment of the 2014
Protecting Canadians from Online Crime Act,7 better known as Bill C-13.
A review of how the Supreme Court, and some lower courts, have
attempted to address an individuals reasonable expectation of privacy in
the ever-evolving world of technology will also be examined. There will
also be a discussion regarding the need to address the reasonable
Constitutional Affairs Bill C-13 Protecting Canadians from Online Crime Act
(delivered 6 November 2014), online: https://cacp.ca/index.html?asst_id=587.
5
Kevin Haggerty, Methodology as a Knife: The Process, Politics and Paradox of
Evaluating Surveillance (2009) 17 Crit Criminol 277.
6
Charter, supra note 2, s 8. Section 8 refers to the right to be secure against
unreasonable search or seizure.
7
SC 2014, c 31 [Protecting Canadians from Online Crime Act].
expectation of privacy in situations of new technology differently than

courts have traditionally addressed an expectation of privacy in physical
spaces. Searches of computers, cellular phones, and the internet
encompass very different considerations of a reasonable expectation of
privacy than a search warrant at a physical space. An evolved analysis and
consideration of reasonable expectation of privacy is therefore required.
Courts, however, must provide a consistent and predictable approach so
that law enforcement can reasonably assess whether their actions are
Charter compliant.
Proposed amendments to Canadas current wiretap legislation as well
as the principles which should guide courts and legislators in addressing
these problems will be offered throughout this paper.
II. HISTORY
A. Canadas History of Wiretapping

Prior to 1974, the law regarding the interception of private
communications in Canada was uncertain. While there was not a
complete lack of legislation or case law, the law regarding the states use of
interception for law enforcement purposes was minimal. In 1880, the Act
to Incorporate The Bell Telephone Company of Canada8 was enacted. The
primary purpose of this legislation was not to regulate wiretapping by law
enforcement, but to prevent damage to Bells property and interference
with service. The act created a misdemeanor to intercept messages
transmitted on Bell telephone lines.9
Canadas development of telephone legislation did not progress until
the mid-1950s, through provincial regulation of wiretapping, including
the Manitoba Telephone Act10 and the Alberta Government Telephones Act,11
8
Act to Incorporate The Bell Telephone Company of Canada, SC 1880, c 67, s 25 (as cited
in Hubbard, Wiretapping, infra note 9 at 1.1.1).
9
Robert W. Hubbard, Peter M. Brauti & Scott K. Fenton, Wiretapping & Other
Electronic Surveillance: Law and Procedure, (Toronto: Canada Law Book, 2000), at
1.1.1. [Hubbard, Wiretapping].
10
SM 1955, c 76, ss 36 and 37 (as cited in Hubbard, Wiretapping, ibid at 1.1.1).
11
SA 1958, c 85, ss 23 and 24 (as cited in Hubbard, Wiretapping, supra note 9 at
1.1.1).
which both prohibited telephone wiretapping. The aim of these acts

remained the protection of telephone lines and phone companies
property, rather than a concern for individuals privacy.
Many municipal police forces in Canada, including the Royal
Canadian Mounted Police (RCMP), have used wiretapping in
investigations dating back to the late 1950s and early 1960s.12 Prior to the
enactment of federal legislation, provincial Police Commissions were the
only bodies overseeing and regulating the use of wiretapping for law
enforcement purposes. An officer who believed that he had reasonable
and probable grounds for a wiretap would speak to a supervising officer,
who in turn would speak to the Chief of the police force. It was not
uncommon, however, for officers to skip the formalities of the process and
act on their own without obtaining the approval of, or even advising those
higher up.13 The potential for abuse and a complete lack of any
consistency in the process is obvious.
The need for a balancing between law enforcements use of
wiretapping and the privacy interests of individuals became apparent. In
1969, the Ouimet committee14 made efforts to address privacy concerns
regarding electronic surveillance. In their report, they stated:
The Committee considers that the interest which requires protection is the
privacy of conversations taking place under such circumstances as to justify a
reasonable belief on the part of both parties to the conversation that such
conversation is not subject to interceptionin the sense of acquisition of that
conversation by others through the use of electronic, mechanical or other
devices.15
federal legislation controlling the use of wiretapping and electronic
eavesdropping in law enforcement is required.16
12
David A. Cornfield, The Right to Privacy in Canada (1967) 25 Fac L Rev 103.
13
Nathan Forester, Electronic Surveillance, Criminal Investigations and the Erosion of
Constitutional Rights in Canada: Regressive U-Turn or a Mere Bump in the Road
Towards Charter Justice? (2010), 73 Sask L Rev 23 [Forester, Electronic
Surveillance].
14
Roger Ouimet, Chairman, Report of the Canadian Committee on Corrections, Towards
Unite: Criminal Justice and Corrections, (Ottawa: Information Canada, 1969) [Ouimet
Report].
15
Ibid at p 82.
16
Ibid at p 83.
Thus, Canada took a step to advance the regulation and legislation of

wiretapping by law enforcement and the private sector. The Ouimet
committee suggested a legislative scheme which would permit interception
under only specific conditions, primarily by law enforcement officials
where they had obtained prior judicial authorization.
Parliament responded with the enactment of the Protection of Privacy
Act,17 which served to amend the Criminal Code, the Official Secrets Act,18
and the Crown Liability Act.19 Initially modelled after the United States
Wiretap Act,20 the most significant change to Canadian legislation was the
addition of Part IV.1 to the Criminal Code.21 The legislation aimed to
achieve two objectives. First, it aimed to protect private communications
from interception, other than in compliance with the statute.22 Second, in
an attempt to balance the first, it attempted to recognize the need to allow
law enforcement to intercept private communications in the investigation
of serious crime and to be able to adduce that evidence at trial.23
In 1985, the Criminal Code was revised and Part IV.1 became what is
now Part VI of the Criminal Code. The original legislative structure remains
largely intact today.
B. Americas History of Wiretapping

The concepts and wording of Canadas initial wiretap legislation were
largely taken from the American legislation and case law that preceded it.
The first consideration of wiretap law in the United States was in direct
response to the case of United States v. Olmstead.24 The United States
17
SC 1973-74, c 50 (as cited in Hubbard, Wiretapping, supra note 9 at 1.1.1).
18
RSC 1970, c O-3.
19
RSC 1970, c C-38.
20
18 USC, Chapter 119, 2510-22 (1970) [18 USC].
21
Hubbard Wiretapping, supra note 9 at 1.1.1.
22
R v Welsh (1977), 32 CCC (2d) 363 at para 12, 74 DLR (3d) 748.
23
Ibid.
24
277 US 438 (1928). Roy Olmstead was arrested as a result of an investigation into a
huge bootlegging ring in the United States. The United States Supreme Court held,
by a narrow 5-4 vote, that telephone conversations were to within the Fourth
Amendment (the right to be free from unreasonable search and seizure) and that the
police had not trespassed into a constitutionally protected area. See also: Juris
Congress passed the Federal Communications Act25 in 1934. The act created
an offence to intercept, divulge, or use any telephone communications.26
Initially, the Supreme Court interpreted the legislation as prohibiting all
wiretapping and excluded any such evidence from federal trials.27
However, the courts attitude became more permissive in the early 1940s,
when they ruled that a defendant could object to the use of wiretap
evidence against them, but only if they had been a party to the intercepted
communication.28
The United States Congress addressed the issue of electronic
eavesdropping with the enactment of the Wiretap Act, in Title III of the
Omnibus Crime Control and Safe Streets Act of 1968.29 The statute contained
four basic elements:
1. Prohibitions against unreasonable surveillance by technological
30
devices;
31
2. Exceptions for legitimate private use of surveillance devices;
3. A system of court-controlled use of surveillance devices by law
32
enforcement officials in certain cases; and
4. Assorted remedies providing for private and public enforcement of the
33
statutory obligations.
The United States has perhaps the most frequently amended wiretap
legislation.34 Today, the American legislation contains many provisions
similar to Part VI of the Criminal Code. Wiretap authorizations can only be
Cederbaums, Wiretapping and Electronic Eavesdropping: The Law and Its

Implications (1969-1970), 7 Criminologica 32 [Cederbaums, Wiretapping].
25
47 USC Chapter 5.
26
Ibid, 605.
27
Cederbaums, Wiretapping, supra note 24.
28
Ibid.
29
18 USC, supra note 20, 2515.
30
Ibid, 2511.
31
Ibid, 2512(2)(a).
32
Ibid, 2516-2519.
33
Ibid, 2520.
34
Dominique Valiquet Telecommunications and Lawful Access: II. The Legislative
Situation in the United States, the United Kingdom and Australia (2006), Library of
Parliament 1.
obtained in relation to a specified list of predicate offences, the list of

which has been updated over the years.35 In their application for a wiretap
authorization, law enforcement officials must establish that they have
probable cause36 and whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous.37 Where the American legislation
differs from Canadian legislation, however, is that law enforcement is
statutorily mandated to minimize listening to conversations that do not
implicate the predicate offences for which they have been granted the
wiretap authorization.38 Commentators note that this provision highlights
the tension between privacy rights of individuals and law enforcements
need to effectively investigate crime.39
III. CURRENT CANADIAN LEGISLATION AND PROPOSALS

FOR LEGISLATIVE REFORM
Part VI of the Criminal Code contains six general categories of

provisions: definitions;40 offence-creating and exception sections;41
application, authorization and procedural sections;42 evidentiary
sections;43 additional penalties sections;44 and reporting sections.45 While
some provisions of Part VI have been amended over the years, such
35
18 USC, supra note 20, 2516(1).
36
Ibid, 2518(1)(d).
37
Ibid, 2518(1)(c).
38
Ibid, 2518(5).
39
Howard J. Kaplan, Joseph A. Matteo & Richard Sillett, The History and Law of
Wiretapping (Paper delivered at the ABA Section of Litigation 2012 Section Annual
Conference, April 18-20, 2012), online:
http://www.americanbar.org/content/dam/aba/administrative/litigation/materials
/sac_2012/29-1_history_and_law_of_wiretapping.authcheckdam.pdf.
40
Criminal Code, supra note 1, s 183.
41
Ibid, ss 184, 184.5, 188.2, 191193.
42
Ibid, ss 184.1184.4, 185188.
43
Ibid, ss 189190.
44
Ibid, s 194.
45
Ibid, ss 195, 196, 196.1.
amendments have not been sufficient to address emerging technology and

law enforcements attempts to keep up with the ability to intercept. In this
section, I suggest that several areas of Part VI of the Code are in need of
change. Such changes should broadly be ruled by principles of practicality
and flexibility. With the constant evolution of communication technology,
appropriate legislation related to the interception of communications
should not be so specific or rigid as to require constant amendments when
new tools or techniques are available to law enforcement. While any
amendments must be governed by the fundamental principle of balancing
an individuals privacy interests with societys interest of effective law
enforcement, the restrictive wording of many aspects of the current
legislation should be removed to allow for a more practical, flexible
legislative scheme.
A. What constitutes a private communication?

At the foundation of the law allowing the interception of private
communications is the Criminal Codes long and complex definition of
private communication:
private communication means any oral communication, or any
telecommunication, that is made by an originator who is in Canada or is
intended by the originator to be received by a person who is in Canada and that
is made under circumstances in which it is reasonable for the originator to expect
that it will not be intercepted by any person other than the person intended by
the originator to receive it, and includes any radio-based telephone
communication that is treated electronically or otherwise for the purpose of
preventing intelligible reception by any person other than the person intended by
the originator to receive it; 46
The key consideration must be whether the originator of the
communication had a reasonable expectation of privacy, as discussed in
more detail below, and that the communication would not be intercepted
by anyone other than the person to whom they were communicating.47
46
Ibid, s 183.
47
As one example: R v Kyling 2009 QCCS 3311, 95 WCB (2d) 252. Both accused
were placed in a police van. The accused were told that the van was wired and
that their communications would be recorded. When the interception of those
communications was challenged at trial, the court concluded that the
conversation between the accused persons was not private and therefore did not
fall within Part VI. It was not reasonable for the parties to expect that their
The basic concept of what is considered a communication was first

considered in 1980 when the Supreme Court distinguished between a
communication and a conversation.48 They held that a conversation
was properly viewed as a series of communications. A communication was
viewed as the passing of thoughts, ideas, words or information from one
person to another.49 In the case of Goldman v. R, the Crowns case
depended on a face-to-face conversation between the accused and an
associate, who had consented to wearing a recording device to assist the
police.50 The court held that the associate wearing the device had no
reasonable expectation of privacy regarding the words he spoke, therefore
the admissibility of those words was not subject to Part IV.1.51 However,
the accused, who was presumably not aware that his associate was wearing
a recording device, did have a reasonable expectation of privacy regarding
the words he spoke, therefore the admissibility of his words was subject to
Part IV.1.52 It made it so that the Crown could only introduce evidence of
the words of the person who had consented to the interception of the
communication. In other words, only one side of the conversation could
be introduced.
This interpretation more recently became relevant in the 2011
decision of R. v. Carter,53 in considering not only how to define the
originator but also how to define the recipient. Pursuant to a one-party
conversation would not be intercepted by any persons, or more precisely the

police.
48
Goldman v R, [1980] 1 SCR 976, 1979 CanLII 60 (SCC). Prior to the Goldman
decision in the Supreme Court, some consideration of the topic had occurred in
lower courts: In R v Miller & Thomas (No. 1) (cited in Goldman), it seems to have been
considered that the originator of a private telephone conversation was the person who
made the call. In R v Jasicek, an unreported case of the Supreme Court of British
Columbia, cited in Goldman, McKay J., rejected the argument that a conversation
must be broken down into its separate communications when making a ruling on the
admissibility of certain evidence during the course of the trial. He considered it would
involve a strained and unrealistic interpretation of clear words in the statute.
49
Ibid at 995.
50
Ibid at 989.
51
Ibid at 992993.
52
Ibid.
53
2011 ONSC 6752, [2011] OJ No 6298.
consent authorization, an undercover officer was placed in a holding cell

with the accused and a third party.54 His intention was to record any
conversation between the accused and the third party while in his
presence. The admissibility of the consent-based interceptions was
challenged on the basis that the officer, while present during the
communications, was not always the intended recipient of the
communications between the accused and the third party.55 The court
held that the statutory definition of private communication requires that
the court look at who the originator intended to be the recipient.56 It is
not going to be sufficient that someone is simply within earshot of a
communication.57 However, there are particular considerations that can
be taken in determining the intended recipient: content of the
communication, the location of the interaction, physical proximity of the
parties, volume of speech, and physical gestures.58 In other words, the
determination of who will be considered an intended recipient will be
contextual and fact-specific.
1. What is considered a telecommunication?

The Interpretation Act59 defines telecommunications as the
emission, transmission or reception of signs, signals, writing, images,
sounds or intelligence of any nature by any wire, cable, radio, optical or
other electromagnetic system, or by any similar technical system.60
Part VI authorizations clearly contemplate the interception of
communications while they are in-transit, either a conversation being
spoken from one person to another or the transmission of a written
message while it is between the originator and the recipient. The
definition of telecommunication required the emission, transmission or
reception of the content of the communication.61 This definition leads to
54
Ibid at para 1.
55
Ibid at para 4.
56
Ibid at para 32.
57
Ibid.
58
Ibid at para 33.
59
RSC 1985, c I-21.
60
Ibid, s 35.
61
Ibid.
the conclusion that a Part VI authorization is not required for the

prospective interception of non-oral communications that have not yet
been transmitted.62 Presumably, police could use key-stroke software to
acquire the content of communications such as emails or text messages
before the writer hit the send button. The fact that the communication
has not yet been sent should not afford the writer any less of a privacy
interest. In fact, it should perhaps be given greater privacy in that the
message may never be sent or shared with others.
2. The difficulty with the inclusion of in Canada

In 1974, police could, with reasonable certainty, know where the
parties were located during any particular intercepted communication
because police would know the exact location of a suspects land-line
telephone or the payphone they were using. Police would have received
their wiretap authorization for those particular phones at specified
geographical locations. They could say, with certainty, that the intercepted
communication was either originated or received in Canada.
Cellular telephones, smart phones, and portable computers have
eliminated that certainty. The most obvious example is a cellular phone
number, for which the police have a valid authorization to intercept
telephone conversations and text messages. Police may be lawfully
intercepting telephone communications on that phone number for a
suspect who resides in Winnipeg, in the middle of January. While
listening to an intercepted communication between the suspect and an
unknown person, the monitor hears waves crashing and someone in the
background requesting another margarita. The monitor records the
conversation in which the suspect instructs the unknown person regarding
the delivery of a quantity of cocaine. Subsequent police investigation
reveals that the suspect went on a last minute holiday outside of Canada,
however continued to use their cellular phone.
With the in Canada requirement of the current definition of private
communication, this interception would not have been in compliance
with the Part VI authorization because of the requirement of the
definition that the originator be in Canada or the originator intended the
communication to be received by a person in Canada. The suspect in the
62
Steven Penney, Updating Canadas Communications Surveillance Laws: Privacy and
Security in the Digital Age (2008), 12:2 Can Crim L Rev 115 [Penney, Updating].
example above does not cease to be a valid target of the investigation and
police have not lost their statutory pre-conditions (i.e. reasonable ground
to believe) regarding the phone number intercepted pursuant to the
authorization. Notwithstanding this, the interception would not be in
strict compliance with the legislation. Further, what if the target had been
communicating by text message? If police were not aware that he was
outside of Canada when the communication occurred, but the
interception was challenged at trial with evidence from the accused that he
was outside of Canada at the time, would the interception of the
communication have complied with Part VI requirements?
The problematic aspects of the inclusion of in Canada are expanded
even further when police intercept computer-based communications
pursuant to a lawful authorization. Internet communications provide not
only anonymity of the user, as discussed further below, but anonymity of
the computers location. Emails can originate and be rerouted instantly
anywhere in the world.63 Tech-savvy targets may be able to reroute their
internet communications through accounts set up in foreign countries
while sitting at a computer in a Canadian home. Are police required to
establish the precise location of a laptop or tablet in order to intercept
lawfully? That requirement may, in some cases of sophisticated individuals
or organizations, be next to impossible and thwart a legitimate and
important investigation.
Could a general warrant, pursuant to s. 487.01 of the Criminal Code,
be used to authorize the interception of private communications when
none of the parties are within Canada? This possibility relies mainly on
the fact that a general warrant can grant law enforcement the authority to
do anything that would otherwise constitute an unreasonable search or
seizure, as long as there is no other provision of the Criminal Code or other
act that would provide for a warrant or order permitting the action they
have requested.64 However, Part VI is meant to be a complete code for
wiretapping and a court may view Parliaments preclusion of interceptions
outside of the circumstances of the definition of private communication
to have been intentional.65 In addition, as exemplified above, the fact that
63
Hubbard, Wiretapping, supra note 9 at chapter 15.
64
Criminal Code, supra note 1, s 487.01(1)(c).
65
Hubbard, Wiretapping, supra note 9 at chapter 15.
a party to the communication is outside of Canada may not have been

contemplated by police or may be discovered only in the listening or
review of the interception, therefore a general warrant would not have
been obtained in advance to make the interception to begin with.
In the United States, courts have dealt with a similar issue by
determining where the interception takes place. In United States v. Luong,66
the intercepted phone had a billing address and service provider in the
District of California. The governing legislation was clear that the statute
conferred jurisdiction on a judge to authorize interception of
communications only within the territorial jurisdiction of the court in
which the judge was sitting.67 The judge who issued the order allowing
interception was located in another jurisdiction. The court held that the
most reasonable interpretation was that an interception occurs where the
tapped phone is located and where officers first overhear the call.68
Therefore, the court determined that the interception took place where
the police first heard the communication, which was within the issuing
judges jurisdiction, regardless of where the parties to the communication
were actually located at the time of any particular communication.
It is understandable and important that a balance be struck between
allowing police to lawfully intercept private communications in their
variety of modern forms, and the interest to not allow law enforcement to
intercept communications all over the world based on an authorization
granted by a Canadian court.69 However, constraining law enforcement to
66
471 F (3d) 1107 (9th Cir 2006), 2006 US Lexis 31752.
67
18 USC supra note 20, 2518(3).
68
The court cited three other decisions that also came to the same conclusion: United
States v Rodriguez, 968 F (2d) 130 (2d Cir 1992) and United States v Ramirez, 112 F (3d)
849 (7th Cir 1997) where the courts held that an interception occurs in the
jurisdiction where the phone is located, where the second phone in the conversation
is located and where the scanner used to overhear the communication is located;
United States v Denman, 100 F (3d) 399, 403 (5th Cir 1996) where the court held that
the interception includes both the location of the phone and the original listening
post.
69
Although beyond the scope of this paper, an interesting discussion of the issues
surrounding in Canada occurred in X (Re), [2010] 1 FCR 460. There the Federal
Court was asked to issue warrants to intercept communications of Canadian subjects
while they were outside of Canada. Section 21 of the Canadian Security Intelligence
Service Act, RSC, 1985, c C-23, specifically allows that a warrant be issued to enable
intercept only communications originated or intended to be received in

Canada is no longer realistic with current and emerging technology.
If the requirements of in Canada were to be completely abandoned,
issues of sovereignty and national privacy protections would clearly arise.
The balance would fall much too far to the interests of law enforcement if
they were potentially allowed to wiretap anyone, anywhere in the world. If
Parliament chose to take the approach suggested in United States v. Luong,
police again could potentially wiretap anyone, anywhere in the world so
long as police were listening on Canadian soil. Perhaps the solution that
provides balance between the realities of modern law enforcement and the
privacy interests of individuals is to focus on the offence, rather than the
individuals being targeted. Requiring that the offence being investigated
be occurring in Canada would appropriately constrain Canadian law
enforcement agencies to wiretap only in investigations of Canadian crime,
while allowing them to continue to intercept individuals in an on-going
investigation even if they were to travel beyond Canadian borders.
3. Why must the recipient be a person?

The definition of private communication continues to present
difficulties to law enforcement in requiring that a recipient be a person.
The definition contemplates the interception of communications to which
the originator is not in Canada, but a communication is intended by the
originator to be received by a person who is in Canada.70 Many of our
daily tasks and communications no longer involve communication with a
person but rather with a machine and some of those communications may
assist71 the investigation of an offence: the interception of phone or
internet banking that would assist in a money laundering investigation;
the interception of an individual phoning in a Hydro reading for a
the Service to investigate, within or outside Canada, a threat to the security of

Canada. In the 2009 decision, the court held that it had the jurisdiction to grant the
warrant because the Service had shown that the interception of the communications
would be carried out from within Canada and controlled by Canadian government
personnel.
70
71
Ibid, s 185(1)(e) sets the standard for the naming of a person as someone the
interception of whose private communications there are reasonable grounds to believe
may assist the investigation of the offence.
particular address to establish their connection to a home containing a

marihuana grow operation; an individual checking-in for a flight through
the airlines website as evidence of drug couriering. If the originator of any
of those communications was not within Canada when the
communication occurred, and they established that they had a reasonable
expectation of privacy (which would not be difficult particularly in the
circumstances of phone or online banking), would the interception by
police pursuant to a lawful authorization be excluded because the recipient
of the communication was not a person? The words by a person should
simply be removed entirely from the definition. Such an amendment
would achieve legislation that is far less restrictive and more in line with
the practical realities of modern communications.
B. What is considered to be an interception?

