Citation:
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Carter v. Canada (Attorney General),
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|
2013 BCCA 435
|
Date: 20131010
Docket
Numbers: CA040079, CA040454
Docket: CA040079
Between:
Lee Carter, Hollis
Johnson, Dr. William Shoichet, The British Columbia Civil Liberties
Association and Gloria Taylor
Respondents
(Appellants on cross appeal)
(Appellants on cross appeal)
(Plaintiffs)
And
Attorney General
of Canada
Appellant
(Respondent on cross appeal)
(Respondent on cross appeal)
(Defendant)
And
Alliance
Of People With Disabilities Who Are Supportive Of Legal Assisted Dying Society,
Canadian Unitarian Council, Farewell Foundation For The Right To Die, Christian
Legal Fellowship, Evangelical Fellowship Of Canada, Euthanasia Prevention
Coalition and Euthanasia Prevention Coalition – British Columbia, and Council
Of Canadians With Disabilities and
Canadian Association For Community Living
Canadian Association For Community Living
Intervenors
-
and -
Docket:
CA040454
Between:
Lee
Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil
Liberties Association and Gloria Taylor
Respondents
(Plaintiffs)
(Plaintiffs)
And
Attorney
General of Canada
Respondent
(Defendant)
(Defendant)
And
Attorney
General of British Columbia
Appellant
(Defendant)
(Defendant)
Before:
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The Honourable Chief Justice Finch
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The Honourable Madam Justice Newbury
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The Honourable Madam Justice Saunders
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On
Appeal from the Supreme Court of British Columbia, June 15, 2012
(Carter v. Canada (Attorney General), 2012 BCSC 886,
(Carter v. Canada (Attorney General), 2012 BCSC 886,
and
November 1, 2012, 2012 BCSC 1587 (on costs)
Vancouver Docket Number S112688)
Vancouver Docket Number S112688)
Counsel for the Appellant,
Attorney General of Canada: |
D.G. Nygard, B.J.
Wray, M.A. Nicolls
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Counsel for the Appellant,
Attorney General of British Columbia: |
G.H. Copley, Q.C.
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Counsel for the Respondents, L. Carter, H. Johnson, Dr. W.
Shoichet, British Columbia Civil Liberties Assoc., and G. Taylor:
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J. J. Arvay, Q.C.,
A.M. Latimer,
S.M. Tucker |
Counsel for the Intervenor, Farewell Foundation for the
Right to Die:
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J.B. Gratl
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Counsel for the Intervenor, Alliance Of People With
Disabilities Who Are Supportive of Legal Assisted Dying Society:
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A.M. Gunn Jr., Q.C.
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Counsel for the Intervenor, Canadian Unitarian Council:
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T.A. Dickson, R.J.M.
Androsoff
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Counsel for the Intervenor, Christian Legal Fellowship:
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G.D. Chipeur, Q.C.,
B.W. Miller
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Counsel for the Intervenor, Evangelical Fellowship of
Canada:
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G. Trotter
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Counsel for the Intervenor, Euthanasia Prevention
Coalition and Euthanasia Prevention Coalition - British Columbia:
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H. Scher
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Counsel for the Intervenor, Council Of Canadians With
Disabilities and Canadian Association For Community Living:
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D. Baker
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Place and Date of Hearing:
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Vancouver, British
Columbia
March 18, 19, 20, 21
& 22, 2013
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Place and Date of Judgment:
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Vancouver, British
Columbia
October
10, 2013
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Dissenting Reasons by:
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The Honourable Chief Justice Finch
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Written Reasons by:
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The Honourable Madam Justice Newbury (P. 67, para. 236)
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Concurred in by:
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The Honourable Madam Justice Saunders
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Summary:
The Facts and Reasons of the
Trial Judge:
The plaintiffs Ms. Carter
and Ms. Taylor, both of whom suffered from intractable and progressive
diseases and are now deceased, joined with others in bringing this civil claim
challenging the constitutionality of the Criminal Code provisions against
assisted suicide and euthanasia, specifically ss. 14, 21(1)(b), 21(2), 22,
222(1)-222(5), and 241 of the Criminal Code. The main focus of their case,
however, was s. 241(b), which prohibits assisting another person to commit
suicide.
The plaintiffs succeeded in
the court below notwithstanding the previous decision of the Supreme Court of
Canada in R. v. Rodriguez (1993), in which s. 241 was found not to
infringe certain rights under the Canadian Charter of Rights and Freedoms.
The trial judge carried out
a lengthy review of the history of the impugned provisions, expert opinion
evidence on medical ethics and medical end-of-life practices, evidence from
other jurisdictions, and the feasibility of safeguards for physician-assisted
suicide. She concluded that safeguards could be put into place to protect
against the risks associated with physician-assisted dying; that the evidence
did not support an increased risk for elderly individuals; and that the risks
inherent in permitting physician-assisted death could be “very substantially
minimized through a carefully-designed system imposing stringent limits that
are scrupulously monitored and enforced.” The trial judge recognized that the
existence of “a different set of legislative and social facts” might not on its
own warrant a fresh enquiry under s. 1 of the Charter, but found that a change
in the applicable legal principles had also occurred since Rodriguez was
decided, such that she was no longer bound by it.
In particular, the trial
judge was of the view that Rodriguez had not considered the right to “life” in
s. 7, nor the principles of overbreadth or gross disproportionality, which in
her view were not fully formed principles of fundamental justice when Rodriguez
was decided. As well, she found that s. 15 was open to her to consider,
since the majority of the Court in Rodriquez had only assumed a violation of s.
15 and had proceeded to the question of justification under s. 1 of the
Charter.
With respect to s. 15, the
trial judge concluded that the impugned provisions created a distinction on the
basis of the analogous ground of physical disability by denying disabled
individuals access to physician assistance which was necessary for them to
commit suicide, while able-bodied individuals had no legal impediment to
committing suicide. She found that the effect of this distinction was to create
a disadvantage by perpetuating prejudice and stereotyping. The trial judge
concluded that the violation of s. 15 could not be saved by s. 1 because
it failed the minimal impairment test and at the proportionality stage of the
analysis.
With respect to s. 7, the
trial judge concluded that the right to life was engaged because the
prohibition had the effect of causing some people to end their lives sooner
than they would if physician-assisted dying was available to them. As well, she
concluded that these deprivations were not in accordance with principles of
fundamental justice in that the effects of s. 241 were overbroad and grossly
disproportionate to the interests of the state sought to be achieved by s. 241.
In the result, the trial
judge granted two declaratory orders, one under s. 15 and one under s. 7. Each
declaration was to the effect that the impugned provisions of the Criminal Code
infringed the Charter and are of no force and effect to the extent that they
prohibit physician-assisted suicide “by a medical practitioner in the context
of a physician-patient relationship, where the assistance is provided to a
fully informed, non-ambivalent competent adult patient” who is free from
coercion and undue influence, not clinically depressed, and suffers from a
“serious illness, disease or disability (including disability arriving from
traumatic injury), is in a state of advanced weakening capacities with no
chance of improvement, has an illness that is without remedy as determined by
reference to treatment options acceptable to the person, and has an illness
causing enduring physical or psychological suffering that is intolerable to
that person and cannot be alleviated by any medical treatment acceptable to
that person.” The declarations were suspended for one year, but the plaintiff
Ms. Taylor was granted a constitutional exemption to enable her to obtain
physician-assisted death during the one-year period. Ms. Taylor died prior to
the hearing of this appeal. The Attorney General of Canada (“AGC”) appealed and
various groups – some supporting the trial judgment and some opposing it –
joined as intervenors.
Held: appeal allowed, Chief
Justice Finch dissenting.
The majority (per Newbury
and Saunders JJ.A.) found the trial judge was bound by stare decisis (or
“binding precedent”) to apply Rodriguez. The test for the application of stare
decisis begins with the question of what the earlier case decided. Dealing
first with s. 7 of the Charter, the majority found that “life” as it appears in
s. 7 had been considered in Rodriguez as a counterweight to liberty and security
of the person. Since Rodriguez, courts have continued to regard the making of
personal decisions regarding one’s body as falling under the “security of the
person” or “liberty” rubric in s. 7, while “life” has been interpreted in its
existential sense, not its qualitative sense. Although Chief Justice Finch
suggested in his reasons that “life” includes the ability to enjoy various
experiences and to make various decisions, the majority stated that those who
have only limited ability to enjoy such blessings are no less “alive” and have
no less a right to “life”, than able-bodied and fully competent persons. Charter
protection cannot be extended to such experiences.
In any event, Rodriguez
found that the prohibition on assisted-dying accorded with the principles of
fundamental justice.
The majority reviewed the
principles of fundamental justice as interpreted by the Supreme Court of Canada
over the years. Although particular “tests” have varied, the essential exercise
has been to evaluate broadly the rationality and normative balance struck by
the law in question. The case law relating to arbitrariness, overbreadth and
disproportionality illustrated that these were fluid concepts and that
disproportionality was not a “new” principle of fundamental justice established
by the Supreme Court of Canada in 2003 (in Malmo-Levine), as suggested by the
trial judge. The use of different “lenses” employed under s. 7 from time to
time does not mean that new principles have been established, making all
previous decisions under s. 7 no longer binding.
With respect to s. 1, the
Court in Rodriguez had found that s. 241 had a clearly pressing and substantial
legislative objective grounded in respect for and the desire to protect human
life and that it was rationally connected to its purpose. The Court also found
that s. 241 was not overbroad, in the context of the Oakes test, and that it
struck an appropriate balance between the restriction and the government
objective. The trial judge was bound by these findings despite her opinion that
the Court had addressed them “only very summarily” in Rodriguez. The focus for
purposes of stare decisis should be on what was decided, not how it was decided
or how the result was described. In the majority’s opinion, the same analysis
as was carried out under s. 1 could have been made under the rubrics of
overbreadth and disproportionality under s. 7.
Returning to the question of
what Rodriguez had decided, the majority was of the view that it decided s.
241(b) of the Code did not violate s. 7 as it is now understood and that any
assumed violation of s. 15 was justified under s. 1. Had it been necessary to
consider s. 1 in connection with a violation of s. 7, the majority opined that
the s. 1 analysis carried out in respect of s. 15 would have led to the same
conclusion – that the “blanket protection” of s. 241 was justified. The
majority allowed the appeal on this basis.
In the event that the SCC
does review Rodriguez, however, the majority went on to suggest that
consideration should be given to the remedy of a “constitutional exemption” in
favour of persons on whom an otherwise sound law has an extraordinary and even
cruel effect. The remedy of a constitutional exemption had been favoured by a
minority of the Supreme Court of Canada in Rodriguez in the context of a conclusion
the law infringed the Charter rights of Ms. Rodriguez, and by the dissenting
judge in this court in finding the operation of the law infringed her Charter
rights. Accepting that s. 241 is directed to the interests of the vulnerable, a
constitutional exemption for those who are clear-minded, supported in their
life expectancy by medical opinion, rational and without outside influence,
might not undermine the intention of the legislation.
The majority also suggested
that if the constitutional exemption were approved, it should not be on the
terms suggested by the trial judge. At the least, court approval of some kind
should be sought in addition to the bare requirement of two medical opinions
and a request from the patient. An application to a court could provide a
perspective and a safeguard from outside the often overstressed healthcare
regime in which patients and physicians find themselves.
On the matter of costs: The
majority was of the view that the allowing of the appeal should result in a
different disposition of costs in relation to Canada. While an award of special
costs could not be sustained, the majority recognized that the issue presented
was of broad public interest and that the question of stare decisis was “not
without uncertainty”. It ordered that the parties bear their own costs in the
Supreme Court of British Columbia.
With respect to British
Columbia’s appeal of the trial judge’s costs order, the majority found it could
not be said that the province’s limited degree of participation had been
improper or deserving of a costs order. The majority therefore set aside the
order requiring British Columbia to pay trial costs.
As for the costs of the appeal, the majority ordered that
the parties bear their own costs.
Chief Justice Finch
(dissenting), would have allowed the appeal against the s. 15 order, but
dismissed the remainder of the appeals, except for the cross appeal and the
challenge to Ms. Taylor’s constitutional exemption, both of which were moot.
Chief Justice Finch held
that the trial judge made no error with respect to her application of s. 7
and corresponding analysis under s. 1. However, with respect to her
analysis under s. 15, the trial judge was bound by the result of s. 1 in
Rodriguez, and the appeal against the s. 15 order was therefore allowed.
Turning to s. 7, Chief
Justice Finch agreed that Rodriguez considered the right to liberty and
security of the person, but did not consider the right to life, viewed either
narrowly, as advanced by the Attorney General of Canada, or broadly, as
advanced by the Respondents. Reviewing the principles of fundamental justice as
they applied to the s. 7 analysis, Chief Justice Finch held that the principles
of overbreadth and gross disproportionality were not considered in Rodriguez. It
was therefore open to the trial judge to consider these principles and she did
so correctly. She made no errors in her analysis under s. 1. The appeal against
the s. 7 order was therefore dismissed.
On procedural objections
raised by the AGC, Chief Justice Finch found no merit to the argument that
reply submissions had been inappropriately received and timelines compressed.
Reviewing the question of
costs, there was no merit in the argument that the trial judge erred in
awarding special costs or costs against the Attorney General of British
Columbia as an intervenor.
Dissenting Reasons for Judgment of the Honourable Chief
Justice Finch:
I. Introduction and
Summary
[1]
The Attorney General of Canada (“AGC”) appeals from the order of the Supreme
Court of British Columbia pronounced by Madam Justice Lynn Smith on 15 June
2012 and entered on 29 October 2012. Justice Smith declared that sections 14,
21, 22, 222 and 241 of the Criminal Code of Canada unjustifiably
infringe s. 7 and s. 15 of the Canadian Charter of Rights and
Freedoms, and are of no force and effect to the extent that they prohibit physician-assisted
dying.
[2]
Justice Smith suspended the effect
of her declaration for one year. She further granted one plaintiff, Gloria
Taylor, an immediate constitutional exemption upon certain conditions. The full
provisions of the order are appended to these reasons as Appendix “A.”
[3]
In this appeal, the AGC argues
that Smith J. erred in finding that the impugned sections of the Criminal
Code infringed the respondents’ rights under s. 7 and s. 15 of
the Charter and were not saved by the application of s. 1. The AGC also
argues that these findings are precluded by the precedential effect of Rodriguez
v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, a case decided
on a similar set of facts and legal principles. The respondents say that Smith
J. made no error in distinguishing Rodriguez and properly applied the
legal tests under ss. 7, 15 and 1 of the Charter.
[4]
As discussed below, I have
concluded that Smith J. made no error with respect to her application of
s. 7 and corresponding analysis under s. 1. However, I have concluded
that Smith J. erred in concluding that an infringement of s. 15 was not
saved by s. 1, as she was bound by the result on s. 1 in Rodriguez.
[5]
With respect to s. 7, I agree
with Smith J.’s conclusion that Rodriguez considered the right to
liberty and security of the person, but did not consider the right to life. Rodriguez
also did not consider overbreadth and gross disproportionality, two principles
of fundamental justice which were not fully formed when Rodriguez was
decided. It was therefore open to Smith J. to consider the life interest under
s. 7 and to evaluate whether the impugned provisions were overly broad or
grossly disproportionate in their purpose and effect. I can find no error in her
analysis.
[6]
The AGC also argues that Smith J.
improperly imposed expedited timelines which prevented the AGC from presenting all
its evidence, and further, improperly accepted reply submissions to which the AGC
could not adequately respond. As discussed below, I see no merit to these
submissions.
[7]
The AGC also challenges the constitutional exemption granted to Ms. Taylor
that would have allowed her to seek a physician-assisted death. As conceded by
the AGC, that issue is now moot as Ms. Taylor has passed away. I decline
to address this exemption in these reasons.
[8]
The respondents cross appeal
against Smith J.’s ruling that the s. 15 remedy does not apply to those
persons so disabled they would require assistance of a kind that would render
the act “euthanasia”. Having found Smith J. erred in distinguishing Rodriguez
in her s. 1 analysis, only the s. 7 order remains. As the s. 7 order
contemplates voluntary euthanasia, this cross appeal is moot.
[9]
Finally, the AGC and the Attorney General for British Columbia (“AGBC”)
contend the judge erred in granting the respondents an order for special costs.
The AGBC further says the judge erred in awarding costs against the AGBC as an
intervenor. I can see no error of fact, law, or principle that would enable
this Court to vary either aspect of Smith J.’s order as to costs.
[10]
I would therefore allow the appeal against the s. 15 order, but
dismiss the remainder of the appeals, except for the cross appeal and the
challenge to Ms. Taylor’s constitutional exemption, both of which are
moot.
II. Reasons of the Trial
Judge
[11]
Justice Smith provided extensive,
thorough, and carefully drafted reasons which I will not attempt to summarize.
However, I will provide an overview of her approach and her key findings so as
to better inform the balance of these reasons.
[12]
At paragraphs 36 to 43 of her
reasons, Smith J. provided a useful set of definitions. I adopt those
definitions in these reasons.
[13]
The definitions differentiate between
the concepts of “physician-assisted suicide,” and “euthanasia.” Physician-assisted
suicide involves intentionally killing oneself where a physician, or someone
under the direction of a physician, provides the knowledge, means, or both to
assist in the suicide. The patient, however, performs the act which causes
death. Euthanasia occurs where the physician performs the act which leads to
death. Euthanasia may be voluntary, non-voluntary, or involuntary.
Physician-assisted dying is a term which covers both physician-assisted suicide
and voluntary euthanasia.
[14]
Following these definitions, Smith
J. provided a review of the evidence. Justice Smith made factual findings in a
number of areas, including: the history of the impugned provisions; expert
opinion evidence on medical ethics and medical end-of-life practices; evidence
from other jurisdictions, and, the feasibility of safeguards for physician-assisted
dying. Her findings regarding medical ethics and end-of-life practices included:
1. Palliative sedation, where a patient who is near
death is sedated and may be provided with artificial hydration or nutrition is
considered ethical. Palliative sedation occurs in Canada, and is not currently
regulated (paras. 200 - 201, 357);
2. A few physicians in Canada provide assistance in
suicide or euthanasia despite the prohibition. Some Canadians travel to other
jurisdictions to receive assisted suicide (paras. 204 - 205);
3. Patients are not required to submit to medical
interventions, even where that refusal will hasten their deaths. A decision to
refuse such an intervention may either be made at the time, in advance, or by a
substitute decision-maker in the case of incompetent patients (paras. 207,
231);
4. Physicians may legally administer medications even
though they know that the doses may hasten death, so long as the intention is
to provide palliative care by easing the patient’s pain (paras. 225, 231);
5. If physician-assisted dying were legal in Canada,
some physicians in Canada would find the practice consistent with their ethical
principles (para. 319);
6. There is no ethical distinction between physician-assisted
dying and end of life practices whose outcome is highly likely to be death;
there is no ethical distinction between suicide and assisted suicide, where the
decision “is entirely rational and autonomous, it is in the patient’s best
interest, and the patient has made an informed request for assistance.” (paras.
335, 339);
7. There is no clear societal
consensus on physician-assisted dying as being ethical; however, for the
practice to be considered ethical, there is a strong consensus that it should
be restricted to competent, informed, voluntary adult patients who are
grievously ill and suffering symptoms that cannot be alleviated, and where
performed in accordance with the wishes of the patient and in the patient’s
best interests, and performed to relieve suffering (para. 358).
[15]
In considering the evidence from
other jurisdictions where physician-assisted dying is permitted, Smith J.
directed her findings of fact to three issues: the level of compliance with
safeguards, the effectiveness of safeguards at preventing abuse, and the
inferences that can be drawn as to the likely effectiveness of comparable
safeguards in Canada.
[16]
Justice Smith concluded that
safeguards can be put in place to protect against the risks associated with physician-assisted
dying. These safeguards include having properly qualified and experienced
physicians assess the competence of patients seeking physician-assisted dying; identifying
inappropriate influences on a person’s decision through a capacity assessment;
and by assessing informed consent in a manner similar to how such assessments
are made in the context of patients refusing medical treatment.
[17]
She concluded that any risks to
disabled individuals connected to prejudice and stereotyping about the reduced
value of their lives can be effectively addressed through the above safeguards.
[18]
Justice Smith summarized her
findings on the effectiveness of the safeguards as follows:
[883]
My review of the evidence in this section, and in the
preceding section on the experience in permissive jurisdictions, leads me to
conclude that the risks inherent in permitting physician-assisted death can be
identified and very substantially minimized through a carefully-designed system
imposing stringent limits that are scrupulously monitored and enforced.
[19]
Justice Smith then turned to the
legal issues in the case. First, she examined whether or not the majority
reasons of Sopinka J. in Rodriguez left any issues open for her to
decide. She considered the conclusions in Rodriguez in three areas:
s. 7, s. 15, and s. 1.
[20]
Under s. 7 she concluded that
Rodriguez had not decided whether the impugned provisions deprived
individuals of the right to life, nor had it considered overbreadth or gross
disproportionality, which were not fully formed principles of fundamental
justice at the time of the decision (paras. 921, 985).
[21]
Under s. 15, she concluded
that Sopinka J. had not decided the s. 15 issue, but had instead assumed a
s. 15 violation and proceeded to s. 1. This left the entirety of
s. 15 open to her to consider (paras. 986 – 988).
[22]
Under s. 1, she concluded
that, while the existence of significantly and materially different legislative
and social facts would not allow a fresh s. 1 inquiry, the combination of
those facts and evolutions in the test under s. 1 of the Charter
entitled her to embark on a new analysis of s. 1, or at least parts of it
(para. 998).
[23]
Justice Smith then considered the
s. 15 arguments. She concluded that the impugned provisions created a
distinction on the basis of the analogous ground of physical disability by
denying disabled individuals access to physician assistance which was necessary
for them to commit suicide, while able-bodied individuals had no legal
impediment to their access to suicide. She found that the effect of this
distinction was to create a disadvantage by perpetuating prejudice and
stereotyping (paras. 1158 – 1159, 1161).
[24]
Justice Smith concluded that the
s. 15 violation could not be saved by s. 1 of the Charter. She
concluded that the AGC had failed to show that the legislation impaired
the respondents’ Charter rights as little as possible and therefore
failed the minimal impairment test under s. 1. At the proportionality
stage of the analysis (para. 1245 and following), Smith J. found that the
severe and specific deleterious effects of the law outweigh its generalized,
and sometimes ambivalent salutary effects (paras. 1281, 1283).
[25]
Under s. 7, Smith J. concluded that the respondents’
interests in security of the person and liberty were engaged by the impugned
legislation (para. 1304). She also concluded that the right to life was engaged
because the prohibition had the effect of causing some people to end their
lives sooner than they would if physician-assisted dying was available to them
(para. 1322).
[26]
She found that these s. 7 deprivations were not in
accordance with principles of fundamental justice, specifically overbreadth and
gross disproportionality (paras. 1371, 1378). She accepted that the government
objective was to protect vulnerable individuals from being induced into
committing suicide in times of weakness. She found that a system with properly
designed and administered safeguards could, with a very high degree of
certainty, achieve this objective while permitting exceptions for competent
fully-informed persons acting voluntarily to receive physician-assisted death (para. 1367).
She also considered that the effect of the absolute legislative prohibition on the
life, liberty and security of the person interests of the respondents was very
severe and was grossly disproportionate to the state interests at issue in the
case (para.1378).
[27]
In the result, she found that the s. 7 deprivations could
not be saved under s. 1 of the Charter (para. 1383).
[28]
Having found the impugned provisions to violate s. 15 and
s. 7, and that neither violation could be saved under s. 1, Smith J.
granted two declaratory orders, one under each of s. 15 and s. 7. The
s. 7 order applied to both physician-assisted suicide and voluntary
euthanasia, while the s. 15 order only applied to physician-assisted
suicide. I have set out the difference in those terms above. The s. 7
order declared as follows:
2. The impugned
provisions unjustifiably infringe s. 7 of the Charter,
and are of no force and effect to the extent that they prohibit
physician-assisted suicide or consensual physician-assisted death by a medical
practitioner in the context of a physician-patient relationship, where the
assistance is provided to a fully-informed, non-ambivalent competent adult
person who: (a) is free from coercion and undue influence, is not
clinically depressed and who personally (not through a substituted
decision-maker) requests physician-assisted death; and (b) has been
diagnosed by a medical practitioner as having a serious illness, disease or
disability (including disability arising from traumatic injury), is in a state
of advanced weakening capacities with no chance of improvement, has an illness
that is without remedy as determined by reference to treatment options
acceptable to the person, and has an illness causing enduring physical or
psychological suffering that is intolerable to that person and cannot be
alleviated by any medical treatment acceptable to that person.
[29]
The effect of the declarations was
suspended for one year. Justice Smith granted an immediate constitutional exemption
to one of the plaintiffs, Gloria Taylor, meaning that she could seek physician-assisted
death before the one year had elapsed.
III. The Parties’
Positions
A. The Attorney
General of Canada
[30]
The AGC argues that Smith J. erred
by finding that she was not fully bound by the decision in Rodriguez with
respect to her analysis under ss. 7, 15, and 1. In Rodriguez, a
majority of the Supreme Court of Canada found, on similar facts, that s. 241(b)
of the Criminal Code did not infringe s. 7 or s. 12 of the Charter.
Though assuming an infringement under s. 15, the Court found that it
was saved under s. 1.
[31]
The AGC further argues that the respondents’
rights under ss. 7 and 15 of the Charter were not infringed; and
that, in any event, any infringement was justified under s. 1. The AGC
says that in finding that the law infringed the respondents’ rights under ss. 7
and 15 of the Charter, Smith J. asked the wrong question, or applied the
wrong test. In examining whether the impugned provisions were overly broad or
minimally impaired the respondents’ rights, Smith J. should have asked whether
there was a reasonable apprehension of harm that Parliament could only address
with an absolute prohibition on assisted death.
[32]
On the issue of minimal impairment under s. 1, the AGC’s
fundamental position on this appeal, as it was before Smith J., is that the
only issue before the Court is whether Parliament’s absolute prohibition
against physician-assisted death was within the range of reasonable legislative
alternatives. Justice Smith did not accept that proposition, but said, relying
on Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, that the
question was whether there is “an alternative, less drastic, means of achieving
the objective in a real and substantial manner” (para. 1226 quoting Hutterian
Brethren at para. 55).
[33]
The AGC says Smith J. made
procedural errors rendering the process unfair because she imposed expedited
timelines which prevented the AGC from presenting its full evidentiary case,
and improperly accepted reply submissions to which the AGC was not provided the
opportunity to adequately respond.
