Monday, April 30, 2012


J.C.M. v. A.N.A.,
2012 BCSC 584
Date: 20120423
Docket: E113741
Registry: Vancouver
Before: The Honourable Madam Justice Russell
Corrected Judgment: The first page of the judgment was corrected on April 25, 2012 where the spelling of the name of first counsel for the claimant was corrected and a second counsel for the claimant was added
Reasons for Judgment
Counsel for Claimant:
Lawrence A. Kahn, Q.C.
Isabel Stramwasser
Counsel for Respondent:
Georgialee Lang
Place and Date of Hearing:
Vancouver, B.C.
April 2, 2012
Place and Date of Judgment:
Vancouver, B.C.
April 23, 2012

[1] This is a summary trial application under Rule 11-3 of the Supreme Court Family Rules by the claimant. The claimant seeks an order declaring 13 sperm straws stored at Genesis Fertility Clinic to be her sole property. The respondent opposes the application, requesting the sperm straws be destroyed by order of this court.
Background and Context
[2] The parties agree on the facts. They are as follows.
[3] In October 1998, J.C.M. and A.N.A. began a spousal relationship. During the course of that relationship, they each gave birth to one child using therapeutic insemination with sperm provided from a single sperm donor. A.N.A. gave birth to their first child in 2000 and J.C.M. gave birth to their second child in 2002.
[4] The couple separated in 2006. They entered into a separation agreement in 2007.
[5] The agreement provided for custody and support. The first child resides primarily with A.N.A., but visits J.C.M. on Mondays and Saturdays. The second child resides primarily with J.C.M., but visits A.N.A. on Wednesdays, Fridays and Sundays. J.C.M. pays A.N.A. child support for both children.
[6] The agreement also divided all joint property of the relationship. The 13 sperm straws remaining from the sperm donor were inadvertently not divided under the agreement.
[7] The sperm straws are stored at Genesis Fertility Centre in Vancouver. According to a registered nurse working at the centre, one of the purposes of Genesis is to “facilitate donor insemination with gametes from anonymous donors.”
[8] Evidence on the science and biology involved in therapeutic insemination was not provided to me for the purpose of this summary trial. I understand a sperm straw to be a vial that the sperm donation is placed in to be properly stored for future use, such as assisted insemination, as was the case here. At the risk of oversimplifying the biology involved, it is also my understanding that “gametes” describe either a male’s sperm or a female’s ovum. I will use gametes interchangeably with sperm for the purpose of this decision, unless indicated otherwise.
[9] The parties purchased the donor sperm from a sperm bank in the United States, known as Xytex, in 1999. They paid approximately $250 per sperm straw.
[10] At the time the parties chose their donor, Genesis advised them that this donor had “retired from the program.” As a result, only the sperm remaining with Xytex was available. The donor would not be available for further donation.
[11] J.C.M. met T.L. in 2009. They began a spousal relationship in 2010. T.L. wishes to have a child with J.C.M. using the remaining sperm straws so that their child will be biologically related to the children of her relationship with A.N.A.
[12] J.C.M. emailed A.N.A in September 2011 and advised of her wish for T.L. to have a child using the sperm straws. She offered to purchase what she determined to be A.N.A.’s half interest in the sperm straws (6 ½ straws) for $250 per straw. A.N.A. responded that after careful consideration she would prefer the sperm straws be destroyed. She requested that the parties meet in person to further discuss their “thoughts/feelings” on the issue. Whether that discussion took place is unclear.
[13] Counsel for J.C.M. sent a letter to A.N.A. in October 2011 asking her to reconsider her position that the sperm straws be destroyed.
[14] In the fall of 2011, J.C.M. researched the sperm donor database and found another family who had used the same sperm donor. She contacted the woman who was listed on the database as having given birth to children from that donor. She was advised that the woman did not have any “extra” sperm straws available.
[15] In November 2011, J.C.M. contacted Xytex and learned that the donor of the sperm straws was no longer on file. She also learned Xytex had no contact information for the donor. She was advised it would be expensive to pay for an attempt to find the sperm donor.
[16] Also in November 2011, J.C.M. confirmed with Genesis that the parties did not have a contract with either Genesis or Xytex that defined their rights to the sperm straws.
[17] After receiving A.N.A.’s refusal to consent to the release of the sperm straws, and with no other way of obtaining sperm from the same donor, J.C.M. filed this application.
[18] The issues are as follows:
1. Are the sperm straws property?
2. Is it relevant for the court to consider the best interests of the existing children and any future donor offspring when deciding whether the claimant should be awarded the sperm straws?
3. Is insemination from an anonymous sperm donor proscribed in British Columbia?
4. If the answer to 1 is yes, how should the sperm straws be divided between the claimant and the respondent?
Issue 1: Are the sperm straws property?
[19] The claimant argues that on the facts of this case, the sperm straws should be treated as property. She says that based on case law from the United States and the United Kingdom, as well as one case from Canada, if awarding the gametes to one party does not create a parental obligation on another party who does not wish to procreate, there is “no logical reason to treat the gametes as other than property.”
[20] The claimant cites first the Canadian case of C.C. v. A.W., 2005 ABQB 290. This case involved, mainly, a child access dispute between the parties. The children, twins, were born to C.C. through a donation of sperm from A.W. However, the parties were also arguing over the four embryos that remained from the in vitro fertilization. A.W. refused to consent to the embryos’ release given the difficulty he had faced from C.C. over access to the twins. He was concerned she would use them to have another child.
[21] The court found that the embryos were C.C.’s property, stating at paras. 20-21:
[20] When Mr. A.W. provided his sperm to assist in the conception of children, he did so as a friend of Ms. C.C.'s. He was not her spouse. They were not in a relationship of interdependence of some permanence. Their intimate relationship was over. He extended a courtesy to a friend by giving her a gift of his sperm. He knew what it would be used for. He anticipated that she would use it in order to conceive a child. Initial efforts in this endeavour were not successful. Success was not achieved by Ms. C.C. until more than three years after the gift was provided.
[21] The gift was an unqualified gift given in order to conceive children. Mr. A.W. fully knew that Ms. C.C. could use the fertilized embryos when and as she chose. That was implicit in his gift to her. The remaining fertilized embryos remain her property. They are chattels that can be used as she sees fit. Mr. A.W. is not in a position to control or direct their use in any fashion. They shall be returned to Ms. C.C.. Conversely, as they are not Mr. A.W.'s property and he has no legal interest in them, he is not responsible for paying for their storage. That responsibility lies with Ms. C.C. who owns the embryos.
[Emphasis added.]
[22] The claimant also relies on the U.K .case of Jonathan Yearworth & Ors v. North Bristol NHS Trust, [2009] EWCA Civ 37. This case involved six men who had provided semen samples before undergoing chemotherapy for cancer. They had been advised by medical professionals that the chemotherapy might make them infertile. The semen samples were intended to assist the men in biologically fathering children in the future should they need it. The samples were frozen and stored in a lab at the Southmead Hospital, for which the defendant Trust was responsible.
[23] In June of 2003, the liquid nitrogen in the tanks used to freeze the samples fell below the required amount needed to keep the samples frozen. The samples thawed and the sperm perished. The six men brought an action in negligence for damage to property against the Trust claiming mental distress and psychiatric injury.
[24] The court reviewed the history of common law’s refusal to “recognize a substance generated by the body as capable of being owned”: at para. 29. The origins of this were outlined at para. 30:
30. "Dominus membrorum suorum nemo videtur" (no one is to be regarded as the owner of his own limbs): Ulpian, Edict, D9 2 13 pr. The common law has always adopted the same principle: a living human body is incapable of being owned. An allied principle is that a person does not even "possess" his body or any part of it: R v. Bentham [2005] UKHL 18, [2005] 1 WLR 1057. Notwithstanding these principles, the law compensates by making an elaborate series of rules for the protection of the body and bodily autonomy: see, eg, Airedale NHS Trust v Bland [1993] AC 789. One consequence of the principles, albeit not recognised until the nineteenth century, is that, if our bodies cannot be our own property, it follows that they cannot be the property of other persons; and that therefore we cannot sell ourselves, or be sold, to others. Another consequence is that, if we do not own our bodies, we have no right to destroy them, i.e. to commit suicide; in this respect it was necessary for Parliament, by s.1 of the Suicide Act 1961, to legislate the necessary reform to the criminal law.
[25] This principle was not only applied to living human bodies. The court discussed the case law surrounding ownership of corpses which was also specifically forbidden, with a limited exception: at paras. 31-34. The exception, founded in the Australian case of Doodeward v. Spence (1908), 6 C.L.R. 406 at 414 (H.C.A.), allowed for ownership where:
a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial …
[26] The court reviewed more recent English cases that have also held that ownership of parts of a human corpse are not allowed unless they fit into the exception of Doodeward: Yearworth, at paras. 34-36.
[27] Finally, the court considered jurisprudence on owning parts and products of a living human body. Without any English precedent to assist them, they turned to two cases from California: Moore v. Regents of the University of California, 51 Cal. (3d) 120 (Sup. Ct. 1990) and Hecht v. The Superior Court of Los Angeles County, 16 Cal. App. (4th) 836 (Ct. App. 1993). In Moore, the court disallowed the plaintiff’s claim for ownership over organ tissue removed during surgery. The court in Hecht found that a testator’s semen sample did amount to property for the purpose of being disposed of under his will. These cases will be discussed in more detail below.
[28] Upon the facts of Yearworth, the court, in finding it was time for advancement in the “common law’s treatment of and approach to the issue of ownership of parts or products of a living human body”, ultimately concluded that the plaintiffs had a property interest in the semen samples: at para. 45(a), 45(f). However, they declined to so find on the basis of the principle in Doodeward stating, “We are not content to see the common law in this area founded upon the principle in Doodeward”: at para. 45(d). They further explained their refusal to follow Doodeward at para. 45(d):
(d) ... Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes?
[29] The court’s finding of sperm as property was based on the following reasoning at para. 45(f):
(f) In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated:
(i) By their bodies, they alone generated and ejaculated the sperm.
(ii) The sole object of their ejaculation of the sperm was that, in certain events, it might later be used for their benefit. ...
(iii) Ancillary to the object of later possible use of the sperm is the need for its storage in the interim. ...
(iv) The analysis of rights relating to use and storage in (ii) and (iii) above must be considered in context, namely that, while the licence-holder has duties which may conflict with the wishes of the men, for example in relation to destruction of the sperm upon expiry of the maximum storage period, no person, whether human or corporate, other than each man has any rights in relation to the sperm which he has produced.
(v) In reaching our conclusion that the men had ownership of the sperm for the purposes of their present claims, we are fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the Trust's breach of duty, namely preclusion of its future use.
[30] The U.S. cases cited by the claimant all arose in the course of divorce and disputes over the use and possession of frozen embryos. In the first case, from Tennessee, Davis v. Davis, 842 S.W. 2d 588 (Sup. Ct. 1992), the parties attempted to have a child by in vitro fertilization using Ms. Davis’s ova and Mr. Davis’s sperm. They were unsuccessful. After their marriage broke down, there were still frozen embryos remaining. Ms. Davis wished to donate the frozen embryos to another couple. Mr. Davis wished the frozen embryos to be destroyed.
[31] The court considered whether the frozen embryos were property. It stated at 597:
We conclude that pre-embryos are not, strictly speaking, either "persons" or "property," but occupy an interim category that entitles them to special respect because of their potential for human life. It follows that any interest that Mary Sue Davis and Junior Davis have in the pre-embryos in this case is not a true property interest. However, they do have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the pre-embryos, within the scope of policy set by law.
[32] Absent an agreement between the parties for disposition of the unused embryos, the case was decided by balancing the right to procreate with the right to avoid procreation. In this case, the balance fell in favour of Mr. Davis, particularly as Ms. Davis’s intent was to donate the frozen embryos and not to use them herself: at 597-598, 603-604.
[33] The claimant cites five additional U.S. cases involving disputes over frozen embryos: Kass v. Kass, 91 N.Y. (2d) 554 (Ct. App. 1998); A.Z. v. B.Z., 431 Mass. 150 (Sup. Jud. Ct. 2000); J.B. v. M.B., 783 A. (2d) 707 (N.J. Sup. Ct. 2001); Litowitz v. Litowitz, 146 Wash. (2d) 514 (Sup. Ct. 2002) and In the Matter of the Marriage of Dahl and Angle, 222 Or. App. 572 (Ct. App. 2008).
[34] In Kass, the court agreed with Davis that agreements between the parties regarding the disposition of the frozen embryos on the dissolution of the marriage, or any other contingency, should be honoured: at 565. The court found the parties had previously agreed to donate the embryos to research should they be unable to come to a consensus on a disposition in the event of a divorce: at 562. The agreement was enforced.
[35] The courts in A.Z. and J.B. both looked to previous agreements of the parties in order to determine their intention. However, finding them legally insufficient or ambiguous, the court instead weighed the right to procreate with the right not to procreate. They both found in favour of the right to avoid procreation.
[36] In Litowitz, the couple involved received an ovum from a third party and, using Mr. Litowitz’s sperm, had a surrogate carry their child. When their marriage broke down, a dispute arose over the remaining frozen embryos. The court based its decision solely on the contractual rights of the parties under the contract with the fertility centre. In that contract, the parties had agreed to allow the court to resolve the issue of the remaining embryos should they be unable to agree: at 519. The parties had also expressed a desire in the agreement to have the embryos thaw and expire after five years. Since the five years had expired, the court ordered the embryos thawed: 533-534.