The Oxford Dictionary defines the word intercept as obstruct
(someone or something) so as to prevent them from continuing to a
destination.72 In the context of law enforcements interception of
communications, the object is not to prevent the communication from
continuing to its destination, but rather to surreptitiously receive a copy or
listen into the communication.
Section 183 of the Criminal Code defines intercept to include listen
to, record or acquire a communication or acquire the substance, meaning
or purport thereof.73 While such a definition may seem quite straight
forward, much jurisprudence has developed as a result, making it
significantly more complicated.
The discussion of what constitutes an intercept in the context of non-
oral communications first started in the United States in the 1994
decision of Steve Jackson Games, Inc. v. United States Secret Service.74 The sole
issue on appeal was whether the seizure of the computer that contained
private emails that had been sent to an electronic bulletin board, but not
yet retrieved by the recipient, constituted an interception by law
72
The Oxford English Dictionary, online:
http://www.oxforddictionaries.com/definition/english/intercept, intercept
(accessed October 28, 2015).
73
74
36 F (3d) 457 (5th Cir 1994) [Steve Jackson Games].
enforcement.75 The court held that this did not constitute an interception
because the governments acquisition of the contents of the
communications was not contemporaneous with their transmission. They
drew a substantial distinction between interception communications such
as emails and accessing communications that were in storage.
The discussion continued, however, in 1998 with the decision of
United States v. Smith.76 An employee had guessed the voicemail password
of another employee, listened to a message and recorded it.77 The message
was eventually turned over to the U.S. Securities Exchange Commission
investigators, because the message indicated criminal activity.78 The Court,
in this case, expanded the definition of intercept. They held that the word
intercept entails actually acquiring the contents of a communication, as
opposed to access which merely involves being in a position to acquire the
contents of a communication.79 Therefore, given that the content of the
voicemail message had been listened to and recorded in this case, it was an
interception.
The Canadian approach to defining the word intercept much more
closely resembles the approach taken in Steve Jackson Games than in Smith.
As early as 1975, the Alberta Court of Appeal defined intercept as follows:
In at least, its primary sense the word intercept suggests that there must
be an interference between the place of origination and the place of
destination of the communication.80
In 2007, the Supreme Court of British Columbia applied the
reasoning from 1975 and answered the question of whether police
acquiring emails that had arrived at their destination constituted an
interception.81 The Court held that there was a fundamental difference
between the surreptitious interception and recording of messages, and
simply searching through stored messages that had been sent, received and
75
Ibid at p 460.
76
155 F (3d) 1051 (9th Cir 1998) [Smith].
77
Ibid at para 7.
78
Ibid at paras 78.
79
Ibid at para 25.
80
R v McQueen (1975), 25 CCC (2d) 262 at para 8, [1975] 6 WWR 604.
81
R v Giles [2007] BCJ No 2918 (QL), 2007 BCSC 1147.
stored at their destination.82 To constitute an interception, it must occur

contemporaneously with the communication itself. Therefore, the court
concluded that acquiring emails from a BlackBerry device, after the arrest
of the accused, did not constitute an interception within the meaning of
Part VI.83
The Superior Court of Justice in Ontario then tackled a similar
question in R. v. M.(S.)84 in 2012. The court held that in order for
communications to fall within the sphere of Part VI, they must be
intercepted contemporaneously.85 The court, however, had difficulty with
the inclusion of the word acquire in the definition, given that it might
suggest that the seizure of a communication at any point in time would fall
within the meaning of intercept.86 Justice Nordheimer went on, however,
to conclude that when one reads Part VI as a whole, it is clear that there is
an implicit requirement that the communication be seized
contemporaneously with it being made.87
With the Supreme Court of Canadas decision in R. v. Telus
Communications Co.,88 the definition of intercept has become significantly
more complicated and has raised questions about the traditional view that
an intercept must be contemporaneous with the communication.
Members of the Supreme Court were split on whether the seizure of text
messages, pursuant to a general warrant, was invalid because the seizure
involved the interception of private communications and should therefore
have been made pursuant to a Part VI authorization.
Police had obtained a general warrant which named two Telus
customers and required Telus to provide the text messages of those two
customers for a subsequent two-week period.89 Telus was required to
produce the information of all text messages sent or received by these
82
Ibid at para 34.
83
Ibid at para 74.
84
[2012] OJ No 2833, 2012 CarswellOnt 7857.
85
Ibid at para 20.
86
Ibid.
87
Ibid.
88
2013 SCC 16, [2013] 2 SCR 3 [Telus].
89
Ibid at para 8.
customers, on a daily basis, as well as any related subscriber

information.90
Justice Abella, writing for herself, Justice LeBel and Justice Fish,
concluded that such a seizure should be governed by Part VI and that the
general warrant was unlawful. She rejected the traditional notion that an
interception had to be contemporaneous, saying that text messages are
private communication and, even if they were being stored on the service
providers system, the prospective production required a Part VI
authorization. She emphasized that it was the prospective nature of the
order that was problematic, and that stored communications were to
remain unaffected by this decision.91
Justice Moldaver, writing for himself and Justice Karakatsanis, chose
to dodge the question of the definition of intercept. He preferred to
resolve the appeal on the basis that the investigative technique used by
police was substantively equivalent to an intercept and therefore a
general warrant was not available.92 However, he did highlight the
difficulties that are presented by attempting to use dated legislation to
resolve modern legal dilemmas in the area of communications:
In approaching the matter as I have, I am not unmindful of the need to address
the risks to privacy posed by the digital age. The task of adapting laws that were a
product of the 1970s to a world of smartphones and social networks is a
challenging and profoundly important one. But the resolution of whether what
occurred here was or was not, strictly speaking, an intercept is unnecessary, in my
view, because there is a narrower basis for decision that guards against
unforeseen and potentially far reaching consequences in this complex area of the
law.93
90
Ibid at para 9.
91
The debate regarding stored communications was clearly left open when, at paragraph
15, Justice Abella wrote, We have not been asked to determine whether a general
warrant is available to authorize the production of historical text messages, or to
consider the operation and validity of the production order provision with respect to
private communications. Rather, the focus of this appeal is on whether the general
warrant power in s. 487.01 of the Code can authorize the prospective production of
future text messages from a service providers computer. That means that we need not
address whether the seizure of the text messages would constitute an interception if it
were authorized after the messages were stored.
92
Telus, supra note 88 at para 52.
93
Ibid at para 53.
Adding to the discussion, Justice Cromwell, writing for himself and

Chief Justice McLachlin, rejected Justice Abellas interpretation of the
definition of intercept. He went back to the traditional notion of an
interception involving the contemporaneous seizure of on-going
communication. He worried that, with Justice Abellas broad
interpretation of intercept, police would be required to obtain a Part VI
authorization any time they sought to get access to the content of a private
communication.94 He further expressed concern about the temporal aspect
that was introduced by Justice Abellas decision. He noted that Justice
Abellas approach depends on the fact that the acquisition of the content
of the communications in question was an interception if the acquisition
was authorized prospectively.95 The result is that the police may obtain
exactly the same information, however on different statutory
94
Ibid at para 155. Moreover, if, as my colleague Abella J. maintains (at para 37),
[a]cquiring the substance of a private communication from a computer maintained
by a telecommunications service provider" constitutes an interception, then wiretap
authorizations may well be required for a host of searches that are clearly not
contemplated by Part VI of the Code. Police may well have to obtain a Part VI
authorization any time they wanted access to the content of private communications,
no matter when the message had been sent or whether it had been received or stored
on the recipient's device. For example, on a broad reading of "acquire" police seizing e-
mails on a Blackberry device would be engaged in an interception because they are
acquiring the content of private communications. Similarly, a person authorized to
search a computer system as contemplated under s. 487(2.1) would need a wiretap
authorization to seize copies of personal communications stored on those computers
(including, for example, e-mail messages and stored copies of Internet chats). This
approach would run counter to a line of cases in which Canadian courts have found
that search warrants are sufficient to allow police to access documents and data stored
on a computer: See e.g. R. v. Cole, 2012 SCC 53 (S.C.C.), at para. 73; R. v. Jones, 2011
ONCA 632, 107 O.R. (3d) 241 (Ont. C.A.), at para. 33; R. v. Bahr, 2006 ABPC 360,
434 A.R. 1 (Alta. Prov. Ct.); R. v. Cross [2007 CarswellOnt 9108(Ont. S.C.J.)], 2007
Can LII 64141, at paras. 25-27; R. v. Little [2009 CarswellOnt 8024 (Ont. S.C.J.)],
2009 CanLII 41212, at para. 154; R. v. Tse, 2008 BCSC 906, [2008] B.C.J. No.
1766 (B.C. S.C.), at para. 198; R. v. Weir, 2001 ABCA 181, 281 A.R. 333 (Alta. C.A.),
at para. 19. If the phrase "acquire a communication or ... the substance, meaning or
purport thereof" is given a broad meaning, stored private communications that have
long been accessible to police under ordinary search warrants or production orders
would fall under Part VI.
95
Ibid at para 157.
preconditions, depending on the timing of their request.96 This would

include situations in which police obtained a search warrant pursuant to s.
487 of the Criminal Code to search a computer seized from an accused.
They would be required to obtain a Part VI authorization before viewing
the content of any communications on the device. While it would,
perhaps, be easy enough for police to delineate that they were not allowed
to view items clearly marked as email messages on the computer, would
they be able to review documents that could be letters written in a word
processing program? Would they be forestalled from viewing internet
search histories for the concern that a message sent through social media
might fall under a definition of private communication?
Since the decision in Telus, many lower courts have been left to wrestle
with the effect on the admissibility of intercepted or acquired
communications. In R. v. Croft,97 the Court of Queens Bench of Alberta
held that the decision in Telus precluded the use of production orders to
obtained stored communications. The police had obtained a production
order under s. 487.012 that required telecommunication service providers
to produce all incoming and outgoing call details and text messages for
particular phone numbers listed in the order. The order covered a specific
period of time which ended on or prior to the date of the order, therefore
the request was for retrospective messages that were stored on a Telus
server.98
In challenging the constitutional validity of the production order
provision of s. 487.012, the accused argued that although Telus did not
decide the precise issue raised, it should apply equally to the acquisition of
text messages already sent, and being stored on a server.99 They argued that
if, as in Telus, the order obtained by the police allowed for the acquisition
of text messages recorded by a telecommunication service provider, it
should properly be an order pursuant to Part VI.100 The trial judge
concluded that when Justice Abellas reasoning from Telus was applied to
96
Ibid.
97
2013 ABQB 640, [2013] AJ No 1231 [Croft].
98
Ibid at para 7.
99
Ibid at para 27.
100
Ibid.
the question of whether the acquisition of previously recorded text

messages constituted the interception of private communications, the
necessary conclusion is yes.101 Thus, the trial judge found that the
production order obtained by the police that authorized the interception
of private communications was insufficient.102 They should properly have
obtained an order under Part VI, therefore having to establish the rigorous
statutory requirements.
Although the Croft decision has not yet been applied outside of
Alberta, if the reasoning set out is extended then it may result in the
conclusion that police can only obtain stored communications pursuant to
a Part VI authorization. Not only would that conclusion require that
police obtain a Part VI authorization when seeking to obtain information
from telecommunication service providers, but also to situations where
police seize a computer or smart phone pursuant to a search warrant and
seek to review text or email communication on the device. This conclusion
would seem to add an additional hurdle to investigation than was set out
by the Supreme Courts decision, also from 2013, in R. v. Vu.103
Vu clearly set out that computers and similar technological devices,
such as smart phones, require different rules than traditional searches.
Police are required to obtain specific pre-authorization to search such
devices, given their substantial privacy interests.104 The police will have to
satisfy the authorizing justice that there are reasonable grounds to believe
that the computer itself will contain the things for which they are
looking.105 Would the Croft decision then add that, if the police want to
look at communications stored on the computer or other device, they are
required to obtain a Part VI authorization? Such a conclusion does not
seem logical upon a reading of Vu, where the court contemplated and
addressed a full search of a seized computers files.
If a computer or smart phone is lawfully seized by law enforcement,
whether incident to arrest or pursuant to a search warrant, police should
101
Ibid at para 43.
102
Ibid at para 66.
103
2013 SCC 60, [2013] 3 SCR 657 [Vu].
104
Ibid at para 2.
105
Ibid at para 3.
not have to comply with the pre-requisites for a wiretap authorization (that
the search be related to an offence listed under s. 183, that police establish
investigative necessity, that the application be brought by a Crown agent,
and that the order be granted by a judge of a Superior Court). Such
rigorous pre-conditions are relevant and necessary in the balancing of
privacy interests and effective law enforcement in the context of
intercepting private communications prospectively. When a device has
already been seized lawfully or the messages sought have already been
stored (as opposed to a contemporaneous interception while the message
was in transit), such a high threshold tips the balance too far to the
interests of privacy and will stymie legitimate law enforcement efforts.
The opposite conclusion from Croft was reached by the Ontario
Superior Court of Justice in 2014 in R. v. Carty.106 Police had obtained text
messages of the accused over a defined period of time prior to the order
being made from his telecommunication service provider. Like in Croft,
police had obtained a production order pursuant to s. 487.012.107 The
accused argued that police should have obtained a Part VI
authorization.108 Acknowledging the decision of the Alberta Court in
Croft, the trial judge in Carty held that the Telus decision did not control
the outcome of the matter before the court.109 He held that Telus applies
only to requests by police to acquire private communications prospectively
and that it was clear that Justice Abella had confined her findings to such
circumstances.110 The trial judge concluded that the decision in Telus
should not be understood to have changed the law regarding the
appropriate method of judicial authorization for the acquisition of
historical, saved personal communications.111
The Telus, Croft and Carty decisions have raised an important and
complex discussion that can and should be resolved by Parliament. The
definition of intercept must be amended to clarify this temporal quandary
106
2014 ONSC 212, [2014] OJ No 6081 [Carty].
107
Ibid at para 4.
108
Ibid.
109
Ibid at para 48.
110
Ibid at para 49.
111
Ibid at para 57.
in particular. If it is Parliaments intention to require that police obtain a

Part VI authorization for all future communications, it should be made
clear in the legislation. Given the slim and divided majority decision in
Telus, Parliament should step in to clarify expectations. As Professor
Penney suggested in 2008, the definition of intercept should be amended
to clarify that a Part VI authorization, or as he calls it a super-warrant,
should only be required for the prospective capture of communications
content (defined as communications that do not yet exist at the time of
requesting the warrant).112 This could be accomplished by simply
amending the definition to read, listen to, record, or acquire a
communication that has not yet occurred or does not yet exist or acquire the
substance, meaning or purport thereof. If police seek to access the
content of communications that already exist, and is identified to be
stored at a location, whether a home computer, server or some other
identifiable place, they should obtain a regular search warrant or
production order.
C. Is the list of offences for which a wiretap can be granted

unworkable?
A Part VI authorization cannot be obtained by police for just any
offence. As set out in s. 183, the term offence is limited to a list of
particular offences mainly under the Criminal Code, Controlled Drugs and
Substances Act,113 or a variety of other acts containing criminal offence
provisions.114 A catch-all for any criminal organization or terrorism offence
is also included within the definition. Although the intention of
Parliament initially was to limit Part VI authorizations to only the most
serious offences, such as murder, treason and drug trafficking, the list of
offences has grown significantly through a series of amendments.
112
Penney, Updating supra note 62 at 130.
113
SC 1996, c 19.
114
A huge variety of offences under other Acts are also included: Bankruptcy and
Insolvency Act, Biological and Toxin Weapons Convention Implementation Act, Competition
Act, Corruption of Foreign Public Officials Act, Crimes Against Humanity and War Crimes
Act, Customs Act, Excise Act, 2001, Export and Import Permits Act, Immigration and Refugee
Protection Act, Security of Information Act and Trade-marks Act.
In addition, there are several glaring omissions to the list of offences.

Although police can obtain a Part VI authorization for a murder
investigation, they cannot if the offence under investigation is
manslaughter. Police can obtain a Part VI authorization for an
investigation into the possession of a weapon obtained by the commission
of an offence,115 with a statutorily required minimum punishment of one-
year if prosecuted by indictment. However, no authorization is obtained
for the offence of possession of a firearm with ammunition.116 Possession
of a firearm with ammunition required a minimum punishment of three
years on a first offence,117 which suggests that Parliament viewed it as a
serious offence.
The list included under s. 183 has become so long that its limiting
effect to only the most serious offences no longer exists. Parliament should
amend s. 183 to allow an application for a Part VI authorization to be
made for any offence under the acts as listed. The safeguard of the
requirement of investigative necessity and the catch-all requirement that
an authorization only be granted where it would be in the best interests of
the administration of justice to do so,118 will eliminate applications for
authorizations for minor or trivial offences. In addition, the gatekeeping
function of the Crown agent and the practical realities of the enormous
costs to law enforcement agencies to implement a Part VI authorization,
would not allow for Part VI applications for relatively minor offences.
IV. AREAS IN WHICH SOME MODERNIZATION HAS

OCCURRED BILL C-13
Parliament has not remained completely idle in attempting to
modernize the warrant provisions of the Criminal Code to deal with
evolving technology. Some progress was made, although not without
115
116
Ibid, s 95.
117
The mandatory minimum that was prescribed by Parliament was struck down in R v
Nur, 2015 SCC 15, [2015] 1 SCR 773. However, this still shows Parliaments view of
the seriousness of the offence.
118
Criminal Code, supra note 1, s 186(1)(a).
criticism, with the coming into force of Bill C-13119 on March 8, 2015.
The creation of a variety of new types of warrants, and the updating of
outdated warrants that had become of little assistance to law enforcement,
was achieved. What remains to be seen is whether these new warrants will
survive Charter scrutiny when, undoubtedly, some if not all will be
challenged.
A. Preservation Demand s. 487.012120

Police can now make a demand, without prior judicial authorization,
requiring a person to preserve computer data in their possession or
control. The demand can be made when an officer has a reasonable
suspicion that computer data within the persons possession or control
will assist the investigation of an offence. The demand expires after 21
days, when the offence under investigation is one which is alleged to have
occurred in Canada, and 90 days when the offence alleged is under the
law of a foreign state. The officer who makes the demand can also impose
any conditions the officer deems appropriate, including specific conditions
that the content and existence of the demand not be disclosed. Once one
demand is made, the officer may not make another demand to preserve
the same computer data in connection to the same investigation.
Given the transitory nature of computer information, Parliaments
attempt to ensure that police have the ability to ensure that information
relevant to an investigation is preserved is an important modernization of
the warrant provisions of the Criminal Code. What remains to be seen from
potential challenges to such a demand is whether an appropriate balance
has been struck between that aspect of societys interest in the ability of
police to obtain such information and an individuals privacy interest in
computer data. While limiting the duration of a demand to 21 days for a
domestic investigation requires that police move quickly to obtain an
order to obtain the information, allowing police the unfettered discretion
to impose any conditions they see fit may be ripe for challenge, depending
on conditions imposed. Further, unlike a preservation order, as discussed
below, there is no requirement that the police establish that they made the
demand in anticipation of seeking a preservation order or other warrant to
119
Protecting Canadians from Online Crime Act, supra note 7.
120
Criminal Code, supra note 1, s 487.012.
obtain the information. This has the potential for abuse in demanding
that individuals or organizations preserve computer data unnecessarily,
potentially for as long as 90 days.
B. Preservation Order s. 487.013121

The use of a preservation demand by police clearly contemplates that
they will move to obtain a preservation order from the court with due
haste. Upon introduction of Bill C-13, the preservation order was
described as a do-not-delete order.122 A preservation order, issued by the
court on the basis of an officers reasonable suspicion that an offence has
been or will be committed and the computer data will assist in the
investigation of the offence, serves to extend the timeframe during which a
person must preserve computer data within their possession or control to
a maximum of 90 days from the making of the order. The section further
requires that the officer has applied or intends to apply for a warrant or
other order to obtain a document that contains the information.
Some protection exists beyond what is required in a preservation
demand, in that such an order is judicially authorized and requires that
the officer show a warrant to obtain the information is, at least, intended.
Such provision alleviates the potential that individuals or, more likely
service providers, will be required to needlessly preserve and store
computer data unnecessarily.
C. Tracking Warrants s. 492.1123

Prior to the amendments brought to s. 492.1 of the Criminal Code,
police could obtain a tracking warrant on the basis of a reasonable
suspicion that information relevant to the commission of an offence could
be obtained through the use of a tracking device. Police were authorized to
install, maintain and monitor a device in or on any thing, including a
thing carried, used or worn by any person. In reality, this provision was
most often used to install a tracking device on the vehicle of a suspect in
an investigation. The section allowed police to install a device that would
121
Ibid, s 487.013.
122
House of Common Debates, 41st Parl, 2nd Sess, No 025 (7 November 2013) at 1535
(Hon Peter MacKay).
123
allow them to track the location of an individual or a thing, however did

not contemplate police being able to acquire such information without the
need for them to actively install a device.
The amendments brought by Bill C-13 sought to modernize the
section by allowing police to obtain an order for tracking information
within devices already in the possession of a target, such as GPS on a
cellular phone. The amendments also brought distinctions to the type of
tracking warrant that police can obtain. While the standard remains one
of reasonable suspicion, Parliament attempted to provide clarity to the
modern realities and capabilities of tracking technology. Now an officer
may obtain an order that allows police to install and monitor a tracking
device to obtain data about either transactions or movements of a thing,
including but not limited to a vehicle. An officer may also obtain
authorization to obtain data identifying the location of a thing that is
usually carried or worn by the individual that will assist the
investigation.124 This subsection clearly contemplates the acquisition of
data from a cellular phone, or other device, that is already in the
possession of the target.
These amendments are an important modernization of tracking
warrants because they address the practical realities of how law
enforcement can track individuals. The new provisions provide law
enforcement with the ability to effectively use modern technology already
possessed by almost everyone, but with the necessary balancing of the
requirement of prior judicial authorization.
D. Warrant for Transmission Data s. 492.2125

While the focus is often placed on an individuals reasonable
expectation of privacy as it relates to the content of private
communications, questions remain regarding the ability of law
enforcement to obtain envelope information without a warrant. As
described by Professor Penney, envelope information includes the
addressing or other information accompanying a communication that is
analogous to information that could be obtained from an unopened
124
Ibid, s 492.1(2).
125
Ibid, s 492.2.
letter.126 Similar to subscriber information, envelope information is not as

intimate as information regarding the content of a communication, but
may still reveal a great deal about a target of the inquiry. The identity of
the persons or organizations with whom the target regularly
communicates, the frequency, duration and timing of communications,
and the physical location of the communicators may all be of interest to
investigators.
The Criminal Code did not make reference to information such as
envelope information until 1993. Courts were divided on two questions:
(1) whether envelope information constituted a private communication
and therefore should be governed under Part VI, and (2) whether such
information was included in an individuals reasonable expectation of
privacy.127 Those questions were largely resolved with the enactment of s.
492.2, allowing for an application for a warrant for a number recorder. At
the time, police could apply for a warrant allowing for the installation and
monitoring of a number recorder, which provided police only with
information identifying or recording a telephone number or the location
of a telephone from which a call originated, was received or was intended
to be received.
The amendment of s. 492.2, with Bill C-13, allowed for the
modernization of the section to a warrant for a transmission data recorder,
rather than only a number recorder. Such warrants now allow the court,
based on reasonable grounds to suspect, to issue a warrant allowing the
installation and monitoring of a transmission data recorder.
Transmission data is defined as data that relates to functions of dialing,
routing, addressing or signaling; allows for information regarding the type,
direction, date, time, duration, size, origin, destination or termination of a
communication; and does not reveal the substance, meaning or purpose of
the communication.128 This greatly expands the information that police
can receive in this regard. Rather than the limited information that could
be received with a number recorder warrant, police are now able to obtain
126
Steven Penney, The Digitization of Section 8 of the Charter: Reform or Revolution?
(2014) 67 SCLR (2d) 505 [Penney, Digitization]; Penney, Updating, supra note 62
at 19.
127
Penney, Updating, ibid at 143.
128
more fulsome information that realistically addresses the type of

information that would be helpful to an investigation involving electronic
communications.
V. EVOLVING TECHNOLOGY AND THE ANALYSIS OF S. 8 OF