[34]
The AGC also takes issue with Smith J.’s having granted a
constitutional exemption to Ms. Taylor from the suspension of her
declaration of invalidity, but agrees that this issue is now moot since Ms. Taylor
passed away after the trial judgment and before this appeal was heard.
[35]
There is a cross appeal by both the AGC and the AGBC who contend that
Smith J. erred in granting the respondents an order for special costs. The AGBC
further says Smith J. erred in awarding costs against the AGBC as an
intervenor. The respondents submit that Smith J. did not err in making either
order.
B. The Intervenors Supporting the Attorney
General of Canada
[36]
The AGC’s position is supported by four intervenors: the Christian Legal
Fellowship; the Evangelical Fellowship of Canada; the Council of Canadians with
Disabilities and Canadian Association for Community Living; and the Euthanasia
Prevention Coalition and the Euthanasia Prevention Coalition – British Columbia.
[37]
The Euthanasia Prevention Coalition made three submissions. The first is
that real autonomy is diminished by legalizing assisted suicide; the second is
that an absolute prohibition against assisted suicide is not discriminatory but
rather protective; and the third is that there is no evidence adequate
safeguards can be found to support Smith J.’s conclusions.
[38]
The Christian Legal Fellowship referred the Court to Airedale N.H.S.
Trust v. Bland, [1993] A.C. 789 (H.L.) and to the consequences of the
sterilization program in Alberta and the comments of Chief Justice McLachlin on
that subject. It contended that if assisted suicide is permitted, coerced
consent will result. Further, it submitted that individuals cannot waive the
right to life, and that Courts should not give one person the permission to
kill another person.
[39]
The Evangelical Fellowship of Canada contended that the sanctity of
human life is a Charter value and merits special protection. One cannot
consent to die. They argue that compassion is misdirected when it posits
killing as an antidote to what is difficult about dying. There can be no
assisted suicide without another moral agent engaged in the killing. It would
also require the State to be complicit in the act. No one has the right to be
killed.
[40]
The Council of Canadians with Disabilities and the Canadian Association for
Community Living adopted the position of the AGC but added that one should be
skeptical about research that involves asking doctors after the fact whether
they complied with the law or whether they committed murder. Their counsel
argued that people with disabilities face stigmatization and may internalize
the view that their disabled lives are not worth living. Allowing physician-assisted
dying will risk people acting on this view rather than working to live with
their disability.
C. The Respondents
[41]
The respondents submit that Smith J.
did not err in any of the ways asserted by the appellant, and that she asked
and answered the correct questions.
[42]
They argue that Smith J. was
entitled to distinguish Rodriguez and that it was open to her to
consider aspects of that decision that remained undecided. With respect to s. 7,
the respondents argue that while the right to liberty and security of the
person were considered, the right to life was not. It was therefore open to Smith J.
to consider whether the right to life was infringed, given that the
rights to life, liberty and security of the person are separate rights with
separate meanings.
[43]
In considering the right to life,
the respondents argued that s. 241(b) of the Criminal Code, which
makes it an offence to aid or abet suicide, infringes the right to life by
forcing terminally ill individuals to make an earlier life-ending decision than
they would otherwise if they had access to physician-assisted dying. They argue
that the impugned laws deprive individuals not only of liberty and security of
the person, as considered in Rodriguez, but, in requiring one’s life to
be ended sooner than it otherwise might, of life itself.
[44]
The respondents argue that “life” in the context of human rights
provisions ought to be given a generous and expansive meaning. The grievously
and irremediably ill may suffer and wish to end their lives, but the evidence
established that the impugned laws cause some such people to end their lives
before they otherwise would, because they would later be unable to act without the
assistance the impugned laws prohibit. The purpose of the impugned laws may be
to protect the vulnerable, but the effect is to deny the respondents their
rights under s. 7. The respondents argue that the Charter must
protect deprivations that occur whether by purpose or effect.
[45]
The respondents further argue that
it was open to Smith J. to consider whether the law was overly broad or grossly
disproportionate, as these two principles of fundamental justice were not
considered in Rodriguez. They argue that Smith J. did not err in
rejecting the AGC’s proposed test in evaluating whether the impugned provisions
violate the principles of fundamental justice, namely whether there was any
evidence to support a reasonable apprehension of harm short of an absolute prohibition.
[46]
The respondents argue the reasonable apprehension of harm test is
a “zero tolerance” argument because it requires the respondents to prove beyond
a reasonable doubt that all harms can be avoided if physician-assisted dying is
allowed. The standard of proof under s. 7 is to show a deprivation which does
not accord with the principles of fundamental justice, on a balance of
probabilities. If the former standard were adopted, the respondents say that
many meritorious Charter cases would fail.
[47]
With respect to s. 15, the respondents
claim their right to equality is infringed because the law has a more
burdensome effect on persons with disabilities than on able-bodied persons, and
so creates a distinction based on physical disability. The respondents submit
that this distinction is discriminatory. The respondents say the unequal effect
of the law cannot be justified under s. 1 of the Charter because
the law is not rationally connected to the legislative objectives, is not
minimally impairing, and is disproportionate. The respondents argue that it is
unnecessary to conduct a s. 1 analysis for the s. 7 breach, but if it were
necessary, they argue the burden of justifying a s. 7 breach is much heavier
than for s. 15.
[48]
The respondents cross appeal
against Smith J.’s ruling that the s. 15 remedy does not apply to those
persons so disabled they would require assistance of a kind that would render
the act “voluntary euthanasia”.
D. The
Intervenors Supporting the Respondents
[49]
The respondents’ position is supported by three intervenors: the Alliance
of People with Disabilities Who Are Supportive of Legal Assisted Dying Society;
the Canadian Unitarian Council; and the Farewell Foundation for the Right to
Die.
[50]
The Alliance of People with Disabilities who Are Supportive of Legal
Assisted Dying Society submits that the law is overbroad and arbitrary because
the absolute prohibition against assisted dying treats all disabled persons as
vulnerable, protects those who do not need or wish to have protection, and
denies them the capacity for autonomous decisions and self-determination. They
also submit that the law deprives individuals of security of the person and
dignity by denying them choice over the timing of their death.
[51]
The Farewell Foundation submits that the blanket prohibition against
assisted dying is not within a reasonable range of alternatives, because it
results in more suffering and less autonomy with no consequent benefits. There
is risk of an unchosen death with or without the legislation.
[52]
Counsel for the Canadian Unitarian Council addressed the right to “life”
under s. 7. Counsel submits that the right to life includes freedom from
state intervention in an individual’s decision to die. Life includes the
knowledge of what it means to be alive, and the power to make choices about
both life and death. Life is much more than physical existence, and includes
the quality of living. There is no supportable distinction between removal of
life support, at the patient’s request, and physician-assisted suicide.
[53]
Having considered each of these submissions, I will now embark on
determining which issues were open to Smith J. to decide.
IV. Can Rodriguez be
Distinguished?
A. The Law on Stare
Decisis
[54]
The common law system requires that lower courts must follow and apply
the decisions of higher courts in the same jurisdiction, to the extent that the
higher court has decided the same or a substantially similar issue. The purpose
of this rule, referred to as stare decisis, is to promote consistency in
the application of the law, so that similar cases are decided similarly.
[55]
The precedential effect of a decision therefore requires that a court
must first determine what a previous case actually decides. That is the “ratio
decidendi” of a case, or the rule that it lays down. This narrower
application of the doctrine of stare decisis was described as the “traditional
view” in R. v. Henry, 2005 SCC 76. However, the Court in that case
cautioned against too narrowly defining what a case actually decides,
particularly in Charter cases. The Court stated in R v. Henry:
[53] ... In R. v. Oakes,
[1986] 1 S.C.R. 103, for example, Dickson C.J. laid out a broad purposive
analysis of s. 1 of the Charter, but the dispositive point was his
conclusion that there was no rational connection between the basic fact of
possession of narcotics and the legislated presumption that the possession was
for the purpose of trafficking. Yet the entire approach to s. 1 was
intended to be, and has been regarded as, binding on other Canadian courts. It
would be a foolhardy advocate who dismissed Dickson C.J.’s classic formulation
of proportionality in Oakes as mere obiter. Thus if we were to
ask “what Oakes actually decides”, we would likely offer a more
expansive definition in the post-Charter period than the Earl of Halsbury
L.C. would have recognized a century ago.
[56]
So, as a general rule, obiter dicta, or statements not essential
to the actual decision, do not strictly bind lower courts: Quinn v.
Leathem, [1901] A.C. 495 at 506 (H.L.), Henry at para. 53, but
in some cases, statements outside the ratio which are clearly intended
as guidance “… should be accepted as authoritative” (Henry at para. 57).
[57]
Where lower courts are of the view that a decision of a higher court was
wrongly decided, the appropriate approach is to apply the precedent and provide
comment, or even find additional facts, to facilitate a reconsideration of the
point by a higher court, if an appeal to that court should be pursued. This approach
finds support in Canada v. Craig, 2012 SCC 43. In that case, the Tax
Court of Canada declined to apply the decision of the Supreme Court of
Canada in Moldowan v. The Queen, [1978] 1 S.C.R. 480. The Moldowan
decision had been criticized in a later decision of the Federal Court of
Appeal, Gunn v. Canada, 2006 FCA 281, which had considered the same
statutory provision as Moldowan and stated that the Moldowan
decision was problematic. Justice Rothstein, in pointing out the Tax Court’s
error in not following Moldowan, a decision which the Supreme Court subsequently
overturned, stated:
[20] It may be that Gunn departed from Moldowan
because of the extensive criticism of Moldowan. Indeed, Dickson J.
himself acknowledged that the section was “an awkwardly worded and intractable
section and the source of much debate” (p. 482). Further, that provision had
not come before the Supreme Court for review in the three decades since Moldowan
was decided.
[21] But regardless of the
explanation, what the court in this case ought to have done was to have written
reasons as to why Moldowan was problematic, in the way that the reasons
in Gunn did, rather than purporting to overrule it.
[58]
A similar conclusion was reached in Canada (Attorney General) v.
Bedford, 2012 ONCA 186; leave granted: [2012] S.C.C.A. No. 159. In that
case, the Ontario Court of Appeal determined that even where there was
substantially different evidence before the trial court, as well as changes in
underlying social assumptions, trial courts and appeal courts are nonetheless
bound by earlier decisions on the same issues. Rather than not apply these
decisions, the appropriate course is to provide commentary and even facts which
may aid in reconsideration by the court of higher authority.
[59]
When considering the binding effect of a judgment, the first step is to
determine what the earlier case actually decided, and whether any of the obiter
was intended to be authoritative. The second step is to determine whether or
not the present case raises different issues. Only these different issues can
be considered as open for decision.
[60]
The first question then is what issues were decided by the majority
reasons of Sopinka J. in Rodriguez.
B. What
Did Rodriguez Decide?
[61]
For the purpose of assessing what Rodriguez decided and whether Smith
J. correctly distinguished that case, I will consider the decision in its two
relevant component parts: the decision on s. 7, and the decision on
s. 15 and s. 1.
1. Section 7 of the
Charter
[62]
The s. 7 analysis of Sopinka J., speaking for five of the nine
justices, focuses on an alleged deprivation of security of the person. He held
that although such a deprivation existed, it was not shown to be other than in
accordance with the principles of fundamental justice. He reached a similar conclusion
concerning any deprivation of the liberty interest. The essence of the reasons
given by Sopinka J., for the majority, is captured at 583:
The most
substantial issue in this appeal is whether s. 241(b) infringes
s. 7 in that it inhibits the appellant in controlling the timing and
manner of her death. I conclude that while the section impinges on the
security interest of the appellant, any resulting deprivation is not
contrary to the principles of fundamental justice. I would come to the same
conclusion with respect to any liberty interest which may be involved.
...
The appellant argues that,
by prohibiting anyone from assisting her to end her life when her illness has
rendered her incapable of terminating her life without such assistance, by
threat of criminal sanction, s. 241(b) deprives her of both her
liberty and her security of the person. The appellant asserts that her
application is based upon (a) the right to live her remaining life with the
inherent dignity of a human person, (b) the right to control what happens to
her body while she is living, and (c) the right to be free from governmental
interference in making fundamental personal decisions concerning the terminal
stages of her life. The first two of these asserted rights can be seen to
invoke both liberty and security of the person; the latter is more closely associated
with only the liberty interest.
And further at 588-589:
... There is no question, then, that personal autonomy, at
least with respect to the right to make choices concerning one's own body,
control over one's physical and psychological integrity, and basic human
dignity are encompassed within security of the person, at least to the extent
of freedom from criminal prohibitions which interfere with these.
... That there is a right to choose how one's body will be
dealt with, even in the context of beneficial medical treatment, has long been
recognized by the common law. To impose medical treatment on one who refuses it
constitutes battery, and our common law has recognized the right to demand that
medical treatment which would extend life be withheld or withdrawn. In my view,
these considerations lead to the conclusion that the prohibition in s. 241(b)
deprives the appellant of autonomy over her person and causes her physical pain
and psychological stress in a manner which impinges on the security of her
person. The appellant's security interest (considered in the context of the
life and liberty interest) is therefore engaged, and it is necessary to
determine whether there has been any deprivation thereof that is not in
accordance with the principles of fundamental justice.
[Emphasis added.]
[63]
Justice Sopinka clearly decided that the impugned law deprived the
plaintiff of her s. 7 right to security of the person, and I consider it
may also be taken to have decided that the liberty interest was also impaired. Justice
Sopinka did not directly decide whether the s. 7 right to life was
engaged, and it does not appear that that issue was argued by the parties
before the Supreme Court of Canada, according to Sopinka J.’s summary of Ms. Rodriguez’s
submissions. Though “life” and “sanctity of life” are discussed as principles
in the judgment, they are used only to inform the analysis of the rights to liberty
and security of the person at the various stages.
[64]
The majority reasons then considered whether the infringements of the
rights to liberty and security of the person were other than in accordance with
the principles of fundamental justice.
[65]
Justice Sopinka characterized the issue this way at 595:
The issue here, then, can be
characterized as being whether the blanket prohibition on assisted suicide is
arbitrary or unfair in that it is unrelated to the state's interest in
protecting the vulnerable, and that it lacks a foundation in the legal
tradition and societal beliefs which are said to be represented by the prohibition.
[66]
As to the state interest of protecting the vulnerable, he said at 595:
Section 241(b) has as its
purpose the protection of the vulnerable who might be induced in moments of
weakness to commit suicide. This purpose is grounded in the state interest in
protecting life and reflects the policy of the state that human life should not
be depreciated by allowing life to be taken.
[67]
He referred to the impugned provisions as “valid and desirable legislation
which fulfills the government’s objectives” (at 590). Justice Sopinka considered
that the state interests in preserving and protecting the vulnerable must be
weighed against the limit on Ms. Rodriguez’s rights in order to determine
if the provisions are arbitrary.
[68]
After reviewing the history of the suicide provisions, practises
concerning medical care at the end of life, and legislation in other countries,
Sopinka J. concluded that the legislation did not offend the principles of
fundamental justice (at 605 −
608). He considered the principle of “sanctity of life” as a fundamental value
in Canadian society, drawing on the fact that life was protected under s. 7
as support for the importance of this value. In reaching this conclusion,
Sopinka J. did not consider or decide whether the right to life was engaged;
rather, he used the existence of a right to life to support the importance of
the state interest of promoting the sanctity of life. He concluded that
anything less than an absolute prohibition against assisted suicide would
create risks of abuse.
[69]
Justice Sopinka concluded that the impugned provisions were neither
arbitrary nor unfair, and that the deprivation of liberty and security of the
person by the impugned law was therefore in accordance with the principles of
fundamental justice.
2. Sections 15 and
1 of the Charter
[70]
The majority reasons do not analyze Ms. Rodriguez’s claim that the
law also infringed her right to equality under s. 15 of the Charter;
indeed, Sopinka J. expressly declined to decide that issue. Instead, Sopinka J.
preferred to assume a s. 15 violation, as any such violation was “clearly
saved under s. 1 of the Charter” (at 613).
[71]
Under the s. 1 analysis, Sopinka J. agreed with Chief Justice Lamer
that the legislation had a pressing and substantial objective and that it was
rationally connected to the purpose of the legislation. He held that the
legislation was not overbroad because “[t]here is no halfway measure that could
be relied upon with assurance to fully achieve the legislation’s purpose” (at
614).
[72]
Regarding minimal impairment and proportionality, Sopinka J. said at 614
− 615:
I wholeheartedly agree with the Chief Justice that in dealing
with this “contentious” and “morally laden” issue, Parliament must be accorded
some flexibility. In these circumstances, the question to be answered is,
to repeat the words of La Forest J., quoted by the Chief Justice, from Tétreault-Gadoury
v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at
p. 44, whether the government can “show that it had a reasonable basis
for concluding that it has complied with the requirement of minimal impairment”.
In light of the significant support for the type of legislation under attack in
this case and the contentious and complex nature of the issues, I find that the
government had a reasonable basis for concluding that it had complied with the
requirement of minimum impairment. This satisfies this branch of the
proportionality test and it is not the proper function of this Court to
speculate as to whether other alternatives available to Parliament might have
been preferable.
It follows from the above that
I am satisfied that the final aspect of the proportionality test, balance
between the restriction and the government objective, is also met. I conclude,
therefore, that any infringement of s. 15 is clearly justified under
s. 1 of the Charter.
[Emphasis added.]
[73]
This final paragraph is the only time Sopinka J. considers the final
proportionality question of the Oakes test. While his reasons on this
question are brief, he nonetheless answers the question and decides the issue.
3. Summary of Issues Decided by Rodriguez
[74]
To summarize, the majority in Rodriguez decided the following:
1. Section 241(b) of the Criminal
Code deprived the plaintiff of her rights to liberty and security of the
person under s. 7;
2. The objective of the
legislation is to preserve life and to protect the vulnerable;
3. The deprivations of liberty
and security of the person were in accordance with the principles of
fundamental justice because they were not arbitrary or unfair;
4. Any infringement of
s. 15(1) would be justified under s. 1 of the Charter because:
a) the legislation had a pressing and
substantial objective;
b) the legislation was rationally connected to
the objective;
c) the government had a reasonable basis for
concluding that the minimal impairment test under s. 1 had been met; and
d) the final proportionality stage of the Oakes
test was satisfied.
[75]
The next step is to consider whether Smith J. correctly distinguished Rodriguez
in light of these decided issues.
C. Did the
Trial Judge Err in Distinguishing Rodriguez?
[76]
Justice Smith made a careful analysis of what the majority in Rodriguez
decided (see reasons paras. 885 – 936), and then considered the questions
before her which remained open for decision (paras. 937 – 1008). She divided
this second part of her analysis on Rodriguez into the three sections of
the Charter in issue: ss. 7, 15, and 1.
1. Section 7 of
the Charter
[77]
In considering what Rodriguez had decided under s. 7, Smith
J. identified two issues which were not decided by Sopinka J. First, as to the
rights protected by s. 7, she concluded that the right to life had not
been considered or decided by Sopinka J. As this issue had been raised by the
claimants before her and had not been decided in Rodriguez, she held
that this issue remained open to her to decide. Second, she concluded that certain
principles of fundamental justice had crystallized after Rodriguez and had
not been decided by that decision. I will address each point in turn.
[78]
The law is clear that the s. 7 rights to life, liberty, and
security of the person are three distinct interests which must each be given
separate consideration. In Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, Wilson J. declined to adopt a position that s. 7 protected
a single right, and that life, liberty, and security of the person were simply
elements of that single right. In considering this “single right theory” Wilson
J. concluded at 205:
Even if this submission is sound,
however, it seems to me that it is incumbent upon the Court to give meaning to
each of the elements, life, liberty and security of the person, which make up
the “right” contained in s. 7.
[79]
This understanding of s. 7 as protecting three separate interests
was subsequently endorsed by Lamer J. (as he then was), writing for the
majority in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, who added
(at 500): “[e]ach of ... [life, liberty, and security of the person], in
my view, is a distinct though related concept to be construed as such by the
courts.” Similarly, in R. v. Morgentaler, [1988] 1 S.C.R. 30 at 52,
Dickson C.J. referred to life, liberty, and security of the person as “independent
interests, each of which must be given independent significance by the Court.”
[80]
In Bedford, the Ontario Court of Appeal heard a similar submission
to distinguish a Supreme Court of Canada majority decision on s. 7. In
that case, the impugned provisions of the Criminal Code involved
prostitution. These provisions had already been considered under s. 7 in
Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.),
[1990] 1 S.C.R. 1123 (“Prostitution Reference”). In the Prostitution
Reference, the majority of the Court considered the impugned provisions to
deprive prostitutes of their liberty interests. The majority did not consider
s. 7 security of the person interests. In Bedford, however, the
claimants raised security of the person as the infringed right. After
considering the law on s. 7 as containing three independent interests, the
Court stated at para. 69:
Surely, then, the silence of
the Supreme Court on “independent interests ... which must be given independent
significance” (Morgentaler, at p. 52) cannot preclude
future consideration of those interests by a court of first instance.
[81]
In oral submissions, counsel for the AGC agreed that the right to life
as raised by the claimants in this case was not considered in Rodriguez.
However, counsel submitted that even had it been considered, it would have had
no effect on Sopinka J.’s s. 7 analysis. Having reviewed Rodriguez,
I agree that Sopinka J. did not consider a deprivation of the right to life in
the manner argued by the claimants in this case. It would be speculative to say
whether or not that consideration would have affected his decision. Respectfully,
I agree that it was open to Smith J. to consider whether the right to life was
infringed as part of her analysis under s. 7.
[82]
As to the meaning of life under s. 7, counsel for the AGC submitted
that “life” in the context of s. 7 meant nothing more than the bare
minimum of physical existence – a heartbeat, respiration, or brainwaves
comprise the extent of the life interest protected by s. 7. Other aspects
of one’s “life,” such as the quality of one’s life, are subsumed into the
rights to liberty and security of the person.
[83]
Even if this narrow definition is adopted, it remains the case that Rodriguez
did not consider the impugned provisions in terms of causing premature death.
[84]
However, a broader interpretation of life is both supportable and preferable.
As a human rights document, the Charter must be interpreted by applying
the plain meaning of its words, by giving effect to its purpose to protect
fully those rights that it guarantees, and by limiting efforts to minimize
those rights: Canadian National Railway Co. v. Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114 at 1134. This purposive approach has
its genesis in the very origins of Charter-related jurisprudence. As
stated in R. v. Big M. Drug Mart Ltd. [1985] 1 S.C.R. 295 at 344, relying
on Hunter v. Southam, [1984] 2 S.C.R. 145:
The interpretation should be, as
the judgment in Southam emphasizes, a generous rather than a legalistic
one, aimed at fulfilling the purpose of the guarantee and securing for
individuals the full benefit of the Charter's protection. At the same
time it is important not to overshoot the actual purpose of the right or
freedom in question, but to recall that the Charter was not enacted in a
vacuum, and must therefore, as this Court's decision in Law Society of Upper
Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its
proper linguistic, philosophic and historical contexts.
[85]
In considering the definition of “life,” it is appropriate to view it in
the context of s. 7. Section 7 addresses life only in relation to human
beings. “Everyone” has the right to life. The section protects the right to
life for all members of the human species. It does not address other forms of
life whether animate or inanimate.
[86]
Viewed in this way, the meaning attributed to the life interest in s. 7 by
the AGC is insupportable. Surely this human rights guarantee should protect “life”
beyond one’s mere physical existence. “Everyone” lives in different
circumstances, experiences life in different ways, and lives within the ambit
of his or her own personal abilities, characteristics and aptitudes. The
meaning of the term “life” in the context of s. 7 includes a full range of potential
human experiences. The value a person ascribes to his or her life may include
physical, intellectual, emotional, cultural and spiritual experiences, the
engagement of one’s senses, intellect and feelings, meeting challenges, enjoying
successes, and accepting or overcoming defeats, forming friendships and other
relationships, cooperating, helping others, being part of a team, enjoying a
moment, and anticipating the future and remembering the past. Life’s meaning,
and by extension the life interest in s. 7, is intimately connected to the way
a person values his or her lived experience. The point at which the meaning of
life is lost, when life’s positive attributes are so diminished as to render
life valueless, when suffering overwhelms all else, is an intensely personal
decision which “everyone” has the right to make for him or herself.
[87]
A similar appreciation of the right to life was eloquently expressed by
the South African Constitutional Court in S. v. Makwanyane and Another [1995]
ZACC 3. At para. 325, O’Regan J. stated:
The right to life is, in one
sense, antecedent to all the other rights in the Constitution. Without life in
the sense of existence, it would not be possible to exercise rights or to be
the bearer of them. But the right to life was included in the Constitution not
simply to enshrine the right to existence. It is not life as mere organic
matter that the Constitution cherishes, but the right to human life: the right
to live as a human being, to be part of a broader community, to share in the
experience of humanity. This concept of human life is at the centre of our
constitutional values. The constitution seeks to establish a society where the
individual value of each member of the community is recognised and treasured.
The right to life is central to such a society.
[88]
If the life interest is viewed this way, it is clear that it has a larger
meaning than can be encompassed in the right to liberty or the right to
security of the person. Though “life” and the “sanctity of life” were
considered in the context of liberty and security of the person in Rodriguez,
the significance of life as a separate right was not.
[89]
For these reasons, I respectfully agree with Smith J. that the right to
life was not decided in Rodriguez. However, whether the life interest in
s. 7 is viewed narrowly, as advanced by the AGC and accepted by Smith J., or more
broadly as I have articulated, the reasons of Sopinka J. did not consider the
deprivation of the right to life as advanced by the claimants.
[90]
Justice Smith also found that certain principles of fundamental justice,
not considered by Rodriguez, were open for her to decide. She held that the
principle of overbreadth (as distinct from arbitrariness) was not identified as
a principle of fundamental justice until the Court’s decision in R. v.
Heywood, [1994] 3 S.C.R. 761; and that gross disproportionality (again as distinct
from arbitrariness) was not recognized as a principle of fundamental justice
until 2003 when the Court decided R. v. Malmo-Levine, 2003 SCC 74 (para. 983).
As neither principle had been considered in Rodriguez, she held that
these were questions that remained open for her to decide.
[91]
To support this point, Smith J. applied Bedford, in which the
Ontario Court of Appeal concluded that a case which was decided before certain
principles of fundamental justice were established cannot be said to have decided
those issues. In Bedford, the Court stated:
[67] In addition, the number of recognized “principles
of fundamental justice” referenced in the second half of s. 7 has
expanded over the last 20 years. Whereas in 1990 the Supreme Court considered
only vagueness and the perceived inconsistency in Parliament’s response to
prostitution, in this case the application judge was asked to evaluate the
infringements against the principles of arbitrariness, overbreadth, and gross
disproportionality.
