Carter #2: A Template for Future Charter Appeals

Why Carter v. Canada Was So Speedy:

The Supreme Court of Canada (hereafter “SCC”) produced the Carter decision on assisted dying, one of the most important in its history, in record time, slightly over three and a half months. It strikes me that they were able to do so because they had already decided two key technical legal issues in their earlier decision of Canada (Attorney General) v. Bedford (the prostitution case reported at 2013 SCC 72). In Carter, they simply applied to themselves the approach they had defined in Bedford for how all appellate courts should deal with these types of cases.

Bedford and Carter are companion pieces.

Both are applications under s. 52 of the Constitution Act for a declaration that particular provisions of the Criminal Code were contrary to section 7 of the Charter.

Both dealt with issues which, on the surface, appeared to have been decided by earlier SCC decisions. Both attracted many intervenors. These are organizations interested in the issue who wanted to put their perspective before the court.

Both had massive amounts of evidence including affidavits of plaintiffs, cross-examinations, social science studies, reports, expert evidence, and a host of other social and legal materials.

Both trial judges found that, in law, they could “distinguish” the earlier SCC precedent, and declare the relevant provisions of the Criminal Code unconstitutional.

Both were overturned on appeal by their respective Courts of Appeal primarily on technical grounds. Both trial judges were upheld, in whole or in part, by unanimous (9:0) decisions of the SCC.

The ultimate result of both cases was that the Supreme Court’s declaration of invalidity was suspended for twelve months to allow Parliament to pass new laws to fill the void if they so chose.

The technical issues at stake are important and will have significant effects in future such Charter litigation. Together, Bedford and Carter  form a package which tells lower courts (Courts of Appeal and trial courts) how these types of cases are to be handled in the future.

What are these two key technical issues? 1) That trial judges could revisit SCC precedents in certain limited circumstances. 2) That appeal courts should defer to all findings of fact of trial judges “absent palpable and overriding error.” In other words, if the findings of the trial judge are “reasonable” and “supported by the evidence,” appellate courts should not interfere.

Let me explain.

Whither stare decisis?

The doctrine of “stare decisis” (which means “to [stand] by decisions and not to disturb settled matters”) is a fundamental principle of our common law legal system. It has two meanings: that lower courts must follow decisions decided by higher courts in the hierarchy (“vertical stare decisis”), and that cases must be decided the same way when their material facts are the same (“horizontal stare decisis”). Clearly, the rule is designed to promote consistency, predictability, and certainty. If any judge could determine any matter however he or she wanted, without considering “stare decisis,” ours would not be a system characterized by the rule of law.

That being the case, how is it that the SCC would uphold the right of a trial judge like Justice Smith of the BC Supreme Court to deviate from their earlier decision against assisted dying in the Rodriguez case (1993)?

They did so because: 1) new legal issues were raised in Carter that had not been before the court in Rodriguez, and 2) there was a change of circumstances or evidence that ‘fundamentally shift(ed) the parameters of the debate.”

Justice Smith was not allowed to “overrule” Rodriguez, but she was permitted to “distinguish” it. In so doing, she had to consider what it was that Rodriguez actually decided and determine whether there was any room for further consideration.

The trial judge found, and the SCC agreed, that although the “who, what, when and where” (the “adjudicative facts”) of the plaintiffs in Rodriguez and Carter were the same, the context of their situation was different.  The law argued by counsel, and “the legislative and social facts” in the evidence before the court were not the same.

“Legislative and social facts” are all the other evidence including facts about society at large, established by complex social science evidence, the experience in other jurisdictions where assisted death was now legal, evidence of current Canadian palliative practices and prosecution policies, and medical ethics.

The law which had developed since 1993 were new legal principles defining the Charter, particularly principles relating to “overbreadth” and “minimal impairment.” In 2012 when Carter was heard before Justice Smith in the BC Supreme Court, counsel argued these  principles and the trial judge was obliged to consider them.

As the SCC said in Carter (para 44), “stare decisis is not a straitjacket that condemns the law to stasis.” The dictionary meaning of “stasis” is “a slowing or stopping of the normal flow of bodily fluids,” a condition of no action or progress, “an abnormal state in which the normal flow of blood is slowed or stopped.”

By rejecting the notion that all lower courts must “rigidly follow (SCC) Charter precedents unless and until this Court sets them aside(para 43),” the court recognized the reality of our common law legal system. It is best thought of as a living tree, rooted in fundamental principles, but which is constantly evolving as lower courts apply new law to new evidence before the courts.