THE CHARTER
While the provisions for warrants often used as part of a wiretap

investigation have undergone updates, the core wiretap authorization
provisions remain stuck in the 1970s. Those core provisions of Part VI
need to be modernized to remain practical and useful to law enforcement
in their efforts to investigate serious, sophisticated crimes.
A second part of the puzzle is equally relevant and necessary. Beyond
the issues of wiretap legislation, one must examine the jurisprudence that
has developed around an individuals reasonable expectation of privacy.
New tools and techniques used by law enforcement must be assessed
according to concepts of privacy that have become outdated and inflexible.
Courts must formulate an approach that provides consistency with
historical concepts of an individuals reasonable expectation of privacy,
while being flexible to new tools and techniques that emerge and become
available to law enforcement.
At its inception, Part VI (Part IV.1 as it then was) of the Criminal Code
was intended to be a complete and comprehensive scheme to address the
lawfulness and admissibility of intercepted private communications.
However with the enactment of the Charter and its evolving case law,
additional considerations have emerged. Part VI of the Criminal Code now
addresses the issues regarding the lawfulness of interceptions and s. 8 of
the Charter governs the admissibility to the evidence gathered as a result of
the interceptions.129 Answering the question of whether a private
communication was lawfully intercepted under the rules of Part VI is no
longer determinative of the admissibility of the evidence. The court must
consider s. 8 of the Charter and all of its required analysis.
In addition to calls for legislative reform, the ever-evolving use of
technology by criminals and by law enforcement raises questions of
whether the established doctrine of analysis for s. 8 of the Charter is
129
Hubbard, Wiretapping supra note 9 at chapter 15.
capable of evaluating the reasonableness of technological searches and an

individuals reasonable expectation of privacy in relation to a huge variety
of modern devices and applications. A consideration of an individuals
reasonable expectation of privacy is essential given that it is the point at
which any judicial oversight begins.130 Failure to establish a reasonable
expectation of privacy leaves an accused without standing to challenge the
actions of law enforcement, thereby leaving no possibility of remedy.
The first case of new digital technology and s. 8 of the Charter arose
in R. v. Plant.131 After an anonymous tip, police contacted the local
electricity company and requested information from their customer
database.132 That information was used in support of an application for a
search warrant. The accused argued that police had invaded his reasonable
expectation of privacy in obtaining the information from the electricity
company. The court held that the information obtained was not
sufficiently personal and confidential to attract a reasonable expectation
of privacy, given that it did not reveal any intimate details of the accuseds
life.133
By 2010, the technological abilities of law enforcement advanced quite
significantly from getting billing information from the electricity company.
In R. v. Gomboc,134 police asked the electricity company to install a digital
recording ammeter (DRA) on the power line connected to a particular
house about which they had received information of a marihuana grow
operation. The electricity company voluntarily complied and the DRA
provided police with detailed information about the electricity
consumption at the house. Again, the primary consideration in evaluating
the use of this new technology was whether the accused had a reasonable
expectation of privacy in the information the device could reveal to law
enforcement.135
130
Mathew Johnson, Privacy in the Balance Novel Search Technologies, Reasonable
Expectations, and Recalibrating Section 8 (2011-2012) 58 Crim LQ 442.
131
[1993] 3 SCR 281, 1993 CarswellAlta 94 [Plant].
132
Ibid at paras 23.
133
Ibid at para 27.
134
2010 SCC 55 at para 1, [2010] 3 SCR 211.
135
Ibid.
The majority of the court held that the DRA did not invade the
accuseds reasonable expectation of privacy, but they were divided in their
reasons for that conclusion. Justice Deschamps, also writing for Justices
Charron, Rothstein, and Cromwell, held that although the DRA
produced more fine-grained measurements than the billing information
obtained in Plant, it did not reveal intimate details of a households
activities.136 Justice Abella agreed in the conclusion, but wrote that it was
mainly because of the regulatory aspect of the analysis. Had it not been for
the fact that a customer was required to expressly request confidentiality of
the information, she would have found that the accused had a reasonable
expectation of privacy.137 For her, the information inside the home was
presumptively protected by an expectation of privacy.
Chief Justice McLachlin, writing a dissent on behalf of herself and
Justice Fish, held that a DRA allows for informed predictions about
probable activities in the home that, although not conclusive, could
provide useful private information to law enforcement.138 The average
consumer who signed up for service of the electric company could not be
expected to be aware of a complicated regulatory scheme that allowed for
disclosure of certain information to law enforcement.139 They concluded
that the search was not authorized by law, and that the accuseds s. 8
Charter rights were consequently infringed.
As early as the Plant decision in 1993, the Supreme Court
demonstrated a shift had to occur away from the considerations of a
reasonable expectation of privacy that had traditionally been undertaken
in determining ones expectation of privacy in a place.140 Questions such
as whether someone was present at the location at the time of the search
and ones possession and control of a physical space did not necessarily fit
in an analysis of whether an individual had an expectation of privacy in
information they were sending out into the world. The Court stated that
one must consider the type of information sought by police and whether it
136
Ibid at para 14.
137
Ibid at paras 8283.
138
Ibid at para 124.
139
Ibid at para 139. This makes it seem as though ignorance of the law (or here the
regulatory scheme) is permissible.
140
Plant, supra note 131.
contained intimate details of an individuals life.141 They considered

whether an individual willingly or voluntarily put that information out
into the world or, by legislation, had not opted out of disclosure of the
information.142 A move toward the concept of privacy in information,
rather than in a place, emerged to deal with evolving technology.
A. Computers and Cellular Phones

The Supreme Courts consideration of the increasing digitization of
information quickly moved to technologies that are far more common to
all Canadians, with the consideration of ones reasonable expectation of
privacy in a search of computers or cellular phones.
With the evolution of technology and the Courts understanding of
new technologies, the interpretation of a reasonable expectation of privacy
has evolved. For example, when first considering issues surrounding the
interception of cordless telephones, some courts held that
communications on such devices were not protected by Part VI because of
a lack of a reasonable expectation of privacy given the ease with which they
could be intercepted, for example with a well-placed scanner.143 Similarly,
with the evolution of cellular phones from early car phones to todays
smart phones, courts have continued to re-assess the level to which an
individual has a reasonable expectation of privacy. In early jurisprudence
on the subject of cellular phones, a Quebec trial judge held that the
accused did not have a reasonable expectation of privacy in a cellular
phone conversation because, the ordinary user of a cellular telephone
knows or ought to know that the communication transmitted by means of
such a device is likely to be intercepted by a person other than the person
to whom it was intended.144 Today, an individual can clearly expect to
have a reasonable expectation of privacy in his or her cellular phone
conversations or text messages. This presents difficulties to law
enforcement in that, while conducting an investigation, they have to
attempt to predict the expectation of privacy that will be attributed to one
141
Ibid at para 20.
142
Ibid at paras 2122.
143
Penney, Updating supra note 62 at 6; R v Penna, 1997 CarswellBC 2914, [1997] BCJ
No 3014.
144
R v Solomon, 1996 CarswellQue 3084 at para 5, 110 CCC (3d) 354.
device or another. The principles of consistency and predictability are

lacking when law enforcement is left to guess at whether the tool or
technique they hope to use in a serious criminal investigation is going to
be in compliance with s. 8 of the Charter.
1. Computers
The evolution of technology and an increasing understanding of
computer technology has clarified and solidified the way in which courts
will view an individuals expectation of privacy. In the 2010 case of R. v.
Morelli, Justice Fish commented that it would be difficult to imagine a
more intrusive, extensive, or invasive search of ones privacy than the
search and seizure of ones personal computer.145 In his dissent, Justice
Deschamps emphasized technologys capacity to facilitate communication
of information and exchange of material in infinite quantities instead of
stressing the digitization as a threat to privacy.146
Since the decision of R. v. Cole147 in 2012, the Supreme Court has
made it abundantly clear that computers are going to be treated differently
than any other device when it comes to a s. 8 analysis. Computers contain
a vast quantity and variety of information therefore the magnitude of
information and communications that can be retrieved from them may
sometimes exceed what can even be obtained as a result of a Part VI
authorization.
In Cole, the court unanimously held that there is a very robust
expectation of privacy attached to computer data. However, it is tempered
by a number of factors. The most significant of those factors was whether
the computer in question was at ones workplace or home.148 The
computer in question was provided to the accused by his employer, who
could seize and search the computer at any time pursuant to its workplace
policies and practices. While that led to a reduction in the accuseds
reasonable expectation of privacy, it did not extinguish it altogether.149
The authority of the employer to search and seize the computer did not
145
2010 SCC 8 at para 2, [2010] 1 SCR 253.
146
Ibid at para 114.
147
2012 SCC 53, [2012] 3 SCR 34 [Cole].
148
Ibid at para 8.
149
Ibid at para 9.
give law enforcement the same search and seizure authority. The court
held that the employer could certainly advise law enforcement of their
discovery of illegal material on the computer; however police still required
a warrant before they could seize the device.150
The Supreme Court continued to stress that computer searches are to
be treated very differently than traditional searches of places with their
decision in R. v. Vu.151 Not only are computers to be treated differently,
the Court held that to search a computer the police must have specific
authority, even if that computer is found in a place for which police have a
valid search warrant or other judicial authorization.152 The Court
effectively deemed a computer to be a distinct place in and of itself. Their
reasoning was based primarily on the fact that a computer can be
distinguished from a filing cabinet or a briefcase in that it may contain
information that users cannot control or may not even be aware they
possess.153 Additionally, computers may act as a gateway to information
beyond the physical location of the device or the contents of it. If officers
were executing a search warrant at a particular building, they would only
be authorized to search the area defined by the warrant and the contents
of that location.154 When connected to the internet, computers open up to
an almost infinite amount of information stored anywhere in the world.155
The decision in Vu highlights the evolution of the Courts analysis of
a reasonable expectation of privacy with emerging technology and their
understanding of it. They noted that the general principle was that a
warrant to search a place would include the authority to search spaces and
receptacles within the named place.156 However they found that that
general principle had to be reconsidered when dealing with computers.157
The particular nature of a computer requires that there be a specific
150
Ibid at para 73.
151
Vu, supra note 103.
152
Ibid at para 64.
153
Ibid at paras 24, 41, 44.
154
Ibid at para 44.
155
Ibid.
156
Ibid at para 39.
157
Ibid.
assessment of whether a search of the contents of the computer is justified.

The Court concluded that:
only a specific authorization to search a computer found in the place of search
ensures that the authorizing justice has considered the full range of the
distinctive privacy concerns raised by computer searches and, having done so, has
decided that this threshold has been reached in the circumstances of a particular
proposed search.158
The decision in Vu begs the question of whether Parliament should

enact a specific type of search warrant for computers or if the traditional
search warrant pursuant to s. 487 will suffice? The Court did not go so far
as to hold that a traditional search warrant would be inadequate.
However, given the clear language that computers are to be treated
differently, perhaps the current legislation is not truly appropriate. A s.
487 search warrant allows an issuing judge to authorize the search of a
building, receptacle or place.159 While Justice Cromwell clearly treats a
computer as a distinct place in Vu, it would make far more sense to
provide for specific and particular authority for the search of a computer
within a distinct section. Such a section, whether a new section or treated
as a sub-section to the current s. 487, could address the particularities cited
by the Court in Vu. This would include the provisions allowing the
authority to reproduce and print computer data as currently allowed by s.
487(2.1) and s. 487(2.2), provisions for whether a computer must be
disconnected from the internet or a network while being searched,160 and
address potential limiting conditions for the execution of the warrant as
contemplated by the court.161 Such provisions would provide a balance
between an individuals high expectation of privacy in a computer, with
the highly probative value of what may be found on a computer. Also,
158
Ibid at para 47.
159
160
The ability to expand a search to an indefinite number of places was cited as a
concern and a distinguishing factor of computer searches. This could be either
addressed as a particular provision that a computer is not to be connected (so as to
keep the search distinct to the device named in the warrant) or as a potential limiting
conditions to be considered by the issuing judge or justice.
161
The court rejected the concept of the issuing judge or justice mandating the manner
of search for all warrants however did not rule out the imposition of limiting
conditions.
such provisions would provide predictability to law enforcement so they

would be aware of the boundaries and parameters of computer searches.
2. Cellular phones
In 1985, there were 6000 wireless subscribers in all of Canada.162 In
2000 that number increased to 8,731,220 subscribers.163 In the second
quarter of 2015, the number had grown to 28,586,472 subscribers, or
80% of the Canadian population.164
The Supreme Court in Vu specifically stated that they no longer saw a
distinction between the considerations relevant to computers and those
relevant to similar forms of technology, such as cellular phones. They
recognized that the evolution of cellular phones has resulted in phones
that have capacities and capabilities equivalent to computers and thus
should be treated no differently,165 however specifically chose to stay away
from any disruption to the law as it related to a computer or cellular
phone searched incident to a lawful arrest.166 Therefore, there remained
confusion about whether a cellular phone found on a suspect pursuant to
a lawful search incident to arrest, could be searched by police without a
warrant.
The Supreme Court attempted to resolve that confusion with its
decision in R. v. Fearon.167 The Court held that a modified power to search
incident to arrest included the power to search a cellular phone. The
majority specified that police must take detailed notes of what was
searched, and why, to ensure that such a search was truly incidental to
arrest.168 They held that the scope of the search must be tailored to the
162
Canadian Wireless Telecommunications Association, Mobile Wireless Subscribers in
Canada (March 25 2002), online: http://www.cwta.ca/wp-
content/uploads/2011/08/SubscribersStats_Q4_00.pdf.
163
Ibid.
164
Canadian Wireless Telecommunications Association, Facts & Figures, Wireless
phone subscribers in Canada (2015), online: http://www.cwta.ca/wp-
content/uploads/2015/08/SubscribersStats_en_2015_Q2.pdf.
165
Vu, supra note 103 at para 38.
166
Ibid at para 63.
167
2014 SCC 77, [2014] 3 SCR 621 [Fearon].
168
Ibid at paras 4, 82. The Court attempted to clarify that the search must be founded on
a lawful arrest, be truly incidental to that arrest and be conducted reasonably (see para
purpose for which it is being conducted.169 In other words, an officer

cannot search through an entire phone on the basis of the search being
incident to arrest. They must confine their search to certain areas or items
on the phone that have the necessary link to the purposes for which a
prompt examination of the phone is permitted. The police must also show
that a valid law enforcement objective would be stymied or significantly
hampered if they did not have the ability to promptly search a cellular
phone incident to arrest.170 This factor has significantly changed the law in
relation to a search incident to arrest, when it comes to a cellular phone;
in other circumstances (such as a search of pockets or immediate physical
surroundings), police search for any additional evidence of the offence for
which the accused was arrested.
The majoritys decision in Fearon constituted a move toward removing
any bright line rules concerning the search of technological devices. The
onus was placed on law enforcement to articulate why their actions fit
within the existing search rules and why their actions were reasonable.
Nevertheless, Justices LeBel, Abella and Karakatsanis argued in the
dissent that a bright line rule should be established. Their position was that
searches of personal digital devices cannot be conducted pursuant to the
common law power of search incident to arrest and that, given the
extremely high expectation of privacy, only judicial pre-authorization can
provide a sufficient balance between law enforcements objectives and the
unique privacy interests of the information contained on such devices.171
They were of the view that the safeguards and conditions imposed by the
majoritys decision were not sufficient to protect such a significant
expectation of privacy.
In some ways the decision of the majority of the Court in Fearon is in
conflict with their decision in Vu just over a year earlier. While the
majority in Fearon allows police to conduct a limited search of a cellular
phone incident to arrest in the appropriate circumstances, Vu is in line
58). Arguably, it is not extremely helpful in guiding law enforcement officers who are
attempting to understand what the court will view as a search incidental to an arrest
to clarify by saying that it must be truly incidental to arrest.
169
Ibid at para 76.
170
Ibid at para 80.
171
Ibid at para 105.
with the dissent in Fearon, allowing police only to search a computer

when they have specific judicial pre-authorization to do so. Perhaps
through the evolution of subsequent case law circumstances will arise
where courts find that a limited search of a computer will be allowed in
exceptional circumstances where a valid law enforcement objective would
be stymied or significantly hampered by delaying a search. However, as the
law seems to stand now, such an argument would be counter to the
findings in Vu.
B. The Internet
As the internet continues to evolve, more new challenges are
presented for the application of the provisions of Part VI. Questions such
as where the communication originates, whether the originator and/or
recipient of the communication are in Canada, should authorities be
allowed to access encrypted private communications, and when an
individuals expectation of privacy is reasonable while online, continue to
expand and contract in case law specific to the internet.
In 2012, 83% of Canadian households had access to the internet at
home.172 Approximately 69% of those connected households used more
than one type of device to go online.173 While laptops and desktop
computers remained the preferred type of hardware in those households,
the use of wireless handheld devices largely increased from 35% in 2010
to 59% in 2012.174 Using the internet to communicate by a variety of
methods is prevalent in Canadian society as well. In 2012, two-thirds of
Canadians who used the internet accessed social networking sites such as
Facebook and Twitter.175 In 2010 only 24% of internet users used the
172
Statistics Canada, Canadian Internet Use Survey 2012 (27 November 2013), online:
http://www.statcan.gc.ca/daily-quotidien/131126/dq131126d-eng.htm.
173
Ibid.
174
Ibid. Not surprisingly, a huge amount of households in urban areas (80% of
metropolitan areas and 80% of agglomerations) had home internet access, with 75%
of households outside of those areas. Almost all households in the top income
quartile (household incomes of $94,000 or more) had internet access.
175
Statistics Canada, Individual Internet Use and e-Commerce, 2012 (28 October
2013), online: http://www.statcan.gc.ca/daily-quotidien/131028/dq131028a-
eng.htm.
internet to make audio or video calls, which rose to 43% in 2012.176

Interestingly, the use of the instant messaging through the internet
dropped approximately 7% during that same time period, perhaps because
of the variety of other messaging options, such as text messaging or
communicating through social media sites.177
When assessing an individuals reasonable expectation of privacy on
the internet, some unique questions arise including whether legislation
should require service providers to facilitate the decryption of
communications and where an internet communication is intercepted.
1. Should authorities be allowed to intercept encrypted private

communications?
It is clear from the statistics regarding internet usage that a huge
number of Canadians are using the internet in a variety of ways to
communicate. However, depending on the methods or programs used, the
internet often does not provide any assurances that those communications
will remain private. In fact, many communications over the internet come
with an explicit warning that they may, at best, not be secure or, at worst,
be subject to interception.178
An entire industry has become devoted to the encryption of the
internet and of communications, and its use has become widespread.
Encryption was defined by the American 9th Circuit Court of Appeals as:
176
Ibid.
177
Ibid.
178
Hubbard Wiretapping supra note 9 at chapter 15. As Judge Fletcher of the 9th
Circuit Court of Appeals noted in Bernstein v United States Deptartment of Justice, No
97-16686 (9th Cir 1999) [Bernstein], In this increasingly electronic age, we are all
required in our everyday lives to rely on modern technology to communicate with one
another. This reliance on electronic communication, however, has brought with it a
dramatic diminution in our ability to communicate privately. Cellular phones are
subject to monitoring, email is easily intercepted, and transactions over the Internet
are often less than secure. Something as commonplace as furnishing our credit card
number, social security number, or bank account number puts each of us at risk.
Moreover, when we employ electronic methods of communication, we often leave
electronic fingerprints behind, fingerprints that can be traced back to us. Whether
we are surveilled by our government, by criminals, or by our neighbors, it is fair to say
that never has our ability to shield our affairs from prying eyes been at such a low ebb.
The availability and use of secure encryption may offer an opportunity to reclaim
some portion of the privacy we have lost.
Encryption basically involves running a readable message known as plaintext

through a computer program that translates the message according to an
equation or algorithm into unreadable ciphertext. Decryption is the translation
back to plaintext when the message is received by someone with an appropriate
key.
The applications of encryption, however, are not limited to ensuring secrecy;
encryption can also be employed to ensure data integrity, authenticate users, and
facilitate nonrepudiation It is, of course, encryptions secrecy applications that
concern the government. The interception and deciphering of foreign
communications has long played an important part of our nations national
security efforts.179
The government has expressed concern about enhancing individual
privacy regarding internet usage and the deployment of successful
encryption that prevents the state from intercepting communications. The
result can be that the state is prevented from monitoring, investigating and
prosecuting terrorists and other criminals who employ the internet for
illegal purposes.180 The debate surrounding the ability of law enforcement
to intercept encrypted communications has been much more public than
such a debate in Canada. In 1998, Robert S. Litt, Principal Associate
Deputy Attorney General of the United States, testified:
However, I dont think that it can reasonably be disputed that the unchecked
spread of non-recoverable encryption will also endanger the public safety and our
national security. People think of encryption primarily in the context of
transmitted communications such as phone calls, and its effect on wiretaps.
Indeed, it is absolutely essential that law enforcement preserve the ability to
obtain plaintext of information from lawfully authorized wiretaps and
authenticate this information in court. But if strong encryption becomes a
standard feature, law enforcement will lose its ability to obtain and use this
evidence. We believe that the most responsible solution is the development
and widespread use of encryption systems, through a variety of technologies,
permit timely access to plaintext by law enforcement authorities acting under
lawful authority.181
While perhaps the issues surrounding encryption have not received as
much public attention in Canada, law enforcement has undertaken
179
Bernstein, ibid at paras 1718.
180
Hubbard Wiretapping, supra note 9 at chapter 15.
181
Testimony of Robert S. Litt, Principal Associate Deputy Attorney General, before a
subcommittee for the Senate on Privacy in a Digital Age: Encryption and Mandatory
Access (presented March 17, 1998), online:
https://cryptome.org/jya/doj031798.htm.
intense lobbying for unrestricted access to keys for encryption.182 As early

as 1998, Ontarios Privacy Commissioner, Dr. Ann Cavoukian, wrote
about the tension between the public and private sides of the debate. She
highlighted that the predicament faced by government is that requiring
law enforcement to be provided with the key to decrypt encrypted
communications almost completely undermines the point of cryptographic
technology.183 Once users of the technology are aware that others have the
ability to decrypt their communications, they are likely to abandon the use
of the technology because the protection offered to them has been
eliminated.184
The difficulties continue when one looks at whether law enforcement
should have access to the decryption key for in-transit or archived
communications. For archived communications, presumably law
enforcement could obtain a production order requiring the service
provider to produce the information, together with an assistance order
requiring that the key to encryption be provided as well. For access to in-
transit communications, which is generally the goal of law enforcements
use of a Part VI Authorization, Dr. Cavoukian argues that several
problems would arise:
To be effective, access would have to be timely, a few hours after the transmission
at the latest, and to achieve this quick turnaround time, the interception of the
in-transit encrypted message would have to be made before the content of the
message was decrypted. A third party would have to hold the users secret key
since access through the user would alert the user. Then there is the issue of
evidence. Until decrypted, the in-transit message would have no evidentiary
character, but the process of decryption would require court authorization.