[68] The principles of
fundamental justice at issue in this case were not considered in 1990 because
they had not yet been fully articulated. Arbitrariness and overbreadth were
only identified as principles of fundamental justice in 1993 and 1994,
respectively: Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R.
519; R. v. Heywood, [1994] 3 S.C.R. 761. Gross disproportionality
emerged as a principle of fundamental justice a decade later: R. v.
Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571.
[92]
I agree with Smith J.’s position on overbreadth and gross
disproportionality. While Sopinka J. mentioned “over-inclusiveness” in his
consideration of the principles of fundamental justice, he subsumed this into
his analysis of arbitrariness, and did not explicitly decide the issue of
over-inclusiveness or gross disproportionality in his s. 7 analysis.
[93]
The AGC submits that Sopinka J. in Rodriguez decided the issues
of overbreadth and gross disproportionality in his s. 1 analysis conducted
under an assumed s. 15(1) violation.
[94]
I do not accept this submission. The balancing in s. 1 is to be
done in relation to the specific right or freedom that is infringed. The right that
was balanced in Sopinka J.’s s. 1 analysis in Rodriguez was Ms. Rodriguez’s
right to equality under s. 15(1). The rights being considered and balanced
under s. 7 are the rights to life, liberty and security of the person.
While Sopinka J.’s balancing under s. 1 may provide some guidance, it did
not decide the issues of overbreadth or gross disproportionality argued before
Smith J.
[95]
Justice Smith did find that she was bound by Sopinka J.’s conclusion
that the deprivations caused by the legislative prohibition were not arbitrary.
Respectfully, I do not agree. Justice Sopinka’s consideration of arbitrariness
related to security of the person and liberty. Justice Sopinka did not consider
whether a deprivation of the right to life was arbitrary. Having found that the
right to life was infringed in this case, it was open to Smith J. to consider
whether that deprivation was arbitrary. Justice Sopinka’s conclusion that the
deprivations of liberty and security of the person were not arbitrary would
undoubtedly weigh in deciding this issue.
[96]
For these reasons, I agree with Smith J. that the decision in Rodriguez
did not decide whether the right to life in s. 7 was engaged, or whether
any of the deprivations under s. 7 were overbroad or grossly
disproportionate. These issues, along with the question of whether a
deprivation of the right to life was arbitrary, were therefore open to Smith J.
to consider.
2. Sections 15 and
1 of the Charter
[97]
Justice Smith concluded that Sopinka J. had assumed a violation of
s. 15 and therefore did not decide whether a s. 15 violation was
actually established. By assuming the violation rather than deciding it, Smith
J. held that the issue remained open for her to consider.
[98]
I can see no error in Smith J.’s decision on this point. Justice Sopinka
did not decide whether the impugned provisions violated s. 15. This issue
was therefore open for her to consider. However, the effect of deciding this
issue will ultimately depend on whether the s. 1 result in Rodriguez
can be distinguished.
[99]
At s. 1, Smith J. concluded that the adjudicative facts in this
case did not distinguish it in any meaningful way from Rodriguez (para. 941),
but that there was a significant body of evidence concerning legislative and
social facts that was not available to the Court in Rodriguez (paras. 942
and 944).
[100] Justice
Smith relied on the Ontario Court of Appeal’s decision in Bedford and
recognized that new facts alone cannot overcome the binding effect of a
s. 1 decision on lower courts considering the same question. I agree that the
new legislative and social facts in this case are insufficient to distinguish Rodriguez.
While new legislative and social facts allow a trial court to make findings of
fact that may lead a higher court to reconsider an earlier decision, they do
not allow the lower court to disregard the binding effect of that higher
authority.
[101] The respondents
argued, however, that the Supreme Court of Canada’s decision in Hutterian
Brethren modified the law to create “a more rigorous analysis of proposed
justification for Charter-infringing legislation” than was conducted in Rodriguez
(para. 989).
[102] In
accepting this argument, Smith J. held that the Supreme Court of Canada
decision in Hutterian Brethren changed the law concerning the final step
under s. 1 of the Charter, which examines the proportionality of the
law’s effects. She said:
[994] ... Courts are to widen
their perspective at the final stage to take full account of the deleterious
effects of the infringement on individuals or groups, and determine whether the
benefits of the legislation are worth that cost. That is a different question
than whether the legislation is rationally connected to the government’s
objective or impairs the rights as little as possible.
And further:
[1003] The clarification in Hutterian
Brethren regarding the final step in the Oakes test has significant
consequences in this case. Further, I note that the evidentiary record,
bearing both on the assessment of consistency with the principles of
fundamental justice under s. 7, and on justification under s. 1, is
very different than the record that was before the courts in Rodriguez.
[103] Respectfully,
I am of the view that Hutterian Brethren did not change the law under
s. 1 of the Charter. In Hutterian Brethren, McLachlin C.J.
addressed commentary from Peter W. Hogg that suggested that the final stage of
the proportionality analysis, the weighing of salutary and deleterious effects,
was redundant. In rejecting this suggestion, McLachlin C.J. first referred back
to the explanation of that stage of the analysis given by Dickson C.J. in Oakes,
where he stated at 139 – 140:
Some limits on rights and freedoms
protected by the Charter will be more serious than others in
terms of the nature of the right or freedom violated, the extent of the
violation, and the degree to which the measures which impose the limit trench
upon the integral principles of a free and democratic society. Even if an
objective is of sufficient importance, and the first two elements of the
proportionality test are satisfied, it is still possible that, because of the
severity of the deleterious effects of a measure on individuals or groups, the
measure will not be justified by the purposes it is intended to serve. The more
severe the deleterious effects of a measure, the more important the objective
must be if the measure is to be reasonable and demonstrably justified in a free
and democratic society.
[104] As I read Hutterian
Brethren, the Chief Justice was not attempting to change the s. 1
analysis; rather, her points on the proportionality stage serve to counter
academic commentary which suggested the final stage was now redundant. In doing
so, rather than change the proportionality analysis, the Chief Justice
re-emphasizes the analysis laid down by Dickson C.J. in Oakes.
[105] Turning to
the analysis in Rodriguez, it is evident that Sopinka J.’s reasons
treated the result of his application of the third stage as being based on conclusions
reached in earlier stages. While this may not be in perfect harmony with Hutterian
Brethren, I note that since Hutterian Brethren was decided, courts
have, on occasion, continued to see the final stage as connected to the work
done at earlier stages of the proportionality analysis. Most recently, in Saskatchewan
(Human Rights Commission) v. Whatcott, 2013 SCC 11, Rothstein J. for the
Court concluded at para. 148 that the result on the final proportionality stage
was “apparent from the ... analysis” at the earlier stages of the Oakes
test.
[106] Hutterian
Brethren did not change the issues to be decided under s. 1. The issue
before Smith J. was the same as the issue before Sopinka J. in Rodriguez,
namely: was the prohibition proportionate in its effects. Given that Hutterian
Brethren did not change the issues to be considered under s. 1, Smith J.
remained bound by the s. 1 analysis with respect to s. 15 in Rodriguez.
[107] I therefore
respectfully agree with the AGC that Smith J. erred in finding the question of
s. 1, as it related to s. 15, was open to her to decide. Though she
was entitled to comment on how Sopinka J.’s decision might be decided
differently today, she was bound, as is this Court, to apply the result.
[108] As the s. 1
analysis applied to ‘any’ s. 15 violation, I am of the view that while the
analysis of s. 15 was open to the trial judge, as well as this Court, the
result would nonetheless be that such a violation is saved under s. 1.
Given this result, I do not see it as necessary for this Court to consider
s. 15.
[109] As the s. 1
analysis in Rodriguez applied to the reasonableness of limits on rights under
s. 15, the Court’s conclusion cannot be taken to apply to a s. 1 analysis
with respect to a s. 7 violation. Accordingly, if Smith J. found a
violation of s. 7, she was free to conduct the related s. 1 analysis.
3. Summary of
Issues Not Decided by Rodriguez
[110] For these
reasons, I consider the following issues were open for Smith J. to decide:
1. Whether the s. 7 right
to life was engaged by the prohibition;
2. Whether deprivations of the
right to life, liberty, or security of the person were in accordance with the
principles of fundamental justice of overbreadth and gross disproportionality;
3. Whether the deprivation
of the right to life was arbitrary; and
4. Whether a violation of
s. 7, if established, was saved under s. 1 of the Charter.
[111]
The next step is to consider whether Smith J. erred in deciding the
issues I have identified as left open for her to consider.
V. Section 7 of the Charter
A. The
Deprivation of the Right to Life
[112]
Justice Smith held that in addition to the right to liberty and the
right to security of the person, the right to life protected by s. 7 was
also engaged by the impugned legislation. She said:
[1319] I agree with the plaintiffs that Rodriguez
does not decide whether the right to life is engaged by the legislation, and
since Ms. Rodriguez did not claim a deprivation of her right to life,
I refrain from drawing any inferences in this regard from the reasoning in
the majority decision.
[1320] However, I agree with Canada that the Chief Justice’s
comment in Chaoulli at para. 123 suggests that the right to life is
engaged only when there is a threat of death, although security of the person
may be engaged with respect to impingement on the quality of life.
[1321] In my opinion, the security of the person and liberty
interests engaged by the legislation encompass the essence of the plaintiffs’
claim.
[1322] Only one aspect of Ms. Taylor’s claim seems to implicate
the right to life per se, in the sense of a right not to die. The
plaintiffs urge that the legislation has the effect of shortening the lives of
persons who fear that they will become unable to commit suicide later, and
therefore take their own lives at an earlier date than would otherwise be
necessary. That point is supported by evidence from Ms. Taylor as well as
other witnesses. In that respect, I agree with the plaintiffs that the
right to life is engaged by the effect of the legislation in forcing an earlier
decision and possibly an earlier death on persons in Ms. Taylor’s
situation.
[Emphasis added.]
[113]
Justice Smith made a number of findings about the nature of the
deprivations. She stated:
[1324] With respect to Ms. Taylor and
others in her position, I note the following.
[1325] First, they experience a shortened
lifespan if they take steps to end their lives sooner than they would feel it
necessary to do if they were able to receive assistance.
[1326] Second, they are denied the opportunity
to make a choice that may be very important to their sense of dignity and
personal integrity, that is consistent with their lifelong values and that
reflects their life’s experience. Further, their ability to discuss and receive
support in this choice from their physicians is impaired.
[1327] Third, for persons who are physically
disabled, they are deprived of a measure of self-worth in that they are denied
the same degree of autonomy as that afforded to others.
[1328] Fourth, while palliative care including
palliative sedation may relieve the suffering of many, for some persons it may
be unavailable (due to the nature of their illness) or unacceptable to them
(because they value maintaining consciousness and the ability to communicate,
feel that death while under palliative sedation will be difficult for their
families to observe, worry that they will in fact maintain consciousness, or
for other reasons). Thus, they may be required to continue to undergo physical
pain or psychological suffering or both, possibly exacerbated by terrible fear
about what is yet to come.
[1329] Fifth, they are required to undergo
stress. The non-availability of physician-assisted death means that patients
cannot obtain an “insurance policy” that they may never use but that gives them
some peace of mind and relieves their fear.
[1330] As to Ms. Carter
and Mr. Johnson and others in their position, they are forced to risk
prosecution for a serious criminal offence if, even reluctantly and purely out
of compassion, they accede to a request to help a relative or loved one who
wishes to obtain assisted death.
[114]
The AGC submits that the right to life is not engaged by s. 241(b)
because there is no sufficient causal connection between the taking of one’s
life, and Parliament’s action in passing the legislation. The AGC says that in
order to establish a breach of the s. 7 right, there must be a causal link
between the limit on an individual’s choice, or freedom to act, and the state
conduct.
[115]
The AGC further argues that preventing an individual from choosing
assisted death does not create a sufficient causal connection between an
individual’s actions and state conduct. In addition, the AGC says that the decision
to shorten one’s life is only one of many responses to anticipated suffering
that may result from a prohibition on assisted death. To establish a causal
connection, the AGC suggests there must be a direct link between the state
conduct and the actual consequences of the prohibition. The AGC argues that premature
suicides are not caused by the law and its prohibitive effect, but simply the
fear of living with a degenerative medical condition.
[116] The
respondents say a direct causal link is established. They say that but for
the impugned provisions, they would be able to have the assistance of a
physician to end their life at some time in the future, when they are no longer
able to do so themselves unassisted. It is because of that impediment that the
choice is made to end their lives prematurely.
[117]
However, it is not only the assistance of a physician in ending life
that must be considered. Instead, access to physician assistance in considering
death can have a preventative effect. Justice Smith considered the affidavit
evidence of Dr. Bentz concerning a physician’s ability to prevent suicides
in Oregon, by addressing the underlying motivation of the patient. Justice
Smith stated:
[413]
Dr. Bentz says that since assisted suicide was legalized
in Oregon, roughly half a dozen patients have raised the issue with him. For
none of the patients was physical suffering the motivating factor. He writes,
“[w]hy those patients have wanted to die varies but common to each case is that
once I have assisted the patient in addressing whatever their concern was,
they no longer want to die.”
[118] By imposing
an absolute prohibition on assisted death, the effect of the law is to
decrease, if not eliminate, the role for physicians in the decision making
process for individuals contemplating ending their lives prematurely. At the
very least, such involvement may increase the likelihood that the person
considering suicide is aware of the full range of options before making a
decision. At the most, as was the experience of Dr. Bentz, this involvement may
decrease the chance that the suicide takes place.
[119]
In my opinion, there is a sufficient causal connection between the
impugned provisions and premature deaths. The standard advocated by the AGC,
which would require showing a direct causal link between the legislation and
its effects is not the correct standard to apply. In Canada (Attorney
General) v. PHS Community Services Society, 2011 SCC 44, the Court accepted
that depriving drug users of access to medical supervision amounted to
depriving the users of the right to life. For a unanimous Court, McLachlin C.J.
stated:
[91] The record
supports the conclusion that, without an exemption from the application of
the CDSA, the health professionals who provide the supervised
services at Insite will be unable to offer medical supervision and counselling
to Insite’s clients. This deprives the clients of Insite of potentially
lifesaving medical care, thus engaging their rights to life and security of the
person. The result is that the limits on the s. 7 rights of staff
will in turn result in limits on the s. 7 rights of clients.
[120] In Bedford,
the appellants argued that a high standard of causation was necessary to
establish a link between interference with interests and legislation. In
rejecting that argument, the Ontario Court of Appeal stated that “[t]he
analysis and outcome in PHS also belies the appellants’ contention that
the courts must impose a strong causation requirement before finding a link
between interference with interests and legislation” (para. 121).
[121]
In this case, the record shows that without the prohibition some
physicians would willingly provide physician-assisted dying. The record also
shows that because of the prohibition on accessing a medical service, some
individuals are taking their own lives prematurely. Justice Smith accepted that
evidence and said it sufficiently established a causal connection. I agree. But
for the impugned law, the respondents and those in their circumstances could
choose a longer life, and they could have greater access to medical supervision
and advice over their decisions. The impugned provisions thereby deprive
individuals of their right to life.
B. The
Deprivation of Liberty and Security of the Person
[122] Justice
Smith accepted that a deprivation of security of the person was made out, as
was found in Rodriguez in circumstances that were similar to Ms. Taylor
in this case.
[123] I agree
with Smith J., and with Sopinka J., that the impugned provisions deprive
individuals of their security of the person by requiring them to endure
physical pain and psychological stress. I would add, however, that this is not
the only means by which the prohibition deprives individuals of their right to
security of the person. In this case, unlike Rodriguez, the evidence
shows that individuals are taking their own lives without medical advice or
supervision. Accordingly, the deprivation is not simply about the pain and
suffering endured by not ending one’s life, but also about the dangers
associated with being deprived of medical advice or supervision should one
attempt to end that suffering. As McLachlin C.J. summarized in PHS at para. 93,
“[w]here a law creates a risk to health by preventing access to health care, a
deprivation of the right to security of the person is made out.”
[124] Justice
Sopinka did not clearly decide whether or not a deprivation of the right to liberty
was established, and instead stated that any such deprivation would be upheld
as neither arbitrary nor unfair. Justice Sopinka did conclude that the
prohibition deprived Ms. Rodriguez of her autonomy in the context of his
discussion of security of the person. Justice Smith noted that this has later
been interpreted as a conclusion on liberty, and found that a deprivation of
the liberty interest was thereby established. I see no error in this approach.
[125]
For these reasons, I accept that the impugned provisions engage the
respondents’ rights to life, liberty, and security of the person. I will now
consider whether these deprivations are in accordance with the principles of
fundamental justice, to the extent that this question has not already been
decided by Rodriguez.
C. The Principles of
Fundamental Justice
[126] The
central principles of fundamental justice at issue in this case are overbreadth
and gross disproportionality. Arbitrariness was also argued at trial, but Smith
J. found that she was bound by the result in Rodriguez that the
prohibition was not arbitrary. As mentioned above, this was correct as it
related to the deprivation of the right to liberty or security of the person,
but not the deprivation of the right to life. Accordingly, the question of
arbitrariness is open to be considered, but only in a limited sense. The respondents
have also raised “parity” as a principle of fundamental justice. I will
consider arbitrariness and parity separately at the end of this section. I will
focus the analysis on overbreadth and gross disproportionality as, in my view,
those principles are central to the outcome of this appeal.
1. Overbreadth and
Gross Disproportionality
[127]
In R. v. Khawaja, 2012 SCC 69, decided after the trial judgment
in this case was released, McLachlin C.J., writing for a unanimous Court, declined
to decide whether or not overbreadth and gross disproportionality are distinct
constitutional doctrines, and instead dealt with the two together. She
explained her approach to these two concepts as follows:
[40] For the purposes of this appeal, I need not decide
whether overbreadth and gross disproportionality are distinct constitutional
doctrines. Certainly, these concepts are interrelated, although they may simply
offer different lenses through which to consider a single breach of the
principles of fundamental justice. Overbreadth occurs when the means selected
by the legislator are broader than necessary to achieve the state objective,
and gross disproportionality occurs when state actions or legislative responses
to a problem are “so extreme as to be disproportionate to any legitimate
government interest”: PHS Community Services Society, at para. 133;
see also Malmo-Levine, at para. 143. In order to address the
appellants’ s. 7 constitutional challenge, I will (1) examine the scope of
the law (2) determine the objective of the law and (3) ask whether the means
selected by the law are broader than necessary to achieve the state objective
and whether the impact of the law is grossly disproportionate to that objective. Thus,
I will examine both overbreadth and gross disproportionality in a single step,
without however deciding whether they are distinct constitutional doctrines.
[Emphasis added].
[128] Given that
both overbreadth and gross disproportionality are central to this appeal, as
they were in Khawaja, I will follow the Chief Justice’s three-step
approach for these two questions. While Smith J. did not have the benefit of Khawaja,
her approach was not at odds with it, and she made the necessary findings of
fact to address each of the three steps.
[129] Before
applying Khawaja, I must address an argument raised by the AGC
concerning a ‘reasonable apprehension of harm’ test for the principles of
fundamental justice. Counsel for the AGC submits that a more deferential test
should be applied which asks whether there is a reasonable apprehension of harm
associated with anything short of an absolute prohibition. The AGC submits that
the evidence did disclose a reasonable apprehension of harm in the absence of
an absolute prohibition. It was therefore not open for the judge to conclude,
as she did, that the law was both overbroad and grossly disproportionate.
[130] Counsel
for the AGC drew our attention to five cases to support this proposed
reasonable apprehension of harm test: R. v. Butler, [1992] 1
S.C.R. 452; R. v. Sharpe, [2001] 1 S.C.R. 45; R. v. Bryan,
2007 SCC 12; Saskatchewan v. Whatcott; and R. v. Malmo-Levine.
[131]
The first four of these cases are all ones where the right to freedom of
expression under s. 2(b) of the Charter was said to be infringed. They
raised the issue of whether any such infringement could be justified under
s. 1 of the Charter. In s. 1 cases, the Court has reasoned that it
may be impossible for governments, who bear the onus of proof under a s. 1
justification, to adduce social science evidence to justify the infringement on
free speech, or that such evidence might be inconclusive or not unanimous. For
example, in R. v. Bryan, Justice Bastarache said:
[20] In a series of cases on freedom of expression, this
Court gradually reached the recognition that the paucity of social science
evidence in some cases required that a reasonable apprehension of harm could
be sufficient as a grounding to a s. 1 argument: see R. v. Butler,
[1992] 1 S.C.R. 452, at p. 503; R. v. Keegstra, [1990] 3 S.C.R.
697, at pp. 768 and 776; RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199, at para. 137; Thomson Newspapers
at paras. 104-7. In Harper, the Court extended this line of
reasoning to the realization that some harms are “difficult, if not impossible,
to measure scientifically” (at para. 79), and that in such cases logic and
common sense become all the more important. At least one commentator has
suggested that the impetus for this move lies in the origins of the Oakes
test itself (R. v. Oakes, [1986] 1 S.C.R. 103), in that the test
was formulated without explicit contemplation of situations such as those
discussed above, in which “cogent and persuasive” evidence does not exist: see
S. Choudhry, “So What Is the Real Legacy of Oakes? Two Decades of
Proportionality Analysis under the Canadian Charter's Section 1” (2006),
34 S.C.L.R. (2d) 501.
[Emphasis
added]
...
[28] In Harper, I referred to the contextual
factors as favouring a “deferential approach to Parliament”: see para. 88.
However, in my view the concept of deference is in this context best understood
as being about “the nature and sufficiency of the evidence required for
the Attorney General to demonstrate that the limits imposed on freedom of
expression are reasonable and justifiable in a free and democratic society”: Harper,
at para. 75 (emphasis added). What is referred to in Harper and Thomson
Newspapers as a “deferential approach” is best seen as an approach which
accepts that traditional forms of evidence (or ideas about their sufficiency)
may be unavailable in a given case and that to require such evidence in those
circumstances would be inappropriate.
[Emphasis added by Bastarache
J.]
[132] In my
view, it is significant that all four of these cases examine the reasonable
apprehension of harm standard when examining s. 1 and applying the Oakes
test. It is well settled that under s. 1, the onus of proving
justification rests on the party seeking to uphold the limitation, which in
most cases, as here, is the government: R. v. Oakes, [1986] 1 S.C.R.
103. Given the difficulty of proof in some such cases, the Court has concluded
that it is proper to give deference to Parliament, and to accept that a
reasonable apprehension of harm may suffice to justify infringement where
positive proof of harm cannot be adduced.
[133] R. v.
Malmo-Levine is the only case referred to by the AGC in which “reasonable
apprehension of harm” was used in a s. 7 analysis, rather than s. 1. Respectfully,
nothing in Malmo-Levine supports using reasonable apprehension of harm
as a ‘test’ or as modifying how the principles of fundamental justice are to be
analysed under s. 7. Rather, Malmo-Levine identifies that
Parliament’s “apprehension of harm” may be considered as a valid state interest/objective
when considering the individual principles of fundamental justice: Malmo-Levine,
para. 131. If Parliament had a reasonable apprehension of harm, this
apprehension would be considered at the second step of Khawaja, that of
establishing legislative objectives.
[134] I do not
see anything in Malmo-Levine that would suggest that framing the
objective in terms of preventing a reasonably apprehended harm should attract
more deference than other objectives. Virtually any Criminal Code
provision can have its objectives recast into terms of addressing a reasonable
apprehension of harm. Deference has already been built into the principles of
fundamental justice of overbreadth and gross disproportionality: Khawaja,
para. 37, Malmo-Levine, para. 169. Granting additional deference
for objectives framed one way would be duplicative and inappropriate.
[135] Further, to
the extent that differing levels of deference have been applied in the s. 7
analysis, it is best done by examining the seriousness of the deprivation of
the right in question. This was the approach adopted by the Chief Justice and
Major J. in Chaoulli v. Quebec (Attorney General), 2005 SCC 35. In
discussing arbitrariness, the Chief Justice and Major J. said:
[131] In order not to be arbitrary, the limit on life,
liberty and security requires not only a theoretical connection between the
limit and the legislative goal, but a real connection on the facts. The onus of
showing lack of connection in this sense rests with the claimant. The question
in every case is whether the measure is arbitrary in the sense of bearing no
real relation to the goal and hence being manifestly unfair. The more serious
the impingement on the person’s liberty and security, the more clear must be
the connection. Where the individual’s very life may be at stake, the
reasonable person would expect a clear connection, in theory and in fact,
between the measure that puts life at risk and the legislative goals.
[Emphasis added.]
[136] In this
case, the claimants have asserted a deprivation of life, which Smith J. found was
established and with which I agree. Accordingly, life itself is at stake. I see
no reason to provide additional deference on top of the deference already built
into the principles of fundamental justice.
[137] Khawaja
suggests three steps in determining overbreadth and gross
disproportionality. I will consider the reframed state interest of an
apprehension of harm under the second step, that of identifying the state
objective.
a) The Scope of
the Impugned Provisions
[138]
Justice Smith reviewed the impugned provisions at para. 101 of her
reasons and it is common ground that these sections create a complete
prohibition on assisted death. The impugned provisions allow for no exceptions
regardless of who is providing the assistance, including a physician, or who is
seeking the assistance, including those who are not vulnerable, are fully
competent, are free from coercion, and have provided informed consent.
b) The Objective
of the Impugned Provisions
[139]
The parties, Smith J., and Sopinka J. in Rodriguez, identified a
number of objectives for the impugned provisions. Smith J. accepted the
legislative objective as follows:
[1190] I conclude that the objective of the legislation
is, by imposing criminal sanctions on persons who assist others with suicide,
to protect vulnerable persons from being induced to commit suicide at a time of
weakness. The underlying state interest which this purpose serves is the
protection of life and maintenance of the Charter value that human life
should not be taken, as Justice Sopinka stated in Rodriguez at 608:
This consensus finds legal expression in our legal system
which prohibits capital punishment. This prohibition is supported, in part, on
the basis that allowing the state to kill will cheapen the value of human life
and thus the state will serve in a sense as a role model for individuals in
society. The prohibition against assisted suicide serves a similar purpose. In
upholding the respect for life, it may discourage those who consider that life
is unbearable at a particular moment, or who perceive themselves to be a burden
upon others, from committing suicide. To permit a physician to lawfully
participate in taking life would send a signal that there are circumstances in
which the state approves of suicide.
[Emphasis added by trial judge.]