[37] Finally, in Dahl, the court upheld the parties’ agreement to have the wife instruct the fertility centre what to do with the frozen embryos if the parties could not agree: at 583. In this case, the wife wished the frozen embryos to be destroyed (or donated to research); the husband wished to have them donated for implantation. In the course of their decision, the court discussed whether the embryos were marital property at 579-581:
... Marital property "constitutes the entire class of property subject to the dispositional authority of the court in a marital dissolution action." Massee and Massee, 328 Or 195, 206, 970 P2d 1203 (1999). Given the statutory language, we first must determine whether the contractual right to dispose of frozen embryos is "personal property" for purposes of the statute. If it is not, then the court has no authority in a dissolution proceeding or judgment to deal with those contractual rights. If the court does have such authority, we will need to determine what distribution of that property is just and proper in all the circumstances.
Indeed, although the language of the embryo storage agreement does not control what constitutes personal property under ORS 107.105, it does indicate that the parties understood that husband and wife had the "exclusive right to possess, use, enjoy, or dispose of" frozen embryos that were stored under the agreement. ...
We acknowledge that there is some inherent awkwardness in describing those contractual rights as "personal property," as we discuss in more detail below. However, we nonetheless conclude that the contractual right to possess or dispose of the frozen embryos is personal property that is subject to a "just and proper" division ... The trial court did not err in treating it as such.
Given that conclusion, the question of what constitutes a just and proper distribution of that right presents a significantly more difficult question. The division of property rarely gives rise to this level of deeply emotional conflict and, notwithstanding the idea that some properties are unique and personally meaningful, a decision to award particular property to a party generally can be considered to be a decision that is ultimately measured in monetary (or equivalent) value. A decision about the contractual right to direct the disposition of embryos cannot reasonably be viewed that way, as the parties appear to agree. As such, our case law controlling the just and proper distribution of property in a marital dissolution proceeding--all of which addresses the distribution of property to which some sort of monetary value can be ascribed--offers little assistance in our task here. Nor can we identify any express source of public policy in our constitution, statutes, administrative rules, or elsewhere that could inform the distribution of property of this nature.
[38] The claimant submits that the U.S. cases stand for the proposition that the “pivotal question is whether procreation creates a parental obligation on the party who wants to restrain procreation.” Where it does not, the gametes must be treated as property.
[39] The respondent submits that there is no Canadian legislation, federal or provincial, or Canadian case law that treats gametes as property. She argues the issue of treating sperm as property is a moral one. She states that the question of whether sperm is property should be answered in the negative.
[40] The respondent cites several academics in support of her position. In her article “Sperm as Property” (1995) 6:2 Stan. L. & Pol’y Rev. 57, Dr. Bonnie Steinbock discusses the moral issues surrounding treating sperm as property. She argues at 57 that:
To characterize something as property suggests that certain things may be done with it ... If there are entities that ought not to be treated in these ways, if, that is, there are good moral reasons why they should not be treated in these ways, then they should not be considered as property.
[41] She discusses the U.S. cases of Hecht, Moore and Davis, focusing mainly on Hecht.
[42] She notes that in Moore, the court “declined to answer the question of how much of the law of property applies to body parts”: at 59-60. Instead, they found that courts should turn to statute “for guidance on the disposition of human biological materials”: Moore, at 137; see also Steinbock, at 59-60.
[43] Dr. Steinbock points out that this approach was followed in Hecht: Steinbock, at 60. Hecht, as was noted above, involved a dispute over whether a deceased testator could bequeath his frozen semen to his girlfriend. The court found that the testator had, at the time of his death, an interest in his sperm and that the sperm would constitute property under the applicable probate legislation; general property law did not govern under the circumstances. The court cited Davis, noting that the interest was in an “interim category” given the sperm’s “potential for human life”: Hecht, at 846.
[44] Dr. Steinbock stated at 60:
Thus, Hecht, Moore and Davis all represent judicial decisions to eschew a categorical approach to the ownership issues raised by disputes over bodily parts and gametes. In this new and challenging area, the law is shaped by application of public policy to the unique facts of each case.
[45] Dr. Steinbock discusses three possible moral issues with sperm as property: posthumous reproduction (as arose in Hecht), the commercialization of reproduction and the treating of the body as a commodity: at 62-66.
[46] She concludes that it is only after we determine the purpose the sperm will be used for that we will be able to determine whether it is property: at 62, 66. For example, she states, “If there is a strong moral, legal, or policy argument against allowing individuals to store sperm for the purpose of posthumous reproduction, then sperm should not be considered property for that purpose”: at 66.
[47] I note that since the Steinbock article was written, the California Court of Appeal has once again heard a petition from Ms. Hecht: see Hecht v. The Superior Court of Los Angeles County, 50 Cal. App. 4th 1289 (1996) [Hecht, 1996] (Note: this case was ordered not to be published in the Official Reports by the Supreme Court of California on January 15, 1997: see 1997 Cal. LEXIS 131). With the direction that the testator had a property interest in the sperm for the purposes of disposing of it in his will, the Court of Appeal had sent the matter back to the trial court. There, the court had given Ms. Hecht 20% of the sperm vials based on a settlement agreement of the dispute between herself and the testator’s children over the will. She was awarded three of the 15 sperm vials. She petitioned for the remaining vials, but was denied. She appealed: Hecht, 1996, at 1293-1294.
[48] The Court of Appeal addressed under which legal instrument the sperm vials should be disposed of: the will or the settlement agreement. The court stated that the sperm was a “unique form of “property”” and was “not subject to division through an agreement”: at 1295. While Ms. Hecht could use the sperm vials to conceive her deceased boyfriend’s child, even she was not legally entitled to sell or donate the sperm to another. The disposition was determined only by the intent of the donor; the sperm was property for him only: at 1295-1296.
[49] The respondent cites two other scholarly articles in support of her application. The first is from Dr. Ernest Waintraub entitled “Are Sperm Cells a Form of Property? A Biological Inquiry into the Legal Status of the Sperm Cell” (2007-2008) 11 Quinnipiac Health L.J. 1. Dr. Waintraub cites the Davis and Hecht cases and discusses the courts’ position that a frozen embryo is neither a person nor property, but an “interim category”: at 1–7.
[50] Dr. Waintraub discusses the biology of sperm. He notes that sperm is “an indispensible contributor to the creation of a person” and it is from this that it derives its value: at 11.
[51] Dr. Waintraub notes that critics of the Hecht decision argue the only way to predictably and consistently determine disputes resulting from the disposition of sperm will be in property law. Scientific advancements that legislation cannot keep up with, as well as the inadequacy of other areas of the law to compensate for lost sperm (the example given is identical to the facts from Yearworth), result in property law being the appropriate choice for these actions. He rejects these arguments noting that an action in negligence would give rise to mental anguish and other claims not known in property law. He also points out that property law may give rise to circumstance where the donor’s kin is making determinations for the sperm’s disposition if the donor dies without outlining his intent. This may lead to a disposition inconsistent with the donor’s wishes: at 14.
[52] Dr. Waintraub concludes that the Hecht decision was “rightly decided” in that it aligns with scientific conclusions. He states that property law is not the proper tool to analyze legal issues arising from stored sperm: at 16.
[53] Finally, the respondent cites Heidi P. Forster’s article “Law and Ethics Meet: When Couples Fight Over their Frozen Embryos” (2000) 21:4 Journal of Andrology 512. The author reaches the following conclusions regarding the consensus of the case law for disputes over frozen embryos at 514:
1. Embryos are considered neither persons nor property, but “special entities” that have the potential to become persons and, therefore, warrant respect;
2. Pre-procedural agreements between couples regarding the disposition of the embryos should be considered a binding contract;
3. In the absence of such an agreement, the party wishing to avoid procreation should be awarded the embryos, except in circumstances where the other party has no other way of becoming a parent; and
4. The rights of both donors should be considered equally.
[54] I will start this analysis by first commenting that I appreciate that this is a difficult situation for both parties. In determining whether the sperm donation they used to conceive their children is property, I am in no way devaluing the nature of the substance at issue. I do recognize that sperm used to conceive two children for two loving parents does not have the same emotional status as a vehicle or a home. Ultimately, however, this claim involves a dispute over the sperm straws and their disposition. The claimant wishes to use them to conceive another child; the respondent wishes to have them destroyed. I must, therefore, use the tools at my disposal to make a determination on whether the sperm straws are property and, if so, how they should be divided between the parties. There is no intent on my part to trivialize this matter.
[55] After careful consideration of the authorities provided to me, I am persuaded that on the facts of this case the sperm straws that remain at Genesis should be treated as property and divided between the claimant and respondent as such. I rely mainly on the Canadian case of C.C. and the U.K. case of Yearworth, although I recognize that there are important distinctions between those cases and the facts before me.
[56] While the case of C.C. involved a dispute over frozen embryos, in my view many of its facts are analogous to the case before me. In C.C., the sperm used to conceive the twins was given as a gift to the plaintiff. Here, the parties purchased the sperm. Either way, were the sperm to be considered property it would be the property of the person(s) to whom it was given or by whom it was purchased. The starting point is, therefore, the same in both cases.
[57] The court in C.C. had no reservations about finding that the sperm became the property of the plaintiff to do with as she chose once it was given to her. In my view, this simple approach is equally applicable to the facts of this case. Once the claimant and respondent purchased the sperm straws, those sperm straws were their property to be used for their benefit.
[58] Further support for this position is found in the Yearworth case. This decision provided a much more detailed basis for a finding of sperm as property. As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property. This was, no doubt, for good reason. However, I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point.
[59] It is helpful to return to how the court commenced its analysis for the purposes of the claim in negligence at para. 28:
28. A decision whether something is capable of being owned cannot be reached in a vacuum. It must be reached in context; and in this section of our judgment the context is whether an action in tort may be brought for loss of the sperm consequent upon breach of the Trust's duty to take reasonable care of it. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. In his classic essay on "Ownership" (Oxford Essays in Jurisprudence, OUP, 1961, Chapter V) Professor Honoré identified 11 standard incidents of ownership but stressed that not all of them had to be present for ownership to arise. He suggested that the second incident was "the right to use" and he added, at p.116, that:
"The right (liberty) to use at one's discretion has rightly been recognised as a cardinal feature of ownership and the fact that … certain limitations on use also fall within the standard incidents of ownership does not detract from its importance…"
We have no doubt that, in deciding whether sperm is capable of being owned for the purpose which we have identified, part of our enquiry must be into the existence or otherwise of a nexus between the incident of ownership most strongly demonstrated by the facts of the case (surely here, the right, albeit limited, of the men to use the sperm) and the nature of the damage consequent upon the breach of the duty of care (here, their inability to use it notwithstanding that this was the specific purpose for which it was generated).
[60] Surely, here the parties, having purchased the sperm straws, have the choice to use them. In fact, unlike the circumstances in Yearworth, the parties here did use the sperm straws. They had two children from that use. While there may be a limit on the use the parties can make of the gametes and while they may be prohibited from certain uses of the sperm by the Assisted Human Reproduction Act, S.C. 2004, c. 2 (this point was not argued before me and, therefore, remains unclear) they still can use and have used the sperm. As well, I note that the plaintiffs in Yearworth were also limited in the use of their sperm by legislation.
[61] There are some difficulties with applying the Yearworth decision to the facts of the case before me. The court based its finding of the men’s sperm as property on the basis that the men were the donors of that semen. They had ejaculated it. The intention was to use it for their benefit in the future if necessary: at para. 45(f).
[62] Furthermore, the court stated explicitly that “for the purposes of their claims in negligence, the men had ownership of the sperm”: at para. 45(f) [emphasis added].
[63] In this case, I am dealing neither with a claim in negligence nor sperm that came from either of the parties. I do not find, though, that this makes the need for advancements in the common law to keep up with medical science to be any less compelling. In fact, the Court of Appeal in Yearworth concluded that advances were needed in common law regarding the issue of ownership of body parts and products for the purposes of the negligence claim before them as well as for other purposes: at para. 45(a). Additionally, while the court was making a determination regarding semen samples intended to be used by the men who had produced them, they did not ignore that sperm could be owned by another; they simply pointed out they were not asked to determine this point: at para. 45(b).
[64] Overall, I find that along with the parties’ right to use the sperm straws for their benefit, the parties have an ownership interest in the sperm straws.
[65] I do not find the U.S. cases cited by the claimant to be of much assistance in this case. They deal with frozen embryos where, in most cases, the parties each contributed a gamete.