Indeed, the potential exists for lawful access to turn into massive fishing
expeditions. In this scenario, the balance between the interests of law
enforcement, civil liberties and privacy would be struck largely in favour of law
185
enforcement.
182
Hubbard Wiretapping, supra note 9 at chapter 15.
183
Ann Cavoukian, Submission to Industry Canadas Electronic Commerce Task Force
A Cryptography Policy Framework for Electronic Commerce: Building Canadas Information
Economy and Society, (April 21, 1998) Information and Privacy Commissioner/Ontario
1 at 4, online: https://www.ipc.on.ca/images/Resources/up-042198.pdf).
184
Ibid.
185
Ibid at 6.
While the technical logistics and capabilities of communication

encryption technology are beyond the scope of this paper when discussing
the interception of in-transit communications, Part VI authorizations
would be capable of including the interception and decryption of
encrypted communications if legislation required service providers to
retain decryption information. If law enforcement possessed a valid
wiretap authorization that included an assistance order, requiring a service
provider to retain decryption keys and provide those to law enforcement,
then a wiretap authorization would be capable of covering encrypted
messages. The true problem arises in that service providers are not
required by legislation to retain such information and therefore do not
have it to provide to law enforcement. As such, the ability of law
enforcement to intercept some communications is thwarted, even when
they are in possession of a wiretap authorization for which they have had
to establish all of the statutory preconditions to the satisfaction of the
issuing justice.
In 2005, the government introduced Bill C-74, the Modernization of
Investigative Techniques Act,186 which died on the order paper when the
government was dissolved. The bill was based on two objectives: first, to
compel telecommunication service providers to have the ability to
intercept communications; and, second, to provide law enforcement with
access to basic information identifying telecommunication service
subscribers, upon request.187 The proposed legislation was a culmination
of an extensive consultation process in which over 300 submissions were
received from police services, industry, civil rights groups, and
individuals.188 The proposed act would have required all telephone and
internet providers to ensure that their infrastructures were intercept
186
Bill C-74, Modernization of Investigative Techniques Act, 1st sess, 38th Parl, 2005 (First
Reading November 15, 2005) [Bill C-74]. A subsequent version of the Bill was
introduced in 2007 as a Private Members Bill however that too died on the order
paper when Parliament was dissolved in the fall of 2008. No further legislation
addressing this issue has been introduced.
187
Ibid.
188
Dominique Valiquet, Telecommunications and Lawful Access: I. The Legislative
Situation in Canada, (2006), Library of Parliament at p 3 [Valiquet,
Telecommunications].
capable.189 Service providers would have been required to provide

assistance to any law enforcement agency to permit it to access
telecommunication facilities and provide a list of employees capable of
providing such assistance.190 Perhaps most importantly, the
telecommunication service providers would have been required to give law
enforcement access to decrypted communications and/or all reasonable
assistance to decrypt it.191 This would ensure that law enforcement, when
in possession of a valid court order, is actually able to put that order into
effect. The Canadian Association of Chiefs of Police continue to call for
legislation that would compel telecommunication service providers to
ensure their systems would be capable of allowing interception of
communications.192
C. Access to Subscriber Information

Prior to the Supreme Courts decision of R. v. Spencer,193 many viewed
internet subscriber information as akin to the information one could find
in a telephone book. When police were looking for a particular customers
name and address, the service provider would be contacted and, generally,
the information would be given to police voluntarily and without the need
for a warrant. That all changed with Spencer, with the court measuring
what level of intimacy is connected to an individuals subscriber
189
Bill C-74, supra note 186 at cl 7(a). Clause 7(a) would have required that
telecommunications service providers have the capability to intercept communications
in accordance with the technical standards to be established in the regulations made
under the proposed Act.
190
Valiquet, Telecommunications supra note 188. In addition, to being provided with a
list of names of employees from the service providers, law enforcement would have
been entitled to conduct a security assessment of the employees.
191
Bill C-74, supra note 186 at cl 6 (1)(b). If measures taken to protect a communication,
such as encrypting or encoding, had been applied by someone other than the service
provider and the service provider was unable to remove them, it would have then
been required to provide all reasonable assistance to law enforcement agencies to do
so (clauses 6(1)(b)(ii) and 6(2)).
192
Lawful Access Subcommittee, CACP Law Amendments Committee, Lawful Access
Reform: A Position Paper Prepared for the Canadian Association of Chiefs of Police
(2008), online: <https://www.cacp.ca/law-amendments-committee-
activities.html?asst_id=437>.
193
2014 SCC 43, [2014] 2 SCR 212 [Spencer].
information and whether it falls into a category of information considered

to be part of ones biographical core therefore protected by s. 8 of the
Charter.194
The decision in Spencer had to examine the three digital s. 8 Charter
doctrines that had developed over courts decisions on technology: (1) the
technological nature of the investigative technique; (2) the effect of
contract and statute in shaping reasonable expectations of privacy; and (3)
the application of the biographical core test to a category of information
that some view as extremely intimate while others do not.195
The question of the effect of contract and statute was relatively easily
set aside in that the court found that such considerations may be relevant
to, but not necessarily determinative of whether there is a reasonable
expectation of privacy.196
The more interesting and thorough analysis came to the question of
whether subscriber information is part of ones biographical core of
information. It may be difficult to see how a customers name, address and
telephone number would reveal anything about a persons personal
choices or details of ones lifestyle. However the court focused on what the
name, address and telephone number actually gave the police. In this case,
it gave them a connection to a computer they already knew to be
downloading child pornography.
Two main arguments were presented in favour of demanding
constitutional protection for subscriber information:
1. The information obtained by police ( i.e. information likely to
identify a person police know to be accessing child
pornography) revealed intimate details of the lifestyle and
personal choices of the individual.197 The fact that the details
of the personal choices were illegal is immaterial because the
activity is so intimate it deserves protection;
2. By obtaining an individuals subscriber information, police
had the potential to observe online activity in a more
sustained and general way.
194
Ibid at para 27.
195
Penney, Digitization supra note 126 at 507.
196
Spencer, supra note 193 at para 54.
197
Ibid at para 25.
Although the Court did not elaborate on how this could occur,198 it
was this second argument they endorsed in finding a reasonable
expectation of privacy. They concluded that any request for subscriber
information that corresponds to a specifically observed, anonymous
internet activity, engages a high level of informational privacy.199
The Court did not foreclose the possibility of a legislative response
that would allow law enforcement to obtain such information without a
warrant. In order to be compliant with s. 8 of the Charter, a search must be
authorized by statute or at common law. The Court concluded that there
was no authority for the search at common law and no statutory scheme,
and therefore was left with the conclusion that the search was
unreasonable.200 Parliament could choose to regulate warrantless access to
the information in a number of ways.
In Australia, legislation allows law enforcement agencies to access
subscriber information without a warrant or court order.201 The Australian
approach established a database containing not only a subscribers name,
address and telephone number, but also the location of the device and
whether it is used for government, business, charitable or private
purposes.202 Law enforcement agencies have access to this database for
national security reasons, and for the purpose of enforcing criminal law.
All telephone companies and re-sellers providing telephone and related
services are required to provide information for the database on a daily
basis.203 Law enforcement agencies can access the database for national
198
Penney, Digitization supra note 126. Professor Penney notes that while it may be
true that subscriber information could get police reams of personal information about
internet usage, it is far from evident that that is correct. Commentators have also
suggested that subscriber information gives police the potential to scour the internet
for details records of someones online activities, but there is no evidence in
jurisprudence that this is something that the police have done, or even that law
enforcement in Canada has the capability of doing this.
199
Spencer, supra note 193 at para 51.
200
Penney, Digitization, supra note 126 at 533.
201
Telecommunications (Interception and Access) Act 1979 and Telecommunications Act 1997.
202
The Integrated Public Number Database, as established by the Telecommunications Act
1997, Part 4 of Schedule 2.
203
Robert W. Hubbard, Susan Magotiaux & Xenia Proestos, The Limits of Privacy:
Police Access to Subscriber Information in Canada (2002) 46 Crim LQ 361 at 368.
security reasons and for enforcing criminal law and safeguarding public
revenue in order to obtain the subscribers name, address and telephone
number, telephones location where practicable, the name of the service
provider providing the carriage service and whether the telephone is for
government, private or personal use.204
In Canada, the proposed Modernization of Investigative Techniques Act205
put forward that law enforcement have access to certain basic information
identifying telecommunication service subscribers, without warrant or
court order. The information to which law enforcement would have access
would be limited to basic identifying information: name, IP address, email
address, telephone numbers and any unique number associated to the
device (i.e. presumably a cellular phones IMEI206 number). The
telecommunication service providers would not have been required to
collect information other than what they would have collected in the
normal course of business, nor would they have been required to verify the
accuracy of the customer information they were given.207
In the alternative of enacting legislation allowing for the warrantless
access to subscriber information, Parliament could choose the addition of
a specific warrant provision related to subscriber information. While
police could currently apply for a search warrant under s. 487 of the
Criminal Code for such information, they would be required to meet the
threshold of reasonable ground to believe that there is anything that will
afford evidence with respect to the commission of an offence in a
particular place. This standard may be problematic for two reasons. First,
police may not know which service provider is being used by a suspect
therefore cannot specify an exact location where the evidence will be
located. Second, requests for subscriber information are often made early
204
Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997, s 10.
205
Bill C-74, supra note 186.
206
IMEI is short for International Mobile Equipment Identity and is a unique number
given to every mobile phone, typically found behind the battery. IMEI numbers of
cellular phones connected to a Global System for Mobile Communications network
are stored in a database containing all valid mobile phone equipment. When a phone
is reported stolen or is not type approved, the number is marked invalid. (See
Webopedia, online: http://www.webopedia.com/TERM/I/IMEI.html IMEI).
207
Bill C-74, supra note 186.
in complex investigations, often to gather the information necessary to

make an application for a wiretap authorization. At such an early stage of
an investigation, it is unlikely that law enforcement would have sufficient
information to meet the threshold of a s. 487 search warrant, namely
reasonable grounds to believe.
Given the Supreme Courts recognition of a reasonable expectation of
privacy in subscriber information, the enactment of legislation allowing a
completely warrantless scheme for law enforcements ability to receive
subscriber information would be a lightening-rod for constitutional
challenge. The most sensible approach for Parliament would be to
introduce a form of production order unique to subscriber information,
in direct response to the Supreme Courts decision in Spencer. While
amendments to the Criminal Code in 2015 included a myriad of new
warrants available to police in their investigations, the issue of subscriber
data was not addressed. Allowing police to apply for an order on the
standard of reasonable suspicion would strike a balance between the
privacy interests and reasonable expectation of privacy, as recognized by
the Supreme Court, with the needs of law enforcement often early in an
investigation.
VI. CONCLUSION
The way Canadians communicate with each other and around the
world has evolved enormously since the 1970s. While speaking on a land-
line telephone has not become completely obsolete, it has given way to
conversations on cellular telephones, messages sent by text, and a huge
variety of methods of communication over the internet. Canadas wiretap
legislation has simply not kept up to the evolution of communication.
This leaves law enforcement guessing at how the modern tools and
techniques available to them fit with the existing legislation. It also leaves
Canadian courts with the difficult task of attempting to fit modern tools
and techniques into the confines of the near-ancient legislation, and
historical concepts of an expectation of privacy that have emerged through
the jurisprudence.
While some upgrading has occurred in the enactment of new
legislative provisions often used in conjunction with a wiretap
authorization, the attempts at modernization have not gone far enough.
The core provisions of wiretap law must be updated to provide consistency
with the realities of modern wiretapping by law enforcement. Courts must

also update their approach to the questions of admissibility of wiretap
evidence to provide flexibility in historical concepts of an individuals
reasonable expectation of privacy.
Both Parliament and the courts have a role to play. Amendments to
legislation can be slow and tedious; however they provide the clearest
definitions and parameters that, in turn, provide the greatest certainty and
predictability to law enforcement attempting to properly investigate crime.
Decisions of the courts can be reactionary to the facts of a particular case.
However courts are able to consider the unique aspects of different
modern tools and techniques available to law enforcement, therefore
providing flexibility as new technology emerges. The goals and principles
of practicality, flexibility, and consistency should govern the approaches
taken by both Parliament and the courts in the constantly evolving
considerations of wiretap law in Canada.
TO VAPE, OR NOT TO VAPE
Electronic Cigarettes and the
Ambiguous State of Their Legality in
Canada
*
R A NI SH R AV E E N D RAB O SE
ABSTRACT
T
he legality of e-cigarettes remains ambiguous in Canada in terms
of their use and sale. The question of legality is of relevance due to
the widespread and increasing popularity of e-cigarettes. The
purpose of this paper is to determine whether any definitive
conclusions can be drawn regarding the legality of e-cigarettes in Canada.
Deriving an answer to the issue of the legal status of e-cigarettes in Canada
involved a careful dissemination of the applicable legislation,
Parliamentary materials, Health Canada notices, scientific literature, and
general media reports. Ultimately, primary emphasis was placed on
applicable and potentially applicable federal legislation due to federal
legislation being the only avenue for a comprehensive and national
legislative framework for regulating e-cigarettes. The question of legality
was approached from a purely legally substantive manner and questions of
whether Parliament should or should not allow the use of e-cigarettes were
*
J.D. (2017). Editors note: The research in this article is current as of August 2016.
The author is aware that legislation to regulate vaping was introduced in the fall of
2016. See: Kristy Kirkup, Federal Liberals new vaping bill targets kids, smokers hoping to
quit, The Star (22 November 2016), online:
<https://www.thestar.com/news/canada/2016/11/22/federal-liberals-new-vaping-bill-targets-
kids-smokers-hoping-to-quit.html>. See Canada, Bill S-5, An Act to amend the Tobacco Act
and the Non-smokers Health Act and to make consequential amendments to other Acts, 1st
sess, 42nd Parl, 2016 (Bill passed by the Senate with an amendment 1 June 2017,
House of Commons First Reading 15 June 2017).
largely avoided. However, normative arguments in this regard inevitably

arise, and were addressed tangentially, though they do not comprise a
substantial portion of the paper. Coming to a conclusion required
separating the question of legality into two components: (1) the legality of
commercial use and sale and (2) the legality of personal use.
It was determined that in terms of the commercial use and sale of e-
cigarettes, legality remains ambiguous. E-cigarettes can be considered
illegal for the purposes of commercial use and sale if they contain nicotine,
but are legal if they do not contain nicotine. Regarding personal use, they
can be considered legal. However, both of these conclusions come with
significant caveats. It was ultimately determined that comprehensive
federal legislation would be the most appropriate way of regulating e-
cigarettes as the provincial legislation that has been enacted thus far has a
very narrow regulatory scope.
Ultimately, as the health effects of these devices become known, it will
only be a matter of time before the federal government passes legislation
that will add a much stronger sense of certainty to the question of e-
cigarette legality.
I. INTRODUCTION
Electronic cigarettes (e-cigarettes) possess a conflicting status in
Canadian society. Advocates of the technology advance the safety of the
constituent ingredients in e-cigarette liquid; e-cigarettes provide a potential
alternative as a tobacco cessation product to assist those who want to quit
smoking traditional cigarettes.1 Critics of e-cigarettes cite the limited
research available and that these supposedly safe ingredients have only
been shown to be non-toxic in the context of ingestion and not when
1
C Bullen et al, Effect of an electronic nicotine delivery device (e cigarette) on desire
to smoke and withdrawal, user preferences and nicotine delivery: randomized cross-
over trial (2010) 19:2 British Medical J: Tobacco Control 98 at 102; Riccardo Polosa
et al, Effect of an electronic nicotine delivery device (e-Cigarette) on smoking
reduction and cessation: a prospective 6-month pilot study (2011) 11 BMC Public
Health 786 at 786; Maciej L Goniewicz, Elena O Lingas & Peter Hajek, Patterns of
electronic cigarette use and user beliefs about their safety and benefits: An internet
survey (2013) 32 Drug and Alcohol Rev 133.
To Vape or Not to Vape 301
vaporized and inhaled.2 Additionally, they cite fears regarding the growing
popularity of another form of nicotine administration.3
The legality of e-cigarettes can be at best described as tenuous.
Specifically in the Canadian context, the legislation regarding personal use
of e-cigarettes is inconsistent across provinces and in some cases, absent
entirely.4 Furthermore, Health Canada has not explicitly authorized the
usage of e-cigarette devices and liquid for personal use.5 Thus, it could be
argued that this silence indicates that the selling of these products should
be illegal until further action by Parliament is taken. Regardless, e-cigarette
vendors do not operate in a clandestine capacity but operate openly and
are easily accessible to the public.6
There is a lack of adequate scientific research on the health effects of
e-cigarettes.7 Long-term studies on health effects often require decades of
longitudinal research. Thus, e-cigarettes are too novel of an entity to have a
sufficient body of research behind them to make any definitive
conclusions regarding their health effects.8 Questions arise as to whether e-
cigarettes should be classified as tobacco cessation aids under federal
health legislation or tobacco products within existing federal and
provincial legislation (regarding both commercial and personal use of e-
cigarettes). However, when properly understood, e-cigarettes are neither a
tobacco cessation aid nor a tobacco product and demand new legislation
2
Lauren E Odum, Katie A ODell & Jacqueline S Schepers, Electronic Cigarettes: Do
They Have a Role in Smoking Cessation? (2012) 25 (6) J of Pharmacy Practice 611; Ii-
Lun Chen, FDA Summary of Adverse Events on Electronic Cigarettes (2013) 15
Nicotine & Tobacco Research 615.
3
Canada, Statistics Canada, Canadian Tobacco, Alcohol and Drugs Survey (CTADS),
(Ottawa: Health Canada, 2013) [CTADS].
4
See Section V for a more detailed discussion on provincial e-cigarette legislation.
5
Canada, Health Canada, NOTICE To All Persons Interested in Importing, Advertising or
Selling Electronic Smoking Products in Canada, (Ottawa: Health Canada Therapeutic
Products Directorate, 27 March 2009), online: http://www.hc-sc.gc.ca> [Health
Canada Importation Notice].
6
A cursory Google Maps search of any major Canadian city followed by the words e-
cigarette or vape will return numerous results.
7
Andreas D Flouris & Dimitris N Oikonomou, Electronic cigarettes: miracle or
menace? (2010) 340 British Medical Journal 311 at 329.
8
Peter Hajek et al, Electronic cigarettes: review of use, content, safety, effects on
smokers and potential for harm and benefit (2014) 109:11 Addiction 1801.
to appropriately regulate them from a number of perspectives.

Nonetheless, the scientific community largely asserts that they are
indubitably safer than traditional cigarettes, though the full extent of their
health effects has yet to be determined.9
With all the contradicting information, questions thus arise as to the
present legal status of e-cigarettes in Canada. It will be seen that there are
many variables that influence this question of legality and ultimately, it is
not one that can be conclusively determined.
A. Purpose
The purpose of this paper is to determine the current legal status of e-
cigarettes in Canada. The answer to this question differs on whether the
product is to be sold commercially or used personally. The question of
legality is of relevance due to the widespread and increasing popularity of
e-cigarettes. The data from the 2013 Canadian Tobacco, Alcohol and
Drugs Survey (CTADS) reveals that: (a) one in five youth (identified as
both the 15-19 and 20-24 cohorts in the survey) had tried an e-cigarette;10
(b) e-cigarette use in Canada has exceeded other forms of traditional
tobacco use, including cigars, pipes, and chewing (smokeless) tobacco;11 (c)
in the age category of 15-19, 20.2% have reported ever trying a traditional
cigarette, while 19.8% have reported ever trying an e-cigarette (the
numbers are less comparable in older age groups).12 As a result, it can be
seen that young individuals increasingly use e-cigarettes.13 Trends seen in
the CTADS indicate that e-cigarette popularity will only increase further.14
The CTADS also, disconcertingly, reveals that one in five e-cigarette users
were unsure about whether there was nicotine in their last e-cigarette.15
The popularity of the e-cigarettes coupled with the confusion regarding the
health effects of e-cigarettes indicate that understanding the legality of
these devices is of paramount importance. The fact that there have not
9
Ibid.
10
CTADS, supra note 3.
11
Ibid.
12
Ibid.
13
Ibid.
14
Ibid.
15
Ibid.
been any comprehensive reports or publications outlining the legality of e-

cigarettes from a federal and provincial standpoint results in the question
of legality being a pertinent one, especially in the light of growing e-
cigarette popularity.
B. Scope of Discussion
The scope of this paper is limited to the question of current legality in
Canada. Federally, there is an absence of legislation pertaining to e-
cigarettes. As a result, potential avenues that Parliament may take in
legislating on the matter of e-cigarettes will be discussed. Notably, this
paper will attempt to avoid any discussion on whether e-cigarettes should or
should not be legal. Additionally, questions regarding whether Parliament
should or will legislate on e-cigarettes will not be considered. The paper
will proceed on the assumption that the federal government will,
eventually, introduce legislation on e-cigarettes. This assumption is based
primarily on the prevalence of e-cigarette use in Canada as well as the fact
that many provinces have begun to introduce legislation. Furthermore, the
provincial legislation that has been introduced is fairly limited in scope,
and provincial representatives cite the inevitable introduction of federal
legislation as an explanation for this.16
C. Methodology
In determining possible applicable legislation, the methodology used
involved examining what legislation is used to regulate new substances and
chemicals that are to be administered to the body. Additionally, existing
tobacco legislation was examined because e-cigarettes share many
similarities, superficially and in terms of general use, to traditional
cigarettes (hence, their namesake). Legislation that covered the constituent
ingredients of e-cigarettes was examined (nicotine, propylene glycol, and
vegetable glycerin) to see whether e-cigarettes could, holistically, apply to
that same legislation. Federally, Health Canada has released a series of
notices that pertain to e-cigarettes that within them, reference legislation.17
16
See Section IV for a more detailed discussion on provincial e-cigarette legislation.
17
Health Canada Importation Notice, supra note 5; Canada, Health Products and Food
Branch Inspectorate Regional Operational Centre, Health Canada Advises Canadians
Not to Use Electronic Cigarettes, (Ottawa: Health Canada).
The legislation obtained through the aforementioned general search was

then cross-referenced with the legislation cited by Health Canada. Cross-
referenced legislation was deemed to be further indicia of applicability, but
was not required for a determination of applicability to be made.
Throughout this search there were three larger pieces of federal legislation
that were deemed to be potentially applicable to e-cigarettes, either as is, or
through some amendment procedure: the Food and Drugs Act,18 the
Controlled Drugs and Substances Act,19 and the Tobacco Act.20 Within the
Food and Drugs Act discussion, the Health Canada notices and the Natural
Health Products Regulations21 will be given particular attention as well.
Provincial governments have focused exclusively on existing tobacco
legislation as a method of regulating e-cigarettes.22 Every province that has
thus far introduced legislation on e-cigarettes has done it under the
provincial tobacco legislation.23 Parliamentary debates regarding the
introduction of e-cigarette regulation in provinces also focus on tobacco
legislation.24 As a result, when examining e-cigarette legislation from the
provincial perspective, emphasis will be placed solely on the provincial
tobacco legislation. Municipal legislation was not included in this
consideration.
D. Outline of Discussion
The next section, Part II, will provide an overview of what actually
constitutes an electronic cigarette and how they compare to traditional
cigarettes. This includes a descriptive section on the physical anatomy of e-
cigarettes and what components they are made up of. The section will end
with a brief discussion of the chemical composition of e-liquid, which is
heated within the e-cigarette to produce vapour for inhalation.
The following section, Part III, will involve a deeper analysis of the
health effects of e-cigarettes. Each substituent chemical in the composition
18
RSC 1985, c F-27 [Food and Drugs Act].
19
SC 1996, c 19 [Controlled Drugs and Substances Act].
20
SC 1997, c 13 [Tobacco Act].
21
SOR/2003-196 [Natural Health Products Regulations].
22
23
24
of e-liquid will be separately analysed (nicotine, propylene glycol, and

vegetable glycerin). The discussion will primarily revolve around what the
latest scientific consensus is on the safety of each of these chemicals, and if
available, their safety in the context of inhalation. Ultimately, the scientific
literature indicates that nicotine, while highly addictive, has fairly limited
negative health effects.25 On the other hand, propylene glycol and
vegetable glycerin have been determined to be demonstrably safe in the
context of ingestion, but there is not enough research available regarding
inhalation to come to a concrete conclusion.26
Part IV will begin the legally substantive, and most important, section
of the discussion. The federal legislation will be examined, emphasizing
the three aforementioned statutes. Under the Food and Drugs Act, it will be
noted that Health Canada has attempted to restrict the use and sale of
nicotine containing e-cigarette devices, but its ability to enforce such a
restriction is fairly dubious.27 However, the Food and Drugs Act would be
the most appropriate and most effective avenue for e-cigarette legislation
either under the main body of the legislation or under the ancillary
Natural Health Products Regulations.28 Additionally, it will be contended that
while e-cigarettes could theoretically fall under the purview of the
Controlled Drugs and Substances Act and the Tobacco Act, they are not the
most appropriate avenues for effectively regulating e-cigarettes.29
Part IV will transition to a discussion on the provincial legislation. A
breakdown of each provinces status on regulating e-cigarettes will be
discussed. It will be seen that provincial governments have been regulating
e-cigarettes exclusively within the tobacco legislation.30 Evidence suggests
that this is essentially a stopgap measure in the wait for federal legislation.
In light of this information, it will be argued that while the provincial
25
See Section III for a more detailed discussion on the health effects of nicotine.
26
See Section III for a more detailed discussion on the health effects of propylene glycol
and of vegetable glycerin.
27
See Section IV for a more detailed discussion of the Food and Drugs Act.
28
See Section IV for a more detailed discussion of the Natural Health Products
Regulations.
29
See Section IV for a more detailed discussion of both the Controlled Drugs and
Substances Act and the Tobacco Act.
30
legislation provides some effective measures for regulating e-cigarettes

considering the limited scientific information available on the health
effects of these products, the haphazard nature of having differing
regulations across provinces makes for a confusing state of the law.31 As a
result, comprehensive federal legislation will be recommended.
Part IV will also cover additional commentary and analysis, largely
expounding on and clarifying points made in the preceding two sections.
The final subsection of Part IV will contain the final recommendations the
paper proposes in consideration of the entire discussion. Ultimately, it will
be maintained that comprehensive federal regulation under the Food and
Drugs Act would be the most effective manner for the regulation of e-
cigarettes. Concluding remarks will follow in Part V.
II. WHAT IS AN E-CIGARETTE?