[140]
In Rodriguez, Sopinka J., for the majority, also referred to the
objectives of the law in this way at 590:
In this case, it is not
disputed that in general s. 241(b) is valid and desirable
legislation which fulfils the government's objectives of preserving life and
protecting the vulnerable. The complaint is that the legislation is
over-inclusive because it does not exclude from the reach of the prohibition
those in the situation of the appellant who are terminally ill, mentally
competent, but cannot commit suicide on their own. It is also argued that the
extension of the prohibition to the appellant is arbitrary and unfair as
suicide itself is not unlawful, and the common law allows a physician to
withhold or withdraw life-saving or life-maintaining treatment on the patient's
instructions and to administer palliative care which has the effect of
hastening death. The issue is whether, given this legal context, the existence
of a criminal prohibition on assisting suicide for one in the appellant's
situation is contrary to principles of fundamental justice.
[Emphasis added.]
And at 595:
Section 241(b) has as its
purpose the protection of the vulnerable who might be induced in moments of
weakness to commit suicide. This purpose is grounded in the state interest in
protecting life and reflects the policy of the state that human life should not
be depreciated by allowing life to be taken.
[141]
On this appeal, the AGC submits that a further objective of the impugned
provisions is to convey the message to all persons that suicide is not an
acceptable way to end one’s life, whether assisted or not. As expressed in the
appellant’s factum, the purpose is:
... also to discourage everyone,
even the terminally ill, from choosing death over life, and to guard against
the negative social messaging that would result from a system which signals
that there are circumstances in which the state condones suicide. In this
regard, the prohibition prevents sending the message that the lives of some are
less valuable, and less worthy of protection, than others.
[142] The AGC
submits that the deprivations must be measured against the impugned provisions’
primary purpose of protecting the vulnerable, and its secondary deterrent
purpose of sending a message to all that suicide is wrong, and that all lives
are equally worthy of protection.
[143] Justice
Smith rejected an expansion from the objective as stated in Rodriguez,
as she was of the view that Rodriguez was binding on this point. While I
agree that Rodriguez identified one aspect of the legislative purpose,
this does not prevent the AGC from raising another aspect of that purpose. The
impugned provisions may serve multiple purposes, and I can see no harm in considering
the purpose of preventing negative messaging about the value of certain human
lives.
[144] The AGC
also made submissions about Parliament’s reasonable apprehension of harm should
anything short of an absolute prohibition be adopted. The submissions on this
point were discussed above. Based on Malmo-Levine, the appropriate place
to consider a reasonable apprehension of harm is in establishing state
interests.
[145] Having
already accepted the state objective of preventing harm to vulnerable
individuals, I would also accept that objective as being based on a reasonable
apprehension of harm that would result, should physician-assisted death be
allowed.
[146] Accordingly,
the objective of the legislation can be stated as follows: to prevent harm to
vulnerable individuals who may be induced into taking their own lives in times of
weakness, or to address Parliament’s reasonable apprehension of harm that abuse
may occur; and to avoid sending a message, both to disabled individuals and the
general public, that the state condones suicide. Both of these objectives
support the state’s interest in protecting the value of all human life.
c) The Means of
the Impugned Provisions
[147] The final
step is to consider whether the legislative means selected are broader than
necessary to achieve the state objective and whether the impact of the law is
grossly disproportionate to that objective.
[148] As noted
above, Smith J. did not have the benefit of Khawaja. However, her
analysis under overbreadth and gross disproportionality aptly fits under this
final stage of assessing the means. In considering overbreadth, Smith J. phrased
the test in two ways:
[1363] Is an absolute
prohibition the least restrictive means of preventing the inducement to suicide
of vulnerable persons? Is an absolute prohibition necessary in order for the
state to achieve its objective?
[149] Counsel
for the AGC has submitted that the first phrasing, of “least restrictive means”
was the wrong test. I do not see any need to decide this point, as Smith J.’s
second phrasing of the test is indistinguishable from that stated in Khawaja.
To the extent that there is any inconsistency between the two, Smith J.’s
analysis relied on the second phrasing. She said:
[1364] A prohibition with carefully designed and well
enforced exceptions would less restrict the plaintiffs’ interests in life,
liberty and security of the person, but the question is whether a prohibition
without exceptions is necessary in order to meet the government’s objectives.
[1365] An absolute prohibition would seem necessary if the
evidence showed that physicians are unable reliably to assess competence,
voluntariness and non-ambivalence in patients, or that physicians fail to
understand or apply the informed consent requirement for medical treatment.
[1366] An absolute prohibition might be called for if the
evidence from permissive jurisdictions showed abuse of patients, or
carelessness or callousness on the part of physicians, or evidence of the
reality of a practical slippery slope.
[1367] However, that is not what
the evidence shows. I have found that the evidence supports the conclusion that
a system with properly designed and administered safeguards could, with a very
high degree of certainty, prevent vulnerable persons from being induced to
commit suicide while permitting exceptions for competent, fully-informed
persons acting voluntarily to receive physician-assisted death.
And further:
[1370] I also take into account the unknown extent to which
physician-assisted death and assisted death by non-physicians already occurs in
Canada. I have found that the evidence supports the conclusion that such
deaths do occur, though likely in a very small number of instances. Moving to a
system of physician-assisted death under strict regulation would probably
greatly reduce or even eliminate such deaths and enhance the likelihood that
only competent, fully-informed, voluntary and non-ambivalent patients would
receive such assistance.
[1371] I conclude, therefore,
that the impugned provisions are overbroad and that the plaintiffs have
established their claim under s. 7.
[150] Justice
Smith found that the state objective of preventing harm to the vulnerable could
be achieved with something less than an absolute prohibition, provided adequate
safeguards were put into place. This was supported by her findings of fact on
the feasibility of safeguards preventing harms, which were summarized
succinctly as follows:
[883]
My review of the evidence in this section, and in the
preceding section on the experience in permissive jurisdictions, leads me to
conclude that the risks inherent in permitting physician-assisted death can be
identified and very substantially minimized through a carefully-designed system
imposing stringent limits that are scrupulously monitored and enforced.
[151] In this
case, the foregoing findings were based upon a review of social science evidence,
as well as on testimony from numerous expert witnesses. While findings that are
founded on social and legislative facts together with testimony of live
witnesses are not subject to the ordinary palpable and overriding error
standard on review, they are owed some level of deference: RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, per McLachlin J.
(as she then was), at para. 141.
[152] Counsel
for the AGC made a number of submissions in an effort to undermine this and
similar findings of fact. In essence, counsel for the AGC attempted to
demonstrate that the safeguards identified by Smith J. are insufficient to
achieve the objectives of the impugned provisions.
[153] Counsel
for the AGC argued that evidence from jurisdictions which allow physician-assisted
dying demonstrate that safeguards are insufficient to prevent abuse.
Specifically, the AGC pointed to evidence of what was referred to as “life-ending
acts without explicit request” or “LAWER”, as evidence of how safeguards are
ineffective. LAWER occurs when a physician takes steps to end a patient’s life
without first obtaining necessary consent.
[154]
While LAWER occurs in jurisdictions which allow physician-assisted
dying, these deaths occur in particular circumstances which do not correspond to
the range of the activities caught by Smith J.’s s. 7 order. The order
only authorizes physician-assisted dying, a term used to refer to both
physician-assisted suicide and voluntary euthanasia. Physician-assisted
suicide occurs where the patient takes his or her own life, but with the
assistance of a physician. As LAWER occurs where a physician takes the
patient’s life, LAWER is not relevant to considering safeguards for physician-assisted
suicide. Voluntary euthanasia occurs where the physician takes the patient’s
life, but with the patient’s explicit prior consent. As LAWER occurs where a
physician takes a patient’s life without consent, LAWER is not relevant to
considering safeguards for voluntary euthanasia.
[155]
Instead, LAWER relates to what Smith J. described as non-voluntary, or
involuntary, euthanasia. These forms of euthanasia occur where a physician
takes a patient’s life without, or contrary to, the patient’s prior expressed
wishes. This was not the type of euthanasia the claimants in this case were
seeking, as Smith J. noted:
[313] The plaintiffs do not
argue that physician-assisted death should be imposed on patients who do not,
themselves, request it. Therefore, the ethical debate relevant to this case
focuses on a limited class of patients: those who are competent adults
(decisionally capable); fully informed as to their diagnosis, prognosis and all
options for treatment or palliative care; persistently and consistently
requesting assistance with death (that is, non-ambivalent); and not subject to
coercion or undue influence.
[156] Justice
Smith’s s. 7 order does not sanction involuntary or non-voluntary
euthanasia. Therefore, the order does not impact the legality of LAWER in
British Columbia. I therefore do not see LAWER as relevant to the question of
the effectiveness of safeguards for physician-assisted dying.
[157] Another
issue concerning the effectiveness of the proposed safeguards is the capacity
of the medical system to adequately perform the necessary checks to prevent
abuse of physician-assisted dying. During submissions a question was raised as
to whether available medical services in British Columbia could provide the
safeguards suggested by Smith J., to the appropriate degree of certainty. It
was suggested that patients typically do not have a close, or in many cases,
any relationship with a general physician, and that the safeguards posited were
theoretical and not practicable.
[158] It does
not appear that this question was addressed directly by evidence at trial.
[159]
There is evidence however that the number of persons who might seek physician-assisted
death is very small, and typically, all of those persons have been under the
care of physicians and engaged in the provincial health care system for a very
long time. It would be reasonable to conclude, as suggested by counsel for the
respondents, that no one seeking physician-assisted death would be a “walk-in
patient” at a medical clinic. Support for this comes from a review of the
order granted by Smith J., which limits the application of the s. 7 relief
to an individual who:
[1393] .... has been diagnosed
by a medical practitioner as having a serious illness, disease or disability
(including disability arising from traumatic injury), is in a state of advanced
weakening capacities with no chance of improvement, has an illness that is
without remedy as determined by reference to treatment options acceptable to
the person, and has an illness causing enduring physical or psychological
suffering that is intolerable to that person and cannot be alleviated by any
medical treatment acceptable to that person.
[160] Virtually
all persons who satisfy these conditions will, by their circumstances and of
necessity, have a close patient/physician relationship with one or more
doctors.
[161] Counsel
for the AGC also submitted that safeguards would not be feasible as medical
professionals responsible for administering these safeguards would be unable to
overcome their unconscious biases regarding the value of certain lives. Similarly,
vulnerable patients may face pressure from family members to seek physician-assisted
dying, making assessments of voluntariness difficult.
[162] Physicians
are granted a high level of trust to uphold their professional responsibilities
to the highest degree and to act only in the best interests of their patients. Part
of their responsibility has evolved to include making end of life decisions
through forms of terminal sedation. The risks of unconscious biases referred to
by the AGC would be equally present for terminal sedation, a practice which
remains unregulated in Canada. The respondents submit, and I respectfully
agree, that these biases can be addressed through the education of physicians.
[163] With
respect to the risks of coercion, I would note that, even under the terms of Smith
J.’s order, pressuring individuals to commit suicide, whether assisted by a
physician or not, will remain criminal under s. 241. The combined effect
of the limits placed on the order under s. 7, which focus on assessing
voluntariness, and the continued criminalization of coercing vulnerable individuals
to commit suicide, offer safeguards against coercion.
[164] For these
reasons, I see no error in Smith J.’s conclusion that the proposed safeguards
can greatly reduce the risks associated with physician-assisted dying. Having
reviewed the evidence it was open to the judge to find that protections for
vulnerable individuals can be achieved through carefully tailored safeguards
rather than an absolute prohibition. A prohibition which allows for no
exceptions, regardless of competency, voluntariness, autonomy, or freedom from
coercion, is broader than is necessary to achieve the objective of protecting
vulnerable individuals.
[165] Similarly,
the prohibition is unnecessary, and likely counter-productive, to sending a
message about the value of life. Parliament can surely adopt more effective methods
that would not cause the deprivation at issue in this case. For these reasons,
the prohibition is overbroad.
[166] For
similar reasons, I would conclude that the deprivation is grossly
disproportionate to the objectives advanced. As discussed, the effect of the
prohibition is to cause premature deaths. This is grossly disproportionate to
the objective of sending a message about the value of life, and grossly
disproportionate to the goal of protecting the vulnerable when such protections
can be achieved through the regulation of physician-assisted dying.
[167] I conclude
that the legislative means in this case are overbroad and that their impact is grossly
disproportionate to their objectives. Accordingly, the deprivations of the
rights protected by s. 7 are not in accordance with the principles of
fundamental justice.
2. Arbitrariness and Parity
[168] A law is
arbitrary when it has no connection to the state interest in question. Justice
Smith noted that in this case, she was bound by the decision in Rodriguez
that the impugned provisions were not arbitrary. I am of the view that Smith J.
was able to consider arbitrariness, but only in relation to the deprivation of
the right to life.
[169] The
respondents also presented submissions on parity as a new principle of
fundamental justice.
[170] I do not
consider it necessary to decide either issue given my conclusion on overbreadth
and gross disproportionality.
3. Conclusion
on Section 7 of the Charter
[171] I conclude
that the respondents are deprived of their rights to life, liberty, and
security of the person by the provisions of s. 241(b) and I further
conclude that the deprivations suffered have been proven on a balance of
probability to be overbroad and grossly disproportionate to the state
objectives.
[172]
I must now consider whether these deprivations may nonetheless be saved
under s. 1 of the Charter as reasonable limits in a free and
democratic society.
VI. Section 1 of the
Charter
[173] I have
accepted that the respondents have been deprived of their rights to life,
liberty, and security of the person in a manner other than in accordance with
the principles of fundamental justice. It has been noted that s. 7
violations will seldom be saved under s. 1: R. v. D.B., 2008 SCC 25
at para. 89. However, I will proceed through the analysis.
[174] The test
at s. 1 is well known, and was set out in Oakes. The first question
requires the reviewing court to identify the objective of the impugned
provisions and determine whether or not that objective is pressing and
substantial. The objectives of the impugned provisions have already been
canvassed in these reasons. They are: to prevent harm to vulnerable individuals
who may be induced into committing suicide in a time of weakness, or to address
a reasonable apprehension of such harm arising; and to avoid sending the
message that suicide is acceptable. I accept that these objectives are pressing
and substantial.
[175] I am also
satisfied that the prohibition is rationally connected to these objectives, the
second step in the Oakes test. Where an activity such as physician-assisted
death poses certain risks, and Parliament wishes to avoid those risks, a
prohibition of the activity is a rational response.
[176] The third
step of the Oakes test requires determining whether the impugned
provisions minimally impair the rights in question. The test at this stage of
the analysis is sometimes expressed as asking if the impugned provisions fall
within a range of reasonable alternatives. Parliament is not obliged to select
the least restrictive means provided the means selected fall within that range.
[177] In this
case, I have already concluded that Smith J. was correct to find that the
prohibition is overbroad in that it impairs s. 7 rights more than is
necessary to achieve the objectives of the legislation. Given this conclusion,
I am also satisfied that the impugned provisions cannot pass the minimal
impairment section of the Oakes test. An absolute prohibition which
deprives individuals of their right to life, liberty, and security of the person
in a way which is unnecessarily broad cannot be said to be within a range of
reasonable alternatives. A carefully regulated scheme would allow access to
consensual physician-assisted dying while reducing the risks of harm with which
Parliament is concerned.
[178] Similarly,
there are many better means of sending messages about the importance of life
than by denying patients access to medical care to assist in their end-of-life
decisions, particularly when that denial is causing shortened lives. Such messaging
cannot be said to minimally impair s. 7 rights.
[179]
Given the failure to pass the minimal impairment stage, it is
unnecessary to consider the final proportionality stage of the Oakes
test. Justice Smith was correct to find that the s. 7 violation cannot be
saved under s. 1 of the Charter.
VII.
Cross Appeal on Euthanasia
[180] Justice
Smith made two orders, one under s. 15 and one under s. 7. The order
under s. 15 only applies to physician-assisted suicide, not
physician-assisted dying, meaning that voluntary euthanasia is not covered. The
s. 7 order applies to both physician-assisted suicide and consensual
physician-assisted dying. This would include voluntary euthanasia.
[181] The
respondents have raised, by way of a cross appeal, the argument that Smith J.’s
order discriminates against materially disabled individuals who are unable to perform
the final act which would lead to their death. They submit that the order
violates s. 15 of the Charter.
[182] Having
found that Smith J. erred in distinguishing Rodriguez at s. 1, and
that therefore Smith J. was not able to provide a s. 15(1) remedy, only
the s. 7 order remains. As the s. 7 order includes voluntary
euthanasia, the issue raised in the cross appeal is moot. I would decline to
decide this issue.
VIII. Procedural Issues
[183] In the
alternative to its other grounds of appeal, the AGC seeks a new trial on the
basis of two procedural errors. The first such error alleged is that Smith J.
forced the case to proceed on an expedited schedule, depriving the AGC the
opportunity to lead all necessary and available evidence to answer the respondents’
case.
[184] The second
such error is that Smith J. improperly accepted reply submissions from the respondents,
to which the AGC did not have an opportunity for sur-reply.
[185] As to the
expedited time schedule, the respondents filed their notice of civil claim on
26 April 2011. The AGC filed its response on 22 June 2011.
[186] On the respondents’
application, on 3 August 2011, the Court ordered that the case proceed as a
summary trial on 14 November 2011. Respondents’ counsel advanced two main
reasons for proceeding on an expedited basis. The first was Ms. Taylor’s
deteriorating physical condition, and the second was limits on counsel’s
ability to represent the respondents pro bono in an extended conventional
trial.
[187] The respondents
filed some 66 affidavits in support of their case, and the AGC served some 21
affidavits and reports in answer. The respondents filed a further 19 affidavits
in reply.
[188] The AGC
took the position fairly early on that the case was not suitable for trial on
affidavit evidence. Directions were given for cross examination on some of the
deponents’ affidavits, and the parties agreed to the cross examination of other
witnesses. The case planning also contemplated the viva voce testimony of
some witnesses before Smith J. The case proceeded as something of a “hybrid”
summary trial.
[189] On 7
October 2011, the AGC filed its notice of application under Supreme Court Rule
9-7(11) to dismiss the summary trial application. The motion was originally set
for hearing on 20 October 2011, but was adjourned by Chief Justice Bauman
because Smith J. was not available.
[190] On 8
November 2011, Smith J. heard the application of both the AGC and the AGBC to
dismiss the respondents’ summary trial application.
[191]
Rule 9-7(11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009
provides:
On an application heard before or at the same time as the
hearing of a summary trial application, the court may
(a) adjourn the summary trial application, or
(b) dismiss the summary trial application on the ground
that
(i) the issues raised by the summary trial application
are not suitable for disposition under this rule, or
(ii) the summary trial application will not assist the
efficient resolution of the proceeding.
and Rule 9-7(15) provides:
On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an
issue or generally, unless
(i) the court is unable, on the whole of the evidence
before the court on the application, to find the facts necessary to decide the
issues of fact or law, or
(ii) the court is of the opinion that it would be
unjust to decide the issues on the application,
(b) impose terms respecting enforcement of the
judgment, including a stay of execution, and
(c) award costs.
[192] After
hearing very full submissions, Smith J. dismissed the applications to strike
the summary trial proceeding. She confirmed that the summary trial should
commence as scheduled on 14 November 2011, and gave some general guidelines as
to scheduling.
[193]
Justice Smith provided further reasons on this issue at paras. 137
– 147 of her judgment. She concluded:
[144] There is no doubt that
the timelines under which all counsel worked were challenging. Despite the
timelines, in my view, a remarkably comprehensive and complete record was
provided to the Court.
[145] Significantly, counsel for the defendants did not
point to any specific evidence that they would have provided to the Court, but
for the timelines.
[146] Having heard all of the
evidence and submissions, I find that I am able, on the whole of the
evidence, to find the facts necessary to decide the issues in this case. There
was no issue as to the credibility of any witness of fact. Although some issues
arose as to the reliability of expert witnesses and the weight that should be
given to their opinions, none of those issues, in my view, was difficult or
impossible to decide, particularly given that the parties had the opportunity
to cross-examine the key witnesses on their affidavits before the Court, and
did so.
[194] On this
appeal, the AGC does not now say that the case was unsuitable for disposition on
a summary trial. Rather, the AGC submitted that the voluminous material, and
the tight timeline, prevented it from adducing all the evidence it would have
if more time had been afforded for preparation and response to the respondents’
case.
[195] In
particular, the AGC says that given the opportunity, it would have put forward
evidence as to elder abuse and the prejudice faced by persons with disabilities
in both society at large and in the medical community.
[196] There is
no affidavit evidence before us as to what the nature of that other evidence
might have been. And, when pressed in oral argument, counsel could not tell us
even in general terms what difference, if any, that other evidence might have
made to Smith J.’s decision.
[197] The AGC
did not apply in this Court for leave to adduce fresh evidence on those matters
where it says it was effectively prevented from doing so at trial.
[198] In a case
such as this, where the remedy sought is a new trial, the general rule is that
in order to succeed, the appellant will have to show that the trial judgment
results in a substantial wrong, or a miscarriage of justice: see Knauf v.
Chao, 2009 BCCA 605 and the cases there cited.
[199] Justice
Smith’s decision to meet the trial date of 14 November 2011, and the tight
timeline that resulted, were matters within her discretion. I am not persuaded
that there was any error in the exercise of that discretion. And there is
nothing before us to support an allegation that a miscarriage of justice has
occurred.
[200] I would
not give effect to the first branch of the “procedural error” submission.
[201] The AGC’s
second point on the procedural error ground of appeal is that Smith J. erred in
accepting the respondents’ written reply submissions of some 163 pages, which
were provided to defence counsel on the last day of the trial. The AGC says
this resulted in the AGC having no opportunity for a sur-reply.
[202] The AGC
filed a 17-page submission before the judge objecting to the respondents’
reply.
[203]
Justice Smith addressed the AGC’s position on this issue at paras. 148
– 159 of her reasons. Her conclusion on this issue was as follows:
[157] In their reply submissions, the plaintiffs did not
tender any new evidence, though they did draw to the Court’s attention aspects
of the existing evidence that, in their view, responded to specific pieces of
the evidence upon which Canada relied. Nor did the plaintiffs advance new
theories of the case or make arguments that were not responsive to arguments
raised by the defendants. For example, one aspect of the plaintiffs’ reply to
which Canada objected was a section in which the plaintiffs set out what they
said would be safeguards responding to the defendants’ submissions raising
concerns about risks. In my view, the plaintiffs could not have been expected
to anticipate Canada’s very thorough and detailed argument about risks, and it
was appropriate for them to respond with specific reference to the evidence.
[158] Though the plaintiffs’
reply is lengthy and detailed, in my view it is proper reply under the Rules
and practice of this Court, in the context of this case.
[204] I can see
no reversible error in Smith J.’s disposition of this issue. It was well within
her discretion in the conduct of this difficult case. Counsel for the AGC has
not identified any arguments she was prevented from making at trial, that were
not made before us on appeal.
[205] I would
not give effect to this submission.
[206]
In the result, I would dismiss the procedural errors ground of appeal,
and refuse to order a new trial.
IX. Appeals on Costs
[207] In reasons
released 1 November 2012, indexed at Carter v. Canada (Attorney General),
2012 BCSC 1587, Smith J. granted the respondents an order for special costs of
the proceedings, and held that those costs be allocated as to 90% against the AGC,
and 10% against the AGBC.
[208] The AGC
appeals against the award of special costs. The AGBC supports the AGC in the
appeal against the award of special costs and, in addition, appeals the assessment
of any costs against the AGBC as an intervenor acting in the public interest
under the provisions of the Constitutional Questions Act, R.S.B.C. 1996,
c. 68.
[209] Justice
Smith delivered extensive reasons covering both issues raised on the costs
appeal. With respect to the issue of special costs, she reviewed all of the
relevant authorities where special costs awards had been made in public
interest litigation, including: PHS Community Services Society v. Canada
(Attorney General), 2008 BCSC 1453; Broomer v. Ontario (Attorney
General) (2004), 3 C.P.C. (6th) 194 (Ont. S.C.J.); and, importantly, Victoria
(City) v. Adams, 2009 BCCA 563.
[210]
Justice Smith referred to this Court’s judgment in Adams as
follows:
[32] Thus, the Court of Appeal in Adams set out
these principles: (1) the degree of exceptionality required for a departure
from the usual costs rule is proportionate to the magnitude of the departure;
(2) an award of special costs to a successful public interest litigant
constitutes a lesser departure than the others; (3) special costs, even for
successful public interest litigants, must be the exception rather than the
norm; and (4) access to justice considerations must be balanced against other
important factors.
[33] The Court of Appeal identified four factors
relating to whether special costs are warranted in exceptional cases, at para. 188:
Having said that, the following may be identified as the
most relevant factors to determining whether special costs should be awarded to a successful public interest litigant:
(a) The case involves matters
of public importance that transcend the immediate interests of the named
parties, and which have not been previously resolved;
(b) The successful party has
no personal, proprietary or pecuniary interest in the outcome of the litigation
that would justify the proceeding economically;
(c) As between the parties,
the unsuccessful party has a superior capacity to bear the costs of the
proceeding; and
(d) The successful party has
not conducted the litigation in an abusive, vexatious or frivolous manner.
[211] In
applying these principles Smith J. said:
[69] Some of the issues the plaintiffs sought to raise
had been resolved in Rodriguez. I concluded that the plaintiffs also
raised issues that were not decided in that case. As well, evidence is now
available that did not exist when Rodriguez was decided, including
evidence regarding the experience in other jurisdictions where
physician-assisted death is permissible. The plaintiffs satisfied this Court
that stare decisis did not preclude a decision on the evidence and legal
arguments that they advanced.
[70] In
my view, this case meets the first criterion in Adams, in that it
concerns matters of public importance that transcend the immediate interests of
the named parties, and which have not been previously resolved.
...
[78] Having considered the arguments on both sides, I
conclude that this case meets the second criterion in Adams. None of the
plaintiffs has or had a personal, proprietary or pecuniary interest in the
outcome of the litigation that would justify the proceeding economically,
especially given their means and the high cost of this kind of litigation.
[79] The third and fourth
criteria in Adams have less relevance in this case. The two Attorneys
General did not dispute that they have superior capacity to bear the costs of
the proceedings, though they point out that their resources are not unlimited. With
respect to the fourth criterion, there was no suggestion that the plaintiffs
conducted this litigation in an abusive, vexatious or frivolous manner.
[212]
With respect to the over-arching issue, whether the public interest
justifies the exceptional measure of a special costs award, Smith J. held:
[86] Does the public interest justify an award of
special costs in this case? I have concluded that it does, for these reasons.
[87] First, the issues in this litigation are both
complex and momentous. They affect life and death, and the quality of life of
people who are ill and dying. The resolution of these issues – indeed, whatever
the outcome on final appeal – will affect many people and will also have an
impact on the development of fundamental principles of Canadian law.
[88] Second, the pro bono lawyers who represented
the plaintiffs did not stint in their efforts, but were conscious of the need
for efficiency and were not profligate with the Court’s time. Further, I am
satisfied that the plaintiffs would not have been able to prosecute their claim
without the assistance of pro bono counsel. While access to justice is
not the only or even the predominant factor, it favours special costs in this
case.
