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Law Times • march 30, 2009 sionate about or even want to think about in great detail because it confronts the dark inevitability of our lives — death itself. Ontario NDP MPP Peter O rgan donation is not a subject most of us are going to get pas- Presumed consent a small price to save a life Inside Queen's Park By Ian Harvey Kormos, however, has no such reservations when it comes to organ donation after death. He's been pushing for three years to enact a legislative change to make the default status for harvest- ing of organs that of "presumed consent." It is just as it suggests: all On- tarians will be presumed to have consented to organ harvesting and donation where suitable after death unless they specifi cally opt out. It's a noble premise and the organ transplants per capita, though that too has improved somewhat. Of course we have the donor only question is why hasn't the government simply adopted his draft legislation? He drafted it back in 2006 but as is the norm, it has gone nowhere. A couple of weeks ago, in true Kormos style, he seized an opportunity to hijack the discus- sion around an amendment to the Employment Standards Act which would have guaranteed employees up to 13 weeks unpaid leave in the event they donated an organ, such as a kidney or lung. Th ey could get another 13 weeks if a doctor believed it was necessary. Kormos, who is as entertaining a speaker as you'll hear on either side of the House, dismissed the amendment, not in principle, but because it was a solution in search of a problem. He noted the gov- ernment couldn't produce example of someone being fi red because they took time off after a donation, though 260 living people did donate organs last year. And when you consider a single organ and tissue donor can save up to eight lives and enhance as many as 75 others, well, it's not a lot to ask, is it? any portant, what is needed, argues Kormos, is a default regime in which organ donation is the stan- dard after death. Yet, there's been no move by While a living donation is im- card that we can sign and carry with us, but let's face it, not all of us have our wallets with us when we end up at death's door and some of us haven't signed. Time is of the es- sence in this circumstance and a de- fault presumed consent law would be benefi cial to so many Ontarians struggling with their health. And it's not really a religious is- sue, as one might have thought. A few weeks ago a multi-faith group joined in urging all Ontarians to complete their donor card saying the majority of the world's biggest organized and mainstream reli- gions did not bar donation. It's a landmark proclamation in that it clarifi es the issue and reaches out into a population base which may have shied away from signing their cards for fear of off ending their faith. "Muslims must not be afraid of consenting to donate or feel they will not be rewarded by Al- lah," said Imam Habeeb Alli. "Th is intention to save a human life is well founded in the Sharia and the kindness is a true sadaqa jariya (perpetual charity)." His comments were echoed by other leaders in context of the Jewish faith and Catholicism and it's useful to note most major re- ligions and their denominations support organ and tissue dona- tion, including: Hinduism, Bud- dhism, Sikhism, Confucianism, Taoism, Protestantism, the Bap- tists, Episcopal, Greek Orthodox, Lutherans, Presbyterians, Sev- enth-Day Adventists, Mormons, and the Amish. And it's not like any of the the government and his frustra- tion is palpable. Ontario would be the fi rst jurisdiction to invoke presumed consent and he's also willing to put his money where his mouth is: "I'm going to the tattoo parlour and getting a dot- ted line on my belly that says, 'Upon death, open here.'" I'll take his word on that but pass on reviewing the evidence in the fl esh, as it were, thanks, Mr. Kormos. Still, it's not that we Ontarians governing Liberals are dramati- cally opposed to the idea, indeed there's at least lip service if not stronger support within the ranks and the cabinet. And, to be fair, there were several are averse to organ donation, far from it. More donors, both living and deceased, have made the gift of life, as it's called, year over year for the last decade. Unfortunate- ly, the waiting list of those need- ing donations has also climbed. Th e Canadian Organ Replace- ment Register says 4,195 Ca- nadians were waiting for organ transplants in December 2008, but only 2,188 transplants were performed and 193 of those on the list died waiting. Nationally, we also lag behind other countries in the rates of measures brought in by the Lib- erals and adopted in 2006 which have had a positive impact on do- nations and transplants. Th ere was even a reading of a bill almost exactly a year ago in which an amendment to the Education Act would have introduced organ donation education into the school curriculum so that by graduation students would be keenly aware of the issue. However, it seems to have vanished off the landscape. Presumed procedural small price to pay for saving a life and while more also needs to be done at the national level, On- tario could show commendable leadership by stepping up and enacting legislation. consent seems a LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. LT - 1-4 x 5.indd 1www.lawtimesnews.com is cold," and, "Moroccan food is like a jeep. Both need a lot of oil to make them go." One of my favourites is less self-explanatory but I COMMENT Electoral reform: lessons from Israel have an Israeli friend who is a source of many wonderful sayings such as, "A sweater is something a child wears when its mother more poignant: "You learned to shave on her face," my friend once told me. I looked at him quizzically and he explained that this meant that I had learned some important life lesson, but the cost was borne by someone else. By studying events in Israel over the past several decades, we here in Canada have the opportu- nity to learn some lessons about electoral reform from Israel, at its expense. Israel's recent election results are in part the Second Opinion By Adam Dodek product of failed