Sometimes these cases go up to the hierarchy on appeal, perhaps even to the SCC. More often they do not. Together they form the “jurisprudence” which is the common judge-made law on the issue in Canada.

Modelling a doctrine of appellate restraint

In the past, Courts of Appeal applied a rule to the effect that they should show deference to the findings of trial judges on the credibility of witnesses and the objectivity of expert witnesses. The rule also said that appellate courts did not need to defer to the trial judge’s findings on social and legislative facts. The SCC expressly rejected that approach in both Bedford and Carter.

The SCC’s position on this is clear: “Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact….” (Bedford, para. 49)

The SCC goes on to note “two important practical reasons” why this should be the practice.

1) If it were not the case, appeal courts would be required to “duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences…. In a review for error—which is what an appeal is—it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.” (Bedford, para. 51)

2) As social and legislative facts may be intertwined with the adjudicative facts and with issues of the credibility of experts, it is impossible to apply different standards of review to the different types of facts. Since social science evidence is best presented through experts and the assessment of expert evidence relies heavily on the trial judge, there is no longer any rationale for different standards of review. (Bedford, paras 52-53).

In Carter, the SCC applied this doctrine of judicial restraint to themselves.. In doing so, they were modelling what they now expect from trial courts and appellate courts across the country. Among other developments, these technical decisions will likely streamline how our legal system handles these types of cases in the future, making it more efficient and more modern.

If the SCC can deal with one of its most important and most sensitive cases in such record time (three plus months), how can other courts not do the same?

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Carter v. Canada (Attorney General) #1: Judicial Restraint at its Best

The Supreme Court of Canada (hereafter SCC) decision in Carter v. Canada (Attorney General), released February 6th, is of vital importance. This decision has grabbed the headlines and stirred public discussion. About the pros and cons of assisted death. About the role of the SCC. About the relationship of the Court to legislators. These are big issues, now squarely on the agenda in the year ahead.

My focus is not assisted death in substance; reasonable people differ on that subject. My interest is in what the decision tells us about judicial restraint. Andrew Coyne, in the National Post (February 14th), under a headline proclaiming “The Death of Judicial Restraint,” cited Carter as an example of judges changing the law “only because they wanted to.” He lamented “the fading notion that the courts, in interpreting the law, should be bound by…something—the written text, the historical record, precedent, logical consistency. …[and]…with the legalization of ‘assisted death, (the court) has slipped free [from these constraints] altogether.” I emphatically disagree.

In my view, the decision of the SCC in Carter is a model appellate decision demonstrating that the legal process in Canada is alive and well, and that the SCC is doing its job superbly. In a totally focused judgment, the SCC only decided what they had to decide, to review the decisions of the trial judge and the BC Court of Appeal, in this particular case.

Repeatedly, they declined to decide what was not necessary for their immediate purpose. Their focus was on the evidence put in at trial and on the findings of fact of the trial judge. This included evidence of the effect of the existing law on the plaintiffs before the Court, and evidence of the plethora of contemporary experience on the issue, since the issue was last considered by the Supreme Court of Canada, itself, in 1993. All relevant to the precise Charter issue before the court. Their reasons are replete with references to the jurisprudence which shaped their decision.

In my view, faced with the unenviable job of dealing with a matter known to be highly contentious, they had the courage to make the decision required by law and, out of deference to Parliament, the wisdom to make it as narrow as possible.

In this post today and others to follow, I will discuss what the SCC actually said in Carter, and what it teaches us about the nature of Canada’s legal system. I am interested by the fact that their decision, although argued as recently as October 15th, 2014, was produced so soon. Also that it was a unanimous 9:0 decision, written not by one judge but by the Court as a whole, including eight out of nine judges appointed by Conservative governments. I think that the Court was able to render their judgment so quickly precisely because it is a very narrow decision characterized by extreme judicial restraint. The sad truth is that a commentator as smart and well-informed as Andrew Coyne cannot see “judicial restraint” when it is staring him in the face.

In this post, I will unpack the decision for those of you who are not legally trained (and for lawyers who may be intrigued by my argument). What were the issues before the court? Where did the case originate? What did the SCC actually decide? What supports my view that the SCC was extremely restrained in their approach to the case?

Blog posts are generally short, such that each of these topics could be a post unto itself. Because the topics are inter-related and essential information, however, I thought it best to keep the discussion together. The result? A post which is essentially a mini-essay. The easiest way to read it may be to print a hard copy.