[89] Third, I note that the required degree of
exceptionality is somewhat less for special costs awards than for the more
dramatic departures from the normal costs rule when a litigant who may or may
not succeed is granted advance costs, or a litigant who was unsuccessful
nevertheless receives costs: Adams at para. 190.
[90] I conclude that this
public interest litigation is exceptional and that the plaintiffs should
receive special costs.
[213] On this
appeal, the AGC says the learned trial judge erred by giving too much weight to
encouraging counsel to take on cases like this one pro bono, and that in
addition, she misapplied the principles set out in Adams governing
special costs in pro bono litigation.
[214]
In support of these submissions, the AGBC added that Adams emphasized
the exceptional nature of a special costs award, even for a public interest
litigant. Counsel says it is essentially a question of whether the public
interest is of such a nature as to justify the exceptional award. The AGBC says
this case is little different from most major Charter litigation, which
is:
... typically complex, impacts on
development of fundamental principles of law, affects many people and requires
less exceptionality as an award of special costs once a decision is handed
down.
[215] Here, the AGBC
says Smith J. set the bar too low and has made a costs award that amounts to an
alternate legal aid program.
[216] As to the
application of the Adams principles, I am unable to accept the AGC’s
submissions. In my view, Smith J. was correct to say that this case involved
matters of public importance which had not previously been resolved. The AGC’s
argument is premised on the idea that everything at issue in this case had been
decided in Rodriguez. As is evident from the reasons of Smith J., and
from the conclusions I have reached on the merits of this appeal, that is
simply not so. In particular, the “right to life” as a stand-alone right
guaranteed by s. 7 of the Charter, was not decided in Rodriguez.
To say, as the AGC does, that prior to trial in this case the law was very
clear, and that there was nothing that required resolution, is untenable. As Smith
J. observed at paras. 69 – 70 of her reasons, this case did require a consideration
of unresolved issues.
[217] The case
was of importance to the general public, affecting as it does the s. 7 Charter
protection for “the right to life”, and it was important to the respondents
and others in similar circumstances. It is not suggested that their interests
could have justified the proceedings on an economic basis. Public interest is
also evidenced by the number of intervenors who participated in the appeal.
[218] As to Smith
J.’s consideration of counsels’ acting for the respondents on a pro bono
basis, the AGC says that factor should not be used to justify an award of
special costs. However, this Court has consistently held that a claimant’s
inability to proceed without pro bono assistance is a relevant factor:
see Adams; Ahousaht Indian Band and Nation v. Canada (Attorney
General), 2011 BCCA 425; Vancouver (City) v. Zhang, 2011 BCCA 138;
and PHS Community Services, 2008 BCSC 1453.
[219] In Adams,
this Court endorsed access to justice as a relevant policy consideration in
public interest litigation. The judge considered it along with the other
relevant considerations.
[220] The power
to award special costs is given to the Supreme Court of British Columbia by
reason of its inherent jurisdiction, and as well by the Supreme Court Civil Rules.
The discretion is to be exercised on a principled basis.
[221] In my
respectful opinion, Smith J. considered all relevant principles and applied
them in a balanced way in the exercise of her discretion. Neither the AGC nor the
AGBC has identified any error of principle or law that would enable this Court
to intervene.
[222] I would
dismiss the appeal against the award of special costs.
[223] Turning to
the AGBC’s appeal against Smith J.’s allocation of the cost award against her,
to the extent of 10%, the AGBC contends that Smith J. erred in making such an
order against an Attorney General intervening in the public interest, pursuant
to statute, in a case that was neither rare nor exceptional. The AGBC argues
that the fact an intervening Attorney General leads evidence as to legislative
facts, is not a sufficient justification for an award against her of any costs,
let alone special costs.
[224] The AGBC
says the identification of the rare case that will warrant costs against an
intervening Attorney General must be done on a principled basis where exceptions
to the rule of no costs are clearly stated; such as, where an intervenor
engages in serious misconduct, materially prolongs a proceeding, or effectively
assumes carriage of the litigation.
[225] The AGBC
says that her actual participation in the summary trial was about one day out
of the 21 trial days, so she cannot be said to have materially prolonged the
proceeding. And she says that she did not effectively assume carriage of the
proceedings because, out of the total of 56 experts’ affidavits referred to by
Smith J., only two affidavits were provided by the AGBC and that evidence
addressed the palliative care system in British Columbia. Overall the AGBC says
that its participation in, and contribution to, the proceedings was so limited
that there was no basis for an award of any costs against the AGBC.
[226] It has not
been suggested by anyone that the AGBC engaged in any conduct that could be
characterized as “serious misconduct”. There is certainly nothing in Smith J.’s
reasons that would support such a conclusion.
[227]
The respondents support Smith J.’s allocation of a percentage of the
special costs against the AGBC. Counsel referred to what Smith J. said in her
reasons on this account:
[15] Counsel for the AGBC advised the Court at a Case
Planning Conference before the trial that the AGBC would take on the task of
dealing with issues within the provincial sphere. The AGBC addressed matters
such as developments in palliative medicine and hospice care, suicide
prevention, medical ethical requirements in Canada and internationally, and
B.C. criminal prosecution policies. In addition, the AGBC produced the full
record that had been before the Supreme Court of Canada in Rodriguez v.
British Columbia (Attorney General), [1993] 3 S.C.R. 519 [Rodriguez].
[16] Counsel for the AGBC
took a fairly active role in pre-trial proceedings and at trial led evidence,
cross-examined the plaintiffs’ witnesses on their affidavits, both in and out
of court, and made written and oral submissions on most of the issues.
[228] Counsel
also points out that in addition to the AGBC’s role in the preparation and
adducing of evidence, it submitted a 96-page written submission, participated
fully in the extensive pre-trial management process, and participated fully in
the procedural and factual aspects of the case.
[229] The respondents
say that the AGBC and the AGC effectively shared the carriage of the case in
response to the respondents’ claims.
[230] As with
the question of special costs, Smith J. carefully reviewed the law and
principles applicable to an award of costs against an intervening Attorney
General (see paras. 40 – 49).
[231] She said
in addition:
[95] In my view, the authorities do not disclose a firm
rule that an Attorney General who becomes involved in constitutional litigation
as of right will be immune from responsibility for costs in all but the rarest
of circumstances. With the exception of Adams, the cases upon which the
AGBC relies are dissimilar to this one. Neither Daly, Evans Forest Products nor
Faculty Assn. involved an Attorney General intervening as of right. Children’s
Aid Society concerned an award of costs against an Attorney General in
favour of parents who had unsuccessfully opposed blood transfusions for
their infant child, on religious grounds. In at least one previous British
Columbia case (Polglase), costs were awarded against an intervening
Attorney General.
[96] In
principle, it seems to me that the responsibility for costs should depend upon
the role that the Attorney General takes in the litigation. If the Attorney
General assumes the role of a party, it may be liable for costs in the same
manner as a party, in the discretion of the Court.
...
[98] The level of involvement by the AGBC in this case
was very different from that in Adams and I am not persuaded that the
AGBC should be excused from responsibility for costs.
[Emphasis in original.]
[232] In my
respectful opinion, the AGBC has not identified any error of fact, law or
principle that would enable this Court to vary this aspect of the costs order. It
is not open to us to substitute our views on this issue, even if they differed
from those of Smith J.
[233] In the
result, I would dismiss the AGBC’s appeal against the allocation of 10% of the
special costs award against the AGBC.
[234] I would
therefore dismiss both of the costs appeals.
X. Conclusion
[235]
I would allow the appeal against the s. 15 order, but dismiss the
appeal against the s. 7 order. I would also dismiss the appeal seeking a new
trial, and the appeal seeking a change in the order for costs.
“The Honourable Chief Justice Finch”
Reasons for Judgment of the Honourable
Madam Justice Newbury and the Honourable Madam Justice Saunders:
Introduction
[236] This
appeal revisits the same section of the Criminal Code considered and
found to be compliant with the Canadian Charter of Rights and Freedoms 20
years ago in Rodriguez v. British Columbia. The Chief Justice would
dismiss the appeal on a new analysis of s. 7, affirming the view taken by
the trial judge that it is open to us to decline to follow Rodriguez. We
do not agree with that conclusion, and would allow the appeal.
[237] The
central provision at issue is s. 241(b) of the Criminal Code:
241. Every
one who
…
(b) aids or abets a person to
commit suicide,
whether suicide ensues or not, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen years.
[238] The order
appealed from declared s. 241 unconstitutional in the context of
fully-informed, competent adult persons with diminishing or diminished physical
abilities, and a high degree of suffering that cannot be remedied. It also
declared s. 14 (consent to death), s. 21 (parties to offences),
s. 22 (person counselling offence), s. 222 (homicide) and
s. 241(a) (counselling suicide) of the Code unconstitutional in
the same context. However, all before us agree that s. 241(b) is the main
focus of the issues presented.
[239] The
question of physician-assisted suicide comes to us on difficult, and
sympathetic, plaintiffs’ facts, as did Rodriguez. Like
Ms. Rodriguez, the individual plaintiffs, for themselves or a loved one,
ask the Court to strike s. 241 so that they or people in like positions
may be within the law in pursuing, if they choose, physician-assisted death as
an alternative to the difficult passage projected by their doctors. They are
joined in this quest by the British Columbia Civil Liberties Association.
[240] As
sympathetic and honest as the position of the plaintiffs is, their aspirations
are not without strong opposition from others who say there will be
unacceptable risk to vulnerable members of the community in the event the
plaintiffs succeed. Those concerns are the basis of Canada’s appeal. Both sides
of the issue, as recounted by the Chief Justice, have attracted support,
including from organizations representing disabled persons and from religious
or faith-based entities.
[241] Notwithstanding
the staunch submissions of the respondents, and those speaking in their
support, for a fresh consideration of the issues unencumbered by Rodriguez,
in our view Rodriguez must determine this appeal. On the jurisprudence
as it now stands, only Parliament may relieve against s. 241.
[242] In these
reasons we explain why we consider that Rodriguez answers the questions
posed by the plaintiffs. We will then make some comments on remedy, which would
be relevant if it were open to us to do other than dismiss the appeal. We will
then address the costs issues, including those raised by British Columbia’s
separate appeal.
Legal
Analysis
[243] In 1993,
in Rodriguez, Mr. Justice Sopinka warned that the principles of
fundamental justice “leave a great deal of scope for personal judgment” and
that courts must be careful that such principles do not become ones that are of
fundamental justice “in the eye of the beholder only”. (At 590.) This
remains an instructive observation 20 years later, in the context of a society
that demands and has enjoyed a greater degree of individual autonomy than ever
before. Yet the societal consequences of permitting physician-assisted suicide
in Canada – and indeed enshrining it as a constitutional right – are a matter
of serious concern to many Canadians, and as is shown by the evidence reviewed
by the trial judge in this case, no consensus on the subject is apparent, even
among ethicists or medical practitioners.
[244] For courts
of law, the issue raises other considerations. First, it demonstrates like no
other the principle that there is no “political questions” doctrine in Canada.
No law is immune from Charter scrutiny, and it is not open to a court to
say in response to a case like this, “Leave the issue to Parliament.” (See Operation
Dismantle v. The Queen [1985] 1 S.C.R. 441 at 472 and P.W. Hogg, Constitutional
Law of Canada (5th ed., looseleaf, at §36.6.) If there were such a doctrine in
Canada, we would certainly be minded to leave the value-laden question of
physician-assisted suicide to be decided by our elected representatives after
an informed public debate.
[245] As it is,
Parliament has spoken on the topic, in the form of s. 241(b) of the Criminal
Code (which was left in place in 1972 when the offence of attempted suicide
per se was repealed), and the Supreme Court of Canada has spoken in Rodriguez.
Normally, a lower court would be required to dismiss the plaintiffs’ action on
the basis of stare decisis. The trial judge concluded, however, that
both the law and the adjudicative facts relating to assisted suicide had
changed to the point that she was no longer bound by the Supreme Court’s
ruling.
[246] This
appeal therefore requires us to make highly qualitative judgements concerning
the point at which the constant refinement and evolution of Charter law
in Canada may effect substantive changes such that a decision like Rodriguez
must be regarded as no longer authoritative. Indeed the central question in
this appeal is whether it
is fatal to Rodriguez –
and presumably to several other cases decided prior to 2003 − that the Supreme Court
did not deal with what are now regarded as three aspects of fundamental justice
under s. 7 of the Charter in the structured manner it now prefers. As
will be seen below, it is our view that although the law with respect to the Charter
has certainly evolved since 1993, no change sufficient to undermine Rodriguez
as a binding authority has occurred, and that the trial judge erred in deciding
to the contrary.
The Adjudicative Facts
[247] As Chief
Justice Finch has observed, there was before the court below much more opinion
and other expert evidence about physician-assisted suicide than was before the
Court in Rodriguez. Madam Justice Smith carried out a lengthy and
thorough exploration of this material in addressing: (i) prevailing ethicists’
opinions “for and against the proposition that it can ever be right for a
physician to assist a patient with her own death” (para. 183 et seq.);
(ii) whether anything “short of a blanket prohibition against assisted dying is
sufficient to protect vulnerable individuals from what [Canada] terms ‘wrongful
death’” − a
question involving the consideration of other jurisdictions in which
physician-assisted suicide is permitted (para. 359 et seq.); and
(iii) the feasibility of implementing adequate and effective safeguards in
Canada (para. 747 et seq.).
[248]
We will not attempt even to summarize this evidence. As we have already
suggested, it did not demonstrate a clear consensus of public or learned
opinion on the wisdom of permitting physician-assisted suicide. One of the
professional bodies canvassed by the trial judge, for example, was the Canadian
Medical Association, which prepared a policy document in 2007 entitled Euthanasia
and Assisted Suicide. Among other things, it stated:
Euthanasia and assisted suicide
are opposed by almost every national medical association and prohibited by the
law codes of almost all countries. A change in the legal status of these
practices in Canada would represent a major shift in social policy and
behaviour. For the medical profession to support such a change and subsequently
participate in these practices, a fundamental reconsideration of traditional medical
ethics would be required.
The policy recommended that a
Canadian study of medical decision-making during dying should be undertaken to
determine the “possible need for change and identify what those changes should
be.” Further, it was said:
The public should be given adequate opportunity to comment on
any proposed change in legislation. The law should be determined by the wishes
of society, as expressed through Parliament, rather than by court decisions. …
If euthanasia or assisted suicide
or both are permitted for competent, suffering, terminally ill patients, there
may be legal challenges, based on the Canadian Charter of Rights and
Freedoms, to extend these practices to others who are not competent,
suffering or terminally ill. Such extension is the “slippery slope” that many
fear. Courts may be asked to hear cases involving euthanasia for incompetent
patients on the basis of advance directives or requests from proxy decision
makers. Such cases could involve neurologically impaired patients or newborns
with severe congenital abnormalities. … Psychiatrists recognize the possibility
that a rational, otherwise well person may request suicide. Such a person could
petition the courts for physician-assisted suicide. [Quoted at para. 274 of the
trial judge’s reasons.]
[249] In
addition to the CMA, the World Medical Association, and the Medical
Associations of Australia, the U.S.A., the U.K. and New Zealand were all
opposed to physician-assisted death. (Para. 275.) The trial judge pointed out
that these official bodies do not necessarily represent the views of all their
members. She also noted contrary or neutral positions taken by the American
Academy of Hospice and Palliative Medicine, the Swiss Academy of Medical
Sciences, and the American Medical Women’s Association. (Para. 276.) The Canadian
Hospice Palliative Care Association, she observed, takes a neutral stand on the
subject. (Para. 277.)
[250] Referring
to the views of “public committees”, Smith J. noted that a Special Committee of
the Senate, which published a report in June 1995, was unable to achieve
unanimity with respect to assisted suicide and euthanasia. A majority of
members recommended no amendment to s. 241(b), while a minority recommended
that an exemption be added to permit persons to assist in suicide under clearly
defined conditions. (Para. 290.) Following its receipt of this report, the
Senate shifted its focus to palliative care. A more recent study undertaken by
an expert panel of the Royal Society of Canada and published in 2011
recommended changes to the Criminal Code to allow assisted suicide and
voluntary euthanasia under carefully monitored conditions. (Para. 295.)
[251]
At the end of her review of this and other evidence, the trial judge
could find no “clear societal consensus either way” on the issue before the
Court. In her words:
In summary, there appears to be relatively strong societal
consensus about the following: (1) human life is of extremely high value, and
society should never, or only in very exceptional circumstances, permit the
intentional taking of human life; and (2) current end-of-life practices,
including administering palliative sedation to relieve physical suffering and
acting on patients’ or substituted decision-makers’ directions regarding
withholding or withdrawal of life-sustaining treatment, are ethically
acceptable.
As to physician-assisted death,
weighing all of the evidence, I do not find that there is a clear societal
consensus either way, in an individual case involving a competent,
informed, voluntary adult patient who is grievously ill and suffering symptoms
that cannot be alleviated. However, there is a strong consensus that if
physician-assisted dying were ever to be ethical, it would be only be with respect
to those patients, where clearly consistent with the patient’s wishes and best
interests, and in order to relieve suffering. [At paras. 357-58; emphasis
added.]
[252]
This comment is similar to that made by Sopinka J. for the majority of
the Court in Rodriguez at 607-08:
The principles of fundamental
justice cannot be created for the occasion to reflect the court's dislike or
distaste of a particular statute. While the principles of fundamental justice
are concerned with more than process, reference must be made to principles
which are “fundamental” in the sense that they would have general acceptance
among reasonable people. From the review that I have conducted above, I am
unable to discern anything approaching unanimity with respect to the issue
before us. Regardless of one's personal views as to whether the
distinctions drawn between withdrawal of treatment and palliative care, on the
one hand, and assisted suicide on the other are practically compelling, the
fact remains that these distinctions are maintained and can be persuasively
defended. To the extent that there is a consensus, it is that human life
must be respected and we must be careful not to undermine the institutions that
protect it. [Emphasis added.]
At 608, Sopinka J. also placed “some significance” on the
fact that various medical associations opposed decriminalizing assisted
suicide.
[253]
The majority in Rodriguez did note that some European countries
had “mitigated prohibitions” on assisted suicide in a way that would allow it
to be administered legally in circumstances such as those of Ms. Rodriguez. In
the U.S., Sopinka J. noted, attempts in Washington and California to legalize
assisted suicide had been voted down. In summary, he stated:
Overall, then, it appears that a
blanket prohibition on assisted suicide similar to that in s. 241 is the norm
among Western democracies, and such a prohibition has never been adjudged to be
unconstitutional or contrary to fundamental human rights. Recent attempts to
alter the status quo in our neighbour to the south have been defeated by the
electorate, suggesting that despite a recognition that a blanket prohibition
causes suffering in certain cases, the societal concern with preserving life
and protecting the vulnerable rendered the blanket prohibition preferable to a
law which might not adequately prevent abuse. [At 605.]
[254] Although
criminal sanctions against assisting in suicide remain the “norm” in western
democracies, the trial judge in the case at bar had much more to work with in
terms of evidence from “permissive” jurisdictions, given that
physician-assisted suicide in some form has been legalized in the Netherlands,
Belgium, Switzerland, Luxembourg, Colombia, Oregon, Washington, and Montana. (In
all but two of these jurisdictions, the permissive laws were enacted by
legislation, as opposed to being imposed by courts of law.) She addressed
three questions in connection with this evidence.
[255]
The first concerned “What level of compliance have
the permissive jurisdictions achieved with respect to their safeguards?”
Smith J. observed:
… Although the record is
extensive, it is not exhaustive. The data do not permit firm conclusions about
certain matters, as is apparent in the evidence of one of the plaintiffs’
witnesses, Professor Lewis. Further, independent analysis of the data beyond
that which the expert witnesses have undertaken is not possible. [At para.
647.]
Having said that, she was able to find that in Oregon,
the “process is working fairly well but could be improved, including with
respect to oversight”; that in the Netherlands, compliance with legal
safeguards is “continually improving, but … is not yet at an ideal level”;
that in Belgium the reporting of cases of euthanasia is low (approximately 53%
of presumed cases of euthanasia had been reported in 2007); that high rates of
“life-ending acts without explicit request” (“LAWER”) still exist in Belgium,
although one expert had opined that the number of LAWER cases had declined
since assisted death had been legalized; and that in both the Netherlands and
Belgium, the “law reforms … have made considerable progress in achieving their
goals.” (Para. 660.)
[256] The second
question addressed by the trial judge was whether the safeguards enacted in
each permissive jurisdiction effectively prevent abuse of vulnerable
individuals. The judge preferred the evidence of Professor Battin over the
evidence of other experts tendered by Canada. In Smith J.’s analysis:
I accept that the conclusions stated in the Battin et al. study
are soundly based on the data. I find that the empirical evidence gathered in
the two jurisdictions does not support the hypothesis that physician-assisted
death has imposed a particular risk to socially vulnerable populations. The
evidence does support Dr. van Delden’s position that it is possible for a state
to design a system that both permits some individuals to access
physician-assisted death and socially protects vulnerable individuals and
groups.
No conclusion can be drawn from that study with respect to
situational vulnerability. However, there is some evidence bearing on that
question.
First, depression is a factor that may enter into
decision-making about assisted death. Although many patients are screened out
because of depression, Dr. Ganzini acknowledges that it is virtually impossible
to guarantee that a person whose decisional capacity is affected by depression
will not slip through the safeguards designed to reduce that risk.
It seems unlikely that persons suffering from Major
Depressive Disorder or depression causing impaired judgment would both have the
persistence and will-power to work their way through the approval process for
assisted death, and escape detection by the reviewing physicians. However, the
evidence (from the Ganzini Depression Study) suggests that up to three persons
in Oregon may have done so.
Second, patients may have received assistance in death after
experiencing subtle or overt pressure, facing unconscious suggestions by
caregivers that their circumstances are hopeless, or sensing that they are a
burden on their families. It is impossible to know from statistical evidence
whether this has occurred, or how often. However, the evidence from both Oregon
and the Netherlands about actual decision-making practices does not support the
conclusion that pressure or coercion is at all wide-spread or readily escapes
detection. Dr. Ganzini, for example, who studied the decision-making process,
said that the involvement of family members was usually to try to dissuade
rather than persuade patients from seeking assisted death. That most patients
in Oregon are in hospice care and that the decision-making process in the
Netherlands involves extensive deliberation with a long-term family physician
suggest that it is unlikely that many patients successfully obtain a
physician-assisted death because of outside pressure to do so. The incidents
referred to by Dr. Hendin and others cannot be disregarded, but, on my reading
of the evidence, are highly isolated.
With respect to Belgium, it is
difficult to reach any firm conclusion. In cross-examination, Professor Deliens
acknowledged that patients who do not have a psychiatric disorder but who have
some level of depression might be vulnerable to being euthanized. He also
acknowledged that patients with cognitive impairments such as dementia might be
vulnerable. However, I note Professor Deliens’s evidence that the Chambaere
et al. Population Study does not show elderly patients or patients dying of
diseases of the nervous system (including dementia) to be proportionately at
greater risk of LAWER than other patient groups. [At paras. 667-72.]
[257]
Finally, with respect to what could be inferred by the Court regarding
the likely effectiveness of comparable safeguards in Canada, Smith J.
acknowledged that one should be cautious about drawing inferences for Canada,
given certain differences between this country and the “permissive” states. For
one thing, palliative care practices and the practice of medicine generally
differ among the various jurisdictions. In British Columbia, she said,
end-of-life care is provided in a broader range of settings than in Oregon. In
the Netherlands and Belgium, patients are much more likely to have long-term
relationships with their family physicians; and unlike medical practitioners in
the Netherlands and Belgium, Canadian practitioners are generally “compliant
with the absolute legal prohibition of assisted death, suggesting that the
physicians would also be compliant with any regulatory regime concerning the
practice.” (Para. 680.) Overall, the trial judge reached the following
conclusions:
First, cultural and historical differences between the
Netherlands and Belgium, on the one hand, and Canada on the other, mean that
possible concerns about the level of compliance with legislation in those
countries do not necessarily transpose into concerns about Canada. The
experience of compliance in Oregon is more likely to be predictive of what
would happen in Canada if a permissive regime were put in place, although even
there only a weak inference can be drawn.
Second, the expert opinion evidence from persons who have
done research into the question is that, with respect to all three
jurisdictions, the predicted abuse and disproportionate impact on vulnerable
populations has not materialized. Again, inferences for Canada can only be
drawn with caution.
Third, although none of the
systems has achieved perfection, empirical researchers and practitioners who
have experience in those systems are of the view that they work well in
protecting patients from abuse while allowing competent patients to choose the
timing of their deaths. [At paras. 683-85.]
[258] Smith J.
also rejected the argument that the legalization of physician-assisted dying
would impede the future development of palliative care in British Columbia: see
paras. 686-736. A recent report of a Senate subcommittee entitled Raising
the Bar: A Roadmap for the Future of Palliative Care in Canada (2010) had
described the current situation, which the judge summarized as follows:
Raising the Bar states
that only 10% of people die suddenly; the remaining 90% potentially benefit
from palliative care. In 1995, only 5% of Canadians had access to quality
palliative care. In 2008, a best estimate suggested that between 16-30% of
Canadians had some level of access, depending on their location. According to
the report, it follows that upwards of 70% of Canadians lack access to even
minimal forms of palliative care. The report cautions that the health care
system will be further stretched and access to palliative care will be at risk
of erosion given the increase in the number of deaths expected over the next
generation, together with the prevalence of chronic disease (a result of our
ability to manage these conditions longer and more effectively than ever
before). [At para. 705.]
[259] In her
analysis, however, the evidence established that “the effects [of
permitting physician-assisted death] would not necessarily be negative” and
predictions as to how palliative care would be effected in Canada would only be
“speculative”. (Para. 736.) She rejected the suggestion that if the law
permitted physician-assisted suicide, patients’ relationships with their
doctors would necessarily be adversely affected. In summary, she said, “it
is likely that the relationship would change, but the net effect could prove to
be neutral or for the good.” (Para. 746.)