[66] I do note that they assist the claimant’s case in that embryos have more “potential for human life” than a gamete alone. Accordingly, the argument that sperm is in the same “interim category” between person and property is not as compelling.
[67] I do agree, however, with the claimant that the U.S. cases demonstrate the importance of balancing the right to procreate with the right to avoid procreation. But there is no need to balance these rights in this case. A.N.A. will not be the biological parent of any child conceived using the sperm straws. She will not have any parental obligations or responsibilities to any child conceived whether the child is conceived by T.L. or J.C.M. A.N.A.’s right to avoid procreation is not being infringed by dividing the sperm straws between the owners as property.
[68] I have also considered the respondent’s arguments, but I find I must reject them for several reasons. First, the court is ill equipped to handle moral and philosophical arguments. While I appreciate the approach suggested by Dr. Steinbock, it is not the role of the court to choose the correct approach to such existential questions. As well, Dr. Steinbock’s assertion that we first need to determine what “may permissibly be done” with sperm – i.e. whether it can be donated, sold, stored etc. - before we can determine whether it is property is of no help here. In this case, the sperm has already been donated, sold and stored.
[69] Second, it is clear to me in the context of this dispute that the sperm is the property of the parties. The sperm has been treated as property by everyone involved in the transaction, from the donor to Xytex, Genesis and the parties. It has been purchased; the parties have a right to deal with it. They have made use of it to their benefit. The respondent’s moral objections to the commercialization of reproduction or the commoditization of the body seem to me to be too late. Certainly, they are interesting arguments for the respondent herself to make given she participated in purchasing and using a donation of sperm from an anonymous donor.
[70] I recognize that in Canada the federal government has prohibited the purchase of sperm (and ova). Section 7(1) of the Assisted Human Reproduction Act reads:
Purchase of gametes
7. (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.
(While much of this Act was recently declared ultra vires the federal government in the recent Supreme Court of Canada decision Reference re Assisted Human Reproduction Act, 2010 SCC 61, section 7 was not challenged: at para. 10.) However, for the reason outlined above, that the sperm has been treated as property up until this point, in my view the legislation does not dictate or even influence whether or not the gametes in this case are property.
[71] Furthermore, I note that in her article Dr. Steinbock acknowledges that, while not ordinarily the case, a person can own property he/she is not entitled to sell. The example she gives is of the Queen of England, who owns land and artifacts she is not entitled to dispose of: Steinbock, at 61.
[72] Third, I do not find either the Waintraub or Forster articles helpful to the respondent’s case. The Forster article addresses the same US cases cited by the claimant. It offers nothing towards an analysis of whether or not sperm should be treated as property.
[73] The Waintraub article opines that property law is not the proper area of law to address issues arising from sperm donation. He suggests other areas, such as negligence, as being more helpful. This is not the reality of the case before me, however. There is no claim in negligence here.
[74] Furthermore, Dr. Waintraub applauds the Hecht case for finding that property law should not govern the disposition of the testator’s sperm. The testator’s sperm could not otherwise be disposed of by agreement of others, but only by his own intent. Even the beneficiary of the bequest could not dispose of the sperm. We are well past that point on the facts of this case. The donor has provided his sperm, by sale or donation, to Xytex (or to another party from whom Xytex acquired it). The parties then purchased the sperm from Xytex. For that reason, even if I found Hecht applicable to these circumstances, the precedent it establishes has already been made inapplicable. Consequently, this analysis is of little help.
[75] On the facts of this case, I find that the gametes should be treated as property for the purpose of dividing them upon the dissolution of the spousal relationship of the parties. The parties are joint owners of the sperm they used in their successful attempts to conceive children. I will deal with the division after I address issues 2 and 3.
Issue 2: Is it relevant for the court to consider the best interests of the existing children and any future donor offspring when deciding whether the claimant should be awarded the sperm straws?
[76] The respondent argues that an order awarding the sperm vials to J.C.M. is not in the best interests of their two children. She argues it is not in the best interests of any child to be conceived using the sperm. She states that the birth of another half-sibling to two children who are already half-siblings “complicates and further fragments the two households currently established” by J.C.M. and herself. Furthermore, if J.C.M.’s and T.L.’s relationship were to fail, three children would be split among three households and three families.
[77] The respondent relies on findings made by Madam Justice Adair in Pratten v. British Columbia (Attorney General), 2011 BCSC 656. In Pratten, the plaintiff was conceived through insemination with sperm from an anonymous donor. Ms. Pratten wished to discover information about her biological father, but found that there was no legal basis on which she was entitled to the information. She brought a constitutional challenge based on ss. 15 and 7 of the Canadian Charter of Rights and Freedoms. The s. 15 claim sought the government’s recognition of the “questions about biological origins and feelings of loss and incompleteness” experienced by adoptees through the enactment of the Adoption Act, R.S.B.C. 1996, c. 5: at paras. 3, 6. Through the Adoption Act, information about adoptees must be recorded and preserved. Adoptees also have the opportunity to access that information. No such legislation applied to donor offspring.
[78] The argument for a violation of s. 7 was that donor offspring’s liberty and security rights were infringed as the Province had failed to protect “fundamental aspects of their personal autonomy and health” through legislation: at para. 7.
[79] Madam Justice Adair made the following findings regarding the circumstances of anonymous donor offspring, which are relied on by the respondent in this case, at para. 111:
[111] I summarize my findings and conclusions, based on this evidence, as follows:
(a) donor offspring fear that their health can be compromised, and may be seriously compromised, by the lack of information about their donor. ...;
(b) because of a lack of information, donor offspring can face delayed medical treatment, and an inability to have conditions that are inherited or genetic diagnosed and treated. ...;
(c) it is important, psychologically and medically, for donor offspring to have the ability to know identifying and non-identifying information about their donor, and their psychological and medical needs in that respect are substantially the same as adoptees;
(d) for donor offspring, having information – both identifying and non-identifying – matters deeply, both to complete their personal identities and to alleviate the stress, anxiety and frustration caused by not knowing. ...;
(e) donor offspring experience sadness, frustration, depression and anxiety – in other words, they suffer psychological and psychosocial difficulties – when they are unable to obtain information. They feel the effects both for themselves and, when they become parents, for their own children;
(f) donor offspring commonly, and legitimately, fear inadvertent consanguinity. ...;
(g) the secrecy that often surrounds the process of conception, even when done with the best of intentions, can have devastating effects on donor offspring when the truth is revealed. Moreover, knowing the truth (that the other biological parent was a donor), but having no means to discover what the truth means for one’s life, can be a significant source of anxiety, depression and frustration for donor offspring;
(h) while recognizing that parents have an important and legitimate interest in deciding what their child will know and when she or he will know it, anonymity and secrecy tips the balance heavily in favour of donors and parents, and away from the best interests of donor offspring; and
(i) donor offspring and adoptees experience similar struggles, and a similar sense of loss and incompleteness. However, donor offspring do not have the benefit of the kind of positive institutions and legislative support provided to and for adoptees in B.C.
[80] The claimant argues that an analysis by the court regarding the best interests of the children, existing or potential, has no place in this petition. She says that whether the children are affected by an additional child in the family is not relevant to her right to procreate. The respondent is attempting to restrict the claimant’s and her partner’s right to procreate by having the court complete an analysis on the best interests of the children. The claimant states the respondent is using the best interests of the children as a “proxy for her interests.”
[81] Furthermore, the claimant points out that the respondent could not obtain an order restricting the claimant from finding the original sperm donor and obtaining more semen. She would also be unable to obtain an order restricting the claimant from having another child herself; that child would be biologically related to one of their children.
[82] In my view, an analysis of the best interests of the children born to the parties, as well as any potential child conceived by the claimant and her partner, is not appropriate on the circumstances of this case.
[83] In regard to a child who may possibly be conceived using the sperm donation jointly purchased by the parties, an analysis of the best interests of that child is, at best, speculative. Accordingly, it would be both impractical and improper for me to engage in such an exercise.
[84] I take no exception to the findings of fact made by Madam Justice Adair in Pratten with respect to children born of anonymous sperm donors. However, those facts were found in an entirely different context than the case before me. As will be discussed further below, the issue in that case had to do with disclosure of medical, social and personal information of sperm donors to their biological children. The findings from Pratten have no role to play in a case where two former partners have a dispute over the use of gametes they jointly purchased.
[85] With respect to the children’s best interests, I also decline to engage in such an analysis. Hypothetically, if this case involved a male, A, and a female, B, B would not be able to stop A from fathering children with as many other females as he wished. The children conceived by the other females would all be half siblings of B’s children. Yet, B would have no right based on the best interests of her children to restrict A’s right to procreate. I do not see why this situation should be any different. In fact, for me to engage in any such analysis would be borderline discriminatory to couples, such as the parties, who must conceive through sperm donation should they wish to have children that are biologically their own.
[86] For these reasons I will not engage in a discussion of the best interests of the children.
Issue 3: Is insemination from an anonymous donor proscribed in British Columbia?
[87] The respondent submits that based on the Pratten decision, anonymous sperm donation is proscribed in British Columbia. Her argument goes as follows. The Province argued in Pratten that “Ms. Pratten seeks an unprecedented remedy, and that, in effect, she seeks to have an entire legislative scheme – one that would prohibit, both prospectively and retrospectively, anonymous gamete donation – created by judicial degree”: at para. 10. Despite this argument, the court found that assisted reproduction using anonymous sperm donation is not in the best interests of donor offspring: at para. 215. The court also found the Adoption Act and the Adoption Regulation, with a limited exception, violated s. 15 of the Charter because they created a distinction between adoptees and donor offspring that is discriminatory. Accordingly, the respondent says, the potential result asserted by the Province was realized.
[88] The claimant argues that the respondent’s interpretation of Pratten is not correct. She says that Pratten concerned keeping records for anonymous sperm donations, not about conceiving with anonymous sperm donations.
[89] The claimant says that Pratten does not restrict an individual’s right to obtain and use anonymous sperm donation in B.C. It is simply a Charter case directed at the Province’s failure to protect donor offspring. She acknowledges that in the future it may require fertility clinics in B.C. to use only the sperm donated by those willing to release their identity. Nevertheless, it has no application in the case before this court.
[90] The claimant argues Pratten does not require the production of records from other jurisdictions, such as in this case where the records, if there are any, are in the U.S.
[91] I do not accept the respondent’s assertion that I should determine this application on the basis that anonymous sperm donation is proscribed in British Columbia. I come to this conclusion for several reasons.
[92] The first two reasons have to do with procedural aspects of Pratten. The declaration that the Adoption Act and the Adoption Regulation unjustifiably contravened s. 15 of the Charter was stayed for 15 months from the date of judgment of May 19, 2011. Furthermore, Pratten is on appeal to the British Columbia Court of Appeal. It was heard February 14 and 15, 2012. Judgment was reserved. Accordingly, Pratten itself has not been fully resolved.
[93] Moreover, a determination by this court regarding the legality of anonymous sperm donation in B.C. is outside the scope of this application. Substantively, Pratten dealt with the larger social issue of whether donor offspring should be entitled to information regarding their origins in the same manner as adopted children are. This case before me requires a determination of the disposition of gametes bought by the parties in order to conceive children. There is no basis for me to make sweeping declarations regarding the legality of anonymous sperm donation in British Columbia.
[94] In any event, the sperm here has already been donated anonymously. The parties have already purchased it. Even if Pratten were to hold what the respondent asserts it does, it is too late to apply in this case.
Issue 4: If the answer to issue 1 is yes, how should the sperm straws be divided amongst the claimant and the respondent?
[95] The parties lived in a spousal relationship. Upon the dissolution of that relationship they entered into an agreement to divide their joint assets. Clearly, they had it in mind to divide their assets fairly. However, they inadvertently failed to divide the sperm straws they had jointly purchased.
[96] As is consistent with their approach, I find that the remaining 13 gametes should be divided between the parties. Assuming it is not possible, or that it is impractical, to divide one sperm straw in half, I award seven sperm straws to the claimant, J.C.M., and six sperm straws to the respondent, A.N.A. J.C.M. will pay A.N.A. $125 for the extra one-half straw she is receiving. Should A.N.A. wish to sell her share of the gametes to J.C. M. that will be her prerogative. She may dispose of them as she wishes.
[97] Due to the nature of this case, I think it appropriate that each party bear their own costs.
“L.D. Russell J.”
The Honourable Madam Justice Loryl D. Russell