E-cigarettes, despite their name, are quite distinct from traditional
cigarettes in how they operate. Traditional cigarettes involve tobacco rolled
in a paper wrapper with a filter attached.32 One end is then lighted and
the mass tobacco material burns and the resulting smoke is inhaled.33 The
traditional cigarette is a staple of popular culture and even those who do
not smoke are generally aware of how one operates.34
Electronic cigarettes are operationally different from traditional
cigarettes.35 Also, devices vary in shape from manufacturer to
manufacturer, though the general mode of operation remains similar.36 All
e-cigarettes are battery operated and have a mouthpiece.37 Attached to the
31
Ibid.
32
Jefrrey Wigand, ADDITIVES, CIGARETTE DESIGN and TOBACCO PRODUCT
REGULATION (2 July 2006), online: A Report To World Health
Organization/Tobacco Free Initiative/Tobacco Product Regulation Group
<http://www.jeffreywigand.com/WHOFinal.pdf> [Wigand].
33
Ibid.
34
Ibid.
35
Paul Harrell et al, Electronic Nicotine Delivery Systems (E-cigarettes): Review of
Safety and Smoking Cessation Efficacy (2014) 151:3 Otolaryngology Head Neck Surg
381 [Harrell].
36
Ibid.
37
Pasquale Caponnetto et al, The emerging phenomenon of electronic cigarettes
mouthpiece proximally is a component, often cylindrical in shape, which

contains the atomizer and liquid reservoir.38 The liquid reservoir is where
the e-cigarette solution (e-liquid or e-juice) is stored.39 The atomizer
contains a heating element, which heats the liquid, resulting in its
vaporization; a fine mist is then released, which is subsequently inhaled.40
The battery connects to the atomizer distally from the mouthpiece.41
Additionally, the circuitry required to power the atomizer is contained
within this battery compartment.42 The battery is typically the largest
component.43 Lithium ion batteries are used, measured in milliamp hours,
which indicate the strength or capacity of the battery.44 The larger the
capacity of the battery, the longer the e-cigarette can be used in between
charges.45
Equally important is the liquid that is used with the device. The
reservoir in the e-cigarette houses a liquid that provides the chemicals for
inhalation.46 The liquid typically contains nicotine, which can be obtained
in varying concentrations.47 Users report a harsher inhale or throat hit
with higher nicotine concentrations.48 The nicotine is either suspended in
(2012) 6:1 Expert Rev of Respiratory Medicine 63 [Caponnetto]; Menfil Orellana-

Barrios et al, Electronic CigarettesA Narrative Review for Clinicians (2015) 128:7
The American J of Medicine 674 [Orellana].
38
Orellana, ibid at 674.
39
Konstantinos Farsalinos et al, Nicotine absorption from electronic cigarette use:
comparison between first and new-generation devices (2014) 4 Sci Rep 1 at 1
[Farsalinos].
40
Caponnetto, supra note 37 at 64.
41
Ibid.
42
Ibid.
43
Ibid.
44
Orellana, supra note 37 at 674.
45
Ibid.
46
Rachel Grana et al, E-Cigarettes A Scientific Review (2014) 129:19 Circulation
1972 at 1972-1973 [Grana].
47
Ibid at 1972.
48
Z Sanford & L Goebel, E-cigarettes: an up to date review and discussion of the
controversy (2014) 110:4 W V Med J 10 at 12 [Sanford].
propylene glycol or vegetable glycerin.49 Commonly, some combination of

the two is used.50
Additionally, various additives for flavouring are added to the liquid.51
This results in a variety of flavours that cater to a diverse range of tastes.52
Based on their operation it is self-evident that e-cigarettes operate
rather differently than traditional cigarettes. The term e-cigarette was
coined after the introduction of the original e-cigarette models that were
designed to resemble a traditional cigarette.53 Since this time,
manufacturers have diverged from this original blueprint, with most
modern e-cigarettes having little resemblance to their tobacco
counterparts.54
III. THE HEALTH EFFECTS OF E-CIGARETTES

The negative health effects of traditional cigarettes have been heavily
documented and have been essentially ingrained into the wider public
consciousness.55 Inarguably, cigarettes are a cause, source, and contributor
of numerous heart and lung diseases.56 The average cigarette smoker has a
49
Ibid at 10; Peter Hajek et al, Electronic cigarettes: a review of use, content, safety,
effects on smokers and potential for harm and benefit (2014) 109:11 Addiction 1801
[Hajek].
50
Hajek, ibid at 1803.
51
Lynne Dawkins & Olivia Corcoran, Acute electronic cigarette use: nicotine delivery
and subjective effects in regular users (2014) 231:2 Psychopharmacology 401 at 402
[Dawkins]; Peyton A Tierney et al, Flavour chemicals in electronic cigarette fluids
(2015) 10:1136 Tobacco Control 1 at 5 [Tierney].
52
Tierney, ibid.
53
54
Cristina Russo et al, Electronic cigarette: a possible substitute for cigarette
dependence (2013) 79:1 Monaldi archives for chest disease 12 at 13 [Russo];
Farsalinos, supra note 39 at 3.
55
Centers for Disease Control and Prevention (CDC), Annual smoking-attributable
mortality, years of potential life lost, and economic costsUnited States (2002) 51:14
Morbidity and Mortality Weekly Reports 300 at 301 [CDC Smoking Mortality];
Richard Doll et al, Mortality in relation to smoking: 50 years observations on male
British doctors (2004) 328 British Medical J 1519 at 1524.
56
Ibid.
life expectancy that is 10-14 years shorter than that of a non-smoker.57 In

the course of a discussion on e-cigarettes, the question that inevitably
arises is whether e-cigarettes possess a danger that is comparable to that of
traditional cigarettes, as both involve inhalation as a method of nicotine
administration.
A. Nicotine: Monster or Mute

The primary ingredient that results in the addictive nature of tobacco
lies in the chemical nicotine.58 Nicotine acts as an agonist of nicotinic
receptors in the peripheral and central nervous systems and is, chemically,
a stimulant.59 However, when administered to humans, signs of both
stimulation and depression are observed.60 The fact that nicotine is
typically administered through cigarette smoking makes it difficult to
isolate the effects of nicotine alone and this is an issue the scientific
community has to contend with.61
Due to nicotine being the primary addictive ingredient in both
traditional cigarettes and e-cigarettes, intuitively, one may come to the
conclusion that e-cigarettes must have a similar toxicity profile to that of
traditional cigarettes. However, it must be noted that there exists much
public misconception around nicotine. Nicotine, isolated from tobacco, is
not responsible for the vast majority of ill effects associated with cigarette
smoking.62 Perhaps surprisingly, the scientific consensus is that nicotine is
non-carcinogenic and thus, is not a cancer-causing agent.63 The
carcinogenic properties of traditional cigarettes are a by-product of the
combustion and inhalation of the multitude of other chemicals that are
found in traditional cigarettes.64
57
Ibid.
58
Julia Higa de Landoni, Nicotine Inchem (April 1991), International Programme on
Chemical Safety, online: <http://www.inchem.org [Inchem Nicotine].
59
Ibid.
60
Ibid.
61
Ibid.
62
Neal Benowitz, Pharmacologic Aspects of Cigarette Smoking and Nicotine
Addiction (1988) 232:1 New England J of Medicine 1318 at 1318.
63
Ibid at 1323.
64
Ibid.
Nevertheless, simply being non-carcinogenic is far from a conclusive

statement of safety. Nicotine may be a promoter of cardiovascular
disorders and arrhythmia.65 Nicotine, as a stimulant, results in an increase
in blood pressure and heart rate.66 Its mechanism of action also results in
the elevation of cholesterol levels in the blood stream.67
While the health effects of nicotine are often hard to distinguish from
that of cigarettes generally, the health effects of isolated nicotine are not
entirely unknown. The scientific consensus is that nicotine is far from the
most toxic substance in cigarettes. Namely, cigarettes are primarily
denounced for their cancer causing properties and various respiratory
issues, both of which cannot be attributed to isolated nicotine.68
B. Propylene Glycol: Dont Call it Antifreeze

The e-cigarette liquid that is vaporized and inhaled contains two main
ingredients in addition to nicotine: propylene glycol and vegetable
glycerin. First, propylene glycol will be examined.
Propylene glycol may sound familiar as an ingredient used in
antifreeze and de-icing formulas.69 This is partially correct. The structurally
similar ethylene glycol is the primary chemical ingredient used in
antifreeze solvents.70 However, since propylene glycol also carries the same
characteristic of lowering the freezing point of water, it is occasionally used
in aircraft de-icing fluid and non-toxic automotive antifreeze.71
Though the prospect of inhaling a compound used in antifreeze may
sound like an invitation to toxicity and illness, humans actually consume
propylene glycol with some regularity without ill effect. In terms of oral
consumption, propylene glycol has been approved by the US Food and
65
Maricene Sabha et al, Transdermal nicotine mimics smoking-induced endothelial
dysfunction (2000) 68:2 Clinical Pharmacology & Therapeutics 167 [Sabha].
66
Ibid at 170.
67
Jason Jerry & Gregory Collins, E-cigarettes: Safe to recommend to patients? (2015)
82:8 Cleveland Clinic J of Medicine 521 at 521-522 [Jerry].
68
Ibid at 522.
69
Steve Ritter, Whats That Stuff? Aircraft Deicers (2001) 79:1 Chemical &
Engineering News 30 [Ritter].
70
Ibid at 31.
71
Ibid.
Drug Administration as a compound that is generally recognized as

safe.72 The Food and Drug Administration has approved its usage in
frozen desserts, seasonings, flavouring, and nut products.73 Ice cream,
coffee flavourings, and whipped dairy are also commonly consumed
products that contain propylene glycol. Furthermore, a toxicology study
determined that administering propylene glycol orally to rats resulted in
no ill effects when consumed over a period of two years.74
Nonetheless, oral administration safety does not necessarily indicate
safety when inhaled. Indoor air studies on the usage of inhaling the fumes
associated with water-based paints and system cleaners, which contain
propylene glycol, resulted in higher incidences of asthma, rhinitis, eczema
and general allergies in children.75 However, this study was not able to
effectively isolate for propylene glycol and the authors of the study
acknowledge that glycol ethers from the paints and system cleaners are the
more likely culprit.76
On balance, there is insufficient research available for any conclusive
determinations on the effects of inhaling vaporized propylene glycol over
an extended period of time.
C. Vegetable Glycerin
In addition to propylene glycol, vegetable glycerin forms one of the
primary ingredients in e-cigarette liquid.77 Apart from e-cigarettes,
vegetable glycerin has been approved by Health Canada for a number of
uses in Canada.78 Similar to propylene glycol, it is also classified by the US
Food and Drug Administration as generally safe.79
72
Code of Federal Regulations, 3 FDA tit 21 184.1666 (2009) [FDA Regs].
73
Ibid.
74
IF Gaunt et al, Long-term toxicity of propylene glycol in rats (1972) 10:2 Food and
Cosmetics Toxicology 151.
75
Hyunok Choi et al, Common Household Chemicals and the Allergy Risks in Pre-
School Age Children (2010) 5:10 Public Library of Science 1 at 3 [Choi].
76
Ibid at 5.
77
Orellana , supra note 37 at 674.
78
Chemical Substance Glycerol Drugs and Health Products (14 September 2015),
online: Health Canada <http://webprod.hc-sc.gc.ca/nhpid-
bdipsn/ingredReq.do?id=197&lang=eng>.
79
US, Select Committee on GRAS Substances (SCOGS) Opinion, Glycerin and
Common products that contain vegetable glycerin include: meat

curing compounds, preserved meats, beverages containing citrus or spruce
oils, and various flavourings and baking products.80 Vegetable glycerin is
structurally identical to glycerol and these two terms are often used
interchangeably.81 The sole difference is that glycerol can be derived from
animal sources, while vegetable glycerin is only derived from plant sources.
Vegetable glycerin has been classified as non-carcinogenic, non-
teratogenic and non-mutagenic.82 The Chemicals Screening Information
Dataset (SIDS) from the United States Environment Program and the
Organization for Economic Co-operation and Development, which
compiles the latest research available into one data sheet, reveals the
toxicity profile and safety of vegetable glycerin for human consumption.83
Dermal application is generally recognized as safe, which accounts for
the common usage of vegetable glycerin in dental products.84 It has been
recognized as being non-toxic when in contact with skin and is of low
acute toxicity in mammals, including humans.85 Vegetable glycerin is only
toxic when consumed in very large quantities, far beyond what would
constitute normal human consumption.86 However, there is no reputable
research available regarding the effects of inhalation.87 The SIDS report
simply states that: No information is available on the acute toxicity of
inhaled glycerol.88
Glycerides, online: US Food and Drug Administration <http://www.fda.gov > [FDA

Glycerin and Glycerides].
80
List of Permitted Food Additives with Other Generally Accepted Uses (Lists of
Permitted Food Additives) Food and Nutrition (14 April 2015), online: Health Canada
<http://www.hc-sc.gc.ca>.
81
Miguel Silva & Paulo Ferreira, Glycerol: Production, Structure and Applications (New
York: Nova Science Publishers, 2012) at 287.
82
Glycerol SIDS Initial Assessment Report (28 March 2002), online: OECD SIDS <
http://www.inchem.org/documents/sids/sids/56815.pdf> [SIDS Glycerol
Assessment Report].
83
Ibid.
84
Ibid.
85
Ibid.
86
Ibid.
87
Ibid.
88
Ibid at 14.
This results in vegetable glycerin occupying a similar status of

ambiguity as propylene glycol. Both compounds have been generally
recognized as safe for human oral consumption, but there is a notable
absence of research regarding the safety of these compounds when
administered via inhalation. Furthermore, the only way to truly garner the
health effects of these compounds in the context of e-cigarettes would be
to conduct longitudinal studies. However, given the relative recentness of
the technology,89 it will likely take some time before any definitive
conclusions can be drawn regarding the safety of long term inhalation of
vaporized propylene glycol and vegetable glycerin. Until that time, e-
cigarette safety cannot be established with any certainty.
D. The Chemical Conundrum: A Summary

The uncertainty that exists regarding the health effects of e-cigarettes
has resulted in a tension that is reflected in the legislative landscape.90 The
chemical nicotine is definitively the most controversial ingredient used in
e-cigarettes.91 Since traditional cigarettes function as the most widely used
delivery mechanism for nicotine, nicotine is primarily associated with
cigarettes.92 However, the primary ills caused by cigarette smoking
(respiratory distress and lung cancer) are not caused by nicotine alone.
Most of the research compiled and cited does not recognize nicotine as
being completely harmless; it is highly physically addictive and does have a
variety of associated side effects.93 Nonetheless, nicotine in isolation is a
safer alternative to traditional cigarettes.94 But due to the equalization
between nicotine and traditional cigarettes, one might reasonably assume
that e-cigarettes must be of comparable harm to that of traditional
cigarettes. This characterization is made more irrational when considering
the fact that e-cigarette users can operate their devices with e-liquid that
89
Electronic Atomization Cigarette, US Patent No. 2007267031, (22 November
2007).
90
To be discussed in the next section, Part IV.
91
This can be explained by Health Canadas stance on e-cigarettes. Please see Section IV,
where Health Canadas position is discussed as it relates to the Food and Drugs Act.
92
Inchem Nicotine, supra note 58 at 4.1.
93
Please see discussion starting on p 309.
94
Jerry, supra note 67 at 522.
does not contain nicotine, or varying concentrations of nicotine. 95 This

includes levels that are much lower than those seen in traditional
cigarettes.96 Thus, there is a possible misconception held by the general
public regarding the use of e-cigarettes due to the equalization between the
harms of traditional cigarettes and nicotine. This misconception is further
compounded by the general ignorance of the fact the e-liquids do not even
necessarily contain nicotine.97
In addition, vegetable glycerin and propylene glycol are, curiously,
given much less attention than nicotine.98 In actuality, these are the two
substances that require further research in the context of inhalation.
While there is no research that definitively states this, this incongruence
may be due to the fact that propylene glycol and vegetable glycerin are
substances that have already been approved and recognized as generally
safe for human consumption and ingestion.99 Furthermore, propylene
glycol and vegetable glycerin do not have the stigma of traditional
cigarettes associated with them.100
These tensions regarding e-cigarettes, the constituent components of e-
liquid and traditional cigarettes are further reflected in the legislative
attempts at regulating e-cigarettes. The next section will focus on the
legislation and potential legislation that pertains to e-cigarettes. However,
the aforementioned tensions and misunderstandings are fundamental to
understanding the legislative landscape of e-cigarettes in Canada.
95
96
Farsalinos, supra note 39 at 1.
97
98
The reason for which nicotine is often deemed the most frequently highlighted
ingredient in e-cigarettes can be explained by Health Canadas stance on e-cigarettes.
Health Canadas position as it relates to the Food and Drugs Act is discussed in further
detail below.
99
FDA Regs, supra note 72, 184.1666; FDA Glycerin and Glycerides, supra note 79.
100
Traditional cigarettes do not contain propylene glycol or vegetable glycerin, see
Reinskje Talhout et al, Hazardous Compounds in Tobacco Smoke (2011) 8:2
International J of Environmental Research and Public Health 613.
IV. THE LEGISLATIVE LANDSCAPE REGARDING E-

CIGARETTES IN CANADA
A. Overview
The legislative landscape regarding e-cigarettes in Canada is mired in
ambiguity. This is simply a result of the absence of legislation and the
confusion on how to appropriately categorize electronic cigarettes.
Questions arise as to whether they should be classified as tobacco cessation
aids or tobacco products. However, an understanding of e-cigarettes
reveals that they really are, in fact, neither a tobacco cessation aid nor a
tobacco product and thus demand new legislation to appropriately
regulate them.
Much of the following discussion will revolve around the e-cigarette
notices published by Health Canada. Health Canada is a federally
regulated department whose mandate is maintaining and improving the
general health of Canadians.101 The Minister of Health is tasked with the
duty of overseeing the department.102 As a result, Health Canadas
responsibilities pertain directly to the issue of e-cigarettes due to the
questions that arise regarding the health effects of these products.
Health Canada and the Minister of Health are responsible for the
administration and enforcement of a variety of legislation and regulations
that pertain directly to the issue of the health of Canadians.103 The Food
and Drugs Act (including the Natural Health Products Regulations, which is
enabled by the Food and Drugs Act), Controlled Drugs and Substances Act and
Tobacco Act were all deemed to be acts that could potentially be used to
regulate e-cigarettes and are all administered by the Minister of Health and
Health Canada.104
Health Canada releases notices and advisories to Canadians outside
any explicit statutory scheme. While these notices and advisories are not
101
Canada, Ottawa: Health Canada, Mission, Values, Activities (2011), online: www.hc-
sc.gc.ca/ [Health Canada Mission].
102
Ibid.
103
For a list of acts for which Health Canada is responsible, see: List of Acts and
Regulations (12 June 2015) Health Canada, online: <www.hc-sc.gc.ca> [List of Acts
and Regulations Administered by Health Canada].
104
Ibid.
federal legislation per se, Health Canada can enforce these notices and
advisories by virtue of the statutorily derived powers of the Minister of
Health and the Food and Drugs Act.105 The Department of Health Act106
grants the Minister of Health the ability to enforce any mandate
relating to the promotion and preservation of the health of the people
of Canada not by law assigned to any other department, board or agency
of the Government of Canada.107 As a result, Health Canadas notices
and advisories will provide an initial starting point for the discussion of
the legality of e-cigarettes from a federal perspective.
The discussion will begin with the notices and advisories of Health
Canada. Health Canadas ability to enforce these notices is derived from
the Food and Drugs Act and the Department of Health Act.108 After a
discussion on the notices and advisories of Health Canada, the Food and
Drugs Act, Controlled Drugs and Substances Act and Tobacco Act will be
discussed in more detail. Additionally, the Natural Health Products
Regulations was also deemed a pertinent piece of legislation that will be
discussed. The Natural Health Products Regulations are consolidated
regulations enabled by the Food and Drugs Act.109
B. Federal Legislation
1. Food and Drugs Act
The Food and Drugs Act is a federal act that regulates the approval, sale,
importation, exportation, and general transport of food, drugs, cosmetics,
and therapeutic devices.110 The act is administered and enforced by Health
Canada and the Minister of Health.111
105
The powers of the Minister of Health can be found at: Food and Drugs Act, supra note
18, ss 12, 13, 21.1, 21.2, 21.3, 21.6, 22; List of Acts and Regulations Administered by
Health Canada, supra note 103.
106
SC 1996, c 8 [Department of Health Act].
107
Ibid, s 4(1).
108
Food and Drugs Act, supra note 18, ss 12, 13; Department of Health Act, supra note 106,
ss 2, 4.
109
Natural Health Products Regulations, supra note 21, s 1.
110
Food and Drugs Act, supra note 18.
111
Food and Drugs Act, ibid, ss 12, 13; Department of Health Act, supra note 106, ss 2, 4.
i. Health Canada: No Market Authorization

The absence of explicit legislation regarding e-cigarettes makes the
determination of what statutory mechanisms apply to their usage and sale
difficult.112 Nonetheless, Health Canada has issued advisories, warnings,
and recommendations regarding the use and sale of e-cigarettes in
Canada.113 Health Canada has confirmed that e-cigarettes remain
unregulated in Canada and have not received market authorization.114
Market authorization is a process by which Health Canada assesses
products in terms of safety, efficacy and quality before they are authorized
for sale in Canada. The Health Canada website states: Prior to being
given market authorization, a manufacturer must present substantive
scientific evidence of a products safety, efficacy and quality as required by
the Food and Drugs Act and Regulations.115
Health Canadas requirement of market authorization is derived from
s. 30 of the Food and Drugs Act.116 Pursuant to s. 30(1)(r) the Minister of
Health may establish criteria for the determination of market approval.117
Section 30.2(2) allows the Minister of Health to subject market
authorization to any condition he or she deems appropriate.118
According to Health Canada in a notice dated March 2009:
Electronic smoking products (i.e., electronic products for the vaporization and
administration of inhaled doses of nicotine including electronic cigarettes, cigars,
cigarillos and pipes, as well as cartridges of nicotine solutions and related
products) fall within the scope of the Food and Drugs Act. All of these products
require market authorization prior to being imported, advertised or sold in
Canada. Market authorization is granted by Health Canada following successful
review of scientific evidence demonstrating safety, quality and efficacy with
respect to the intended purpose of the health product. This evidence is provided
112
Canada, House of Commons, Standing Committee on Health, Vaping: Toward a
Regulatory Framework for E-Cigarettes, (March 2015) (Chair: Ben Lobb) [E-Cigarette
Committee Report].
113
Ibid.
114
Ibid.
115
Canada, Health Canada, Drugs and Health Products: Drug Products (30 July 2015),
online: <http://www.hc-sc.gc.ca>.
116
Food and Drugs Act, supra note 18, s 30.
117
Ibid, s 30(1)(r).
118
Ibid, s 30.2(2).
by the sponsor seeking market authorization. To date, no electronic smoking

product has been authorized for sale by Health Canada. [Emphasis added] 119
Before the discussion continues, it is first prudent to understand how
this notice interfaces with the Food and Drugs Act.
ii. Health Canada: Applicability of the Food and Drugs Act