[260] Finally,
in her discussion of adjudicative facts, the trial judge turned to Canada’s
argument that unless physician-assisted suicide is absolutely prohibited, there
is an unacceptable risk of “wrongful deaths”. (Para. 748.) Again, the parties
adduced extensive expert evidence. The judge’s general conclusions were that:
i) It is feasible for
properly-qualified and experienced physicians to assess patient competence
reliably, including in the context of life-and-death decisions, so long as they
apply the very high level of scrutiny appropriate to the decision and proceed
with great care (para. 798);
ii) Coercion and undue influence
on patients can be detected “as part of a capacity assessment”. Clinicians
carrying out such assessments “would have to be aware of the risks of coercion
and undue influence, of the possibility of subtle influence, and of the risks
of unconscious biases regarding the quality of the lives of persons with
disabilities or persons of advanced age” (para. 815);
iii) It would be feasible to
require informed consent for physician-assisted death. In this context, care
would have to be taken to “ensure a patient is properly informed of her
diagnosis and prognosis, given the seriousness of the decision. As well, the
range of treatment options described would have to encompass all reasonable
palliative care interventions, including those aimed at loss of personal
dignity” (para. 831); and
iv) It is feasible to “screen out”
patients who are ambivalent about physician-assisted death by “assessing
capacity and requiring some time to pass between the decision and its
implementation” (para. 843).
Smith J. also disagreed with the proposition that the risks
posed to persons with disabilities “are such that they cannot be avoided
through practices of careful and well-informed capacity assessments by
qualified physicians who are alert to those risks.” (Para. 853)
[261] In
conclusion of this discussion and the preceding sections of her reasons, the
judge stated that “the risks inherent in permitting physician-assisted death
can be identified and very substantially minimized through a
carefully-designed system imposing stringent limits that are scrupulously
monitored and enforced.” (Para. 883; our emphasis.)
[262] Despite
the striking difference between the type and volume of evidence adduced in this
case as compared with that adduced in Rodriguez, Smith J. recognized at
para. 998 of her reasons that the existence of “a different set of legislative
and social facts” “may not” on its own warrant a fresh inquiry under s. 1
of the Charter. She found, however, that a change in the “legal
principles to be applied” had also occurred, warranting a finding that she was
no longer bound by Rodriguez.
Stare
Decisis
[263]
This brings us to the doctrine of stare decisis, or in the phrase
of the Ontario Court of Appeal in Bedford, the notion of “binding
precedent”. Historically, the Supreme Court of Canada adopted a strict view of
this rule. In Woods Mfg. Co. Ltd. v. The King [1951] S.C.R. 504,
for example, Chief Justice Rinfret observed:
… It is fundamental to the due
administration of justice that the authority of decisions be scrupulously
respected by all courts upon which they are binding. Without this uniform and
consistent adherence the administration of justice becomes disordered, the law
becomes uncertain, and the confidence of the public in it undermined. Nothing
is more important than that the law as pronounced, including the interpretation
by this Court of the decisions of the Judicial Committee, should be accepted
and applied as our tradition requires; and even at the risk of that fallibility
to which all judges are liable, we must maintain the complete integrity of
relationship between the courts. [At 515.]
The Court in Bedford
described the rule and its rationale in the following terms:
… The notion of binding
precedent, often used interchangeably with the principle of stare decisis,
requires that courts render decisions that are consistent with the previous
decisions of higher courts. The rationale for the rule is self-evident: it
promotes consistency, certainty and predictability in the law, sound judicial
administration, and enhances the legitimacy and acceptability of the common
law: David Polowin Real Estate Ltd. v. The Dominion of Canada General
Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), at paras. 119-120. [At para.
56.]
[264]
But the rule has generally been given a narrow scope, applying only to
the ratio decidendi of a prior decision or one of a higher court. As
noted in Halsbury’s Laws of Canada, Civil Procedure I (1st ed.,
2008), quoted in Bedford at para. 57:
To employ the traditional
terminology: only the ratio decidendi of the prior court decision is
binding on a subsequent court. The term ratio decidendi describes the
process of judicial reasoning that was necessary in order for the court to
reach a result on the issues that were presented to it for a decision. All
other comments contained within the reasons of the prior court are termed obiter
dicta, and in essence such incidental remarks are treated as asides. They
may have persuasive value, but they are not binding. [At 282.]
[265] In R.
v. Henry (2005), one of the issues before the Supreme Court was the extent
to which a lower court was bound by what were strictly obiter dicta of a
higher court. The Court distanced itself from the so-called “Sellars
principle” (see Sellars v. The Queen [1980] 1 S.C.R. 527 at 529),
which was seen by some as meaning that “whatever was said” in a majority
judgment of the Supreme Court of Canada was binding, no matter how incidental
to the point decided. This “broadened” approach had been criticized as
depriving the legal system of “creative thought” and likely to stultify the
growth of the common law. The question in each instance, Binnie J. stated for the
Court in Henry, is: “what did the case decide?” He continued:
… Beyond the ratio decidendi
which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the
facts, the legal point decided by this Court may be as narrow as the jury
instruction at issue in Sellars or as broad as the Oakes test.
All obiter do not have, and are not intended to have, the same weight.
The weight decreases as one moves from the dispositive ratio decidendi
to a wider circle of analysis which is obviously intended for guidance and
which should be accepted as authoritative. Beyond that, there will be
commentary, examples or exposition that are intended to be helpful and may be
found to be persuasive, but are certainly not “binding” in the sense the Sellars
principle in its most exaggerated form would have it. The objective of the
exercise is to promote certainty in the law, not to stifle its growth and
creativity. The notion that each phrase in a judgment of this Court should be
treated as if enacted in a statute is not supported by the cases and is
inconsistent with the basic fundamental principle that the common law develops
by experience. [At para. 57.]
The Court of Appeal in Bedford inferred from the
foregoing that there is now a “spectrum of authoritativeness” and that the
traditional division between ratio and obiter is now more nuanced.
(Para. 58.)
[266]
In Bedford itself, the plaintiffs had sought a declaration that
certain offences in the Criminal Code relating to prostitution were
unconstitutional. The plaintiffs relied on their rights to life, liberty and
security of the person under s. 7 and freedom of expression under
s. 2(b) of the Charter. Not surprisingly, Canada argued that the
Supreme Court’s previous decision in the Prostitution Reference (1990),
together with the principle of stare decisis, precluded the lower court
from considering these issues anew. The motions judge in the lower court held,
however, that the Prostitution Reference should be revisited in light of
the “breadth of evidence that has been gathered over the course of the
intervening twenty years” and in light of the possibility that “the social,
political and economic assumptions underlying the Prostitution Reference
are no longer valid today.” Thus she considered herself free to reconsider
whether the impugned provisions violated s. 7 or whether the violation of
s. 2(b) continued to be justified under s. 1 of the Charter. (See
2010 ONSC 4264, at para. 83.)
[267]
The Court of Appeal upheld the motions judge’s decision in part. On the
one hand, it ruled that she had been correct with respect to s. 7 and the
principles of fundamental justice. In the words of the majority opinion of
Doherty, Rosenberg and Feldman JJ.A.:
In this case, the parties agree that the respondents' s. 7
liberty interest is engaged by the challenged provisions. However, the
respondents also argue that the provisions engage their s. 7 security of the
person interest. This independent interest was not considered by the majority
in the Prostitution Reference.
In addition, the number of recognized “principles of
fundamental justice” referenced in the second half of s. 7 has expanded over
the last 20 years. Whereas in 1990 the Supreme Court considered only vagueness
and the perceived inconsistency in Parliament's response to prostitution, in
this case the application judge was asked to evaluate the infringements against
the principles of arbitrariness, overbreadth, and gross disproportionality.
The
principles of fundamental justice at issue in this case were not considered in
1990 because they had not yet been fully articulated. Arbitrariness and
overbreadth were only identified as principles of fundamental justice in 1993
and 1994, respectively: Rodriguez v. British Columbia (A.G.), [1993]
3 S.C.R. 519; R. v. Heywood, [1994] 3 S.C.R. 761. Gross
disproportionality emerged as a principle of fundamental justice a decade
later: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3
S.C.R. 571.
…
It cannot be said that the Prostitution
Reference decided the substantive s. 7 issues before the application
judge in this case. Therefore, stare decisis did not apply, and the
application judge did not err by conducting her own analysis and coming to her
own conclusions. [At paras. 66-8, 70; emphasis added.]
[268] On the
other hand, the Court of Appeal disagreed that the motions judge had been free
to disregard the judgment in the Prostitution Reference with respect to
s. 2(b) of the Charter. The majority found she had erred in
equating her position with the position of a court that is asked to
consider one of its own prior decisions. In the words of the majority:
… Reasons that justify a court departing from its own prior
decision have no application to, and cannot justify, a lower court's purported
exercise of a power to reconsider binding authority from a higher court.
Third, the application judge erred by holding that the
binding authority of the Prostitution Reference could be displaced by
recasting the nature of the expression at issue as promoting safety, and not
merely commercial expression. This change in perspective has not altered the
ratio decidendi of that case, which was that the communicating provision
is a reasonable limit on freedom of expression. In coming to this conclusion,
the majority applied the Oakes test based on the best information
available to them at the time. There may be good reasons for the Supreme
Court to depart from this holding for all the reasons discussed in Polowin
Real Estate, but that is a matter for the Supreme Court to decide for
itself.
In our view, the need for a robust application of stare
decisis is particularly important in the context of Charter
litigation. Given the nature of the s. 1 test, especially in controversial
matters, the evidence and legislative facts will continue to evolve, as will
values, attitudes and perspectives. But this evolution alone is not sufficient
to trigger a reconsideration in the lower courts.
If it were otherwise, every
time a litigant came upon new evidence or a fresh perspective from which to
view the problem, the lower courts would be forced to reconsider the case
despite authoritative holdings from the Supreme Court on the very points at
issue. This would undermine the legitimacy of Charter decisions and
the rule of law generally. It would be particularly problematic in the criminal
law, where citizens and law enforcement have the right to expect that they may
plan their conduct in accordance with the law as laid down by the Supreme
Court. Such an approach to constitutional interpretation yields not a vibrant
living tree but a garden of annuals to be regularly uprooted and replaced. [At
paras. 81-4; emphasis added.]
[269] Smith J.
relied heavily on the Court of Appeal’s decision in Bedford, with which
she expressed agreement. (Para. 911.) In response to the question “What did Rodriguez
decide?”, she concluded that:
i) it did not address the
question of whether s. 241(b) of the Criminal Code engaged the “right to
life” under s. 7;
ii) it did not address whether the
deprivation of security of the person or liberty was contrary to the principles
of fundamental justice regarding overbreadth or gross disproportionality;
iii) it did not address whether, or
if so, how, s. 241(b) of the Code infringes s. 15 of the Charter;
and
iv) it “addressed only very summarily
the final step in the s. 1 analysis, balancing salutary and deleterious effects
of the legislation” (para. 936).
In addition, she found that in Hutterian Brethren,
the Supreme Court of Canada had “put life into the final balancing step in the
analysis of proffered justifications for infringements of Charter
rights” under s. 1, such that Hutterian Brethren marked a substantive
change in the law. In her view, this made Rodriguez distinguishable. (Paras.
994-95.)
[270] With
respect to the latter point regarding the effect of Hutterian Brethren, we
agree with the reasoning and conclusion of Chief Justice Finch that it did not
represent a change in the law but served as an application of the fourth Oakes
factor under s. 1 −
the “balancing” of salutary and deleterious effects under s. 1. This “effects”
principle has been a part of the s. 1 analysis since Oakes and we read
the reasons of Chief Justice Dickson (with Lamer J., as he then was,
concurring) in Morgentaler (1988), at 75-6, as containing this type of
analysis, albeit it in brief terms. In any event, Hutterian Brethren did
not in our view represent a change to the law under s. 1.
[271]
We turn, then, to each of the foregoing points that were said not to
have been decided by the Supreme Court in Rodriguez. In doing so, we
respectfully adopt the observation of the Ontario Court of Appeal in Bedford,
that a “robust” approach to stare decisis should be taken in Charter
cases. As we hope to demonstrate below, the law in this context is constantly
evolving and refining itself to adapt to the “creative thought” of litigants
and their counsel. Analytical paradigms, formulae and multi-branch tests are
adopted in earlier cases only to be modified, re-organized, de-emphasized or
found not to be helpful in later cases. Given this, it is important not to lose
sight of what was actually decided, as opposed to how it was
decided, in a given case.
Right
to “Life” under Section 7
[272]
Several years before Rodriguez was decided, Wilson J. stated that
each of “life, liberty and security of the person” in s. 7 is an interest that
must be given independent analytical significance: see Singh v. Minister of
Employment and Immigration (1985) at 204-05. This statement was adopted by
a majority of the Court, per Lamer J., in the Motor Vehicle Reference
(1985):
… “it is incumbent upon the Court
to give meaning to each of the elements, life, liberty and security of the
person, which make up the ‘right’ contained in s. 7”. Each of these, in my
view, is a distinct though related concept to be construed as such by the
courts. It is clear that s. 7 surely protects the right not to be deprived of
one’s life, liberty and security of the person when that is done in breach of
the principles of fundamental justice. The outcome of this case is dependent
upon the meaning to be given to that portion of the section which states “and
the right not to be deprived thereof except in accordance with the principles
of fundamental justice”. On the facts of this case it is not necessary to
decide whether the section gives any greater protection, such as deciding
whether, absent a breach of the principles of fundamental justice, there still
can be, given the way the section is structured, a violation of one’s rights to
life, liberty and security of the person under s. 7. Furthermore, because of
the fact that only deprivation of liberty was considered in these proceedings
and that no one took issue with the fact that imprisonment is a deprivation of
liberty, my analysis of s. 7 will be limited, as was the course taken by all,
below and in this Court, to determining the scope of the words “principles of fundamental
justice”, I will not attempt to give any further content to liberty nor address
that of the words life or security of the person. [At 500-01.]
(See also Morgentaler at 52.)
[273] Nevertheless,
unlike liberty and security of the person, “life” has not been broadly
construed and indeed has been invoked by the Supreme Court of Canada in only a
few cases. Professor Hogg states in his text that in respect of “life”,
s. 7 has “little work to do, because governmental action rarely causes
death.” (Supra, §47.6.)
He suggests that the most obvious case for the application of this Charter
right would have been the death penalty, but this was removed from the Criminal
Code in 1976, years before the Charter was adopted.
[274]
The majority in Rodriguez accepted that life, liberty and
security of the person all play independent roles under s. 7. Sopinka J. noted:
None of these values prevail a priori
over the others. All must be taken into account in determining the content of
the principles of fundamental justice and there is no basis for imposing a
greater burden on the propounder of one value as against that imposed on
another. [At 584.]
[275]
Sopinka J. saw the life “value”, however, as one that was a
counterweight to liberty and security of the person in this context. In his
words, “… a consideration of these interests cannot be divorced from the
sanctity of life, which is one of the three Charter values protected by
s. 7.” We read his judgment as based on the concept of “life” as a value that
by definition is the opposite of death. At 585, for example, Sopinka J. noted
that “sanctity of life” has been understood historically as “excluding freedom
of choice in the self-infliction of death”. Even when death appears imminent,
he noted, seeking to control the manner and timing of one’s death “constitutes
a conscious choice of death over life. It follows that life as a value is
engaged even in the case of the terminally ill who seek to choose death over
life.” With respect to the argument that the terminally ill are “particularly
vulnerable as to their life”, he stated:
I do not draw from this that in
such circumstances life as a value must prevail over security of person or
liberty as these have been understood under the Charter, but that it
is one of the values engaged in the present case. [At 586; emphasis added.]
[276]
Sopinka J. was persuaded that Ms. Rodriguez’s security interest
(“considered in the context of the life and liberty interest”) was engaged. (At
589.) Building on Morgentaler, he saw personal autonomy, “at least with
respect to the right to make choices concerning one’s own body, control over
physical and psychological integrity, and basic human dignity” as encompassed
within “security of the person” in s. 7. (At 588.)
[277]
Since Rodriguez, courts have continued to regard the making of
personal decisions regarding one’s body as falling under the “security of the
person” rubric and to a lesser extent, under “liberty” in s. 7. In R. v.
Clay 2003 SCC 75, the sister case to Malmo-Levine, the majority
cited Godbout v. Longueuil (City) [1997] 3 S.C.R. 844, Morgentaler
(1988) and B. (R). v. Children’s Aid Society of Metropolitan Toronto
[1995] 1 S.C.R. 315, concluding that:
What stands out from these
references, we think, is that the liberty right within s. 7 is thought to touch
the core of what it means to be an autonomous human being blessed with dignity
and independence in “matters that can properly be characterized as fundamentally
or inherently personal” (Godbout, at para. 66). [At para. 31.]
(See also Blencoe v. British Columbia (Human Rights
Commission) 2000 SCC 44.)
[278] The right
to life was invoked more recently in Chaoulli v. Quebec (Attorney
General) (2005), in the reasons of Chief Justice McLachlin and Major J.,
who found that a prohibition in a Quebec statute against private medical
insurance impermissibly limited the “right to life, liberty and security of the
person in an arbitrary fashion that fails to conform to the principles of
fundamental justice.” (At para. 104.) McLachlin C.J.C. and Major J.
emphasized evidence to the effect that delays in the public health system in
Quebec significantly increased the risk of death in many cases: see paras.
112-17. As they stated, “Where lack of timely health care can result in death,
s. 7 protection of life itself is engaged.” (At para. 123.)
[279] It seems
to us, then, that considerations involving personal autonomy, decision-making
and dignity − the very
values asserted by both Ms. Rodriguez and the plaintiffs in the case at bar − have consistently been
regarded as engaging security of the person and to a lesser extent, liberty. Life,
on the other hand, has been regarded in the existential sense with, in Sopinka
J.’s phrase, “deep intrinsic value of its own”; and indeed the majority in Rodriguez
referred to the “sanctity of life” in a non-religious sense. (At 585.) This
value is reflected not only in the rejection of capital punishment in this country,
but in the laws of every country that regards murder as one of the most serious
crimes.
[280]
In our view, this differentiation between “life” as an existential value
and the values of individual autonomy and liberty, including the ability to
enjoy the kinds of experiences described by Chief Justice Finch at
para. 86 of his reasons, is as it should be. Those who have only limited
ability to enjoy those blessings are no less “alive”, and have no less a right
to “life”, than persons who are able-bodied and fully competent. If “life” were
regarded as incorporating various qualities which some persons enjoy and others
do not, the protection of the Charter would be expanded far beyond what
the law can ‘guarantee’, while conversely, a slippery slope would open up for
those who are unable to enjoy the blessings described by the Chief Justice. In
this regard, the observations of McKenzie J. in the 1983 case of British
Columbia (Superintendent of Family and Child Services) v. Dawson, [1983]
145 D.L.R. (3d) 610 (B.C.S.C.), although made in a different context, are apt:
… It is not appropriate for an
external decision maker to apply his standards of what constitutes a livable
life and exercise the right to impose death if that standard is not met in his
estimation. The decision can only be made in the context of the disabled person
viewing the worthwhileness or otherwise of his life in its own context as a
disabled person – and in that context he would not compare his life with that
of a person enjoying normal advantages. He would know nothing of a normal
person's life having never experienced it. [At 620-21.]
[281] In the
result, in Rodriguez, although the majority did not in so many words
reject the notion that s. 241 constitutes a breach of the right to “life”
under s. 7, we infer that the Court dismissed such a notion out of hand. Instead,
Sopinka J. noted the societal consensus that “human life must be respected and
we must be careful not to undermine the institutions that protect it.” (At
608.) We therefore disagree that “life” in s. 7 was set to one side, or that,
as Chief Justice Finch suggests, “life” includes the freedom to make the kinds
of decisions or experience the pleasures he describes. To the contrary, we find
it inherent in the majority’s reasons in Rodriguez that “life” in the
context of s. 7 has a narrow compass and does not include a right to die in the
manner and at the time of one’s choosing. As stated by Sopinka J., “seeking to
control the manner and timing of one’s death constitutes a conscious choice of
death over life. It follows that life … is engaged even in the case of the
terminally ill who seek to choose death over life.” (At 586.)
[282] Even if we
were wrong in this conclusion, and Sopinka J. did not consider the right to
“life” under s. 7, it is still correct to say that the majority found in Rodriguez
that the prohibition on assisted dying accorded with the principles of
fundamental justice. Thus, regardless of whether s. 241(b) was analyzed under
life, liberty or security of the person, Rodriguez decided that the law
met the tests of arbitrariness (as the trial judge held at para. 1331 of her
reasons) and what are now referred to as overbreadth and proportionality. We
turn now to those principles.
Principles
of Fundamental Justice
[283] There is
no doubt that both the sources and content of what are regarded as the
principles of fundamental justice for purposes of s. 7 have evolved over the
last three decades. The first pronouncements of the Supreme Court of Canada
focussed on whether “fundamental justice” extended only to procedural fairness
or natural justice. The Motor Vehicle Reference (1985) confirmed that it
was not so limited, holding that absolute liability in criminal law offended
fundamental justice. (At 514-15.) On a more theoretical level, the Court also
made it clear that the principles of fundamental justice are not concerned with
public policy but with the “basic tenets of our legal system” that lie “in the
inherent domain of the judiciary as guardian of the justice system.” (At 503.)
[284]
As noted by Prof. H. Stewart in Fundamental Justice: Section 7 of the
Canadian Charter of Rights and Freedoms (2012) at 106-07, Sopinka J. in Rodriguez
summarized the appropriate approach to determining the principles of
fundamental justice. He stated:
Discerning the principles of fundamental justice with which
deprivation of life, liberty or security of the person must accord, in order to
withstand constitutional scrutiny, is not an easy task. A mere common law rule
does not suffice to constitute a principle of fundamental justice, rather, as
the term implies, principles upon which there is some consensus that they are
vital or fundamental to our societal notion of justice are required. Principles
of fundamental justice must not, however, be so broad as to be no more than
vague generalizations about what our society considers to be ethical or moral.
They must be capable of being identified with some precision and applied to
situations in a manner which yields an understandable result. They must also,
in my view, be legal principles. The now familiar words of Lamer J. in Re
B.C. Motor Vehicle Act … at pp. 512-13, are as follows:
Consequently, the principles of fundamental justice are to
be found in the basic tenets and principles, not only of our judicial process,
but also of the other components of our legal system.
... the proper approach to the determination of the
principles of fundamental justice is quite simply one in which, as Professor L.
Tremblay has written, “future growth will be based on historical roots”...
Whether any given principle may be said to be a principle of
fundamental justice within the meaning of s. 7 will rest upon an analysis of
the nature, sources, rationale and essential role of that principle
within the judicial process and in our legal system, as it evolves. [At 590-91
of Rodriguez.]
[285]
Sopinka J.’s remarks were substantially echoed by McLachlin C.J.C. for
the majority in Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General) 2004 SCC 4, where she stated that a principle of
fundamental justice under s. 7 must fulfill three criteria:
First, it must be a legal
principle … Second, there must be sufficient consensus that the alleged
principle is “vital or fundamental to our societal notion of justice” … The
principles of fundamental justice are the shared assumptions upon which our
system of justice is grounded. They find their meaning in the cases and
traditions that have long detailed the basic norms for how the state deals with
its citizens. Society views them as essential to the administration of justice.
Third, the alleged principle must be capable of being identified with precision
and applied to situations in a manner that yields predictable results. [At
para. 8.]
[286]
For some years, the proper “balance” of the interests of the state with
those of the individual was regarded as a principle of fundamental justice: see
Rodriguez, where at 592-94, Sopinka J. adverted to the reasoning of
McLachlin J. (as she then was) in Cunningham v. Canada [1993] 2 S.C.R.
143:
I cannot subscribe
to the opinion expressed by my colleague, McLachlin J., that the state interest
is an inappropriate consideration in recognizing the principles of fundamental
justice in this case. This Court has affirmed that in arriving at these
principles, a balancing of the interest of the state and the individual is
required …
…
This concept of balancing was confirmed in a very recent
judgment of this Court. In Cunningham v. Canada … McLachlin J. concluded
that the appellant had been deprived of a liberty interest protected by s. 7.
She then considered whether that deprivation was in accordance with the
principles of fundamental justice (at pp. 151-52):
The principles of fundamental
justice are concerned not only with the interest of the person who claims his
liberty has been limited, but with the protection of society. Fundamental
justice requires that a fair balance be struck between these interests, both
substantively and procedurally …
McLachlin J. held that the appropriate
balance had been struck “by qualifying the prisoner's expectation regarding
the form in which the sentence would be served” (p. 152). [Emphasis by
underlining added.]
This “balancing” approach has more commonly been adopted
in deportation and extradition cases: see Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1; United States v. Burns 2001
SCC 7.
[287]
In recent years, however, the Supreme Court has retreated from
the notion that a general balancing of individual and societal interests is
appropriately carried out under s. 7. In Malmo-Levine (2003), the
majority wrote that:
We do not
think that these authorities should be taken as suggesting that courts engage
in a free-standing inquiry under s. 7 into whether a particular legislative
measure “strikes the right balance” between individual and societal interests
in general, or that achieving the right balance is itself an overarching
principle of fundamental justice. Such a general undertaking to balance
individual and societal interests, independent of any identified principle of
fundamental justice, would entirely collapse the s. 1 inquiry into s. 7.
The procedural implications of such a collapse are significant. Counsel for the
appellant Caine, for example, urges that the appellants having identified a
threat to the liberty or security of the person, the evidentiary onus should
switch at once to the Crown within s. 7 “to provide evidence of the
significant harm that it relies upon to justify the use of criminal sanctions”
(Caine’s factum, at para. 24).
…
The balancing of individual and societal interests within
s. 7 is only relevant when elucidating a particular principle of fundamental
justice. As Sopinka J. explained in Rodriguez, supra, “in
arriving at these principles [of fundamental justice], a
balancing of the interest of the state and the individual is required” (pp.
592-93 (emphasis added)). Once the principle of fundamental justice has been
elucidated, however, it is not within the ambit of s. 7 to bring into account
such “societal interests” as health care costs. Those considerations will be
looked at, if at all, under s. 1. As Lamer C.J. commented in R. v. Swain,
[1991] 1 S.C.R. 933, at p. 977:
It is not appropriate for the state to thwart the exercise
of the accused's right by attempting to bring societal interests into the
principles of fundamental justice and to thereby limit an accused's s. 7
rights. Societal interests are to be dealt with under s. 1 of the Charter,
where the Crown has the burden of proving that the impugned law is demonstrably
justified in a free and democratic society.
[At paras. 96, 98; emphasis by underlining added.]
(Professor Stewart suggests that despite these comments, the
notion of “striking a fair balance” does continue to function as a principle of
fundamental justice in the context of cases where the constitutional challenge
is to a decision of a state official rather than to a statutory provision: see
113-14. This would account for its continued application in the extradition
cases mentioned earlier.)