Thursday, April 26, 2012

G20 activist to launch $4-million lawsuit

An undercover provincial police officer drove drunk, gave alcohol to minors, staged a fake illegal cigarette buy and encouraged protesters to damage property during an investigation before the 2010 G20 summit in Toronto, an Ontario activist alleges in a lawsuit.
These accusations – which have not been tested in court – are contained in a Notice of Claim for a $4-million suit by Julian Ichim against the officer, Constable Bindo Showan, the Ontario Provincial Police, the Toronto Police Services Board and the provincial Attorney-General.
On Wednesday, Mr. Ichim served the Attorney-General's office with the Notice of Claim; the Statement of Claim will be filed at Superior Court within 60 days, his legal team said.
Constable Showan posed as an activist in Kitchener-Waterloo and Guelph for about a year and a half before the G20. He befriended protest organizers and attended meetings to plan demonstrations against the summit and the Vancouver Olympics.
A spokesman for the OPP said the force would not comment on a case before the courts.
Ministry is in receipt of a notice of claim in this matter, said Attorney-General’s spokesman Brendan Crawley in an e-mail. “If an action is commenced we will defend the action.”
Mr. Ichim, who helped organize an anti-G20 protest, was arrested on June 26, 2010 and charged with conspiracy to commit mischief. His charges were withdrawn a few months later. Mr. Ichim says his arrest was illegal and was meant solely to stop him from taking part in activism.
Mr. Ichim alleges Constable Showan, who went by the alias “Khalid Mohammed” while undercover, went beyond what was necessary in his investigation in the extent to which he became involved in the activist’s life.
He says Constable Showan went to great lengths – including breaking the law – to curry favour with the people he was spying on.
“Showan provided alcohol to persons who were not of age,” Mr. Ichim’s Notice of Claim says. “Showan drove his van while intoxicated and while under the influence of alcohol and thereby endangered [Mr. Ichim] and the public.”
During protests against the Hanlon Creek Business Park, a development in Guelph, Mr. Ichim alleges Constable Showan encouraged “violence and criminal activity,” including sabotaging construction equipment.
The claim also that in Sept. 2009 Constable Showan, with the help of other officers, pretended to illegally buy nine cartons of cigarettes in Brantford, Ont., and drive them to nearby Milton to impress Mr. Ichim.
Mr. Ichim says Constable Showan also took notes on his sex life, which were presented to other defendants to embarrass him.
He also alleges the OPP used one activist, someone Mr. Ichim had known for years, as a confidential informant.
Mr. Ichim took part in protests during the week before the G20. On the Saturday morning, before the protests, he was arrested by plainclothes police at a Tim Hortons near Allan Gardens in downtown Toronto. During the arrest, Mr. Ichim alleges, officers punched and kicked him and did not inform him of his rights to remain silent and speak with a lawyer. Then, at the temporary detention centre, he says he was not allowed to speak to a lawyer and had no access to food or medical attention.
The investigation by Constable Showan and fellow OPP officer Brenda Carey ultimately led to conspiracy charges against 21 people. Fifteen of them had their charges withdrawn. Six others pleaded guilty last fall to reduced charges of counselling to commit mischief.
Five of them were given prison sentences ranging from three months to over a year. Alex Hundert is still awaiting sentencing.
Last year, Mr. Ichim was charged with disobeying a court order for detailing his experiences with Constable Showan on his blog. At the time, the officer’s name was under a court-ordered publication ban. Mr. Ichim did not refer to him by name, but by his alias, Khalid Mohammed.

Wednesday, April 25, 2012

A decision was issued today by the Honourable Anne L. Mactavish of the Federal Court CANADA in files T-578-11, T-630-11 and T-638-11:

in files T-578-11, T-630-11 and T-638-11:






Three applications for judicial review were filed with respect to a decision of

the Canadian Human Rights Tribunal (the “Tribunal”) to dismiss a complaint by the First

Nations Child and Family Caring Society and the Assembly of First Nations. The

complaint alleged that the Government of Canada under-funds child welfare services for

on-reserve First Nations children and that this amounts to discrimination. Upon review,

the Court concluded that:

the process followed by the Tribunal was not fair as it considered a substantial

volume of extrinsic material in arriving at its decision;

the Tribunal erred in failing to provide any reasons as to why the complaint could

not proceed under subsection 5(a) of the
Canadian Human Rights Act;

the Tribunal erred in interpreting subsection 5(b) of the Act as requiring an

identifiable comparator group in every case in order to establish adverse differential

treatment in the provision of services;

in determining that no appropriate comparator group was available to assist in its

discrimination analysis, the Tribunal erred in failing to consider the significance of

the Government’s own adoption of provincial child welfare standards in its

programming manual and funding policies.

As a result, the three applications for judicial review are granted.


Andrew Baumberg

Media Contact / Liaison avec les Médias

Federal Court / Cour fédérale

Tel. / Tél. : (613) 947-3177

Monday, April 23, 2012

dandelion root research : Biochemistry students inspired by legacy of cancer patient

Every morning when they go to work in their Essex Hall biochemistry lab, PhD students Pam Ovadje and Dennis Ma get an inspirational reminder of why they’re there. Mounted on the door to that lab is a plaque dedicating the space to the memory of Kevin Couvillon, who died at the age of 26 in November 2010, after a three-year battle with acute myeloid leukemia.
On February 15, Ovadje, Ma and other graduate students from the lab of professor Siyaram Pandey met with Couvillon’s parents to give them an update on their research into how such natural products as dandelion root extract and pancratistatin – derived from a Hawaiian spider lily plant – cause certain cancer cells to effectively commit suicide.
After an emotional presentation in the Toldo Health Education building on what would have been Kevin’s 28th birthday, his father Dave discreetly handed Dr. Pandey a cheque for $20,000 to help fund the research, bringing the total the family has donated to the lab to $40,000. The gesture did not go unnoticed by the students.
“You have people who believe in your research and have faith in what you’re doing, so for us, that’s really motivational,” said Ma, who has published four journal articles in the last year that were all related to pancratistatin and all devoted to the memory of Kevin Couvillon.
Ovadje, who has also published four papers on dandelion root extract and devoted them to Couvillon, said meeting people who have been so deeply affected by cancer is a source of inspiration.
“Now I put a face to my project,” she said. “I’m not just looking at cancer cells. I’m thinking about the people who have been diagnosed with cancer. It gives us the extra push that we need. It just makes us want to work that much harder.”
Pandey and his students study apoptosis, the process of cell death, and how certain natural product formulations can cause some cancer cells to die without harming the healthy cells around them. The dandelion root formula they work with, which is about five times more concentrated than the extract that can be purchased over the counter, has proven to kill leukemia, melanoma and pancreatic cancer cells in lab mice.
Caroline Hamm, an oncologist at the Windsor Regional Cancer Centre, is applying to Health Canada to proceed with human clinical trials. Pandey said the process can be expedited because they’re working with a natural product and that if all goes well, they could be testing the substance on a group of 24 patients within six months to a year.
That was music to the ears of the Couvillons.
“It’s just so important to try to find something non-toxic,” said Dave Couvillon. “We know that if Kevin had something non-toxic, he would have made it. His immune system had become compromised by the chemotherapy, and he got an infection that eventually took him. He could fight the cancer but he couldn’t fight the cure.”

Thursday, April 19, 2012

The Federal Court has handed First Nations groups and child-welfare advocates a victory.

The Federal Court has handed First Nations groups and child-welfare advocates a victory.
In a much-anticipated ruling Wednesday morning, the court has rejected the federal government's attempts to prevent First Nations groups from arguing for better funding for child welfare on reserves.
The ruling means First Nations and the federal government will have a full-blown hearing about whether Ottawa is treating native children unfairly.
"It's a real victory for all the children who have waited so long for this," said Cindy Blackstock, who heads the First Nations Child and Family Caring Society of Canada and spearheaded the legal challenge.
First Nations groups say Ottawa is discriminating against native kids because the support the feds provide for child welfare on reserves is much lower than what kids off reserves get from provincial governments – even though the need is greater.
Blackstock figures the federal government should be spending about $200 million a year more, in order to just match the level of service the provinces deliver to non-aboriginal children.
But the federal government has tried to block the case on technicalities, saying it was not fair to compare federal services to provincial services.
The Canadian Human Rights Tribunal initially sided with the apples-and-oranges argument from the government, and rejected the case without hearing substantive arguments. But today, the Federal Court disagreed, and has ordered the tribunal to hold a new hearing, under a completely new panel of decision-makers.
"It's a real slap to the tribunal. They have to go back to the drawing board," said Carolyn Bennett, the Liberals' aboriginal affairs critic.