The Health Canada notice states that the Food and Drugs Act captures
electronic smoking products. Sections 9, 20, and 30 of the Food and Drugs
Act cover drugs and devices, which presumably, e-cigarettes would fall
under:
9(1) No person shall label, package, treat, process sell, or advertise any drug in a
manner that is false, misleading or deceptive or is likely to create an erroneous
impression regarding its character, value, quantity, composition, merit or
safety.120
(2) A drug that is not labeled or packaged as required by, or is labeled or

packaged contrary to, the regulations shall be deemed to be labeled or packaged
contrary to subsection (1).121
20(1) No person shall label, package treat, process, sell or advertise any device in
a manner that is false, misleading or deceptive or is likely to create an erroneous
impression regarding its design, construction, performance, intended use,
quantity, character, value, composition, merit or safety.122
(2) A device that is not labeled or packaged as required by, or is labeled or

packaged contrary to, the regulations shall be deemed to be labeled or packaged
contrary to subsection (1).123
30. (1) The Governor in Council may make regulations for carrying the purposes
and provisions of this Act into effect, an, in particular, but without restricting the
generality of the foregoing may make regulations
(b) respecting
119
Health Canada Importation Notice, supra note 5.
120
Food and Drugs Act, supra note 18, s 9(1).
121
Ibid, s 9(2).
122
Ibid, s 20(1).
123
Ibid, s 20(2).
(i) the labelling and packaging and the offering, exposing and advertising for sale
of food, drugs, cosmetics and devices,
(iii) the sale or the conditions of sale of any, food, drug, cosmetic or device, and
(iv) the use of any substance as an ingredient in any food, drug, cosmetic or
device.124 [Emphasis added]
Interestingly, when the definitions for drug and device are
examined under the act, they do not appear to correspond to e-cigarettes.
The act defines a drug as:
drug includes any substance or mixture of substances manufactured, sold or
represented for use in
(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or

abnormal physical state, or its symptoms, in human beings or animals,
(b) restoring, correcting or modifying organic functions in human beings or

animals, or
(c) disinfection in premises in which food is manufactured, prepared or kept;125

[Emphasis added]
The act defines a device as:
device means an instrument, apparatus, contrivance or other similar article, or
an in vitro reagent, including a component, part or accessory of any of them, that
is manufactured, sold or represented for use in
(a) diagnosing, treating, mitigating or preventing a disease, disorder or

abnormal physical state, or any of their symptoms, in human beings or animals,
(b) restoring, modifying or correcting the body structure of human beings or

animals or the functioning of any part of the bodies of human beings or animals,
(c) diagnosing pregnancy in human beings or animals,
(d) caring for human beings or animals during pregnancy or at or after the birth
of the offspring, including caring for the offspring, or
(e) preventing conception in human beings or animals;126 [Emphasis added]
124
Ibid, s 30(1)(b).
125
Ibid, s 2.
It is readily apparent that e-cigarettes are not sold or represented in a

manner relating to the diagnosis or treatment/prevention/mitigation of
disease,127 correcting organic function or body structure, disinfection, or in
pregnancy/contraception treatment and diagnosis.128 Under the existing
definitions provided by the Food and Drugs Act, it would seem that e-
cigarettes do not actually fall under the act.129 However, there is a
provision for new drugs that would clearly capture e-cigarettes: Division 8
of the Food and Drug Regulations.130 E-cigarettes would theoretically fall
under this classification, as s. C.08.001 states:
For the purposes of the Act and this Division, new drug means
(a) a drug that contains or consists of a substance, whether as an active or

inactive ingredient, carrier, coating, excipient, menstruum or other component,
that has not been sold as a drug in Canada for sufficient time and in sufficient
quantity to establish in Canada the safety and effectiveness of that substance for
use as a drug;
(b) a drug that is a combination of two or more drugs, with or without other
ingredients, and that has not been sold in that combination or in the
proportion in which those drugs are combined in that drug, for sufficient time
and in sufficient quantity to establish in Canada the safety and effectiveness of
that combination and proportion for use as a drug; or
(c) a drug, with respect to which the manufacturer prescribes, recommends,

proposes or claims a use as a drug, or a condition of use as a drug, including
dosage, route of administration, or duration of action and that has not been
sold for that use or condition of use in Canada, for sufficient time and in
sufficient quantity to establish in Canada the safety and effectiveness of that
use or condition of use of that drug.131 [Emphasis added]
126
Ibid.
127
Perhaps an argument could be made that e-cigarettes, as an alternative to traditional
cigarettes can mitigate/prevent disease. However, this would be analogous to stating
that any harmful drug could mitigate/prevent disease if used instead of an even more
harmful drug. Furthermore, e-cigarettes have not been recognized for any medical
purposes. Please see Section III for more information on the health effects of e-
cigarettes.
128
Food and Drugs Act, supra note 18, ss 9, 20, 30.
129
Ibid, s 2.
130
CRC c 870, s C.08.001 [Food and Drug Regulations].
131
Ibid, s C.08.001.
While all three of these provisions could theoretically be applied to e-

cigarette solutions, subsections C.08.001(b) and (c) would be the most
appropriate provisions.132 E-cigarettes would be appropriate for subsection
(b) due to the fact that nicotine, propylene glycol, and vegetable glycerin
have never been sold when combined, and the interactive effects of the
various components are worthy of research and investigation.133
Subsection (c) can be deemed as applicable primarily due to the
method of administration.134 While nicotine has been studied when
inhaled over extended periods of time in the context of cigarettes, the
research on the effects of nicotine when isolated is more limited.135
Additionally, there is a very little scientific documentation that pertains to
the effects of propylene glycol and vegetable glycerin when inhaled daily
over an extended period of time.136 While propylene glycol and vegetable
glycerin are approved for usage in fog machines, normally seen at music
concert venues and performances, typical usage of a fog machine does not
amount to inhalation for hours a day over a period of years and thus, the
two are incomparable.137 Nonetheless, the explicit definition for drug as
provided for by the act does not cover e-cigarettes.138 Presumably, any new
drug pursuant to s. C.08.001 of the Food and Drug Regulations would still
have to satisfy the drug definition as set out in the act.139
Based on this fact, it is unclear under what statutory provision Health
Canada is making its claim that e-cigarettes fall under the Food and Drugs
Act.140 However, there is broad power and discretion granted to the
Minister of Health and Governor in Council pursuant to s. 30(1) of the
132
Ibid, ss C.08.001(b), (c).
133
Ibid, ss C.08.001(b), (c); Hajek, supra note 49 at 1803.
134
Food and Drug Regulations, supra note 130, s C.08.001(c).
135
Inchem Nicotine, supra note 58.
136
Sanford, supra note 48 at 12; Orellana, supra note 37 at 678.
137
Ontario, Ontario Ministry of Labour, Fog and Smoke Safety Guideline for the Live
Performance Industry in Ontario Health and Safety (August 2005), online:
<http://www.labour.gov.on.ca>.
138
Food and Drugs Act, supra note 18, s 2; Food and Drug Regulations, supra note 130, s
C.08.001.
139
Food and Drugs Act, ibid, s 2; Food and Drug Regulations, ibid, s C.08.001.
140
Health Canada Importation Notice, supra note 5 .
Food and Drugs Act and s. 4 of the Department of Health Act that enable
Health Canada and the Minister of Health to demand market
authorization for any product not covered by other legislation that
pertains to the health of Canadians.141 This general, catch-all, power of the
Minister derived from the Food and Drugs Act would certainly enable the
Minister to regulate the sale of e-cigarette devices. This is the only
conceivable way by which e-cigarettes fall within the scope of the Food and
Drugs Act.
iii. Health Canada: Enforcement of Importation and Sale

Based on this power, Health Canada has made some effort in
enforcing its notice. Based on the absence of market authorization, there
have been a series of [recommendations] for refusal at the Canada-
United States border for 741 shipments of electronic cigarettes and
numerous (the actual number remains unspecified) cease and desist
notices to retail outlets.142 However, in consideration of the entirety of the
shipments of e-cigarette devices and associated paraphernalia, this number
is, comparatively, minuscule.143
Canada is able to enforce these [recommendations] for refusal by
virtue of the administrative document titled The Import and Export
Policy for Health Products Under the Food and Drugs Act and its
Regulations (POL-0060).144 The administrative document functions to
provide an avenue of enforcement for non-compliance with the Food and
Drugs Act.145 Since e-cigarettes have not been given market authorization,
they can be deemed to be non-compliant with the Food and Drugs Act.146
Based on this noncompliance, Health Canada can restrict importation by
141
Food and Drugs Act, supra note 18, s 30(1); Department of Health Act, supra note106 , s 4.
142
E-Cigarette Committee Report, supra note 112.
143
This can be inferred from the Statistics Canada CTADS Report: Statistics Canada
CTADS, supra note 3.
144
Canada, Health Canada, Drugs and Health Products, Import and Export Policy for
Health Products under the Food and Drugs Act and its Regulations (POL0060), (Ottawa:
Health Canada, 2010), online: http://www.hc-sc.gc.ca [Health Canada Import and
Export Policy].
145
Ibid.
146
virtue of the Import and Export Policy.147 The restriction of importation

is exercised by the recommendations for refusal.148
The Import and Export Policy differs whether the unauthorized
importation of a health product is for personal use or commercial use
(note that e-cigarettes can be considered unauthorized due to the absence
of market authorization).149 The Policy states: Health Canada will take
actions to prevent the importation of health products that are known to
pose a risk to health or for which enforcement actions have been taken
domestically.150 However, e-cigarettes are not known to pose a risk to
health, but rather, their health effects are unknown.151 Perhaps, that is
where the recommendation for refusal comes into play.152 Without
being able to confirm the dangerous nature of e-cigarettes absolutely,
Health Canada will not take definitive actions to prevent importation. If
individuals are importing a product that has not been market authorized
by Health Canada for personal use, they can do so, subject to the
following restrictions: A single course of treatment or a 90-day supply
based on the directions for use, whichever is less, of a health product as
long as the product does not contain a substance listed in Schedule F of
the Food and Drugs Regulations.153 Additionally, the products must be in
the original retail packaging with all labels attached.154
Health Canada distinguishes personal from commercial use, by stating
in the Import and Export Policy:
Larger volumes [sic] shipments, multiple repeat shipments of the same product
within short periods of time (<3 months), shipments accompanied by or
associated with materials to be used for advertising or promotion, and/or
147
Health Canada Import and Export Policy, supra note 144.
148
Health Canada Import and Export Policy, ibid; Health Canada Importation Notice,
supra note 5.
149
Health Canada Import and Export Policy, ibid.
150
Ibid.
151
See discussion on the health effects of e-cigarettes above at Section III.
152
153
154
Ibid.
shipments that indicate a Canadian business is involved in the transaction, will

be considered commercial shipments and the relevant requirements will apply. 155
Pursuant to s. 5.1 of the Import and Export Policy, all health
products imported for sale in Canada must meet the requirements of the
Food and Drugs Act and its Regulations at the time of importation [].156
With respect to the cease and desist notice, it is a function of Health
Canadas enforcement of the Import and Export Policy.157 In an absence
of market authorization, illegal importation can be enforced using a cease
and desist notice. Presumably, non-compliance can result in police
enforcement of the policy. However, these notices do not speak to
criminal sanctions being available to impose on those in violation.158
It is important to note that within the Health Canada notice,
references are made exclusively to inhaled vapour containing nicotine.159
Thus, the argument could be made that e-cigarette solutions that are
composed of propylene glycol and vegetable glycerin, absent nicotine,
would theoretically escape Health Canadas restrictions on sale. This
notion appears to be in concordance with the general sale of e-cigarette
items. However, one would have to locate a vendor that specializes solely
in selling e-cigarettes to find devices and solutions that use and contain
nicotine.160 The Canadian Medical Association agrees with this sentiment,
stating in a submission to the House of Commons:
Health Canada issued a warning in 2009 about the potential dangers and the
fact that e-cigarettes had not been fully evaluated for safety, quality and efficacy.
The sale of e-cigarettes containing nicotine is currently illegal in Canada under
the Food and Drugs Act regulations though they can still be purchased in the US
or over the Internet. However, those that do not contain nicotine may legally
be sold in Canada under the same regulation.161
155
Ibid.
156
Ibid.
157
Ibid.
158
Ibid (it can be inferred that such sanctions are not available).
159
160
E-cigarette ignites debate, sales, in Winnipeg, CTV News Winnipeg (5 February
2014), online: CTV <http://winnipeg.ctvnews.ca> [CTV E-Cigarette Sales Article].
161
Canadian Medical Association Submission to the House of Commons Study on E-
Cigarettes, Canada Medical Association (27 November 2014), online:
<https://www.cma.ca/Assets/assets-
Furthermore, it can certainly be surmised that this focus on nicotine is

fueling much of the confusion in the legislation. E-cigarette devices can be
used with or without nicotine; thus, the sale of the devices themselves is
not captured by the Health Canada restriction.162 E-cigarette solutions are
easy to self-manufacture (a cursory Google search will provide numerous
do it yourself guidelines for making e-juice), which is likely why many
vendors carry electronic cigarette solutions that are developed in house
and are able to easily skirt the recommendation for refusal when
importing items that are not market authorized (and non-compliant) with
the Food and Drugs Act.163 The emphasis on nicotine and the disregard for
propylene glycol and vegetable glycerin results in Health Canadas
prohibition being a prohibition in name only, as it is essentially impossible
to enforce with any consistency. Furthermore, the scientific literature
indicates that nicotine is the one ingredient that has seen significant
research and whose health effects with respect to inhalation are widely
known.164 Propylene glycol and vegetable glycerin are the two substances
where the scientific literature is notably silent with respect to inhalation. It
is intriguing, and perhaps disconcerting, that Health Canada has ignored
these two primary ingredients in e-cigarette solutions.
It should also be noted that this notice only applies to the marketing,
sale, and distribution of these devices and not the personal usage. Based
on this, there are no restrictions on personal usage and if private
establishments do not indicate that they restrict the usage of e-cigarette
devices on their premises then the individuals could, surprisingly, use
them indoors. This aligns with Health Canadas allowance of the personal
use of items that have not been market authorized.165
Nonetheless, despite this apparent allowance of personal use, on
March 27, 2009, Health Canada has issued a warning titled Health Canada
library/document/en/advocacy/submissions/CMA-Submission-House-of-Commons-
Health-Committee-E-Cigararettes.pdf>.
162
Health Canada Importation Notice, supra note 5; Harrell, supra note 35 at 383.
163
As an example: How to Make e-Juice Welcome to your DIY adventure NicVape,
2016, online: NicVape <http://www.nicvape.com/How-To-Make-e-Juice>.
164
Inchem Nicotine, supra note 58.
165
Canada, Health Products and Food Branch Inspectorate Regional Operational
Centre, Health Canada Advises Canadians Not to Use Electronic Cigarettes (27 March
2009) (Ottawa: Health Canada) [Health Canada E-Cigarette Advisory].
Advises Canadians Not to Use Electronic Cigarettes.166 The term advises is

suggestive that Health Canada does not have any legally binding power to
enforce this. In this document, Health Canada only explicitly prohibits
commercial use, and not personal use, stating:
Persons importing, advertising or selling electronic cigarette products in Canada
must stop doing so immediately. Health Canada is providing information to
interested stakeholders on how to apply for the appropriate market
authorizations and establishment licenses.167
This advisory is, after all, only an advisory.168 It terms of personal
usage, Health Canada is merely advising Canadians not to purchase or
use electronic smoking products, as these products may pose health risk
and have not been fully evaluated for safety, quality and efficacy by Health
Canada.169 Thus, it cannot be seen as being legally binding for personal
use. However, this reinforces the notion that in terms of commercial use,
the importation and sale of e-cigarettes is prohibited.
iv. Natural Health Products Regulations

The Natural Health Products Regulations are a set of regulations under
the Food and Drugs Act that have the purpose of regulating natural health
products.170 As a result, these regulations are administered by the Minister
of Health and are under the enforcement purview of Health Canada.171 As
the Health Canada notice does not address the Natural Health Products
Regulations, this section was included separately from the larger Food and
Drugs Act section.172 The Natural Health Products Regulations offer an
alternative avenue for the potential regulation of e-cigarettes.
The Natural Health Products Regulations has guidelines for determining
whether a device is medical in nature, determining its safety and efficacy,
and how it is to be regulated.173 The provisions of this legislation capture
166
Ibid.
167
Ibid.
168
Ibid.
169
Ibid.
170
Natural Health Products Regulations, supra note 21, s 2.
171
Ibid, Preamble.
172
173
Natural Health Products Regulations, supra note 21, s 2(1).
various tobacco cessation products, such as nicotine gum, patches, or

mists.174 Tobacco cessation products are somewhat similar to e-cigarettes,
in that they are both primarily a delivery mechanism for nicotine.175
Therefore, by logical extension, the Natural Health Products Regulations
could apply to e-cigarettes.
This raises the question of whether e-cigarettes should be classified as
natural health products. The administration of nicotine in the form of
gums, mists, inhalers, and lozenges are classified as such with the objective
of assisting individuals in quitting smoking.176 However, these tobacco
cessation products do not have a recreational use component.177 E-
cigarettes have a large and active subculture that does not use the products
as a tobacco cessation device, but rather as recreational products.178
Similarly, traditional cigarettes are not classified as a natural health
product, even though they are responsible for the administration of
nicotine.179 Regardless, further research would have to be done on the
efficacy of e-cigarettes as tobacco cessation products before any definitive
conclusions can be drawn.
The Natural Health Products Regulations are considered to be under the
Food and Drugs Act, and thus, e-cigarette products would also be subject to
the compliance regulations of the Food and Drugs Act.180 It has been
determined from the aforementioned discussion that e-cigarettes are not
in compliance with the Food and Drugs Act for commercial purposes.
174
Chemical Substance Nicotine Drugs and Health Products (18 April 2016), online:
Health Canada <http://webprod.hc-sc.gc.ca/nhpid-
bdipsn/singredReq.do?id=383&lang=eng>.
175
Tobacco Cessation Products FDA 101 (30 August 2015), online: US Food and Drug
Administration
<http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm198176.htm> [FDA
Tobacco Cessation Products].
176
Ibid.
177
Ibid.
178
Ellen Meier & Theodore Wagener, E-cigarettes: More Frenemy than Enemy (2014)
The Addictions Newsletter 19.
179
This is seemingly obvious, but it is worth noting that cigarettes do not have any
recognized medicinal uses. See: Wigand, supra note 32.
180
Natural Health Products Regulations, supra note 21, Preamble, 1.
However, the Natural Health Products Regulations does provide a potential

avenue for regulation.
2. Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act (CDSA) is federal legislation
that is focused on drug control, particularly, narcotics, heavily regulated
and illegal substances.181 The act has a list of all prohibited drugs and
substances,182 and various punishments associated with either possession183
or trafficking.184 Violations of the CDSA are primarily criminal in
nature.185 The Minister of Health and Health Canada administer the act
itself, with enforcement provided by law enforcement services pursuant to
s. 11 of the act.186
While much of the opposition to e-cigarettes calls for strict regulatory
frameworks to be implemented regarding their usage and sale, there has
been virtually no literature on viewpoints that call for the strict illegality of
their sale and/or usage.187
While the aforementioned Health Canada notice results in the
prohibition of e-cigarette devices containing nicotine in the commercial
context, there are no provisions included in the notice that provide any
measure of punitive disincentives for violating these provisions.188 While
there were some measures taken in preventing shipments and the sending
of cease-and-desist letters, the true impact of these measures can be
ascertained as being fairly minuscule.189
181
Controlled Drugs and Substances Act, supra note 19, Preamble. The theme of the Act is
clear by this introductory statement: An Act respecting the control of certain drugs,
their precursors and other substances and to amend certain other Acts and repeal the
Narcotic Control Act in consequence thereof.
182
Controlled Drugs and Substances, supra note 19, schedules IVIII.
183
Ibid, s 4.
184
Ibid, s 5.
185
Ibid, s 13 (Sections 489.1 and 490 of the Criminal Code applicable).
186
Ibid, ss 2, 11; Health Canada Mission, supra note 101.
187
No literature, news articles, or opinions were found, which call for the strict illegality
of e-cigarettes. The consensus is for government regulation.
188
Health Canada Importation Notice, supra note 5; Health Canada Import and Export
Policy, supra note 144.
189
Health Canada Importation Notice, ibid; Health Canada Import and Export Policy,
Nonetheless, there has been virtually no movement to outright

illegalize e-cigarettes. This also seems unlikely to happen, as it would
require fairly significant amendments to the Controlled Drugs and Substances
Act. Nicotine, propylene glycol, and vegetable glycerin are all regulated in
some form or another excluding the context of e-cigarettes, and are legal
substances.190 These compounds are not mentioned in the Controlled Drugs
and Substances Act.191
It should also be noted that the Health Canada notice suggests that e-
cigarettes are to be classified as a new drug under Division 8, Part C of
the Food and Drug Regulations.192 Pursuant to s. 58 of the Controlled Drugs
and Substances Act, if there is any direct contradiction, discrepancy, or
inconsistency between the Food and Drugs Act and the Controlled Drugs and
Substances Act, the Controlled Drugs and Substances Act will prevail.193 As it
stands, however, e-cigarettes are not mentioned explicitly in either act.
Based on the discussion by Health Canada and in Parliament, the
health concerns of e-cigarettes, while certainly deserving of further
investigation, is a far cry from the severe societal impacts of the narcotics
included in the Controlled Drugs and Substances Act.194 As a result, e-
cigarettes would be out of the purview of criminal legislation.
3. Tobacco Act
The sale and production of tobacco products are regulated federally
under the Tobacco Act.195 The acts defined purpose is to address the
concern of tobacco on the health of Canadians, particularly, young
ibid.
190
Please see Section III for a more detailed discussion of nicotine, propylene glycol and
vegetable glycerin.
191
Controlled Drugs and Substances Act, supra note 19, schedules IVIII. Note: These
schedules contain a list of prohibited substances, separated by Classes, to designate
the severity of the criminal offence for possessing or trafficking said substance.
192
193
Controlled Drugs and Substances Act, supra note 19, s 58.
194
Controlled Drugs and Substances Act, ibid , s 48(1). Please see Criminal Code, RSC 1985, c
C-46, ss 463, 464, 465 [Criminal Code] for punishments.
195
Tobacco Act, supra note 20, s 4.
Canadians.196 The act is administered by the Minister of Health and