[288]
The majority in Malmo-Levine sought again to rationalize the
principles of fundamental justice, and in doing so, referred to the majority’s
discussion in Rodriguez, which had built on Lamer J.’s comments in the Motor
Vehicle Reference (1985). (See para. 280 above.) In Malmo-Levine,
the majority went on to summarize:
… In short, for a
rule or principle to constitute a principle of fundamental justice for the
purposes of s. 7, it must be a legal principle about which there is significant
societal consensus that it is fundamental to the way in which the legal system
ought fairly to operate, and it must be identified with sufficient precision to
yield a manageable standard against which to measure deprivations of life,
liberty or security of the person. [At para. 113.]
[289] As we demonstrate below, however, laws that come under Charter
scrutiny are assessed according to a number of standards that, while couched
as discrete tenets of the justice system, overlap, oscillate and even merge. This
doctrinal imprecision and pliability are likely unavoidable consequences of
dealing with normative and abstract ideas. Although the standard, or particular
“test”, varies, the essential exercise undertaken with respect to fundamental
justice under s. 7 is to evaluate broadly the rationality and normative balance
struck by the law in question. (See, e.g., A.C. v. Manitoba (Director of
Child and Family Services) 2009 SCC 30, where the majority conducted this
evaluation explicitly at para. 108.)
[290] We turn
now to a consideration of the judicially-recognized substantive principles of
fundamental justice.
Substantive Principles under
Section 7
[291] At
present, the substantive principles of fundamental justice that are relevant to
this appeal are
arbitrariness, overbreadth and gross disproportionality. (We leave vagueness
aside, as it was not raised in this case and is not relevant except to the
extent that it overlaps with overbreadth.) None of these has had an
uninterrupted path to fruition as an ‘independent’ principle, and each has been
‘lumped in’ with one or more of the others at one time or another.
Arbitrariness
[292]
The Supreme Court of Canada originally used the language of “manifest
unfairness” to describe what is now referred to as “arbitrariness” − i.e., where the law in
question has no rational connection to its stated objective. The principle came
to the fore in Morgentaler (1988), where Chief Justice Dickson concluded
for himself and Lamer J. that criminal prohibitions on the obtaining of an abortion
were not in accordance with fundamental justice because the law may not hold
out a defence that is “illusory”. (At 70.) He found that the procedures
contemplated by what was then s. 251 of the Criminal Code for
obtaining abortions were “arbitrary and unfair” under s. 7. (At 75.) Beetz
J. agreed, but used only the language of “manifestly unfair”, observing:
An administrative structure made
up of unnecessary rules, which result in an additional risk to the health of
pregnant women, is manifestly unfair and does not conform to the principles of
fundamental justice … [S]ome of these requirements are manifestly unfair
because they have no connection whatsoever with Parliament's objectives in
establishing the administrative structure in s. 251(4). Although connected to
Parliament's objectives, other rules in s. 251(4) are manifestly unfair
because they are not necessary to assure that the objectives are met. [At
109-10; emphasis added.]
[293] Subsequent
case law has applied the standard of inconsistency with legislative purpose in
determining whether the law in question is arbitrary. In Malmo-Levine,
the majority rejected the argument of the accused that the prohibition against
the possession of marihuana was arbitrary, ruling that Parliament had a
reasonable apprehension of harm arising from the use of the substance. Like the
majority in Rodriguez, the Court found that a complete prohibition was
rationally connected to the apprehension of harm. (At para. 136.)
[294]
Since Malmo-Levine, the standard on which a court will find a law
to be arbitrary is not entirely certain. In Chaoulli (2005) the
Supreme Court split three-three on the question of whether Quebec’s prohibition
against the purchase of private health insurance offended this principle of
fundamental justice. (The tie was broken by Deschamps J., who found that the
provisions violated the Quebec Charter of Human Rights and Freedoms.)
The reasons of McLachlin C.J.C. and Major and Bastarache JJ. described
arbitrariness as follows:
A law is arbitrary where “it bears no relation to, or is
inconsistent with, the objective that lies behind [it]”. To determine
whether this is the case, it is necessary to consider the state interest and
societal concerns that the provision is meant to reflect: Rodriguez, at
pp. 594-95.
In order not to be arbitrary, the
limit on life, liberty and security requires not only a theoretical connection
between the limit and the legislative goal, but a real connection on the facts.
The onus of showing lack of connection in this sense rests with the claimant.
The question in every case is whether the measure is arbitrary in the sense
of bearing no real relation to the goal and hence being manifestly unfair.
The more serious the impingement on the person's liberty and security, the more
clear must be the connection. Where the individual's very life may be at stake,
the reasonable person would expect a clear connection, in theory and in fact,
between the measure that puts life at risk and the legislative goals. [At
paras. 130-31; emphasis added.]
[295] These
judges went on to comment on Morgentaler (1988) and the “manifest
unfairness” standard, suggesting that this was an example of arbitrariness, in
that some limitations were “unnecessary” to ensure the government’s objectives,
while others “bore no connection” to those objectives. (Para. 132.) A
provision would be arbitrary, in other words, if the interference with life,
liberty or security of the person lacked a “real connection” to the purpose of
the legislation in question. (Para. 134.)
[296]
Binnie and LeBel JJ., on the other hand, took issue in Chaoulli with
the language of necessity, also referring back to Rodriguez:
… We … do not agree with our colleagues’ expansion of the Morgentaler
principle to invalidate a prohibition simply because a court believes it to be
“unnecessary” for the government’s purpose. There must be more than that to
sustain a valid objection.
The accepted definition in Rodriguez
states that a law is arbitrary only where “it bears no relation to, or is
inconsistent with, the objective that lies behind the legislation”. To
substitute the term “unnecessary” for “inconsistent” is to substantively alter
the meaning of the term “arbitrary”. “Inconsistent” means that the law
logically contradicts its objectives, whereas “unnecessary” simply means that
the objective could be met by other means. It is quite apparent that the latter
is a much broader term that involves a policy choice. If a court were to
declare unconstitutional every law impacting “security of the person” that the
court considers unnecessary, there would be much greater scope for intervention
under s. 7 than has previously been considered by this Court to be acceptable.
(In Rodriguez itself, for example, could the criminalization of assisted
suicide simply have been dismissed as “unnecessary”? As with health care, many
jurisdictions have treated euthanasia differently than does our Criminal
Code.) The courts might find themselves constantly second-guessing the
validity of governments’ public policy objectives based on subjective views of
the necessity of particular means used to advance legitimate government
action as opposed to other means which critics might prefer. [At paras. 233-34;
emphasis by underlining added.]
[297] This
dispute does not appear to have been resolved: see A.C. v. Manitoba (2009)
and Canada (Attorney General) v. PHS Community Services Society 2011 SCC
44 at para. 132, where the Court explicitly declined to settle the question,
concluding that the Minister’s decision would fail on either standard; see also
Bedford at paras. 143-47.
[298]
In summary, we note Professor Stewart’s description of how the test of
arbitrariness has been variously framed by the Supreme Court:
It has been said
that a law is arbitrary if it is not necessary to achieve the objective of the
legislation in question [citing PHS at para. 132], if “it bears no
relation to, or is inconsistent with, the objective that lies behind the
legislation” [citing Rodriguez], if there is “no real connection on the
facts to the purpose the interference is said to serve,” [citing Chaoulli at
para. 134] or if it is not “rationally connected to a reasonable apprehension
of harm.” [Citing Malmo-Levine at para. 136.] At a minimum, to avoid
being arbitrary, a law or decision must have some positive effect on the
purpose it is supposed to serve; otherwise the section 7 interest will have
been effected for no good reason. Like the norm against overbreadth, the
norm against arbitrariness requires a court to identify the purpose of the law
and to assess the connection between those purposes and the limits on life,
liberty, or security created by the law. (At 136; emphasis added.)
Overbreadth
[299]
Laws that, while infringing a protected interest under s. 7, are drafted
more broadly than necessary to meet the state’s objectives may be struck down
as overbroad and therefore not in accordance with fundamental justice: see Kent
Roach and Robert Sharpe, The Charter of Rights and Freedoms (4th ed.,
2009) at 237. In the early years of Charter jurisprudence, the position
of what is now called “overbreadth” was uncertain. In R. v. Nova Scotia
Pharmaceutical Society [1992] 2 S.C.R. 606, the Supreme Court agreed with
an earlier minority opinion that “overbreadth is subsumed under the ‘minimal
impairment branch’ of the Oakes test, under s. 1.” Gonthier J. for
the Court referred to cases in which criminal sanctions are assessed under s.
12 and observed:
This inquiry also resembles the sort of balancing process
associated with the notion of overbreadth.
In all these cases, however, overbreadth remains no more than
an analytical tool. The alleged overbreadth is always related
to some limitation under the Charter. It is always established by
comparing the ambit of the provision touching upon a protected right with such
concepts as the objectives of the State, the principles of fundamental justice,
the proportionality of punishment or the reasonableness of searches and
seizures, to name a few. There is no such thing as overbreadth in the
abstract. Overbreadth has no autonomous value under the Charter. As will
be seen below, overbreadth is not at the heart of this case, although it has
been invoked in argument.
The relationship between vagueness and
“overbreadth” was well expounded by the Ontario Court of Appeal in this
oft-quoted passage from R. v. Zundel (1987), 58 O.R. (2d) 129, at pp.
157-58:
Vagueness and overbreadth are two concepts.
They can be applied separately, or they may be closely interrelated. The
intended effect of a statute may be perfectly clear and thus not vague, and yet
its application may be overly broad. Alternatively, as an example of the two
concepts being closely interrelated, the wording of a statute may be so vague
that its effect is considered to be overbroad.
I agree … [At
629-30; emphasis added.]
[300]
The matter was revisited in Heywood (1994), in which certain
vagrancy provisions in the Criminal Code were challenged. It was an
offence for a person previously convicted of sexual assault involving a child
to be “loitering” in certain areas (playgrounds, parks, bathing areas and so
on). The majority found that the purpose of the law was to protect children,
but ruled that the geographic and temporal scope of the law, as well as the
scope of persons to whom it applied, were too broad for the purpose of the law.
(At 794-802.) Cory J. for the majority noted that vagueness and overbreadth
overlap and that the effect of overbreadth may result in arbitrariness or
disproportionality. As well, he noted the “balancing” inherent in analyzing an
impugned law for overbreadth. In his words:
… Overbreadth and vagueness are related in
that both are the result of a lack of sufficient precision by a legislature in
the means used to accomplish an objective. In the case of vagueness, the means
are not clearly defined. In the case of overbreadth the means are too sweeping
in relation to the objective.
Overbreadth analysis looks at the means
chosen by the state in relation to its purpose. In considering whether a
legislative provision is overbroad, a court must ask the question: are those
means necessary to achieve the State objective? If the State, in pursuing a
legitimate objective, uses means which are broader than is necessary to
accomplish that objective, the principles of fundamental justice will be
violated because the individual’s rights will have been limited for no
reason. The effect of overbreadth is that in some applications the law is
arbitrary or disproportionate.
Reviewing
legislation for overbreadth as a principle of fundamental justice is simply an
example of the balancing of the State interest against that of the
individual. This type of balancing has been approved by this Court: see Rodriguez
… [At 792-93; emphasis added.]
(It will be recalled that the
reference to the limitation of rights “for no reason” echoes Sopinka J.’s
comment regarding arbitrariness in Rodriguez that:
Where the
deprivation of the right in question does little or nothing to enhance the
state’s interest (whatever it may be), it seems to me that a breach of
fundamental justice will be made out, as the individual's rights will have
been deprived for no valid purpose. This is, to my mind, essentially the
type of analysis which E. Colvin advocates in his article “Section Seven of the
Canadian Charter of Rights and Freedoms” (1989), 68 Can. Bar Rev. 560,
and which was carried out in Morgentaler. That is, both Dickson C.J. and
Beetz J. were of the view that at least some of the restrictions placed upon
access to abortion had no relevance to the state objective of protecting the
foetus while protecting the life and health of the mother. In that regard the
restrictions were arbitrary or unfair. It follows that before one can
determine that a statutory provision is contrary to fundamental justice, the
relationship between the provision and the state interest must be considered.
[At 594; emphasis added.])
[301] For some
years after Heywood, the Supreme Court seemed reluctant to apply the
criterion of overbreadth, at least explicitly. In R. v. Demers 2004 SCC
46, however, the provisions of the Criminal Code that addressed those
unfit to stand trial were challenged successfully on the basis of overbreadth. The
Code did not permit a review board to discharge an individual found to
be permanently unfit even if there was no evidence that he or she was a danger
to society. If the person was found fit, he or she would go to trial;
otherwise, as long as the Crown had a prima facie case, he or she would
remain detained. The law was found to be overly broad because the means chosen
were “not the least restrictive of an unfit person’s liberty and not necessary
to achieve the state’s objective.” (Para. 43.)
[302] The Court
in both Heywood and Demers found that overbreadth was infringed
merely where the law in question went beyond what was “necessary” to meet its
objective. In Clay, however, the standard of overbreadth appeared to be
equated at least in part with “gross disproportionality” and, again, linked to
arbitrariness. The Court stated:
The analysis of overbreadth in relation to s. 7 was
considered in R. v. Heywood, [1994] 3 S.C.R. 761, at p. 793,
where Cory J. observed that:
The effect of overbreadth is that in some applications the
law is arbitrary or disproportionate.
Overbreadth in that respect addresses the potential
infringement of fundamental justice where the adverse effect of a
legislative measure on the individuals subject to its strictures is grossly
disproportionate to the state interest the legislation seeks to protect.
Overbreadth in this aspect is, as Cory J. pointed out, related to
arbitrariness. In Heywood, he went on to note, at p. 793:
In analyzing a statutory provision to determine if it is
overbroad, a measure of deference must be paid to the means selected by the
legislature. While the courts have a constitutional duty to ensure that
legislation conforms with the Charter, legislatures must have the power
to make policy choices.
The appropriate degree of
deference referred to in Heywood is built into the applicable standard
of “gross disproportionality”, as explained in Malmo-Levine and Caine.
[At paras. 37-9; emphasis added.]
Gross Disproportionality
[303]
It is now said to be a principle of fundamental justice that the impact
of a state’s legislative measures on a person’s life, liberty or security of
the person must not be “so extreme that they are per se disproportionate
to any legitimate government interest”. (See Suresh at para. 47.) It is
commonly thought that this principle was first recognized in Malmo-Levine
(see paras. 142-43). The majority adopted a standard approximating that
approved under s. 12 of the Charter, which prohibits cruel and unusual
punishment: see R. v. Morrisey 2000 SCC 39. As stated by Gonthier and
Binnie JJ. in Malmo-Levine:
Is there then a principle of fundamental
justice embedded in s. 7 that would give rise to a constitutional remedy
against a punishment that does not infringe s. 12? We do not think so. To find
that gross and excessive disproportionality of punishment is required under s.
12 but a lesser degree of proportionality suffices under s. 7 would render
incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14
of the Charter by attributing contradictory standards to ss. 12 and 7 in
relation to the same subject matter. Such a result, in our view, would be
unacceptable.
Accordingly, even
if we were persuaded by our colleague Arbour J. that punishment should be
considered under s. 7 instead of s. 12, the result would remain the same. In
both cases, the constitutional standard is gross disproportionality. In
neither case is the standard met. [At paras. 160-61; emphasis added.]
This standard was said to provide Parliament with “broad
latitude” to effect its interests: para. 175.
[304] Perhaps
not surprisingly, following Malmo-Levine and Clay there was some
uncertainty as to the relationship between gross disproportionality and
overbreadth. Until recently, very few cases struck down laws on the basis that
the effects of the law were grossly disproportionate to the benefits to the
state’s interest: see Stewart at 149. In PHS (2011), however, the
Supreme Court considered arbitrariness and gross disproportionality separately,
finding that the effect of the Minister’s decision on the health and safety of
Insite’s users was both arbitrary and grossly disproportionate to any state
interest in maintaining the prohibitions on the drugs used at the clinic. In
these circumstances, the Court found it unnecessary to analyze overbreadth: see
paras. 132-34.
[305] Two cases
decided by the Ontario Court of Appeal in 2008 illustrate the difficulty of
keeping the three concepts separate. In R. v. Dyck 2008 ONCA
309, the Court relied on the majority judgments in Clay and Malmo-Levine
for the proposition that overbreadth was a “function of arbitrariness” and was
subsumed in the “ultimate standard” of gross disproportionality. (See paras.
94-6.) The Court stated that “a law will not fail a constitutional challenge on
this ground simply because it goes further than is strictly necessary or even
because it is merely disproportionate to the objective at issue, as opposed to
‘grossly’ disproportionate.” (At para. 96.) It would appear that overbreadth
was here merged with gross disproportionality, raising the threshold for
finding a breach of fundamental justice.
[306]
In Cochrane v. Ontario (Attorney General) 2008 ONCA 718, lve.
to app refused [2009] S.C.C.A. No. 105, the Court appeared to deal with the
principles slightly differently. Sharpe J.A. for the Court said this:
Overbreadth is a term used to
describe legislation that, as drafted, covers more than is necessary to attain
the legislature's objective and thereby impinges unduly upon a protected right
or freedom. A law is unconstitutionally overbroad if it deprives an individual
of “life, liberty and security of the person” in a manner that is “grossly
disproportionate” to the state interest that the legislation seeks to protect.
Such a law is said to be “arbitrary” and offends “the principles of fundamental
justice” and therefore violates s. 7 of the Charter. A law that
restricts the rights guaranteed by s. 7 is also “arbitrary” unless it is
grounded in a “reasoned apprehension of harm”. The onus of proving that the law
is “arbitrary” or “grossly disproportionate” lies on the applicant: see R.
v. Malmo-Levine … [At para. 18.]
On this view the test for
“overbreadth” and for “arbitrariness” would appear to be gross
disproportionality, although arbitrariness could also be shown by the absence
of a reasoned apprehension of harm. Arguably, all three principles were
combined. Sharpe J.A. went on to consider the appellant’s submissions against
viewing arbitrariness and disproportionality as elements of the broader norm of
overbreadth. Again in his words:
I disagree with the appellant's
submissions and see no error in the approach taken by the application judge. In
my view, the appellant's submission misstates −
and significantly understates −
the burden that rests upon a claimant who challenges a law under s. 7 on
grounds of overbreadth. As I have stated, the test for a breach of s. 7 on
grounds of overbreadth is whether the law is “arbitrary” because there is no
“reasoned apprehension of harm” or whether the law is “grossly
disproportionate” to the legislative objective. To meet that test, the
appellant had to satisfy the onus of demonstrating that the legislature did not
have a basis for a “reasoned apprehension of harm” from pit bulls or that the
action taken by the legislature was “grossly disproportionate” to the risk
posed by pit bulls. Fairly read, the reasons of the application judge indicate
that she quite properly focussed her analysis on these issues. In my view, the
record amply supports the application judge's conclusion that the appellant
failed to satisfy the onus of demonstrating a breach of s. 7 on grounds of
overbreadth. [At para. 25; emphasis added.]
[307]
Similarly, in United States of America v. Nadarajah 2010 ONCA
859, the Court of Appeal stated:
In assessing whether the means chosen by Parliament
overshoots the legislative purpose of the prohibition, the courts will afford a
substantial measure of deference to Parliament's assessment of the means
needed. Such deference requires that the means used by Parliament be “grossly
disproportionate” to the state objective underlying the criminal prohibition
before the law will be said to be unconstitutionally overbroad: R. v.
Malmo-Levine, [2003] 3 S.C.R. 571, at para. 159; Lindsay, at para.
21 (Ont. C.A.); Ahmad, at para. 39.
The overbreadth inquiry
proceeds through three stages. First, the impugned provision must be
interpreted to determine the scope of the criminal prohibition created by the
statutory provision. Second, the legislative purpose animating the impugned
provision must be determined. Finally, the court must determine whether the
scope of the impugned provision is “grossly disproportionate” to the state
objective underlying the provision. [At paras. 16-7; emphasis added.]
(The Supreme Court upheld this decision but reserved its
comments on the substantive principles for its companion decision in R. v.
Khawaja 2012 SCC 69, discussed below.)
[308] As we have
seen, the Court of Appeal in Bedford concluded that despite some
uncertainty, gross disproportionality had “emerged” as an independent principle
of fundamental justice in 2003 in Malmo-Levine. The Court acknowledged
the “fluidity” of the principles of fundamental justice and attempted to
clarify the foregoing 2008 cases in light of PHS. (At para. 150.) It
concluded that any commingling of the standards would be an error, given the
Supreme Court of Canada’s treatment of the principles as doctrinally distinct
(albeit closely related) in PHS: see para. 155.
[309] This court
has treated overbreadth, arbitrariness and gross disproportionality as
doctrinally distinct: see Victoria (City) v. Adams (2009) and this
court’s decision in PHS, indexed as 2010 BCCA 15.
[310] In its
most recent pronouncement on the subject in Khawaja, the Supreme Court
of Canada noted that “the authorities continue to suggest that overbreadth and
gross disproportionality are −
at least analytically −
distinct.” However, McLachlin C.J.C. for the majority declined to decide
whether the two are “distinct constitutional doctrines.” In her analysis:
Certainly, these concepts are
interrelated, although they may simply offer different lenses through which to
consider a single breach of the principles of fundamental justice. Overbreadth
occurs when the means selected by the legislator are broader than necessary to
achieve the state objective, and gross disproportionality occurs when state
actions or legislative responses to a problem are “so extreme as to be
disproportionate to any legitimate government interest” [citing PHS at
para. 133 and Malmo-Levine at para. 143]. … I will examine both
overbreadth and gross disproportionality in a single step, without however
deciding whether they are distinct constitutional doctrines. [At para. 40.]
The Chief Justice went on to consider the two principles
together without any substantive distinction: see paras. 62-3. Whether her
remarks and analysis were intended as a tentative endorsement of a unified
overbreadth/disproportionality approach is unclear, although it is difficult to
escape the notion that lower courts should apply the test as a single inquiry
for the time being.
[311]
Professor Stewart, supra, addresses the question “Overbreadth,
Arbitrariness and Disproportionality: How Many Principles?” in one summarizing
paragraph as follows:
The norms against overbreadth,
arbitrariness, and gross disproportionality all involve failures of
instrumental rationality, in the following sense. Whenever a law fails to
satisfy one of these norms, there is a mismatch between the legislature’s
objective and the means chosen to achieve it: the law is inadequately connected
to its objective or in some sense goes too far in seeking to attain it. It
might be thought that these norms are really three separate ways of identifying
the same kind of defect in the law: perhaps these three norms are different
facets or aspects of a larger overarching norm requiring a minimal degree of
instrumental rationality in legislation. On the other hand, it might be
thought that each of them names a distinct failure of instrumental rationality:
maybe, for example, a law can be overbroad without being arbitrary or grossly
disproportionate. Or it might be thought that while the three norms are not
identical, there is enough overlap between them that perhaps the law could
manage with fewer than three. [At 151; emphasis added.]
[312] But
whether gross disproportionality is now to be separated in all cases from
overbreadth and arbitrariness or whether it merely involves looking at a law
with a “different lens”, it is not in our view correct to say that a new
principle of fundamental justice was “established” in Clay or Malmo-Levine.
Rather, the Court invoked a particular way of expressing, or looking at, the
broader question of whether an impugned law “goes too far”, measured against
its objectives. This concept may be, and has been, framed in terms of whether
the objectives of the law could be met by other (less intrusive) means, whether
the law is “necessary” (in all its aspects) to achieve its objective, or
whether its effects are “disproportionate” in light of its objectives.
[313] It may be
that as different kinds of legislation come under scrutiny in future, other
aspects of “fundamental justice” will emerge as more or less powerful “lenses”
are employed under s. 7. (Counsel for the plaintiffs, citing R. v. Arcand
2010 ABCA 363, indeed contended that “parity” has been recognized as a new
principle of fundamental justice under s. 7, although not by the Supreme Court
of Canada. If anything, parity would seem to be simply another lens that might
be employed where criminal sentences are challenged, for assessing laws under
the established principles.) The point is that if lower courts are to be free
to reconsider and depart from established precedent every time the Supreme
Court of Canada articulates a new refinement or variant of what are now
principles of fairly long standing, the role of such principles as the “shared
assumptions upon which our system of justice is founded” (see Canadian
Foundation for Children, at para. 8) will inevitably decline, along with,
we suggest, the public’s perception of the role of courts as the legitimate
arbiters of legislation under the Charter.
Rodriguez
[314] Turning
finally to Rodriguez itself, it is true that the majority’s reasons do
not follow the structured paradigm that now characterizes many of the Supreme
Court’s reasons in s. 7 cases. The judgment referred to what is now called
arbitrariness − the
notion that where an individual’s rights have been deprived “for no valid
purpose”, the principles of fundamental justice will have been violated. (At
594.) Sopinka J. noted, but rejected, the argument that the “blanket
prohibition on assisted suicide” was “arbitrary or unfair” because it was
unrelated to the state’s interest in protecting the vulnerable. (At 595.) The
judgment also referred to ‘over-inclusiveness’ (which equates with
“overbreadth”) in the context of Ms. Rodriguez’s central argument that no
exclusion was made for persons in her situation or persons who are mentally
competent, but cannot commit suicide on their own. (At 590.) Ultimately, the
majority concluded that it could not be said the blanket prohibition on
assisted suicide was “arbitrary or unfair, or that it is not reflective of
fundamental values at play in our society.” (At 608.)
[315] We see
this as the key holding in the case −
that s. 241(b) of the Code was rationally connected to its objective and
that the “societal concern with preserving life and protecting the vulnerable
[against abuse] rendered the blanket prohibition preferable to a law that might
not adequately prevent abuse.” (At 605.) The impugned law did not, in other
words, ‘go too far.’
[316]
With all due respect to the trial judge, we believe that she was bound
by stare decisis to conclude that the plaintiffs’ case had already been
determined by the Supreme Court of Canada. We also respectfully disagree with
the conclusion of the Ontario Court of Appeal in Bedford that gross
disproportionality “emerged” as a new principle of fundamental justice in Malmo-Levine.
(At para. 68.) This holding opens up to reconsideration every case decided
under s. 7 prior to 2003. Such a result seems contrary to the Court of Appeal’s
later observation that in the context of Charter litigation, courts
should take a “robust” view of stare decisis, given the fact that
evidence, legislative facts, values, attitudes and perspectives will never
stand still. Nor was it open, in our view, for the trial judge to apply what
has been called “anticipatory overruling”: see HMTQ in Right of the Province
of Saskatchewan v. The Saskatchewan Federation of Labour et al. 2013 SKCA
43 at paras. 48-50; and see Air Canada Pilots’ Association v. Kelly et al. 2012
FCA 209, where Pelletier J.A. observed:
… the evolution of social policy over time may justify the
Supreme Court revisiting a particular issue but it cannot justify a lower
court’s failure to follow the Supreme Court’s jurisprudence.