Ruling opens door to challenges

Officials in Aboriginal Affairs Minister John Duncan's office did not immediately respond to requests for comment.
The ruling opens the door to similar challenges on federal funding to First Nations for education, policing and health, according to the Canadian Human Rights Commission.
The ruling from the judge, Anne Mactavish, said that in day-to-day practice, the federal government frequently compares its own child welfare services to services delivered by provinces. "The tribunal erred in failing to consider the significance of the government's own adoption of provincial child welfare standards in its programming manual and funding policies," she writes.
The prevalence of First Nations children in child-welfare system across Canada is far higher than for non-aboriginal children. There are far more native children in care now than at the height of the residential school system.
A recent study of maltreatment of First Nations children found that children on reserves are far more likely to be living in a problematic situation than non-aboriginal children. The national study found that First Nations children are eight times more likely to be subjected to neglect, and 4.7 times more likely to be exposed to violence.
For years, the First Nations Child and Family Caring Society of Canada as well as the Assembly of First Nations have argued that the federal government would be better off funding prevention services and supports for families, rather than paying for foster care.
"The difficulties facing many of the families involved in these First Nations child welfare investigations may require programs offering longer-term, comprehensive services designed to help them address the multiple factors – such as poverty, substance abuse, domestic violence and social isolation – which pose chronic challenges to their abilities to ensure the well being of First Nations children," the report concludes.
The federal government has recently started moving in that direction, but slowly.

Tuesday, April 17, 2012

Charter of Rights and Freedoms marks 30th anniversary on April 17 2012.

The Conservative government has been notably silent on the 30th anniversary of the Canadian Charter of Rights and Freedoms, and Stephen Harper says there's a reason for that.
The prime minister was asked during a trip to Chile what he thinks of the charter and why his government isn't marking it in some way. Liberals in particular have criticized the silence on the charter — it was entrenched in the Constitution under former Liberal prime minister Pierre Trudeau.
Harper offered a qualified response on the significance of the charter in Canadian history.
"In terms of the anniversary, the charter was an important step forward in the development of Canadian rights policy, a process that began in earnest with (Conservative prime minister) John Diefenbaker's Bill of Rights in 1960, so it's a little over 50 years old," Harper said.
Diefenbaker's Bill of Rights was not entrenched in the Constitution and did not carry the same weight in the courts as the charter eventually did.

Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the charter was a part. Two other attempts to bring Quebec into the constitutional fold — the Meech Lake and Charlottetown Accords — failed.
"In terms of this as an anniversary, I think it's an interesting and important step, but I would point out that the charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country," Harper said.
Harper had also been asked to comment on perceived problems with the application of the charter in the courts, but he said he didn't want to wade into that issue.

Conservatives have criticized the charter

But many Conservatives have criticized the charter, saying some have taken advantage of the document to drag out court cases. There's also a view that it has allowed judges to make laws rather than parliamentarians.
Former Conservative MP Randy White caused Harper grief during the 2004 election when he complained about the charter in an interview with an independent filmmaker.
"If the Charter of Rights and Freedoms is going to be used as the crutch to carry forward all of the issues that social libertarians want, then there's got to be for us conservatives out there a way to put checks and balances in there," White said, suggesting the use of the notwithstanding clause.
The Liberals plan to celebrate the charter's 30th anniversary with a full slate of events on Tuesday.
Interim leader Bob Rae will take part in a panel discussion at the University of Ottawa and will participate in a youth flash mob organized by the Canadian Bar Association.
Chretien is to join his party for a rally to honour the occasion on Tuesday night in Toronto.

The Transportation Safety Board of Canada (TSB) 2011 - A11F0012 flight ACA878 from Toronto, Ontario, to Zurich, Switzerland

The Transportation Safety Board of Canada (TSB) investigated this occurrence for the purpose of advancing transportation safety. It is not the function of the Board to assign fault or determine civil or criminal liability.
Aviation Investigation Report
Pitch Excursion
Air Canada
Boeing 767–333, C–GHLQ
North Atlantic Ocean, 55°00'N 029°00'W
14 January 2011
Report Number A11F0012


The Air Canada Boeing 767–333 (registration C–GHLQ, serial number 30846) was operating as flight ACA878 from Toronto, Ontario, to Zurich, Switzerland. Approximately halfway across the Atlantic, during the hours of darkness, the aircraft experienced a 46–second pitch excursion. This resulted in an altitude deviation of minus 400 feet to plus 400 feet from the assigned altitude of 35 000 feet above sea level. Fourteen passengers and 2 flight attendants were injured. The seatbelt sign had been selected "on" approximately 40 minutes prior to the pitch excursion. The flight continued to destination whereupon 7 passengers were sent to hospital and were later released.
Ce rapport est également disponible en français.

Other factual information

History of flight

Air Canada flight 878 (ACA878) departed Toronto/Lester B. Pearson International Airport, Ontario (CYYZ), on 13 January 2011 at 2138 1 with 95 passengers, 6 flight attendants and 2 flight crew. The planned routing was north of the North Atlantic Organized Track System (OTS) on a random track 2 in order to avoid forecast turbulence associated with the jet stream. The captain had elected to use the centre line option as per the strategic lateral offset procedures 3 (SLOP) in the Air Canada Flight Operations Manual (FOM).
Controlled rest—Air Canada FOM, Section 2.9.10 —Alertness Management, describes controlled rest as an operational fatigue countermeasure that improves on–the–job performance and alertness when compared to non–countermeasure conditions. Controlled rest uses strategic napping on the flight deck to improve crew alertness during critical phases of flight. The rest periods are a maximum of 40 minutes in length (periods to be reviewed prior to resting) and must be completed 30 minutes prior to the top of descent. The In–Charge Flight Attendant must be advised that controlled rest will be taking place and instructed to call the flight deck at a specific time. Upon conclusion of the rest period, unless required due to an abnormal or emergency situation, the awakened pilot should be provided at least 15 minutes without any flight duties to become fully awake before resuming normal duties. An operational briefing shall follow.
At 0040, the first officer (FO) expressed the need for a rest. The captain agreed and the FO commenced a controlled rest. The in–charge flight attendant (IC) was not advised.
Shortly after the start of the controlled rest, the captain increased the lighting on the flight deck to review aircraft manuals in preparation for upcoming training. This type of reading was in accordance with Air Canada standard operating procedures.
At 0118, the captain turned on the seatbelt sign in anticipation of the turbulence forecast for the area. An announcement by the IC was made to remind passengers that the seatbelt sign was now on and that they were to remain seated with their seatbelts secured. 4 Up to this point, there had been no turbulence; after the event, it was light to nil.
In response to the seatbelt sign being turned on, the flight attendants made a visual inspection of the passengers for compliance; the majority were asleep. Many of the passengers in economy were lying down across the centre 3 seats. Business class featured the lay–flat seats with seatbelts equipped with air bags, and the majority of those passengers were also lying down and appeared to be asleep.
At 0155, the captain made a mandatory position report with the Shanwick Oceanic control centre. This aroused the FO. The FO had rested for 75 minutes but reported not feeling altogether well. Coincidentally, an opposite–direction United States Air Force Boeing C–17 at 34 000 feet appeared as a traffic alert and collision avoidance system (TCAS) target on the navigational display (ND). The captain apprised the FO of this traffic.
Over the next minute or so, the captain adjusted the map scale on the ND in order to view the TCAS target 5 and occasionally looked out the forward windscreen to acquire the aircraft visually. The FO initially mistook the planet Venus for an aircraft but the captain advised again that the target was at the 12 o'clock position and 1000 feet below. The captain of ACA878 and the oncoming aircraft crew flashed their landing lights. The FO continued to scan visually for the aircraft. When the FO saw the oncoming aircraft, the FO interpreted its position as being above and descending towards them. The FO reacted to the perceived imminent collision by pushing forward on the control column. The captain, who was monitoring TCAS target on the ND, observed the control column moving forward and the altimeter beginning to show a decrease in altitude. The captain immediately disconnected the autopilot and pulled back on the control column to regain altitude. It was at this time the oncoming aircraft passed beneath ACA878. The TCAS did not produce a traffic or resolution advisory.
During the pitch excursion, the aircraft pitch changed from the cruise attitude of 2 degrees nose up, to 6 degrees nose down followed by a return to 2 degrees nose up. The vertical acceleration forces (g) went to −0.5 g to +2.0 g in 5 seconds. Computed airspeed increased 7 knots then decreased 14 knots before recovering to cruise speed with the aircraft's altitude decreasing to 34 600 feet increasing to 35 400 feet and finally recovering to 35 000 feet.
No one in business class had been displaced and/or injured during the event. When the IC walked into economy, it became apparent that there were passengers and crew injured from contacting cabin fixtures and armrests and the IC began to arrange for first aid. Two medical professionals identified themselves and provided assistance to the cabin crew. Once an assessment of injuries had been made, the IC advised the captain and a satellite phone link was established with Air Canada flight operations to advise of the situation and to establish a phone link with a physician trained in assessing injuries and illnesses encountered during flight. After coordinating through Air Canada dispatch, and speaking directly to the physician, the captain directed the IC to speak directly with those injured. Based on the information received from the injured, the physician's assessment, the enroute weather and a number of other factors, the decision was made that it was acceptable to continue to destination. Medical services were readied in Zurich for the arrival of ACA878.
The total number of passengers who were not seated with their seatbelts fastened is unknown. None of the passengers in business class was injured. The 14 passengers who were seen for their injuries were all located in economy in various locations (Appendix A). One injured flight attendant was in the rear galley, the other in a lavatory. All injuries were of the soft tissue variety, and a few of the injured sustained lacerations.
A pilot dead–heading to Zurich (to serve as relief pilot for the return flight) was on the flight. After the captain was informed of the injuries, a request was made to have this pilot sit on the flight deck to monitor the flight and assist as required. The remainder of the flight was uneventful. The flight was met by medical help upon arrival at Zurich. Within 20 minutes, all injuries were assessed and passengers were either released or sent to hospital for further observation.

Flight crew

Records indicate that the flight crew were certified and qualified for the flight in accordance with existing regulations. The captain had over 30 years of experience at Air Canada and 14 800 hours total flight time including just over 400 hours pilot–in–command on type since qualifying as captain on the Boeing 767 in the spring of 2010. The FO had 24 years in aviation, the last 14 years at Air Canada, with 12 000 hours total flight time including approximately 2 000 hours on the Boeing 767 in the previous 4 years.
It was normal for both the captain and the FO to sleep at night. During the days leading up to the occurrence, the captain had not been working but had had a cold so slept longer than usual (12 hours instead of 10 hours). On the day of departure, the captain rose at approximately 0800 feeling recovered. The captain then performed a 6.5–hour commute from Florida to Toronto via aircraft. The captain obtained approximately 90 minutes of prone rest in the flight operations pilot rest facility before reporting for duty feeling well rested. This facility is a quiet room equipped with beds to permit prone rest.
Before he had children, the FO's normally slept 8 hours per night. After having children, the FO normally slept approximately 6 to 7 hours per night, between 2300 and 0600, which could often be interrupted when the children required care. Often, the FO would take a nap early in the afternoon for an hour in an attempt to make up for lost sleep. The FO followed a normal sleep pattern during the 2 non–working days prior to the occurrence. The night before the occurrence, the FO was able to obtain nearly 8 hours of rest with some child care interruptions before waking at approximately 0600. The FO took a 2–hour nap in the afternoon before reporting for duty feeling well rested.
Both crew members checked in at the required time of 1935 and the aircraft pushed back at 2109. ACA878 landed in Zurich at 0505 and was at the gate at 0509 for a total flight time of 8 hours and 4 minutes, which was 9 minutes longer than scheduled.