Health Canada.197
In the absence of federal legislation explicitly pertaining to e-cigarettes,
there have been calls to regulate e-cigarettes like their analog brethren,
traditional cigarettes.198 In a special commission by Parliament on e-
cigarettes, they had recommended amending existing tobacco legislation to
account for e-cigarettes.199 This approach is also echoed by legislation
enacted by select provinces to include e-cigarettes in their provincial
tobacco legislation, which will be discussed later. 200 This section pertains
exclusively to the federal Tobacco Act.
However, e-cigarettes have not been captured by the Tobacco Act, and
by its own definitions, do not qualify as a tobacco product.201 The Tobacco
Act would have to undergo fundamental amendments to include e-
cigarettes in its mandate. However, looking at the purpose and scope of
the Tobacco Act, it is not clear whether this would be the most appropriate
avenue for the federal government to legislate on e-cigarettes.
The Tobacco Act defines tobacco products as follows:
Tobacco product means a product composed in whole or in part of tobacco,
including tobacco leaves and any extract of tobacco leaves. It includes cigarette
papers, tubes and filters but does not include any food, drug or device that
contains nicotine to which the Food and Drugs Act applies.202
Based on the definition of tobacco products in the act, it is clear that
the legislature had not envisioned that the Tobacco Act capture e-cigarettes,
nor did it appear to be their purpose or intention.203 E-cigarettes
aficionados refer to traditional cigarettes as analogs largely to reinforce
196
Ibid, s 4.
197
Ibid, s 2.
198
199
Ibid.
200
See p 333 for a more detailed discussion on the provincial legislation; See also: Helen
Branswell, Health Canada slow to regulate e-cigarettes Global News (13 May 2015),
online: <http://globalnews.ca/news/1994306/health-canada-slow-to-regulate-e-
cigarettes/>.
201
202
Ibid.
203
Ibid.
the distinction between the two.204 Traditional cigarettes are analog in

the sense they have no electronic component.205
The components outlined in the definition (the cigarette paper, tube,
and filter) are completely absent in electronic cigarettes.206 The act makes
no mention of atomizers, coils, cotton, reservoirs, etc. (components in e-
cigarettes), or even references them indirectly.207 Furthermore, the act
explicitly states that any device that contains nicotine to which the Food
and Drugs Act applies is not to be subject under the act.208 In fairness, the
Tobacco Act was enacted before the very existence of e-cigarettes, so clearly,
e-cigarettes would be absent in the text of the legislation. Nonetheless, e-
cigarettes are sufficiently distinct from traditional cigarettes such that the
Tobacco Act would not be able to capture them in their current incarnation
and would have to undergo significant amendment to comprehensively
regulate e-cigarette devices.209
The reason that individuals jump to tobacco legislation as a means of
grappling with e-cigarettes is likely the result of the superficial similarity in
how both electronic and traditional cigarettes operate, and the primary
purpose of nicotine administration. Electronic cigarette proponents are, by
and large, opposed to the notion of regulating electronic cigarettes as
tobacco products, simply because the health effects, while not fully
understood at this point in time, are considered by health experts to be
less detrimental than those of traditional cigarettes and other tobacco
products.210
Granted, there is an intuitive sense in prohibiting e-cigarettes wherever
tobacco use is prohibited. That is the primary objective of the
Commissions Report. An amendment that adds e-cigarettes to the Tobacco
204
Rachel Kornfield, What is an Analog Cigarette? Health Media Collaboratory (15 April
2015), online: University of Illinois Institute for Health Research and Policy
<http://www.healthmediacollaboratory.org/what-is-an-analog-cigarette> [What is an
Analog Cigarette].
205
Ibid.
206
Orellana, supra note 37 at 674; Tobacco Act, supra note 20, s 2.
207
Orellana, ibid at 674675; Tobacco Act, ibid.
208
209
210
Grana, supra note 46 at 12.
Act would largely achieve this objective, as many provinces have already
adopted similar measures.211 The only issue is that provinces have
amended existing tobacco legislation as a half-measure in the absence of a
more comprehensive federal regulation.212 As will be discussed later, e-
cigarettes have many factors that would be difficult to legislate in the
context of tobacco legislation. However, the Tobacco Act would not be the
most appropriate avenue for comprehensive e-cigarette regulation due to
the terminology used in the legislation.
4. Summary of Federal Legislation

Under the Minister of Healths broad powers of enforcement and
discretion derived from the Food and Drugs Act for the maintenance and
benefit of the health of Canadians, the Health Canada 2009 March notice
can be deemed sufficient indication that e-cigarettes are not in compliance
with the Food and Drugs Act.213 This is despite the fact that there is no
explicit language in the Food and Drugs Act that pertains to e-cigarettes or
manages to capture e-cigarettes.214
This absence of compliance can more specifically be referred to as the
fact that e-cigarettes have not been granted market authorization. Market
authorization refers to the importation and selling of these products.
Health Canada enforces importation and selling by virtue of the
administrative document titled Import and Export Policy, which is
designed as an enforcement mechanism of the Food and Drugs Act.215 Due
to this policy, Health Canada can issue recommendations for refusal at the
US-Canada border as well as cease and desist letters to vendors that
manage to obtain e-cigarettes.216
211
212
See p 333 for a more detailed discussion on the provincial legislation.
213
Food and Drugs Act, supra note 18, ss 12, 13; Health Canada Importation Notice, supra
note 5; Health Canada Import and Export Policy, supra note 144 .
214
Food and Drugs Act, ibid, s 2.
215
Policy, supra note 144 .
216
Health Canada Import and Export Policy, ibid; E-Cigarette Committee Report, supra
note 112.
Health Canadas enforcement pertains solely to commercial sales.217 In

terms of personal use, it should be noted that Health Canada has simply
advised Canadians not to purchase e-cigarettes for personal use.218 Thus,
e-cigarettes can be regarded as illegal for commercial importation by virtue
of the Food and Drugs Act, but legal for personal use.219
If the federal government does decide to regulate e-cigarettes, the
Natural Health Products Regulations provides an avenue for regulating e-
cigarettes if they capture a medical purpose. If research is released
revealing that e-cigarettes can function as tobacco cessation devices, this
may be a reasonable avenue of regulation.220 However, the Natural Health
Products Regulations would not be adequate in regulating the recreational
nature of e-cigarette use. For that to occur, there would need to be more
significant amendments to the Food and Drugs Act or new regulations
under the Food and Drugs Act. Alternatively, the federal Tobacco Act offers
another avenue of regulation and would be in concordance with how
provincial legislatures have dealt with electronic cigarettes.221 However,
this would require significant amendment to the Tobacco Act as e-cigarettes
do not fall within the purpose of the act and are not tobacco products.
The Controlled Drugs and Substances Act was deemed to be inapplicable to e-
cigarettes and offers very little prospect of effective e-cigarette regulation.
Ultimately, the most effective method by which the federal
government can enforce e-cigarettes is by amending the Food and Drugs Act,
or drafting new regulations under the Food and Drugs Act to contend with
e-cigarettes.
C. Provincial Legislation
1. Overview
In the absence of federal legislation, many provinces have exercised
their own jurisdiction to enact legislation on e-cigarettes. Much of the
activity has been recent and involves regulating e-cigarettes in a similar
217
Health Canada Importation Notice, supra note 5 .
218
Health Canada E-Cigarette Advisory, supra note 165.
219
Food and Drugs Act, supra note 18, ss 12, 13.
220
Natural Health Products Regulations, supra note 21.
221
manner to traditional cigarettes. This has been done in an attempt to

address two primary concerns: (1) the effects of second-hand vapour in the
absence of concrete scientific evidence of legal effects and (2) the potential
effects of minors engaging in e-cigarette use.222 This second point is in
regards to national and provincial efforts to dissuade individuals from
adopting smoking and fears that e-cigarette popularity may undermine
such efforts.
Most provinces have enacted some form of legislation, and they are all
largely similar in how they operate.
i. Manitoba
There is legislation in Manitoba that directly pertains to the use of e-
cigarettes. The act is titled the The Non-Smokers Health Protection Amendment
Act (E-Cigarettes) and was passed on November 5, 2015.223
The act essentially amends previous public tobacco use legislation to
include e-cigarettes.224 It restricts e-cigarette usage to open public spaces.225
Basically, this bill attempts to only allow e-cigarette usage to where
traditional cigarettes have been allowed to be used.226 The mischief the bill
attempts to address is the usage of e-cigarettes indoors, where second hand
vapours can be easily inhaled by non-smokers.227
The act was proposed in the 4th session of the 40th Legislature.228 It
came largely in response to critics regarding the safety of e-cigarettes and
concerns regarding their usage indoors and around children.229 The act
defines e-cigarettes and e-cigarette solutions (called e-substance) as
222
These concerns have largely been brought up by provincial politicians and in
Parliamentary debates. This notion will be discussed in further detail throughout the
rest of the section.
223
The Non-Smokers Health Protection Amendment Act (E-Cigarettes), SM 2015, c 36 [The Non-
Smokers Health Protection Amendment Act].
224
Ibid.
225
The Non-Smokers Health Protection Act, s 2(1.1), as amended by SM 2015, c 36, s 4(2).
226
The Non-Smokers Health Protection Act, s 2(2), as amended by SM 2015, c 36, s 4(3).
227
Ibid, s 5.
228
Ibid.
229
Health Canada Import and Export Policy, supra note 144; Steve Lamber, Manitoba
to put in rules for e-cigarettes, Global News (28 May 2015), online: Shaw Media
<http://globalnews.ca/news/2023371/manitoba-to-put-in-rules-for-e-cigarettes/>.
products that contain a power source and heating element designed to

vaporize the e-substance for inhalation or use.230 Additionally, the
provisions specifically state that they apply regardless of whether the
liquid or gas contains nicotine.231 This particular statement overcomes
one of the primary shortcomings of the Health Canada notice by being
cognizant of the fact that some of the recreational use of e-cigarettes
involves e-cigarette solutions that do not contain nicotine.232 However, as a
protection mechanism, the act does not allow for the usage of any
substance in the e-cigarette solution that is captured by the Controlled Drugs
and Substances Act.233 This provision was likely drafted to account for slight
modifications that can be made to e-cigarette devices that allow them to
vaporize marijuana for inhalation.234
The act has a provision for no e-cigarette use in enclosed places,
including: an enclosed public place, an indoor workplace, a group living
facility, a public vehicle or a vehicle used in the course of employment,
while carrying two or more employees.235 Nonetheless, there are provisions
allotted to allow for designation of e-cigarette rooms.236 The act also
prohibits the advertising or promotion of e-cigarettes
(a) in any place or premises in which vapour products are sold; (b) in any place or
premises to which children are permitted access; (c) on an outdoor sign of any
type, including (i) a billboard or portable sign, or (ii) a sign on a bench, vehicle,
building or other structure; or (d) inside a building or other structure or vehicle
230
Ibid, s 3.
231
Ibid, s 3.
232
Ibid, s 3; Health Canada Importation Notice, supra note 5.
233
The Non-Smokers Health Protection Amendment Act, supra note 223, s 3.
234
Stephanie Pappas, Teens Use E-Cigarettes to Vape Pot, LiveScience (7 September
2015), online: Purch <http://www.livescience.com/52106-teens-ecigarettes-vape-
pot.html>; Meghan Neal, If You Think E-Cigs are Controversial, Wait Until E-Joints
Flood the Market, Motherboard (11 July 2014), online: VICE
<http://motherboard.vice.com/read/if-you-think-e-cigs-are-controversial-wait-until-e-
joints-flood-the-market>; Liam Davenport, High School Students Using e-Cigarettes
to Vape Cannabis, MedScape (9 September 2015), online: WebMD
<http://www.medscape.com/viewarticle/850726>.
235
The Non-Smokers Health Protection Act, s 2(1.1), as amended by SM 2015, c 36, s 4(2).
236
The Non-Smokers Health Protection Amendment Act, supra note 223, s 3.
if the advertisement or promotion is visible from outside the building, structure

or vehicle.237
While proponents of e-cigarettes may decry the supposed restraint on
individual liberty this amendment offers, it likely would not have a large
impact on the majority of users. There has not been much in the way of e-
cigarette advertising as is, likely due to the absence of any real legislation
on the matter, and fears from e-cigarette vendors from attracting attention
to themselves.238 Also, in light of the less than conclusive health effects, it
does not appear to be highly unreasonable to restrict the usage to areas
where traditional cigarettes are smoked. There has been very little in the
way of research regarding the potential effects of second-hand e-cigarette
smoke. In light of the current state of the scientific literature, this does
appear to be a reasonable response by the Manitoba legislature.
ii. Ontario
Many establishments that seek to ban e-cigarette usage on their
premises in Ontario have been citing the Smoke-Free Ontario Act239 as being
a justification for the prevention of e-cigarette usage indoors.240 The Smoke-
Free Ontario Act prohibits smoking in the following locations: enclosed
public places, enclosed workplaces, schools, buildings surrounding private
school, common areas in apartments or condominiums, child care centres,
home child care centres, early years programs, and reserved seating in
sports/entertainment venues.241
The primary issue with relying on the Smoke-Free Ontario Act to
prohibit e-cigarette smoking is that the provisions of the act do not
237
Ibid, s 13.
238
While e-cigarette advertising expenditures have increased in the States, there is no
information available pertaining to whether the same is true in Canada. Anecdotally,
it is suggested that there is virtually no advertising regarding e-cigarettes in Canada.
See: Annice Kim, Kristin Arnold & Olga Makarenko, E-cigarette Advertising
Expenditures in the U.S., 2011-2012 (2014) 46:1 Am J Prev Med 409 at 410.
239
SO 1994, c10 [Smoke-Free Ontario Act].
240
Official Records for 3 March 2015 Legislative Assembly of Ontario, online: Ontario
Government <http://www.ontla.on.ca/web/house-
proceedings/house_detail.do?Date=2015-03-03#P45_2777>.
241
Smoke-Free Ontario Act, supra note 239, s 9.
encompass e-cigarettes.242 The act specifically pertains to tobacco.243 As the

legislation stands, e-cigarettes are not classified as tobacco products.244 This
makes intuitive sense, as e-cigarettes do not contain any actual tobacco
products.245
Furthermore, David Jensen, from the Ontario Health Ministry has
expressly stated, The act doesnt apply to e-cigarettes.246 As a result, an
establishment cannot truly rely on the provisions of the Smoke-Free Ontario
Act to enforce e-cigarette prohibitions on their premises. However, private
venues can certainly adopt their own set of restrictions and rely on
voluntary compliance, which is currently how many Ontario based
establishments are enforcing their prohibitions.247 For example, Air
Canada prohibits the usage of e-cigarettes on their planes.248 It should be
noted that when private establishments have their own set of prohibitions,
the government will not issue fines or penalties to individuals in violation
of these prohibitions.
There currently is legislation in the Ontario legislature that pertains to
e-cigarette restrictions, entitled the Electronics Cigarettes Act, which amends
the Smoke-Free Ontario Act.249 The bill was first heard in the legislature on
November 24, 2014 and ultimately received Royal Assent on May 28,
2015.250 The bill will be phased in two components.251
242
Smoke-Free Ontario Act, supra note 239. Note: this noted after doing a reading of the
entire legislation, as a result, no specific provisions were cited.
243
Smoke-Free Ontario Act, ibid, ss 1, 2.
244
Ibid, s 1.(1).
245
Harrell, supra note 35 at 381.
246
Jenny Yuen, E-cig users dont have to fear smoking police: Province, Ottawa Sun (5
July 2015), online: PostMedia <http://www.ottawasun.com/2015/07/05/e-cig-users-
dont-have-to-fear-smoking-police-province> [Ottawa Sun Ontario Health Ministry
Article].
247
Ibid.
248
Ibid.
249
Electronic Cigarettes Act, SO 2015, c7 [Electronic Cigarettes Act].
250
Bills and Lawmaking: Current Parliament (28 May 2015), Legislative Assembly of
Ontario, online: <http://www.ontla.on.ca/web/bills/bills_current.do?locale=en>
[Legislative Assembly of Ontario].
251
Ibid.
The Electronics Cigarette Act has a comprehensive definition of what

constitutes an e-cigarette for the purposes of the legislation.252 The act
states that an e-cigarette is:
A vaporizer or inhalant-type device, whether called an electronic cigarette or any
other name, that contains a power source and heating element designed to heat a
substance and produce a vapour intended to be inhaled by the user of the device
directly through the mouth, whether or not the vapour contains nicotine. 253
The definition here is largely analogous to the Manitoba Non-Smokers

Health Protection Amendment Act.254 Notably, it also contains with it the
provision that the act applies whether or not the vapour contains
nicotine.255 Again, this overcomes this biggest obstacle with the Health
Canada provisions, which rely on the presence of nicotine.256 The fact that
e-cigarettes can be used with or without nicotine allows e-cigarette vendors
and users to bypass the Health Canada notice.257 Interestingly, the Ontario
provision does not have a requirement that the substance be in accordance
with the Food and Drugs Act.258 This is likely due to the fact that e-cigarette
use is fairly common even in the absence of compliance with the Food and
Drugs Act, and the Ontario government sought to regulate e-cigarette usage
even in the absence of compliance.
A noteworthy distinction between the Ontario Electronics Cigarette Act
and the Manitoba Non-Smokers Health Protection Amendment Act is that the
Manitoba Act contains a provision that accounts for illicit substances
caught by the federal Controlled Drugs and Substances Act while the Ontario
provision does not.259 While this likely will not have any profound
practical implications (since a substance that is prohibited under the
Controlled Drugs and Substances Act would be prohibited regardless of
whether they were found in an e-cigarette solution or not), the Manitoba
252
Ibid.
253
Electronic Cigarettes Act, supra note 249, s 1.(1).
254
The Non-Smokers Health Protection Amendment Act, supra note 223.
255
Electronic Cigarettes Act, supra note 249 s 1.(1).
256
257
Ibid.
258
Electronic Cigarettes Act, supra note 249.
259
Electronic Cigarettes Act, ibid; The Non-Smokers Health Protection Amendment Act, supra
note 223, s 3.
legislation simply provides an additional safety mechanism and measure of

clarity regarding what ingredients can be used in the e-cigarette
solutions.260 It should be noted that none of these provincial legislative
attempts at regulating e-cigarettes try to define what constitutes e-cigarette
solution. While e-cigarette solution is traditionally composed of vegetable
glycerin, propylene glycol, nicotine, and flavourings, there is nothing to
ensure that other ingredients cannot be used. The Manitoba legislation
takes a small step in clarifying ingredients by prohibiting substances that
are listed in the Controlled Drugs and Substances Act, while this provision is
absent in the Ontario legislation.261
Overall, the Ontario legislation, like its Manitoba counterpart, seeks
to regulate the usage and sale of e-cigarettes, and little more. Its
fundamental purpose is to restrict e-cigarette usage in public spaces in a
similar fashion as tobacco cigarettes. In light of inconclusive evidence
surrounding the health effects of e-cigarettes and e-cigarette second-hand
vapours, this legislation is reasonable in its mandate.
iii. British Columbia

In British Columbia the Tobacco Control Amendment Act which seeks to
address the growing popularity of e-cigarettes by restricting their usage in a
manner similar to that of traditional cigarettes was passed on April 14,
2015.262 The introduction of the amendments resulted in a name change
of the Tobacco Control Act to the Tobacco and Vapour Products Control Act.263
British Columbia Health Minister, Terry Lake, stated: More and
more young people are using e-cigarettes This legislation will limit the
exposure to children of the possible dangers of e-cigarette vapour and the
potential that e-cigarettes have to normalize smoking behaviour.264 In
260
The Non-Smokers Health Protection Act, ibid, s 3; Controlled Drugs and Substances Act, supra
note 19, s 58.
261
The Non-Smokers Health Protection Amendment Act, ibid, s 3.
262
Bill 14, Tobacco Control Amendment Act, 4th Sess, 40th Parl, British Columbia, 2015
[Tobacco Control Amendment Act]; Bills Legislative Assembly of British Columbia,
online: Government of British Columbia
<https://www.leg.bc.ca/legislation/bills.htm> [Legislative Assembly of British
Columbia].
263
Tobacco Control Amendment Act, ibid, s 1.
264
Ibid.
British Columbia, the medical community largely applauded the

legislation.265 The Canadian Paediatric Society has stated:
The Canadian Paediatric Society welcomes the Government of British
Columbias regulation of e-cigarettes. This legislation will protect the health of
children and youth from the well-established harmful effects of nicotine as well
as the toxic by-products of vaping British Columbias leadership on this issue
will complement their current tobacco control efforts in providing clean air not
only for children and youth but also all residents of the province. 266
The legislation operates in a largely similar manner to the
aforementioned Ontario and Manitoba acts.267 The amendments in place
will restrict the sale of e-cigarettes in public establishments, school
premises, and indoor workplaces and public areas.268 In addition,
provisions have been put in place to allow the health authority to
designate smoking areas.269
The Tobacco Control Amendment Act defines an e-cigarette as:
(a) A product or device, whether or not it resembles a cigarette, containing an
electronic or battery-powered heating element capable of vapourizing an e-
substance for inhalation or release into the air; (b) a prescribed product or device
similar in nature or use to a product or device described in paragraph (a).270
The act also defines the e-cigarette solution, referred to as an e-
substance as:
.A solid, liquid or gas (a) that, on being heated, produces a vapour for use in an
e-cigarette, regardless of whether the solid, liquid or gas contains nicotine, and
(b) that is not a controlled a substance within the meaning of the Controlled Drugs
and Substances Act (Canada).271
It is clear, once again, that unlike the Health Canada notices, the
British Columbian provincial legislation stretches beyond concerns
around nicotine. Because of the unknown health effects of long-term
265
Ibid.
266
Ibid.
267
Tobacco Control Amendment Act, supra note 262; Non-Smokers Health Amendment Act,
supra note 223; Electronic Cigarettes Act, supra note 249.
268
Tobacco Control Amendment Act, ibid, s 3.1.
269
Ibid, ss 5-7.
270
Ibid, s 2.
271
Ibid.
propylene glycol and vegetable glycerin inhalation, it does make intuitive

sense to draft the legislation in such a broad manner (in respect to the
components in the e-liquid).
Like the Manitoba legislation, there is a clear provision that no
substance that is subject to the Controlled Drugs and Substances Act is to be
used in the formulation of the e-cigarette solution.272 This further
highlights the absence of such a provision from the Ontario legislation.
Otherwise, the legislation has no provisions worthy of particular
examination and is largely analogous to the aforementioned Ontario and
Manitoba acts.
iv. Saskatchewan
Saskatchewan currently has no pending or enacted legislation
regarding e-cigarettes.273 Saskatchewans Health Minister has established
that the province is awaiting direction from the federal government before
any provincial progress will be made.274
A ministry spokesperson has stated, We are monitoring Health
Canadas approach to these products As e-cigarettes are relatively new
products, more research is needed to evaluate both positive and negative
health impacts associated with their use.275 This lack of inertia has been
criticized by the Canadian Cancer Society, which has stated: [Its]
discouraging Were seeing communities in Saskatchewan concerned
about electronic cigarettes and the impact on kids We dont understand
why the province would be reluctant to address this problem.276
272
Ibid.
273
Bills Legislative Assembly of Saskatchewan, online: Government of Saskatchewan
<http://www.legassembly.sk.ca/legislative-business/bills/>.
274
Kevin OConnor, Vape shops popping up around Saskatchewan, CBC News (4
September 2015), online: CBC Radio-Canada <http://www.cbc.ca>.
275
Tim Ireland, Sask. Sticks with wait-and-see approach as B.C. moves to restrict e-
cigarettes, CTV News Regina (6 March 2015), online: Bell Media
<http://regina.ctvnews.ca/sask-sticks-with-wait-and-see-approach-as-b-c-moves-to-
restrict-e-cigarettes-1.2267375> [CTV Saskatchewan Ministry Article].
276
Ibid.
As a result, the Canadian Cancer Society has ensured it will continue

lobbying the Saskatchewan legislature for legislation that would restrict the
use of e-cigarettes in Saskatchewan.277
In light of the confusing stance taken by Health Canada and the
absence of comprehensive research on the health effects of e-cigarettes, it is
difficult to criticize this so-called wait-and-see approach that the
Saskatchewan legislature is taking. To clarify, Health Canadas emphasis
on nicotine and commercial enterprises has done little to quell the
growing popularity of e-cigarettes in Canada. As a result, the Saskatchewan
legislature is awaiting more comprehensive legislation from the federal
government.
v. Alberta
The province of Alberta, similarly to Saskatchewan, has yet to enact
any legislation pertaining to e-cigarette use and sale.278 However, there
have been a series of municipal bylaws enacted throughout the province
that restrict the use of electronic cigarettes.279
Albertas patchwork of municipal bylaws prohibiting public use of e-
cigarettes results in a confusing state of the law. Users already have to be
wary of their e-cigarettes use when travelling from province to province,
and now travelling within Alberta means being subject to differing
regulations too. However, Stephen Mandel, the Health Minister of Alberta
has stated that he intends to put provincial regulations in place as soon as
possible.280
277
Ibid.
278
Bills and Amendments Legislative Assembly of Alberta, online: Government of Alberta
<https://www.assembly.ab.ca/net/index.aspx?p=bills_home>.
279
City of Red Deer, by-law No 3345/2005, Smoke Free Public Places and Work Places;
Smoking The City of Edmonton, online: City of Edmonton
<http://www.edmonton.ca/bylaws_licences/bylaws/smoking.aspx>; Bylaws related
to Smoking The City of Calgary (29 September 2015), online: The City of Calgary
<http://www.calgary.ca/CSPS/ABS/Pages/Bylaws-by-topic/Smoking.aspx>; City of
Calgary, by-law No 57M92, To Repeal and Replace Bylaw Number 15M85.
280
Matt Dykstra, Alberta Health Minister Mandel talks e-cigarette regulation, Edmonton
Sun (30 September 2014), online: PostMedia
<http://www.edmontonsun.com/2014/09/30/alberta-looks-to-ban-flavoured-tobacco-
e-cigarettes>.
vi. Quebec
Quebec enacted Bill 44 (An Act to bolster tobacco control), on November
26, 2015.281 Similarly to the other provincial enactments, Bill 44 restricts
the use of e-cigarettes in public areas. Quebecs Junior Minister for Public
Health, describes the bill as follows: You wont be able to smoke
anywhere you smoke a real cigarette. You wont be able to smoke in a
restaurant. Youll have to be nine metres from the doorAll the laws that
are there for regular cigarettes, youre going to have to respect that.282
The bill is otherwise unremarkable or distinguishable in any
significant way from the provincial legislation discussed prior.
vii. Nova Scotia