This is not to say that lower
courts do not have a role to play in the evolution of the jurisprudence once
the Supreme Court has spoken. Where a challenge to the existing jurisprudence
is raised, the role of the lower court is to allow the parties to gather and
present the evidence and to make the necessary findings of fact and of
credibility, so as to establish the evidentiary record upon which the Supreme
Court can decide whether to reconsider its earlier decision: see Bedford.
... [At paras. 47-8.]
(See also Debra Parkes, Precedent Unbound?
Contemporary Approaches to Precedent in Canada (2007) 32 Man. L.J. 135.)
Section 1
[317]
The overlap between the principles of fundamental justice under s. 7 and
the question of justification under s. 1 remains a striking feature of current Charter
law. It is often observed that the Supreme Court has never found an
infringement of s. 7 rights to be justified under s. 1: see Stewart, supra,
at 289. (Indeed, Wilson J. suggested at 523 of the Motor Vehicle Reference
that this could never happen.) In New Brunswick (Minister of Health
and Community Services) v. G.(J.) [1999] 3 S.C.R. 46, Lamer C.J.C.
suggested two reasons why a limit on a right under s. 7 would be difficult
to justify under s. 1:
First, the rights protected by s.
7 − life, liberty,
and security of the person −
are very significant and cannot ordinarily be overridden by competing social
interests. Second, rarely will a violation of the principles of fundamental
justice, specifically the right to a fair hearing, be upheld as a reasonable limit
demonstrably justified in a free and democratic society. [At para. 99.]
[318]
Professor Hogg also questions whether a law that violates the principles
of fundamental justice could nevertheless be upheld under s. 1 as a reasonable
limit demonstrably justified in a free and democratic society. He notes that in
Morgentaler (1988) the Supreme Court held that the abortion offence in
the Criminal Code infringed s. 7 and that each of three majority
opinions went on to consider whether the law could nevertheless be justified
under s. 1. However, Hogg observes:
I think it is fair to say … that the discussions of s. 1
justification essentially rehearsed points already discussed under fundamental
justice. The finding that the abortion law offended fundamental justice virtually
entailed a finding that the law was not a “reasonable limit” and was not
“demonstrably justified in a free and democratic society”.
In other cases, the Supreme Court
of Canada has usually applied s. 1 before holding that a breach of s. 7
invalidated a law. The s. 1 justification has been upheld in minority opinions,
but never by a majority of the Court. [At §38.14(b).]
(On the latter point, the author cites R. v. Vaillancourt
[1987] 2 S.C.R. 636; R. v. Logan [1990] 2 S.C.R. 731; R. v.
Hess [1990] 2 S.C.R. 906; Burns at para. 133; Suresh at para.
128; Demers at para. 46; Chaoulli at para. 155; Charkaoui
v. Canada (Minister of Citizenship and Immigration) 2007 SCC 9 at
para. 66; and R. v. D.B. 2008 SCC 25 at para. 89.)
[319] The Court
in Rodriguez did not find it necessary to apply s. 1 of the Charter
with respect to s. 7 rights. This was necessary only with respect to s.
15 equality rights, the breach of which was assumed. Applying the Oakes
factors in a fairly unstructured way, the majority concluded that “any
infringement of s. 15 is clearly justified under s. 1 of the Charter.”
(At 615.) Section 241(b) of the Code was found to have “’a clearly
pressing and substantial legislative’ objective grounded in the respect for and
the desire to protect human life”; and to be rationally connected to its
purpose. (At 613.) In response to the argument that exceptions should be made
to the prohibition on the giving of assistance to commit suicide, the majority
noted two major difficulties: first, the introduction of an exception for
“certain groups” would create an inequality, and second, attempts to create
exceptions had been unsatisfactory and tended to “support the theory of the
‘slippery slope’.” (At 613-14.)
[320]
For the same reason, s. 241(b) was also found not to be “overbroad” in
the context of the Oakes test. Sopinka J. stated:
… There is no halfway measure
that could be relied upon with assurance to fully achieve the legislation's
purpose; first, because the purpose extends to the protection of the life of
the terminally ill. Part of this purpose, as I have explained above, is to
discourage the terminally ill from choosing death over life. Secondly, even if
the latter consideration can be stripped from the legislative purpose, we have
no assurance that the exception can be made to limit the taking of life to
those who are terminally ill and genuinely desire death. [At 614; emphasis
added.]
Finally, the majority said, it followed that the “final
aspect of the proportionality test, balance between the restriction and the
government objective” was also met: at 615.
[321] The trial
judge was of the opinion in the case at bar that it was open to her to
reconsider this “final step” because, she said, the Court had addressed it
“only very summarily.” (Para. 936; but see also para. 998.) With
respect, her opinion of the sufficiency of the Supreme Court of Canada’s
analysis did not permit her to disregard its conclusion. As we hope we have
demonstrated, it is inherent in the law relating to the Charter that it
is not written in stone and that ways of assessing laws inevitably evolve. Again,
the focus for purposes of stare decisis should be on what was decided,
not how it was decided or how the result was described.
[322] In our
opinion, exactly the same reasons as Sopinka J. brought to bear under s. 1
could have been made under the rubrics of overbreadth and disproportionality,
gross or otherwise, under s. 7 – even though different rights were being
considered by Sopinka J. and even though the onus of proof is of course different
under the two sections.
[323] In answer,
then, to the question posed at the beginning of our legal analysis, we would
conclude that Rodriguez decided the following:
i) section 241(b) of the Criminal
Code did not violate s. 7 of the Charter as it is now understood;
ii) any (assumed) violation
of s. 15 of the Charter was justified under s. 1.
We also infer that had it been
necessary to consider s. 1 in connection with a violation of s. 7, the s. 1
analysis carried out in under s. 15 would have led to the same conclusion − that a “blanket
prohibition” was justified.
[324] It follows
in our view that the trial judge was bound to find that the plaintiffs’ case
had been authoritatively decided by Rodriguez. We would allow the appeal
on this basis.
Remedy
[325] In the
event the Supreme Court of Canada does review Rodriguez, the issue of
remedy may arise. It is in connection with that possibility that we make the
following brief comments.
[326] As the law
now stands, there does not appear to be an avenue for relief from a generally
sound law that has an extraordinary, even cruel, effect on a small number of
individuals. Such individual relief is often referred to as a constitutional
exemption. In the past that possibility existed in Canada. It arose in R. v.
Big M Drug Mart Ltd. [1985] 1 S.C.R. 295 and R. v. Edwards Books and Art
Ltd. [1986] 2 S.C.R. 713, where the Court left open the “possibility that
in certain circumstances a ‘constitutional exemption’ might be granted from
otherwise valid legislation to particular individuals”. (Edwards Books at
783.) The idea was subsequently ‘picked up’ by some appellate courts in
connection with mandatory sentencing provisions that were said to have such
harsh application that they raised issues under s. 12 of the Charter.
An example is R. v. Chief (1989) 39 B.C.L.R. (2d) 358 (Y.T.C.A.), where
McEachern C.J.Y.T. crafted an exemption from a mandatory prohibition of
possession of firearms on an offence committed in the (then) Yukon Territory by
a First Nations trapper.
[327]
Dissenting in this court in Rodriguez [1993] 3 W.W.R. 553,
McEachern C.J.B.C. would have provided Ms. Rodriguez an individual
exemption from s. 241, so as to give her the opportunity to end her life
with assistance. He stated:
As already mentioned, the declaration granted in this
judgment is limited to the Appellant and physicians assisting her, and enures
to the benefit of no other person. For the time being, therefore, any other
person in the position of the Appellant seeking a similar declaration must make
a separate application to the Supreme Court of British Columbia.
I only wish to add that, like
Lord Mustill in Bland, I must admit to having profound misgivings about
almost every aspect of this case. I can only hope that Parliament in its wisdom
will make it unnecessary for further cases of this kind to be decided by
judges. I accede to this application only because I believe it is a salutary
principle that every person who has a right, must also have a remedy. [At
paras. 110-11.]
[328]
The Supreme Court divided five-to-four in Rodriguez, with the majority
rejecting relief for Ms. Rodriguez. It is perhaps of interest that Lamer C.J.C.
would have declared s. 241(b) unconstitutional, would have suspended his
declaration for a period of time and, relying upon the suspended declaration of
invalidity, would have given Ms. Rodriguez relief from the law for the
interval – that is, he would have ordered a constitutional exemption. Referring
to Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69 and R. v.
Seaboyer [1991] 2 S.C.R. 477, he observed:
The scope of the constitutional
exemption, then, has been limited by the majority of this Court: an over-broad
blanket prohibition should not be tempered by allowing judicially granted
exemptions to nullify it, and the criteria on which the exemption would be
granted must be external to the Charter. That is, the fact that the
application of the legislation to the party challenging it would violate the Charter
cannot be the sole ground for deciding to grant the exemption; rather, there
must be an identifiable group, defined by non-Charter characteristics,
to whom the exemption could be said to apply. [At 576.]
and further:
I am in agreement with many of
the concerns Wilson J. expressed in Osborne about constitutional
exemptions, and would address them by holding that constitutional exemptions
may only be granted during the period of a suspended declaration of invalidity.
In this circumstance, the provision is both struck down and temporarily
upheld, making the constitutional exemption peculiarly apt, and limiting its
application to situations where it is absolutely necessary. [At 577.]
[329]
McLachlin J. for herself and L’Heureux-Dubé
J. would have found s. 241 unconstitutional and concurred in general terms
with the approach of McEachern C.J.B.C. She stated at 629:
I concur generally in the remedy
proposed by the Chief Justice [Lamer] in his reasons, although I am not
convinced that some of the conditions laid down by his guidelines are
essential. ... What is required will vary from case to case. The essential in
all cases is that the judge be satisfied that if and when the assisted suicide
takes place, it will be with the full and free consent of the applicant. I
would leave the final order to be made by the chambers judge, having regard to
the guidelines suggested by McEachern C.J. below and the exigencies of the
particular case.
Cory J. agreed with the approach of Lamer C.J.C. and of
McLachlin J.
[330]
A constitutional remedy as a case-specific, individual response to an
exceptional circumstance was still a possibility in 2001. In R. v. Sharpe
2001 SCC 2, McLachlin C.J.C. referred to, but did not decide on, the
possibility of an individual exemption in the course of discussing alternatives
open to a court on a successful constitutional challenge to legislation:
Confronted with a law that is substantially constitutional
and peripherally problematic, the Court may consider a number of alternatives.
One is to strike out the entire law. This was the choice of the trial judge and
the majority of the British Columbia Court of Appeal. The difficulty with this
remedy is that it nullifies a law that is valid in most of its applications.
Until Parliament can pass another law, the evil targeted goes unremedied. Why,
one might well ask, should a law that is substantially constitutional be struck
down simply because the accused can point to a hypothetical application that is
far removed from his own case which might not be constitutional?
Another alternative might be to hold that the law as it
applies to the case at bar is valid, declining to find it unconstitutional on
the basis of a hypothetical scenario that has not yet arisen. In the United
States, courts have frequently declined to strike out laws on the basis of
hypothetical situations not before the court, although less so in First
Amendment (free expression) cases. While the Canadian jurisprudence on the
question is young, thus far it suggests that laws may be struck out on the
basis of hypothetical situations, provided they are “reasonable”.
Yet another alternative might be to uphold the law on the
basis that it is constitutionally valid in the vast majority of its
applications and stipulate that if and when unconstitutional applications
arise, the accused may seek a constitutional exemption. Ross, who concludes
that s. 163.1(4) is constitutional in most but not all of its applications,
recommends this remedy: Ross, supra, at p. 58.
I find it unnecessary to canvas
any of these suggestions further because in my view the appropriate remedy in
this case is to read into the law an exclusion of the problematic applications
of s. 163.1, following Schachter v. Canada, [1992] 2 S.C.R. 679. …
[At paras. 111-14.]
[331]
The availability of an individual constitutional exemption in answer to
a s. 12 Charter challenge continued to be uncertain until R. v.
Ferguson 2008 SCC 6. In Ferguson, McLachlin C.J.C. explored, in the
context of s. 12 of the Charter, the alternative bases for a
constitutional remedy, s. 24(1) and s. 52. She observed:
When a law produces an unconstitutional effect, the usual
remedy lies under s. 52(1), which provides that the law is of no force or
effect to the extent that it is inconsistent with the Charter. A law may
be inconsistent with the Charter either because of its purpose or its
effect: R. v. Big M Drug Mart Ltd., [1985]1 S.C.R. 295; R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713. Section 52 does not create a
personal remedy. A claimant who otherwise has standing can generally seek a
declaration of invalidity under s. 52 on the grounds that a law has
unconstitutional effects either in his own case or on third parties: Big M;
see also Peter Sankoff, “Constitutional Exemptions: Myth or Reality?”
(1999-2000), 11 N.J.C.L. 411, at pp. 432-34; Morris Rosenberg and
Stéphane Perrault, “Ifs and Buts in Charter Adjudication: The Unruly
Emergence of Constitutional Exemptions in Canada” (2002), 16 S.C.L.R. (2d) 375,
at pp. 380-82. The jurisprudence affirming s. 52(1) as the appropriate remedy
for laws that produce unconstitutional effects is based on the language chosen
by the framers of the Charter: see Sankoff, at p. 438.
Section 24(1), by contrast, is
generally used as a remedy, not for unconstitutional laws, but for
unconstitutional government acts committed under the authority of legal regimes
which are accepted as fully constitutional: see Eldridge v. British Columbia
(Attorney General), [1997] 3 S.C.R. 624; Multani v. Commission scolaire
Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6. The acts of
government agents acting under such regimes are not the necessary result or
“effect” of the law, but of the government agent's applying a discretion
conferred by the law in an unconstitutional manner. Section 52(1) is thus not
applicable. The appropriate remedy lies under s. 24(1). [At paras. 59-60.]
[332]
Further, concerning the application of s. 52, the Chief Justice
noted:
The presence of s. 52(1) with its
mandatory wording suggests an intention of the framers of the Charter
that unconstitutional laws are deprived of effect to the extent of their
inconsistency, not left on the books subject to discretionary case-by-case
remedies: see Osborne, per Wilson J. In cases where the
requirements for severance or reading in are met, it may be possible to remedy
the inconsistency judicially instead of striking down the impugned legislation
as a whole: Vriend; Sharpe. Where this is not possible – as in
the case of an unconstitutional mandatory minimum sentence – the
unconstitutional provision must be struck down. The ball is thrown back into
Parliament's court, to revise the law, should it choose to do so, so that it no
longer produces unconstitutional effects. In either case, the remedy is a s. 52
remedy that renders the unconstitutional provision of no force or effect to the
extent of its inconsistency. To the extent that the law is unconstitutional, it
is not merely inapplicable for the purposes of the case at hand. It is null and
void, and is effectively removed from the statute books. [At para. 65.]
[333] On this
reasoning, an individual remedy for an extraordinarily harsh consequence of a
law appears to be foreclosed, although Kent Roach, in Constitutional
Remedies in Canada (2nd ed., looseleaf) suggests that R. v. Nasogalauk
2010 SCC 6 may open the availability of constitutional exemptions
in rare cases. If that is so, one could suggest a distinction between the
legislation considered in Ferguson and the provision at issue here which
could support a different result than that in Ferguson. In the latter
case, the Court was concerned with mandatory minimum sentencing legislation. The
granting of a constitutional exemption in that context would obviously
undermine Parliament’s intention and could be seen as an inappropriate
intrusion into the legislative sphere. The provision before us, s. 241 of
the Criminal Code, is directed to the interests of those who are vulnerable.
Lifting the prohibition for those who are clear-minded, supported in their life
expectancy by medical opinion, rational and without outside influence, and
protected by a court process, might not undermine the legislative intention in
the sense spoken of in Ferguson.
[334] We
respectfully raise the remedy of constitutional exemption again, as an
alternative to striking down s. 241, in the event that Rodriquez is
reconsidered. As demonstrated by the history of the issue recounted in Rodriguez,
and the evidence in this case of still-born legislative initiatives, the issue
of physician-assisted suicide has surfaced repeatedly in Parliament without
result one way or another. Bearing this history in mind, there is an inherent
danger in declaring s. 241 and the related provisions invalid, even with a
time delay. Apart from the interference by the judiciary in the agenda of
Parliament that would be inherent in a suspended declaration of constitutional
invalidity, there is no certainty that Parliament would wish to, or be able to,
engage both the public debate and its own debate in the time required to
satisfy a deadline. The issue is one that goes to the heart of our democratic
compact. We are not confident that a fully rounded, well balanced alternative
policy, with comprehensive public support, would or could be developed in the
time-frame of any of the suspensions of declaration of invalidity that have
been issued hitherto. Striking down s. 241 would call for more than a top-down
design of a broadly applicable system for assisted suicide. In that sense, the
remedy of a suspended declaration of invalidity presents the spectre of a
vacuum in the protection that s. 241 now provides, a danger that would not
be present on a more limited remedy.
[335] Last, we
note the terms of the constitutional exemption ordered by the trial judge in
respect of Ms. Taylor. Her circumstances and clarity of mind were fully
before the judge, who formed a confident view of Ms. Taylor’s capacity and
consent. Nonetheless, the order crafted by the Court compels a judge,
upon being provided with certain evidence, to make an order allowing
Ms. Taylor physician-assisted death. There is some technical difficulty
with the order in that it appears to direct another judge how to decide an
application. Putting that aside, it would in our view be unwise to replicate
such an order for others who may wish an exemption from the law. We are not
satisfied that the bare requirement of two medical opinions and a request from
the patient is sufficient to satisfactorily establish a free will, or to
demonstrate the absence of subtle or overt pressures, to choose the route of
physician-assisted suicide. At the least, a court of law, unencumbered by
previous judicial direction, accustomed to assessing issues of consent and
influence, and with a perspective outside the (often overstressed) health care
regime, should in our view be required to assess individual cases.
[336] Our
comments concerning remedy, of course, are by the way, given our view of the
import of Rodriguez; however, they may make some contribution to the
discussion of remedy in the event Rodriguez is reconsidered.
Costs
at Trial
[337] Smith J.
awarded special costs to the plaintiffs, apportioned 90% against Canada and 10%
against British Columbia. Canada says that in any event of its appeal, the
judge erred in awarding special costs. In Docket CA040454, British Columbia
appeals separately from the order for costs.
Against Canada
[338] The trial
judge made her order for the reasons that are set out by Chief Justice Finch in
his reasons. Were we of the same view as the Chief Justice on the disposition
of the appeal, we would have agreed with his reasons on the issue of costs in
the Supreme Court of British Columbia, against Canada. In other words, we see
no error in the reasoning of the trial judge on the issue of costs in relation
to Canada.
[339]
However, we have come to a different conclusion than the trial judge and
the Chief Justice on the applicability of Rodriguez. Should the
different conclusion result in a different disposition of the costs issue? In
our view the answer is yes.
[340]
There are two issues considered when determining costs − liability for costs,
and if there is liability, the scale of costs that should be awarded. Although
it is deciding the second question first, it clears the way, in this public
interest litigation, to address the scale of costs awarded in respect to the
trial proceedings before addressing liability.
[341]
In William v. British Columbia 2013 BCCA 1, Groberman J.A., for
the Court, summarized the approach to special costs to a public interest
litigant at para. 16, citing Victoria (City) v. Adams (2009):
... the following may be identified as the most relevant
factors to determining whether special costs should be awarded to a successful
public interest litigant:
(a) The
case involves matters of public importance that transcend the immediate
interests of the named parties, and which have not been previously resolved;
(b) The
successful party has no personal, proprietary or pecuniary interest in the
outcome of the litigation that would justify the proceeding economically;
(c) As
between the parties, the unsuccessful party has a superior capacity to bear the
costs of the proceeding; and
(d) The successful party has not
conducted the litigation in an abusive, vexatious or frivolous manner. [At
para. 188; emphasis added.]
[342] While this
passage is directed to a successful public interest litigant, Groberman
J.A. went on to consider the case of an unsuccessful public litigant and
special costs, appearing at para. 21 to allow for that possibility in
exceptional cases. In the least, special costs for an unsuccessful public
interest litigant are reserved for the rarest of cases. In our view, this is
not such a case because we cannot say, given our conclusion on stare decisis,
that the matters of public importance in this instance “have not been
previously resolved”. In other words, on our view of Rodriguez, this
case lacks the exceptionality required for an award of special costs. Accordingly,
we consider that the award of special costs cannot be sustained.
[343]
What should be done with costs incurred at trial? The usual order is
that costs follow the event. However, there is latitude in the application of
that rule, particularly in public interest litigation. The latitude admits of
two alternatives, an order of costs in favour of an unsuccessful litigant, or
an order that there be no costs −
that is, that all parties bear their own costs. The first alternative may be
made in the interests of ensuring access to justice for impecunious claimants
advancing important public interest claims: British Columbia (Minister of
Forests) v. Okanagan Indian Band 2003 SCC 71, citing B.(R.) v.
Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315. In Okanagan
Indian Band the special place of public interest litigation was put this
way:
One factor to be borne in mind by
the court in making this determination is that in a public law case costs will
not always be awarded to the successful party if, for example, that party is
the government and the opposing party is an individual Charter claimant
of limited means. Indeed, as the B. (R.) case demonstrates, it is
possible (although still unusual) for costs to be awarded in favour of the unsuccessful
party if the court considers that this is necessary to ensure that ordinary
citizens will not be deterred from bringing important constitutional arguments
before the courts. Concerns about prejudging the issues are therefore
attenuated in this context since costs, even if awarded at the end of the proceedings,
will not necessarily reflect the outcome on the merits. Another factor to be
considered is the extent to which the issues raised are of public importance,
and the public interest in bringing those issues before a court. [At para. 39;
emphasis in original.]
[344]
In William, Groberman J.A. said:
In making this order [granting
the unsuccessful litigant costs], we recognize that this case is highly
unusual, and that orders that an unsuccessful appellant be granted costs will
be extraordinarily rare. Such an order will not be made simply because it is
perceived to be in the public interest that jurisprudence develop in a
particular area of law. It must, at the very least, be shown that the
development of jurisprudence in the area is of a critical public importance. We
are satisfied that in the unique circumstances of this case, the Court is
justified in taking the extraordinary step of awarding costs to an unsuccessful
litigant. [At para. 41.]
[345]
The other alternative, that there be no order for costs, is intended to
alleviate the severity of an award of costs against unsuccessful parties. In Guide
Outfitters Association v. British Columbia (Information and Privacy
Commissioner) 2005 BCCA 368, Hall J.A. for the Court observed:
Several judgments of the courts in the province have
recognized that questions of whether the public interest is served by the
litigation may guide the court in exercising its discretion regarding costs. In
MacDonald, supra, at para. 13, Mr. Justice Bauman referred to factors
the Ontario Law Reform Commission considered may lead a judge to rule the
parties should bear their own costs:
(a) The
proceeding involves issues the importance of which extends beyond the immediate
interests of the parties involved.
(b) The
person has no personal, proprietary or pecuniary interest in the outcome of the
proceeding, or, if he or she has an interest, it clearly does not justify the
proceeding economically.
(c) The
issues have not been previously determined by a court in a proceeding against
the same defendant.
(d) The
defendant has a clearly superior capacity to bear the costs of the proceeding.
(e) The
plaintiff has not engaged in vexatious, frivolous or abusive conduct.
Although I consider these factors
as useful ones to guide the Court in the exercise of its discretion as to
costs, the overarching question is still whether the normal rule is
unsuitable on the facts of this case. … [At para. 8; emphasis added.]
[346] We have
found we are bound by stare decisis. As serious as the issue of
physician-assisted suicide is, we consider that the fact of a prior binding
decision on the constitutionality of s. 241(b) takes this case out of the
category in which costs should be awarded against the successful party. We
recognize, on the other hand, that the issue presented is of broad public
interest, and that the issue of the application of Rodriguez was not
without uncertainty. Accordingly, although the case is not within all the
factors borrowed from the Ontario Law Reform Commission as referred to by Hall
J.A. in Guide Outfitters, it does in our view come within his
overarching description of one in which “the normal rule is unsuitable on the
facts of this case.” Adopting this relaxed description, we would order that no
costs be awarded to any party in the Supreme Court of British Columbia.
Against
British Columbia
[347] British
Columbia appeals separately. It emphasizes that it was joined as a party only
by virtue of the Constitutional Question Act, R.S.B.C. 1996, c. 68,
and says it should not have to bear costs.
[348]
In Children’s Aid Society, La Forest J. expressed the reluctance
of courts to award costs against an attorney general acting in connection with
an issue of constitutionality:
The order to award costs against
an intervening Attorney General, acting as she is statutorily authorized to, in
the public interest in favour of a party who raises the constitutionality of a
statute, appears highly unusual, and only in very rare cases should this be
permitted. Nevertheless, this case appears to have raised special and peculiar
problems, and the District Court’s exercise of discretion was supported by the
Court of Appeal. I am loath to interfere with the exercise of their discretion
in this case. [At p. 390.]
Although costs may be awarded against an intervenor (Evans
Forest Products Ltd. v. British Columbia (Chief Forester) (1995), 40 C.P.C.
(3d) 322), there must be a principled reason for departing from the general
practice. An example of such circumstances is the intervenor’s assumption of
carriage of the litigation, as occurred in Children’s Aid Society.
[349] It cannot
be said in this case that British Columbia assumed carriage of the proceeding,
which was vigorously defended at all times by Canada. British Columbia’s role
was limited, on the trial judge’ calculation, to 10% of the time taken by
Canada, and included such proper steps as placing before the Court the record
that had been before the Court in Rodriguez, setting out the positions of
the medical associations on issues of physician-assisted death, and describing
the palliative care system in British Columbia. In other words, British
Columbia directed its efforts to placing relevant materials before the Court. One
cannot say this limited degree of participation on the part of an intervenor in
proceedings challenging federal laws, was improper or otherwise deserving of a
costs order against it.
[350] We would
allow appeal CA040454 and set aside the order requiring British Columbia to pay
trial costs in these proceedings.
Costs of the Appeal
[351] The usual
rule in this court is that costs follow the event. However, we recognize the
public interest nature of the appeal, and for the reasons expressed in relation
to costs in the Supreme Court of British Columbia, we would not make an order
for the payment of costs by any party.
Disposition
[352]
We return, then, to our comprehensive conclusion. In our respectful
view, any review of the substantive Charter challenges, and the granting
of comprehensive or limited relief from the effects of the law, are beyond the
proper role of the court below and of this court. If the constitutional
validity of s. 241 of the Criminal Code is to be reviewed
notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so.
We would allow the appeal, set aside the trial judge’s order, and deal with
costs as described above.
“The Honourable Madam Justice Newbury”
|
“The Honourable Madam Justice Saunders”
|
APPENDIX A