Evening–departure flights to european destinations: fatigue issues

Fatigue reduces performance levels and increases the desire to obtain sleep. This effect is magnified during circadian lows 6, which are encountered by people who normally sleep at night and work during the day (diurnal). For example, North American pilots flying eastward at night across the Atlantic experience circadian lows that magnify performance decrements and increase desire to sleep.
Night flights from North America to Europe have an inherent risk of fatigue for North American–based pilots. Most of these pilots fly a small number of night–time legs per month and revert to sleeping at night when not working. The circadian system of pilots who fly only a small number of night–time legs will not adapt to working at night 7, and these pilots are likely to display performance decrements during the night–time legs 8 in spite of any countermeasures.
To counter fatigue, some pilots will try to nap before a night–time leg. While this can be helpful in some cases, it cannot prevent fatigue in all pilots. Moreover, it is not always possible to obtain an adequate amount of good quality sleep during the day 9 and, coupled with a small number of night–time legs, performance decrements will persist.
In addition, these types of flights are characterized by long periods of darkness with few operational demands while mid–Atlantic, creating inherently soporific conditions 10. It is not until the flight approaches the coast of Europe at dawn that pilots experience reduced sleepiness as the daylight and circadian rhythms start to alleviate some of the fatigue. Nonetheless, the high workload requirements of approach and landing have to be borne at a time when there is a significant risk of pilot fatigue.
Pilots must develop strategies in advance to manage their fatigue effectively. Planning related to trans–Atlantic flights typically takes place during the early evening when diurnal pilots experience a circadian high. In such cases it may be difficult for pilots to assess their readiness to undertake the entire flight based on their subjective assessment of their alertness or sleepiness immediately prior to the flight and instead rely on their personal assessment of the adequacy of their pre–flight sleep regime.

Fatigue risk management

Transport Canada outlines a series of defences in its Fatigue Risk Management System (FRMS) for the Canadian aviation industry. 11 While not targeted specifically to flight operations, it provides a useful benchmark from which a review of fatigue management at Air Canada can be made. This is similar to the FRMS framework that was under development at the time of the occurrence by ICAO for flight operations. 12 The defences include
  • creating sufficient opportunity for sleep (Canadian Aviation Regulations, crew scheduling, etc.);
  • obtaining sufficient sleep (employee actions, on–going assessment);
  • monitoring for fatigue while on duty (symptom checklists, self–reporting);
  • fatigue based error mitigation (for instance caffeine, controlled rest, relief pilots, error reporting);
  • fatigue based occurrence analysis (safety management system [SMS]–based incident and accident analysis); and
  • fatigue training and awareness program.
Some of these are explored below.
In an effort to address fatigue risks, the Canadian Aviation Regulation Advisory Council formed a Flight Crew Fatigue Management Working Group in September 2010 to make recommendations regarding the flight time and duty time limitations and rest period regulations based on the science that underpins the FRMS. Fourteen meetings were held; the last was in December 2011. Transport Canada summarized the process so far:
The Co–chairs have begun the process of writing the report of the working group. The report will summarize the science, harmonization, and operational experience associated with each issue discussed. It will include recommendations from the working group, where consensus was found, and recommendations from the Co–chairs where there was no consensus of the working group. One area of consensus was the effect of circadian rhythms on the length of the flight duty period. The longest duration flight duty period available would start from between 0700 and 1200, and the shortest duration flight duty period available would start from between 2300 and 0430 am [sic] – accounting for the window of circadian low and the generally reduced performance during this period.

Crew scheduling at Air Canada

From a carrier's point of view, crew scheduling involves the need to ensure that all flights have qualified crews while minimizing labour costs and complying with a wide variety of constraints governed by safety regulations and labour contracts. For crews under bid systems such as those at Air Canada, earnings and convenience also play a role in crew scheduling.
While crew scheduling aims to address the employer's role to provide work conditions that allow employees to accrue sufficient rest, employees are obligated to make appropriate use of that rest time and report fit for duty. 13
Neither the Canadian Aviation Regulations nor Air Canada makes specific accommodations to account for the particular risks associated with operating overnight flights during a circadian low.
Air Canada, with its pilot association, has a mechanism to review crew pairings (flights) that pilots may consider to be onerous. The occurrence flight, at the time of the occurrence, had not been brought forward as a concern under this mechanism.

Monitoring for fatigue

The aim of fatigue monitoring is to identify a pilot who appears to be in a fatigued state and take appropriate actions before an error occurs. While Air Canada provides information concerning the causes and effects of fatigue, it does not provide procedures or information concerning the identification of fatigued colleagues through observation of symptoms. Currently there is no “fit to fly” checklist 14 to enable employees to self–monitor or monitor others in order to identify effectively crew members who may not be sufficiently alert to perform their duties.

Fatigue–based error mitigation

Air Canada training on fatigue management outlines several strategies for mitigating fatigue in order to reduce the likelihood of errors, such as exercise, social interaction and caffeine. Two specific strategies— controlled rest and the use of relief pilots—are described in more detail below.

Controlled rest

Controlled rest is the strategic use of short naps on the flight deck to improve crew alertness during critical phases of flight. Research has shown that this improves on–the–job performance compared with non–countermeasure conditions. 15 This approach has been adopted by 17 air carriers in Canada and several airlines around the world such as British Airways, Qantas, Air New Zealand and Emirates. The approach was adopted by Transport Canada in 1996 and is specified in CAR 700.23 and Commercial Air Services Standards (CASS) 720.23. Authorization for Air Canada to conduct controlled rest was granted by Transport Canada on 13 June 2005.
At Air Canada, the in–charge flight attendant must be advised that controlled rest will be taking place and must be instructed to call the flight deck at a specific time 16. The rest periods are a maximum of 40 minutes in length and must be completed 30 minutes prior to the commencement of descent.
Upon conclusion of the rest period, the awakened pilot should be provided at least 15 minutes without any flight duties to become fully awake before resuming normal duties, unless required to do so due to an abnormal or emergency situation. Following the 15–minute wakening period, an operational briefing must be given.
This is designed to ensure that the rest is taken in a manner that minimizes risks to the flight. This includes
  • ensuring that rest is only undertaken during portions of the flight that are anticipated to be low risk and do not require actions by the resting pilot;
  • the period of sleep is not so long that the pilot is likely to suffer from sleep inertia;
  • the cabin attendant enters the cockpit after the rest period to ensure that both pilots are not asleep; and
  • sufficient time is provided for the wakening pilot to recover from the sleep.

Relief pilot

Transport Canada recognizes a relief pilot as a pilot who is fully trained to the successful completion of a pilot proficiency check on the aircraft type and utilized solely for the purpose of providing flight relief for the captain or FO in order to extend flight deck duty times. Transport Canada issues individual type ratings for relief pilots for aircraft that require a minimum of 2 flight crew. These type ratings come with a restriction indicating that a relief pilot may relieve a member of the flight crew only while the aircraft is in cruise. The relief pilot must have a Commercial or Airline Transport Pilot Licence with a Group 1 instrument rating.
At Air Canada, relief pilots are trained to the FO standard and possess Airline Transport Pilot Licences. They are issued the aircraft type rating without the relief pilot restriction.
Relief pilots are used at Air Canada according to the terms of the collective agreement. In the case of ACA878, a relief pilot is not required where the maximum flight time is 9 hours and the duty day maximum is 11 hours. In this occurrence, the scheduled flight time for ACA878 was 7 hours 55 minutes and a duty day of 9 hours 25 minutes. For the return flight, ACA879, the scheduled flight time was 9 hours 5 minutes and a duty day of 10 hours 35 minutes. In that instance the flight time exceeded 9 hours and a relief pilot was required to work the flight. To comply with this agreement, a relief pilot dead–headed on flight ACA878 in order to work the return flight ACA879.
By using a relief pilot, flight crews may obtain a higher quality of rest by removing themselves from the flight deck and obtaining longer periods of rest time.

Reporting and analysing fatigue–based errors

At Air Canada, there are several methods through which flight crew can communicate various concerns during flight operations. For safety of flight issues, the Aviation Safety Report (ASR) is used to capture occurrences for analysis by the flight safety department under Air Canada's SMS; the ASR does not specifically identify fatigue on the form. A Flight Crew Report (FCR) is used to address administrative and contractual issues. In addition to these reporting streams, the Air Canada Pilots Association (ACPA) has a form specific to capturing fatigue–related issues.
In the calendar year 2010, the Air Canada SMS database system contained no ASRs related to fatigue; in particular, there were none for the eastbound European flights that departed in the evening. Conversely, the FCR system contained 5 reports pertaining to the fatigue issues on these types of flights and 4 of those reports questioned the rationale for not having a relief pilot on the eastbound flights.
In November 2009 Air Canada's SMS was assessed by Transport Canada. In that assessment Transport Canada had moderate findings 17 for the SMS elements of reactive and proactive reporting processes for safety oversight. Air Canada's corrective action plan was filed in September 2010. Transport Canada accepted that plan on 20 July 2011 with implementation to be completed by 31 July 2012.

Fatigue risk management training at Air Canada

Fatigue risk management training is a foundation for many of the defences against fatigue. It provides employees with knowledge of how to avoid, mitigate and report fatigue issues. CASS 720.23 – Controlled Rest on the Flight Deckrequires that every crew member who participates in the controlled rest on the flight deck program shall have received training in the program as well as training in the general principles of fatigue and fatigue countermeasures. In the Air Canada Flight Operations Manual, the training requirement associated with controlled rest is that: “prior to practising controlled rest the pilots shall be familiar with the contents of the relevant Flight Operations Manual Bulletin.” 18
All pilots at Air Canada are required to attend annual recurrent training (ART) as part of the Air Canada Continuing Qualification program. The requirements of CASS 725.124 are met by a 6–year training matrix that is reviewed by Air Canada and approved by Transport Canada on an annual basis. Requirements under CASS 725.124 do not include the requirements of CASS 720.23 and as such, Air Canada had included a separate module on controlled rest in 2005, 2006 and 2010. Controlled rest is also covered in initial training for newly hired pilots.
Both the captain and FO were on year 3 of the ART program which featured the module on fatigue risk management. The captain attended ART on 25 June 2010 and the FO on 15 September 2010. This unit was approximately 30 minutes in length and reviewed the science behind fatigue, fatigue mitigation options for flight crew while away from work and at work. The training briefly covered the stages of sleep and the effects of sleep inertia.
The approach taken to training for controlled rest was to read the controlled rest procedure to the trainees. Transport Canada's expectation concerning training for controlled rest was based on Guidance Material S740.23 which refers to the NASA Ames Fatigue Countermeasures Program. This program provides a module in alertness management in flight operations. In this module's introduction it states that the information is intended to be offered as a live presentation by a trained individual to ensure an interactive format that would promote discussion.
When new material is provided on a topic that differs only slightly from what is known but is critical, the difference must be emphasized so that it will be retained. 19 In addition, unless they are told why the procedures are taught, it is common for workers either to default to what they know or to exceed the limits set in the procedures until they encounter actual safety problems. 20
Air Canada's internal flight safety magazine, Flight Line, featured an article on sleep inertia in the fall/winter 2010 issue. Neither the captain nor FO had read the article prior to the occurrence.