Nova Scotia has enacted two pieces of legislation to contend with e-
cigarettes.283
In May of 2015, the Tobacco Access Act was amended such that e-
cigarettes were to be treated by vendors as they would traditional
cigarettes, which includes: keeping them out of view, unless the store only
sells e-cigarettes; keeping minors excluded from entry; no point of sale
promotion; no signage or advertising outside the store; no selling to
minors; and no selling in pharmacies and other locations where tobacco
sales are prohibited.284
However, adult Nova Scotians (individuals 19 and older) will continue
to have full access to e-cigarette products. Interestingly, there are no
restrictions in place on where e-cigarettes are to be used within the Tobacco
281
Bill 44, An Act to bolster tobacco control, 1st Sess, 41st Leg, Quebec (assented to 26
November 2015).
282
Quebec tables bill to crack down on e-cigarettes, (5 May 2015), CBC News Montreal,
online: CBC Radio-Canada <http://www.cbc.ca/news/canada/montreal/quebec-
tables-bill-to-crack-down-on-e-cigarettes-1.3062346>.
283
Bill 60, An Act to Amend Chapter 12 of the Acts of 2002, the Smoke-free Places Act, and
Chapter 14 of the Acts of 1993, the Tobacco Access Act, 2nd Sess, 62nd Gen Assem, Nova
Scotia, 2014 (assented to 20 November 2014) [Bill 60]; Bill 90, An Act to Amend
Chapter 14 of the Acts of 1993, the Tobacco Access Act, 2nd Sess, 62nd Gen Assem, Nova
Scotia, 2015 (assented to 11 May 2015) [Bill 90].
284
See Healthy Communities: Tobacco Control: Amendments to Tobacco Legislation
Nova Scotia Canada (3 June 2015), online: <http://novascotia.ca/dhw/healthy-
communities/tobacco-act-amendments.asp>; Bill 60, ibid; Bill 90, ibid.
Access Act.285 However, the Smoke-Free Places Act, also amended in May of
2015, includes a list of areas and establishments where e-cigarettes cannot
be used.286
That being said, the Nova Scotian Government Health and Wellness
branch has stated: We are urging the federal government to address
quality and safety concerns by regulating these products nationally. 287 It
also moderated concerns of e-cigarette users by confirming that while e-
cigarettes are being treated like regular cigarettes in retail settings, they will
not be taxed as a tobacco product.288
It is clear that these amendments to the Tobacco Access Act and the
Smoke-Free Places Act were relatively minor measures in regulating e-
cigarettes, and that the province is waiting for the federal government to
take further action.
viii. Newfoundland and Labrador

On June 7, 2016, the House of Assembly of Newfoundland and
Labrador gave Royal Assent to Bill 35, An Act to Amend the Smoke-Free
Environment Act, 2005 and The Tobacco Control Act.289
Similar to the aforementioned legislation, the act purports to prohibit
the use of c-cigarettes in places where traditional cigarettes are banned
(namely, indoor public places and workplaces).290 It also ensures that one
must be of legal age to purchase e-cigarettes and associated
paraphernalia.291 Also of note is that the act provides e-cigarette vendors
an exemption from the promotion and display restrictions placed upon
285
Tobacco Access Act (amended) SNS 1993, c 14.
286
See Smoke-free Places Act (amended) SNS 2002, c 12, s 5(1). The current version in force
since 31 May 2015.
287
Healthy Communities: Tobacco Control: Amendments to Tobacco Legislation (3
June 2015), Nova Scotia Canada, online: Province of Nova Scotia
<http://novascotia.ca/dhw/healthy-communities/tobacco-act-amendments.asp>.
288
Ibid.
289
Bill 35, An Act to Amend the Smoke-Free Environment Act, 2005 and The Tobacco Control
Act, 1st Sess, 48th Gen Assem, Newfoundland and Labrador (assented to 7 June
2016).
290
Ibid.
291
Tobacco and Vapour Products Control Act, SNL 1993 Chapter T-4.1, s 4(2).
traditional cigarettes such that, as long as the products are not visible from
outside the store, they can be fully visible once inside.292
ix. Prince Edward Island

On July of 2015, the Prince Edward Island legislature passed a bill, An
Act to Amend the Smoke-free Places Act, which, in the spirit of the other
provincial legislation passed, seeks to restrict the sale and use of e-
cigarettes in a manner similar to that of traditional tobacco.293 The bill
restricts the use of e-cigarettes to locations where smoking is already
permissible, they cannot be in plain sight in retail locations, and selling to
minors is prohibited. It was given Royal Assent on July 10, 2015.294
Prince Edward Island Minister of Health, Doug Currie, has stated that
Theyll [e-cigarettes] be treated the exact same as normal tobacco
products. Theyll be restricted.295
The legislation largely mirrors the analogous legislation passed in
other provinces. Currie claims an aggressive timeline is being pursued
regarding implementation.296
x. Northwest Territories, Yukon and Nunavut

There is currently no pending or enacted legislation in the Canadian
territories pertaining to e-cigarettes.297
292
Ibid, s 4.2(2)(b).
293
Progress of Bills Legislative Assembly of Prince Edward Island, online: Legislative
Assembly of PEI
<http://www.assembly.pe.ca/bills/onebill.php?session=1&generalassembly=65&num
ber=9>; Bill 9, An Act to Amend the Smoke-free Places Act, 1st Sess, 65th Gen Assem,
Prince Edward Island, 2015 [Bill 9].
294
Bill 9, ibid.
295
E-cigarette, flavoured tobacco laws coming to PEI, CBC News Prince Edward Island
(10 June 2015), online: CBC Radio-Canada
<http://www.cbc.ca/news/canada/prince-edward-island/e-cigarette-flavoured-tobacco-
laws-coming-to-p-e-i-1.3107777> [CBC PEI E-Cigarette Article].
296
Ibid.
297
Bills and Legislation Legislative Assembly of the Northwest Territories, online: Northwest
Territories Legislative Assembly <http://www.assembly.gov.nt.ca/documents-
proceedings/bills>; Progress of Bills Yukon Legislative Assembly, online: Yukon
Legislative Assembly <http://www.legassembly.gov.yk.ca/progressofbills.html>; Bills
and Legislation Nunvaut Maligaliurvia, online: Legislative Assembly of Nunavut
xi. New Brunswick

There is currently no pending or enacted legislation in the Canadian
territories pertaining to e-cigarettes. However, New Brunswicks deputy
chief medical officer of health has asserted that the province should enact
legislation pertaining to the use and control of e-cigarettes.298
D. Additional Commentary and Analysis

1. The Federal Perspective
Based on the preceding analysis of the various legislative schemes
across Canada that attempt to grapple with the burgeoning popularity of e-
cigarettes, one cannot be faulted for feeling inundated with various
legislative approaches, but no clear answers. The persistent amongst us
may ask, is the use and sale of e-cigarettes legal or illegal?
The answer is far from definitive and it ultimately depends on ones
definition of what constitutes illegality. But rather than descend down the
philosophical rabbit hole of notions of illegality and legality, a more
pragmatic approach will be taken here.
In the federal context, e-cigarette devices and solutions that contain
nicotine are unapproved and unauthorized pursuant to the Food and Drugs
Act for commercial purposes. Thus, they can be identified as illegal in the
commercial context, but not the personal context. This ambiguity stems
from the fact that the Health Canada notice does not have any binding
force with regards to personal use and is not a part of any formal
legislation. Until e-cigarette devices and solutions are approved and
authorized under the Food and Drugs Act, they will not be formally
recognized as legal devices and substances.299 Health Canadas relative
stasis on this issue is rather surprising, but based on the frequent referral
to the Food and Drugs Act in the Health Canada notice, it can be surmised
<http://www.assembly.nu.ca/bills-and-legislation>.
298
Bobbi-Jean MacKinnon, E-cigarette regulations needed, says N.B Health officer,
CBC News New Brunswick (15 January 2014), online: CBC Radio-Canada
<http://www.cbc.ca/news/canada/new-brunswick/e-cigarette-regulations-needed-says-
n-b-health-officer-1.2497778>.
299
Health Canada Importation Notice, supra note 5; Food and Drugs Act, supra note 18;
that this piece of legislation would be the most likely avenue for
legislation.300
It is highly unlikely that the federal government would make the usage
of e-cigarettes illegal and criminal under the Controlled Drugs and Substances
Act.301 The fact that e-cigarette vendors operate openly with relative ease
suggests that this is not an issue that demands such staunch prohibitions.
Also, despite the provincial reliance on tobacco regulation, Health Canada
has made no mention of the Tobacco Act in its various publications and
notices on electronic cigarettes and associated paraphernalia. While this is
hardly a conclusive statement, the Food and Drugs Act seems to be the
primary avenue of potential legality for e-cigarettes in Canada as
recreational devices.302
If conclusive research is released that reveals that e-cigarettes can work
as an effective tobacco cessation product, then the federal government may
regulate the devices and solutions under the Natural Health Products
Regulations of the Food and Drugs Act as well.303
Nonetheless, the extent of Health Canadas notice in terms of
practical applications, have only resulted in the occasional
recommendation of refusal for border shipments.304 The RCMP or
municipal police will not be enforcing a Health Canada notice, as they
have no real statutorily defined mandate to do so.305
However, it must be noted that this Health Canada notice is only
applicable in terms of the marketing, sale, and distribution of e-
cigarettes.306 Consequently, this illegality only impacts commercial
300
Health Canada Importation Notice, ibid; Food and Drugs Act, ibid; Health Canada
Import and Export Policy, ibid.
301
Controlled Drugs and Substances Act, supra note 19.
302
Health Canada Importation Notice, supra note 5; Food and Drugs Act, supra note 18;
303
Food and Drugs Act, ibid; Natural Health Products Regulations, supra note 21; Health
Canada Importation Notice, ibid.
304
Food and Drugs Act, ibid; Natural Health Products Regulations, ibid; Health Canada
Importation Notice, ibid; Health Canada Import and Export Policy, supra note 144.
305
ibid; Food and Drug Act, ibid.
306
ibid; Food and Drugs Act, ibid.
institutions.307 There is essentially a void, federally, regarding the personal

use of e-cigarettes. As such, personal use can be regarded as legal, for the
time being. This is solely based on the absence of any comments,
indication, notice, application, or legislative initiative regarding the
personal use of e-cigarettes from a federal body.
It should also be made clear that the Food and Drugs Act, as
exemplified in the Health Canada notice, only applies to e-cigarette
devices that contain nicotine.308 E-cigarette devices that do not contain
nicotine are not subject to this prohibition. The issue with the distinction
made by Health Canada is that the e-cigarette devices that use and do not
use nicotine are the same, as the devices are compatible with e-cigarette
solutions that contain varying concentrations of nicotine, including zero.
Thus, vendors can easily import e-cigarette devices. While e-cigarette
solutions containing nicotine are unapproved, they can easily be
manufactured in-house using constituent ingredients.309 Furthermore, the
recommendation for refusal means that many imports of nicotine
containing e-cigarette solution are still entering Canada.310 This notion is
supported in the Parliament of Canada Committee Report on e-cigarettes,
which states:
Despite seizures at the border and letters to retail outlets in violation of such
regulations, most witnesses agreed that current regulatory efforts are not
restricting access to electronic cigarettes containing nicotine As devices
containing nicotine and those without nicotine may look identical, witnesses
noted it is not possible to know how many users of electronic cigarettes are
inhaling vapour containing nicotine.311
It is important to note that the Committee Report is incorrect in one
key respect. There is no distinction between devices that use nicotine and
those that do not.312 The exact same e-cigarette devices can be used with e-
307
308
Health Canada Importation Notice, ibid; Food and Drugs Act, ibid.
309
supra note 144; Food and Drugs Act, ibid.
310
311
312
liquid with any concentration of nicotine, including zero.313 Otherwise,

the statement is accurate.
Based on the fact that Health Canada, a federal body, explicitly
prohibits against the marketing, sale, and distribution of e-cigarette
solutions containing nicotine, but has no real mechanism of enforcing
such a position, it is difficult to appreciably define the legal status
regarding commercial operations of e-cigarettes in Canada.314 The fact that
there is no real culpability (in terms of fines or imprisonment) for violating
Health Canadas notice may lead some to argue that it is legal. Ultimately,
it would be fair to say that one can market, distribute and sell e-cigarette
products with the only fear being potential seizure of imported goods.315
The effect of this is that e-cigarettes cannot be classified in the commercial
context as legal, but they are not expressly illegal either (absent nicotine).
Unfortunately, a close examination of the federal bodies and legislation
reveals that the answer ultimately, from the federal perspective, remains
ambiguous. All we can say conclusively is that e-cigarettes, federally, are
illegal if they contain nicotine in the commercial context. They are legal
for personal use only. It is also unclear if they are legal or illegal in the
commercial context absent nicotine. The evidence seems to suggest that
they would be legal in the commercial context absent nicotine, but it is
difficult to make any conclusive statements with the information available.
2. The Provincial Perspective

The question of legality in terms of the provincial legislation varies
quite significantly from province to province. Saskatchewan and the
territories have no legislation on the subject of e-cigarettes.316 In the case of
Saskatchewan, and what also likely applies to the territories, it is a wait-
and-see approach.317 This means that these provinces and territories are
waiting for the federal government to rule on the matter before taking
313
Ibid at 675.
314
Policy, supra note 144; Food and Drug Act, supra note 18.
315
316
Please see above for a more detailed discussion on the provincial legislation.
317
CTV Saskatchewan Ministry Article, supra note 275.
further action. As an example, Deanne Crothers (the former Healthy

Living and Seniors Minister who drafted the Manitoba legislation) had
stated: It certainly would have been easier for us to have those kind of
(federal) regulations in place, but I think many other people in the same
position that Im in are frustrated by waiting too long.318
The provinces of British Columbia, Manitoba, Ontario, Quebec,
Prince Edward Island, Newfoundland and Nova Scotia have all enacted
similar provincial legislation.319 While Alberta has not enacted provincial
legislation, three municipalities (Calgary, Edmonton and Red Deer) have
adopted municipal regulations that essentially mimic the provincial
legislation enacted in other provinces.320 While there are slight differences
between these legislative schemes, the way their legislation functions is
essentially the same. They have adopted the tactic of amending the
provincial tobacco legislation to include e-cigarette devices and solutions.
The mischief being targeted by these provincial schemes is to restrict
exposure to second hand vapour for those that do not smoke or vape. In
the absence of these legislative schemes, one would be free to use their e-
cigarette devices virtually anywhere. A second concern being targeted is the
exposure of these devices to minors. Restricting e-cigarette use to locations
only where traditional cigarette use is allowed restricts exposure of e-
cigarettes to minors, the same way traditional cigarettes are restricted. This
way, the provincial governments hope that minors will not adopt the use
of e-cigarettes. Interestingly, the provincial legislative schemes avoid the
nicotine versus non-nicotine dichotomy that has served as the focal point
for the Health Canada e-cigarette importation prohibitions.321 E-cigarette
use in these provinces is restricted to where traditional cigarettes can be
used, regardless of the nicotine content of the devices.
The effect of the legislation to ban e-cigarette usage wherever normal
tobacco usage is prohibited results in a compelling revelation. The
318
Steve Lamber, Manitoba set to join list of provinces limiting use of electronic
cigarettes The Globe and Mail (28 May 2015), online: Philip Crawley
<http://www.theglobeandmail.com/news/national/manitoba-set-to-join-list-of-
provinces-limiting-use-of-electronic-cigarettes/article24677834/>.
319
Please see above for a more detailed discussion on the provincial legislation.
320
Supra note 279.
321
indication that e-cigarette use is illegal wherever tobacco usage is illegal

means that the corollary must be true: e-cigarette use is legal wherever
tobacco use is legal. Without the latter being true, the legislation would be
rendered nonsensical. This also leads to the contention that the provinces
that have not legislated on the matter allow e-cigarette use, essentially,
indiscriminately. Otherwise, why would the other provinces have to
explicitly prohibit e-cigarette use in any location that tobacco use is
prohibited?
Thus, from a provincial perspective, one could convincingly argue that
the personal use of e-cigarette is legal. In terms of the marketing,
distribution and sale, the provinces are largely deferring to the Health
Canada notice. As a result, e-cigarette vendors will have no difficulty
selling e-cigarette devices because the Health Canada restrictions have very
little enforcement mechanisms and can easily be circumvented.
3. Criticisms and Recommendations

Throughout the discussion there have been notable omissions in the
consideration of e-cigarette legislation. Health Canadas emphasis on
nicotine, a fairly well-understood compound, can be criticized since
propylene glycol and vegetable glycerin are the compounds that require
further study.322 These latter two compounds do not have well-understood
health effects in the context of long-term inhalation and should instead
compromise the bulk of Health Canadas concerns.323
Additionally, all e-cigarette devices are grouped in one amalgamated
category.324 Any individual with a cursory understanding of e-cigarettes
knows that the devices vary considerably.325 There are devices that are
roughly double the size of a cigarette that are designed to mimic the action
of smoking tobacco, which is the type of device that is continually
referenced in the government materials on e-cigarettes.326 Additionally,
322
ibid.
323
Please see section III for a more detailed analysis on the chemicals propylene glycol
and vegetable glycerin.
324
One can consult any federal or provincial legislation and find that e-cigarettes are
defined very broadly.
325
326
Ibid at 674-675.
there are devices that require lithium ion batteries larger than those found
in cellular phones that produce huge plumes of vapour that can obscure
an entire room.327 In terms of fears regarding second hand vapour,
distinctions need to be made between a small puff of vapour and large
bellowing clouds. Legislators would have to control for the voltage,
wattage, amperage, coil resistance, and battery size to ensure that the
devices meet an acceptable specification for safety. Accounting for these
factors in any government commissioned research would also be largely
beneficial to the e-cigarette community as a whole.
In the same vein, e-cigarette solutions are also treated as one entire
lump sum category. Practically speaking, essentially all e-cigarette solutions
contain vegetable glycerin, propylene glycol, flavourings and nicotine, but
without controlling for the ingredients in the legislation, it could allow for
a variety of components of questionable safety to be incorporated.328 As an
example, there have been concerns raised about the safety of using
cinnamon as a flavouring compound, because reports have revealed
cinnamon in e-cigarette solution can damage the lungs.329 If the legislature
regulated the ingredients, instead of simply referring to the e-cigarette
substance as one single category, it would greatly alleviate many of the
fears associated with e-cigarettes. This is assuming that each ingredient has
been tested for safety and undergoes an approval process.
The growing popularity of e-cigarettes means that the Federal
Government, inevitably, must respond to growing concerns while
acknowledging the popularity and strong support of the product.
Recognizing that e-cigarette devices and solutions can be assembled and
developed in numerous different ways would be the strongest step in
effectively and safely regulating these products. This would put Canada at
the forefront of e-cigarette regulation and use in a manner that will likely
satisfy critics and proponents of e-cigarettes.
327
Ibid.
328
Ibid at 674.
329
TR Rowell et al, Select E-Cigarette Flavors Alter Calcium Signaling, Cell Viability
And Proliferation in Lung Epithelia (2015) B37 American Thoracic Society Journals
289 at 290.
V. CONCLUSION
It is clear that e-cigarettes harbor an enigmatic status in Canadian
society. Following a thorough examination of the current legislation, the
legality of e-cigarettes still remains tenuous. However, both proponents
and critics can agree that some measure of effective regulation would be
beneficial to all parties involved.
The federal government has been startlingly silent on the issue, and
while Health Canadas notices have attempted to provide some measure of
clarity, they have only served to further muddy the waters.330 In the
absence of federal legislation, provincial governments have simply
amended their varying tobacco acts to incorporate e-cigarettes, and to
appease those who fear the consequences of second-hand vapour.331
Nonetheless, the lack of scientific research may be the determining
factor in this absence of legislation. As more and more studies become
released on this ever-growing phenomenon, the legislature will have a
stronger foundation in formulating legislation that protects and serves
those who are on both sides of the issue of e-cigarettes. However, the
government must be wary not to ignore the incredibly diverse array of
devices and ingredients that go under the banners of e-cigarettes and e-
juice. While the debate may never truly be settled, if the legislature can
account for these differences amongst devices and solutions, an effective
middle-ground can certainly be reached.
330
331
Please see Section IV for a more detailed discussion on the provincial legislation.

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Manitoba Law Journal Volume 40 (2) Underneath The Golden Boy

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2017 Volume 40 Number 2

Underneath the Golden Boy

DARCY L. MACPHERSON, LL.B., LL.M.

THE LEGAL RESEARCH INSTITUTE OF THE UNIVERSITY OF MANITOBA promotes

INFORMATION FOR CONTRIBUTORS

Underneath the Golden Boy

299 TO VAPE, OR NOT TO VAPE Electronic Cigarettes and the

social media), or other factors. Bill 34 introduced harsher penalties for

connected to the criminal justice system. This is particularly timely as the

II. WORKERS COMPENSATION ACT

C. Presumptions Are Nothing New

III. SUMMARY OF THE PROPOSED LEGISLATION AMENDING

Definitions of Diagnostic and Statistical Manual of Mental

C. Direct Comparison of Key Provisions

In contrast to Bill 205, Bill 35 leaves the definition and diagnosis of

Bill 205s definition classifies PTSD as an anxiety disorder, when the

IV. LEGISLATIVE DEBATE

seriousness of PTSD, suicide rates, and the importance of amending the

3. Standing Committee on Social and Economic Development45

4. Attempted Report Stage Amendment50

V. OPINIONS: DOES THE SOLUTION FIT THE PROBLEM?

A. The PTSD Problem

on PTSD as it relates to other occupations. In general, lifetime prevalence

B. Public Opinion and Media

VI. SIMILAR LEGISLATION IN OTHER JURISDICTIONS

In 2012, Albertas Progressive Conservative government introduced

A private members bill from an NDP MLA in Saskatchewan would

VII. MERITS & DEFICITS OF BILL 35 & SOME ALTERNATIVE

A. Merits and Praise

those representing employees, and many based their opinion on their

B. Deficits and Concerns

2015), online: WCB

because of privacy legislation.113 A worker is in a better position to meet

provision on the PTSD presumption. The reporting provision could have

as driving while impaired by drugs or alcohol, or committing other serious

II. SUMMARY OF BILL 34 AMENDMENTS

A. The Highway Traffic Act

24 hours to 72 hours.10 In addition, if the operator of the vehicle is

interlock program as a condition of immediate licence reinstatement

B. The Drivers and Vehicles Act

immediate action when a drivers past driving history warrants.23

III. BACKGROUND TO THE DEVELOPMENT OF BILL 34

Kendall and seriously injuring one of her co-workers.37 While driving

IV. THE LEGISLATIVE PROCESS OF BILL 34

A. The First Reading

B. The Second Reading

C. The Committee Hearings

2. The Crown Corporations Committee for MPI

higher chance that a particular individual will be involved in an accident,

penalized in MPIs system by way of demerits.71 If individuals are buying

D. The Third Reading

explored later in this paper. In concluding his submissions, he stated that

record that authorities had to be mindful of their conduct when dealing

V. WILL BILL 34 ACHIEVE THE OBJECTIVE OF TAKING

Sweden. In 1982, speeding fines were increased, and even though a

B. Registrars Power to Suspend Driving Privileges

<www.gov.mb.ca> [Manitoba Government News Release (27 April 2015)].

courts will decide, and taking action based on these presumptions.121 If we

C. MPI Penalty System

terms of suspensions and finances towards keeping or retaining their

a license suspension, as opposed to someone who is unsure of the penalty.

2. The Appeal Process

3. Loophole in Reporting Scheme (Buyback a claim)