electoral reforms in the 1990s. Unlike so many times in Canadian constitu- tional history, in Israel it was not the attempts at constitutional change that failed, but the ac- tual reforms themselves. If Canada has a con- stitution that is too diffi cult to amend, Israel has one that is too easy to amend. Until 1996 when Israel's Supreme Court imposed certain requirements that we might recognize as "un- written constitutional principles," any "basic law" could be amended by an ordinary law; no absolute majority let alone special majority was required. Th e ease of amendment provided the framework and the opportunity for Israel's electoral reforms and their subsequent rollback after unhappy experiences with them. As is well known, Israel has a system of pure He was successful in only the fi rst part of the plan. Th e resulting public disgust with Israel's politicians and the electoral system led thou- sands to take to the streets and provided the necessary public impetus for electoral reform. Th e basic complaint with the existing system was that it gave too much power to smaller po- litical parties who could demand and exact enor- mous political concessions from a prospective or current PM in exchange for political support. Th e de- sired need to strengthen the independent position of the PM led to the enactment of a law for the direct election of the PM. Essentially, system onto a parliamentary one. It failed. Dra- matically. And the elections of 2009 demonstrate the diffi culty of undoing constitutional reform. Th e problem with the ill-fated reforms was that they did not change the powers of the PM or its relationship with the Knesset. Th e PM still need- ed to command the confi dence of a majority of the legislators. Th e reforms simply gave voters two ballots: one for the PM and one for parliament. Th is produced two unintended consequences. First, the reforms had the entirely opposite tried to graft a presidential this reform PAGE 7 proportional representation. In its Westminster system, there are 120 members in the Knesset, its unicameral Parliament. Any party that receives two per cent of the votes cast qualifi es for a seat in the Knesset. As a result, in the 18 elections since Israel's founding in 1948, each election has produced Knessets with between 10 and 15 par- ties. No party has ever won a majority of seats and formal coalition governments are the norm. Th us, in 2009, the two leading parties, Tsipi Livni's Kadima (28) and Benjamin Netanyahu's Likud (27) together garnered 55 seats, six shy of the 61 needed for a bare majority in the Knes- set. For Kadima, this represents a loss of one seat from 2006, and for Likud a more than doubling of the 12 seats that it received in those elections and a return to its position as one of the leading national political parties. However, the elections this decade are a far cry from those in the 1980s when the two great national political parties, La- bour and the Likud, together controlled 80-90 of the 120 seats, scattering the remaining seats amongst various smaller parties. Th e result of this competition in the 1980s was political deadlock, with neither party able to capture a governing coalition. After both the 1984 and 1988 elections, this stalemate led the two parties to form a coalition government of national unity, alternating prime ministers and dividing the cabinet portfolios between them. However, in 1990, in an episode that can only be poorly translated as "the stinky maneu- ver," or the "rotten exercise" (hatargil hamasri- ach), Labour party leader and current President Shimon Peres hatched a secret backroom deal with the religious parties to bring down the government and replace it with one led by him. 10% eff ect of what they intended. Instead of reduc- ing the opportunity for political log-rolling, they increased it. Instead of having one oppor- tunity for the smaller parties to shake down a prospective PM they now had two: prior to the election when the prospective PM needed the endorsement of the smaller parties to get elect- ed and after the election when the PM needed their support to govern. Second, by giving voters a separate choice for the PM and for the party of their choice, the re- forms had the eff ect of weakening the parties of the major candidates because it took away the prior motivation of voting for the party whose leader you wanted as PM. Israelis were able to vote directly for the PM of their choice and for par- ties that more directly appealed to their religious, political, or other identity. Th us, in the direct elec- tions for the prime minister of 1996 and 1999, support for the two major parties plummeted. Aghast at the monster they had created, Israeli parliamentarians tried to put it back in the box, repealing the law for the direct election of the prime minister and returning to the old, famil- iar parliamentary system. Th e problem was that after several elections under the system, voters had grown accustomed to casting their ballots for some of the smaller parties that we might charac- terize as representing special interests. Th e Israeli political system continues to suff er as a result. Back in Canada, there is often talk of moving to a system of greater proportional representa- tion. Th is may look appealing on paper, but we have no way of knowing how it would turn out in practice. Th ere are powerful centrifugal forces in this country and we cannot predict what the unintended consequences of such reforms would be. We can learn from the failures of electoral reform in Israel. At the least, we can learn to be wary, lest we cut ourselves in the process. LT Adam Dodek is a professor at the University of Ottawa's Faculty of Law. He can be reached at adodek@uOttawa.ca. Purchase 5 or more subscriptions for your law firm to Law Times or Canadian Lawyer and save 15% 1 Year = $65.00 + gst Purchase 20 or more and save 1 year $135.00 + gst, go online at www.lawtimesnews.com 2 Year = $105.00 + gst go online at www.canadianlawyermag.com or call 1-888-743-3551 Special rates for students and international subscribers. 3/3/09 4:51:38 PM FIRM UP! BONUS Digital Editons FREE with each Receive the paid subscription