Pilot knowledge of fatigue and controlled rest

The occurrence pilots and several line pilots at Air Canada were interviewed in order to assess their knowledge of fatigue mitigation measures and in particular their knowledge of controlled rest. General knowledge about how to manage their rest for flights was good but there were specific gaps including their knowledge of how disturbances to sleep, such as those caused by caring for children, waking periods during the night or snoring can affect the quality of sleep and subsequently increase the risk of fatigue. They were unsure how to assess whether symptoms of fatigue in themselves or a colleague might indicate being unfit to fly, but they did have a good understanding of methods they could use to mitigate fatigue during flight.
All of the pilots understood that they were required to call cabin crew prior to taking a controlled rest, but they tended to rely on their own assessment of the sleepiness of the non–resting pilot in order to decide whether the cabin crew needed to be told that rest was being taken. Since pilots take controlled rest at times when they are most sleepy, which is likely to be at a similar time to the other pilot due to the circadian rhythm of fatigue, there is a high risk of night–time controlled rest resulting in both pilots falling asleep. 21 One of the reasons they were reluctant to inform cabin crew was that they knew cabin crew were not entitled to controlled rest themselves. They did not realize that by not informing the cabin crew of the controlled rest they were creating the possibility of the resting pilot being disturbed.
There was considerable misunderstanding about the reason why controlled rest was limited to 40 minutes. Some pilots believed that 20–40 minutes could not provide appreciable benefits and believed that what was really required was a significant sleeping period—90 to 120 minutes. Some were unaware that by sleeping longer than 40 minutes there was a high risk of entering slow–wave sleep and increasing the severity of sleep inertia.
Their knowledge of sleep inertia was low. They were aware of the term but were not aware how significantly impaired a recently awakened pilot could be. They believed that the recuperation period after a rest was for the pilot to become apprised of the current state of the flight operations, rather than to come back to full alertness.

Sleep inertia

Sleep inertia 22 refers to the post–sleep performance decrements that occur immediately after awakening. Sleep inertia is a transient physiological state characterized by confusion, disorientation, low arousal, and deficits in various types of cognitive and motor performance. 23 Although the duration of sleep inertia is usually short, from 1 to 15 minutes 24, some deleterious effects can last 30 minutes 25 or longer. 26
Research indicates that the duration and severity of sleep inertia can be worse
  • if naps are longer 27;
  • if naps occur during the circadian core body temperature trough or circadian low 28 (normally in the middle of the night for a diurnally–oriented person);
  • when the person is sleep deprived or has been awake for an extended period 29; and the nap contains or ends with slow–wave sleep. 30
One of the detrimental effects of sleep inertia is a decrease in cognitive processing speed. 31 For example, it takes longer than normal for a person experiencing sleep inertia to filter out incongruous visual information. 32
Given that a decrease in cognitive processing speed, confusion and disorientation are characteristic performance decrements of sleep inertia and that it also results in a propensity for visual distraction and reduced ability to filter out irrelevant visual information, 33 it is important to allow adequate recovery time after a nap to offset sleep inertia's effects.
It is also important to control the amount of sleep during controlled rest. One study 34 showed that the best reaction times were demonstrated after naps of only 20 minutes compared to naps of 50 and 80 minutes. This may be a direct result of awakening from slow–wave sleep in the longer nap condition. 35

Assessing flight paths of opposite–direction aircraft at night

The assessment of relative position at night is difficult: there are few external cues by which the position and motion of objects can be assessed. Visual cues are further reduced if the cockpit lights are turned on full. In the case of assessing whether an oncoming aircraft at similar altitude will pass above or below, there is no horizon by which to assess the relative motion. When the aircraft is distant it appears as a single point of light with no motion relative to the observer. Based on tests conducted in an Air Canada B767 simulator, no distinct motion up or down the field of view of an oncoming aircraft was detectable until the aircraft was 15 seconds apart at a closure speed of 900 knots. An oncoming higher aircraft then moves up the visual field and an oncoming lower aircraft moves down the visual field. There are no known illusions where a person can perceive an oncoming object as moving contrary to the actual path.

C–GHLQ Boeing 767–333

Records indicate that the aircraft was certified, equipped, and maintained in accordance with existing regulations and approved procedures. Nothing was found to indicate that there was any system malfunction prior to or during the flight.
The aircraft was equipped with a cockpit voice recorder (CVR) that had a 2–hour recording capacity and a digital flight data recorder (DFDR) with a 25–hour recording capacity. The event was captured on the DFDR but not on the CVR. The aircraft was just over 3 hours from arrival in Zurich when the pitch excursion occurred; therefore, the event was overwritten on the CVR.
At the time of the occurrence, the aircraft's autopilot flight director system was engaged in the normal single–channel mode for cruise flight. A crew member can manipulate the controls when the autopilot is engaged: the engaged autopilot servo will cam–out and the flight crew will have direct control of the primary flight control surfaces. A push or pull force of 24 pounds is required for this action to occur on the elevator servo. A push force of 80 pounds was input by the FO during the event.
The following TSB laboratory report was completed:
LP009/2011 FDR Analysis
This report is available upon request from the Transportation Safety Board of Canada.


Sleep inertia

The FO felt fit for flight at the time of reporting for duty at 1935, which likely coincided with a circadian high. 36 However, the interrupted sleep obtained in the 24 hours immediately preceding the flight increased the likelihood the FO would feel fatigued and need rest during the overnight eastbound flight, particularly as a circadian low was reached. The FO fell completely asleep during the controlled rest period which also indicates the FO's level of fatigue.
With a view to providing a substantial rest, the captain allowed the FO to rest beyond the 40–minute maximum set as a defence against entering slow–wave sleep; the 75–minute rest that ensued increased the probability of entering slow–wave sleep. The severity and duration of sleep inertia are more likely to be worse if a person is awakened from slow–wave sleep, especially if the rest occurs at a circadian low and when the person is fatigued. Given the consistency between the conditions that worsen sleep inertia and the FO's sleep and controlled rest, and the observation that the FO felt unwell when awakened, it is likely that the FO was suffering from high levels of sleep inertia.

Action taken following identification of the oncoming aircraft

The captain followed standard procedure after the identification of the oncoming aircraft as a TCAS target on the ND. The captain sought the aircraft visually—which, at this point, appeared as a single point of light approximately straight ahead of the aircraft—and verified the target. This task was made more difficult by the cockpit lights being on full, causing reflections in the cockpit glass and hindering the view outside the aircraft. At about this time the FO awoke. To avoid the FO being startled, the captain twice pointed out the relative position of the oncoming aircraft to the FO. This occurred approximately 1 minute after the FO had woken and was most likely suffering from the strong effects of sleep inertia. The FO was not in a state to effectively assimilate the information from both the instruments and from outside the aircraft or effectively provide an appropriate response. Despite having been trained to interpret TCAS targets and react to them, the FO was drawn to rely on immediate perceptual information. Under the effects of sleep inertia, the FO was likely confused and disoriented and perceived the aircraft on an imminent collision course. Consequently, the FO pushed forward on the control column to avoid the collision. The FO quickly realized the error because the traffic appeared to be moving down in the visual field, which did not make sense.By that time, the captain had reversed the control movement to return the aircraft to the previous altitude.
By identifying the oncoming aircraft, the captain engaged the FO before the effects of sleep inertia had worn off. As a consequence, the FO did not form an effective response to the situation.

Training for controlled rest procedures at Air Canada

Several deviations from Air Canada controlled rest SOP occurred. They included:
  • not advising the cabin crew of the intention to rest;
  • not agreeing in advance on an end time of 40 minutes;
  • not stopping the rest at 40 minutes; and
  • not providing recovery time after the rest.
Each of these actions was consistent with common misunderstandings among Air Canada pilots.
The procedure for controlled rest provides a means to manage rest and avoid unsafe consequences. For instance, if sleep goes beyond 40 minutes, there is an increased risk of slow–wave sleep, which will likely be followed by longer and more severe sleep inertia. Sleep inertia will happen after any nap. It is particularly important, however, that naps taken during the night on a flight from North America to Europe conform to the procedure because these are likely to occur when other factors, such as the circadian low, are likely to exacerbate any sleep inertia.
The training provided by Air Canada on controlled rest was limited to repeating the procedure in the FOM to the trainees, and did not explain or emphasize why the boundaries of the procedure are critical to safety. The safety publication did describe some of these issues but this form of training does not reliably lead to the level of training required.
Although training was provided on controlled rest and the topic was covered in a recent Air Canada flight safety magazine, this was insufficient to ensure that pilots fully understood and carried out the controlled rest procedures.

Air Canada analysis of fatigue reports

At Air Canada there are several methods in which flight crew can identify fatigue–related issues during flight operations: Aviation Safety Reports, Flight Crew Reports (FCR) and specific fatigue reporting forms distributed by ACPA. Such a wide range of options allows a situation where safety issues related to fatigue may be reported in one system but not analyzed because it does not appear in Air Canada's SMS. The TC–recognized SMS reporting system at Air Canada may not be effective as several reporting systems are being used to report fatigue–related safety issues.

Passenger safety

Passengers had been briefed to always wear their seatbelts when seated. Although the seatbelt sign was on and an announcement was made regarding potential turbulence, several passengers were injured during the event because they were not wearing their seatbelt. Some passengers may not be aware of the inherent risks in not wearing a seatbelt at all times when seated.

Use of relief pilot

Night flights from North America to Europe have an inherent risk of fatigue for North American–based pilots. Research to date has not identified a level of alertness required in order to ensure the safety of operations at the end of such a flight, particularly during the heavy workload period of approach and landing. While controlled rest mitigates fatigue to some extent, studies have not been able to show whether it is sufficient in order to fully mitigate fatigue during this type of flight. More effective rest can be obtained with the use of a relief pilot on eastbound flights.

Findings as to causes and contributing factors

  1. The interrupted sleep obtained by the first officer prior to the flight increased the likelihood that rest would be needed during the overnight eastbound flight.
  2. The first officer slept for approximately 75 minutes which likely placed the first officer into slow–wave sleep and induced longer and more severe sleep inertia.
  3. The first officer was experiencing a circadian low due to the time of day and fatigue due to interrupted sleep which increased the propensity for sleep and subsequently worsened the sleep inertia.
  4. By identifying the oncoming aircraft, the captain engaged the first officer (FO) before the effects of sleep inertia had worn off.
  5. Under the effects of sleep inertia, the first officer perceived the oncoming aircraft to be on a collision course and pushed forward on the control column.
  6. The frequency of training and depth of the training material on fatigue risk management to which the flight crew were exposed were such that the risks associated with fatigue were not adequately understood and procedures for conducting controlled rest were not followed by the flight crew.
  7. Although the seatbelt sign was on and an announcement about potential turbulence was made, several passengers were injured during the event because they were not wearing their seatbelt.

Findings as to risk

  1. North American–based pilots flying eastbound at night towards Europe are at increased risk of fatigue–related performance decrements.
  2. The use of multiple safety occurrence reporting systems may result in some safety issues not being properly identified and analyzed.
  3. Some passengers may not be aware of the inherent risks in not wearing a seatbelt at all times when seated.

Other finding

  1. As the aircraft cockpit voice recorder (CVR) was only capable of recording for 2 hours, the event was overwritten.

Safety action taken

Air Canada

On 2 March 2011, Air Canada issued FOM Bulletin 13–11 emphasizing that flight crew must adhere to all components of the SOP in order for the controlled rest to be implemented safely. The bulletin emphasized the requirement to notify the applicable flight attendant and to arrange for a call from the flight attendant no later than 45 minutes from the time of briefing.
On 2 March 2011, Air Canada issued FOM Bulletin 14–11 which emphasized the benefits of using strategic lateral offset procedures (SLOP) and to offset by 1 or 2 nm at all times including random tracks unless the course places the aircraft on a less desirable track.
On 23 March 2011, Air Canada Flight Operations issued bulletin 28–11 identifying a Pairing Evaluation and Assessment Committee (PEAC) data collection exercise on the Toronto–Zurich route in an effort to understand the alertness levels of crews on these flights. This committee has both company and association representation.
Air Canada Cabin Safety issued a bulletin to all in–flight service personnel that cabin crew are an important part of the SOP for controlled rest on the flight deck and emphasized the flight deck briefing that is required and the call to the flight deck when 45 minutes have elapsed.

Air Canada Pilots Association (ACPA) – Technical and safety division

On 1 March 2011, ACPA issued newsletter No. 3, a Crew Flash Alert from the Technical and Safety Division, regarding the collection of data on flights that occur in the window of circadian low. This 60–day collection of data commenced with the Toronto–Zurich–Toronto operation but may expand to other similar routes. Pilots were asked to fill out the ACPA fatigue form prior to top of descent to capture the subjective rating of their alertness/fatigue. This survey is in addition to the data collection efforts of the Flight Standards and Quality department.
This report concludes the Transportation Safety Board's investigation into this occurrence. Consequently, the Board authorized the release of this report on 29 February 2012.

Appendix A – Seating Diagram and Location of the Injured

Appendix A - Seating Diagram and Location of the Injured

  1. All times Eastern Standard Time (Coordinated Universal Time minus 5 hours).
  2. Transport Canada, Aeronautical Information Manual, section RAC 11.6.1 advises that non–OTS tracks be great circle tracks joining successive significant points. For flights south of 70°N, such as for flight ACA878, the significant points are defined by the intersection of half or a whole degree of latitude at each 10 degrees of longitude. The distance between significant points shall not exceed 1 hour of flight time.
  3. SLOP is recommended to reduce the exposure to turbulence from aircraft on the same track and to increase safety margins should another aircraft deviate from its assigned altitude. There are 3 options: centre line, 1 nautical mile (nm) right and 2 nm right. An ATC clearance is not required to SLOP when flying in the Gander or Shanwick Oceanic sectors.
  4. This was in addition to the initial safety briefing where passengers are advised to keep their seatbelts fastened whenever seated.
  5. TCAS targets show at the 30 nm range. With the ND set at 320 nm, as it was in this case, the TCAS target would appear on top of the aircraft symbol at the bottom of the ND. It is Air Canada standard operating procedures (SOP) to reduce the range to ensure a clear depiction of the TCAS target relevant to the aircraft.
  6. Circadian lows are periods of high fatigue and poor performance. The highest levels of fatigue and worst performance occur when circadian rhythms dictate sleep. For a diurnal person this is during the night. See for examples: Härmä, M., Sallinen, M., Ranta, R., Mutanen, P., & Müller, K. (2002). The effect of an irregular shift system on sleepiness at work in train drivers and railway traffic controllers. Journal of Sleep Research, 11, 141 – 151; Ingre, M., Kecklund, G., Åkerstedt, T., & Kecklund, L. (2004). Variation in sleepiness during early morning shifts: A mixed model approach to an experimental field study of train drivers. Chronobiology International, 21(6), 973–990; Gupta, S. & Pati, A. (1994). Desynchronization of circadian rhythms in a group of shift working nurses: Effects of pattern of shift rotation. Journal of Human Ergology, 23(2), 121–131; Tilley, A., Wilkinson, R., Warren, P., Watson, B., & Drud, M. (1982). The sleep and performance of shift workers, Human Factors, 24(6), 629–641.
  7. In general, researchers have found that the adjustment of the human circadian system resulting from changes to sleep–wake pattern occurs at a rate of 1 to 1.5 hours per day. Adjusting from being awake during the day to being awake at night, a 12 hour difference, could take between 12 and 18 days for complete adjustment to take place and optimum performance to return. Flying one night shift will not result in adequate circadian adjustment and pilot performance will continue to be affected by circadian lows during night flying (Klein, K. & Wegmann, H. (1980). Significance of circadian rhythms in aerospace operations, (NATO AGARDograph, 247). Neuilly sur Seine, France: NATO AGARD).
  8. See for examples: Gupta, S. & Pati, A. (1994). Desynchronization of circadian rhythms in a group of shift working nurses: Effects of pattern of shift rotation. Journal of Human Ergology, 23(2), 121–131; Tilley, A., Wilkinson, R., Warren, P., Wastson, B., & Drud, M. (1982), The sleep and performance of shiftworkers, Human Factors, 24, 629–641; Tepas, D., Walsh, J., & Armstrong, D. (1981). In L. C. Johnson, D. I. Tepas, W. P. Colquhoun, & M. J. Colligan (Eds.), Biological rhythms, sleep and shift work (pp. 347–356). New York: Spectrum Publishing; Duffy, J., Dijk, D., Klerman, E., Czeisler, C. (1998). Later endogenous circadian temperature nadir relative to an earlier wake time in older people. American Journal of Physiology, 275, R1478–R1487.
  9. See for examples: Lavie, P. (1986). Ultrashort sleep–waking schedule III. 'Gates' and 'forbidden zones' for sleep. Electroencephalography and Clinical Neurophysiology, 63(5), 414–425; Cabon, P., Bourgeois–Bougrine, S., Mollard, R., Coblentz, A., & Speyer, J. (2000). Fatigue of short–haul flight aircrews in civil aviation: Effects of work schedules. In S. Hornberger, P. Knauth, G. Costa, & S. Folkard (Eds.), Shiftwork in the 21st century: Challenges for research and practice (pp.79–85). Frankfurt: Peter Lang.
  10. Conditions that cause or tend to cause sleep, such as low lighting, few task requirements and/or little to observe outside the aircraft.
  11. TP 14575E, Developing and Implementing a Fatigue Risk Management System, April 2007.
  12. In June 2011, ICAO released DOC 9966 FRMS for Regulators. In July 2011, IATA, ICAO and IFALPA jointly announce the FRMS Implementation Guide for Operators.
  13. CAR 602.02 and Air Canada Flight Operations Manual 2.9.4.
  14. Checklist challenges user to consider pre–duty workload, pre–duty sleep, actual fitness and actual flight duty period. See for example: Valk, P.J.L. and Simmons, M. (1997) Pros and Cons of Strategic Napping in Long Haul Flights, AGARD–CP–599 Aeromedical Support Issues in Contingency Operations, The AMP Symposium, held in Rotterdam, The Netherlands, 29 September – 1 October 1997.
  15. For example: Rosekind, M.R. et al (1994) Crew Factors in Flight Operations IZ: Effects of Planned Cockpit Rest on Crew Performance and Alertness in Long–Haul Operations, NASA Technical Memorandum 108839; Speyer, J.J. et al (2004) Getting to Grips with Fatigue and Alertness Management, Airbus STL 945.2796/04; Simons M, and Valk PJL, (1997) Effects of controlled rest on the flight deck on crew performance and alertness. Netherlands Aerospace Medical Centre Report No. NLRGC 1997–B3.
  16. Controlled Rest – Air Canada FOM, Section 2.9.10 – Alertness Management.
  17. A finding is considered moderate where a surveillance activity has identified that a SMS component and/or element has not been fully maintained and non–conformance findings indicate that the component is not fully effective, but where no immediate safety issues were detected.
  18. Air Canada Flight Operations Manual, 01 Jun 2010, Health and Medical Considerations, Practicing Controlled Rest, p19.
  19. Negative transfer is the detrimental effect of prior experience on the learning of a new task.
  20. Rasmussen J, Pejtersen AM and Goodstein LP (1994) Cognitive systems engineering. Wiley, New York.
  21. Valk, P.J.L. and Simmons, M. (1997) Pros and Cons of Strategic Napping in Long Haul Flights, AGARD–CP–599 Aeromedical Support Issues in Contingency Operations, The AMP Symposium, held in Rotterdam, The Netherlands, 29 September – 1 October 1997.
  22. Lubin, A., Hord, D., Tracy, M., & Johnson, L. (1976). Effects of exercise, bedrest and napping on performance decrement during 40 hours. Psychophysiology, 13, 334–339.
  23. Ferrara, M. & De Gennaro, L. (2000). The sleep inertia phenomenon during the sleep–wake transition: Theoretical operational issues. Aviation, Space and Environmental Medicine, 71, 843–848.
  24. See for examples: Webb, W. & Agnew, H. (1974). The effects of a chronic limitation on sleep length. Psychophysiology, 11, 265–274;Wilkinson, R. & Stretton, M. (1971). Performance after awakening at different times of night. Psychonomic Science, 23, 283–285.
  25. Dinges, D., Orne, M., Whitehouse, W., & Orne, E. (1987). Temporal placement of a nap for alertness: Contributions of circadian phase and prior wakefulness. Sleep, 10, 313–329; Ferrara, M. & De Gennaro, L. (2000). The sleep inertia phenomenon during the sleep–wake transition: Theoretical operational issues. Aviation, Space and Environmental Medicine, 71, 843–848.
  26. For example: Jewitt, M., Wyatt, J., Ritz–De Cecco, A., Khalsa S., Djik D., & Czeisler, C. (1999). Time course of sleep inertia dissipation in human performance and alertness. Journal of Sleep Research, 8, 1–8).
  27. Matchock R. & Mordkoff (2007). Visual attention, reaction time, and self–reported alertness upon awakening from sleep bouts of varying lengths. Experimental Brain Research, 178, 228–239;Dinges, D., Orne, E., Evans, F., & Orne, M. (1981). Performance after naps in sleep–conducive and alerting environments. In L. Johnson, D. Tepas, W. Colquhoun, & M. Colligan, (Eds.), Biological Rhythms, Sleep and Shift Work (pp. 539–553). New York: Spectrum Publications.
  28. See for examples: Dinges, D., Orne, M., & Orne, E. (1985). Assessing performance upon abrupt awakening from naps during quasi–continuous operations. Behavior Research Methods, Instruments, and Computers, 17, 37–45; Lavie, P. & Weler, B. (1989). Timing of naps: effects on post–nap sleepiness levels. Electroencephalography and Clinical Neurophysiology, 72, 218–224;Dinges, D., Orne, M., Whitehouse, W., & Orne, E. (1987). Temporal placement of a nap for alertness: contributions of circadian phase and prior wakefulness. Sleep, 10, 313–329.
  29. See for examples: Dinges, D., Orne, M., & Orne, E. (1985). Assessing performance upon abrupt awakening from naps during quasicontinuous operations. Behavior Research Methods, Instruments, and Computers, 17, 37–45; Ferrara, M., De Gennaro, L., & Bertini, M. (2000). Voluntary oculomotor performance upon awakening after total sleep deprivation. Sleep, 23, 801–811.
  30. See for example: Feltin, M. & Broughton, R. (1968). Differential effects of arousal from slow wave sleep and REM sleep. Psychophysiology, 5, 231.
  31. See for example: Tassi, P & Muzet, A. (2000). Sleep inertia. Sleep Medicine Reviews, 4(4), 341–353.
  32. Matchock R. & Mordkoff (2007). Visual attention, reaction time, and self–reported alertness upon awakening from sleep bouts of varying lengths. Experimental Brain Research, 178, 228–239.
  33. See for examples:Matchock R. & Mordkoff (2007). Visual attention, reaction time, and self–reported alertness upon awakening from sleep bouts of varying lengths. Experimental Brain Research, 178, 228–239; Tassi, P & Muzet, A. (2000). Sleep inertia. Sleep Medicine Reviews, 4(4), 341–353.
  34. Evans, F. & Orne, M. (1976). Recovery from fatigue. Annual Summary Report No. 60. Fort Derrick, MD: US Army Medical Research and Development Command.
  35. Stampi, C., Mullington, J., Rivers, M.,Campos, J., & Broughton, R. (1990). Ultrashort sleep schedules: Sleep architecture and the recuperative value of multiple 80– 50– and 20 –min naps. In J. Horne (Ed.) Sleep '90 (71–74). Bochum, U.K.: Pontenagel Press.
  36. A circadian high is a period of normal or optimal alertness and performance. Circadian highs occur during the daytime hours for the diurnal person.