History of the case

Carter began as a “test case” before Justice Lynn Smith of the British Columbia Supreme Court in the fall of 2011. The plaintiffs included Gloria Taylor, who had ALS, and Lee Carter, whose mother Kay Carter had suffered from advanced spinal stenosis and had travelled to Switzerland in 2010 to secure an assisted death legally.

They sought a judicial declaration that the absolute ban on assisted death in the Canadian Criminal Code was contrary to their Charter rights. The absolute ban is found in s. 14 and s. 241(b) of the Criminal Code. Section 14 says that “No person is entitled to consent to have death inflicted on him… .” Section 241(b) says that “Everyone who… aids or abets a person to commit suicide is… liable to jail for up to fourteen years.”

They argued that these provisions denied them the assistance of a physician should they want to end their own life and, by doing so, violated their rights under s. 7 and s. 15 (1) of the Canadian Charter of Rights and Freedoms.

Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 (1) says that “ Every individual is equal… under the law and has the right to the equal protection and equal benefit of the law without discrimination… based on… physical disability.” Also relevant to a Charter challenge is section 1 of the Charter which “guarantees the rights… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Canadians who assert in court that they have a right under the Charter have the burden (known as “onus”) of proving that some law or state action violates or violated their right or rights. If they are successful, the onus then shifts to the government to prove that any violation is “justified in a free and democratic society.”

Don’t worry if you do not understand the significance of the lingo used in the Charter. The Charter was enacted in 1982 and, over the succeeding 32 years, thousands of judges from the SCC to the Provincial Courts have grappled with the meaning of the Charter in individual cases before them. This body of law (known as “jurisprudence”) is sophisticated and constantly changing. In Carter, you will learn about the meaning of s. 1 and s. 7 of the Charter. You will also learn how courts approach a Charter analysis. Informed lay people do not need to know all the details. It is sufficient to understand what the heck is going on. I hope this post will help.

Getting back to the history of the case, the plaintiffs wanted a Declaration suspending the existing law until Parliament could pass a new one. In the interim, they sought a constitutional exemption from prosecution for Gloria Taylor and anyone who assisted her in dying.

The defendants were the Attorneys General of Canada and of British Columbia. They argued that Justice Smith was bound by the 1993 decision of the SCC, in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which had upheld the same sections of the Criminal Code in a similar case. They said that the trial judge had no option but to dismiss the application.

In June 2012, Justice Smith released her 1416-paragraph decision: Carter v. Canada (Attorney General) 2012 BCSC 886. After an “exhaustive review” of all the evidence and after considering the legal arguments of counsel, she held that she could “distinguish” Rodriguez. That means that, on the new law argued before her and the facts proven in the evidence at trial, there was room for her to reconsider Rodriguez. She concluded that the absolute ban in the Criminal Code violated the s. 7 and s. 15 Charter rights of Gloria Taylor and those who might assist her, and that the plaintiffs should be granted the relief they sought. She later ordered special costs against Canada and British Columbia.

The Attorney General of Canada appealed to the British Columbia Court of Appeal. The majority of that court (2:1), in 2013, held that Justice Smith was wrong, that she was bound by Rodriguez, and set aside her orders [Carter v. Canada (Attorney General), 2013 BCCA 435 at para 352]. On January 18, 2014, the SCC granted leave to the plaintiffs to appeal that decision. The SCC properly agreed to hear their appeal as it clearly raised issues of national importance.

The Supreme Court Decision in a Nutshell
(paragraph numbers of SCC decision are in parentheses)

The SCC found s. 14 and s. 241(b) void, “insofar as they deprive a competent adult of such assistance where the person (1) clearly consents to the termination of life, and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” (paras 4, 147)

The Court found that the plaintiffs had met their onus of showing that the absolute ban on assisted death violated the s. 7 Charter rights of Gloria Taylor and people like her to “life, liberty and security of the person….” All three s. 7 interests as defined by the caselaw were affected.

(1) With respect to the right to life, the SCC noted the evidence that people in the position of Gloria Taylor had no option but to suffer “severe and intolerable suffering” until they died of natural causes or to take their own lives prematurely while they were still competent to do so. (para 1). This fact was not disputed by any of the parties before the Court. In these circumstances, the existing caselaw applied to the effect that “the right to life is engaged by the threat of death… where law or state action imposes death or an increased risk of death, directly or indirectly.” (paras 57-63)

(2) With respect to liberty and security of the person, the SCC agreed with the trial judge that “the law has long protected patient autonomy in medical decision-making” and “the right to make fundamental personal choices free from state interference.” (paras 64-68)

As to the meaning of “the principles of fundamental justice,” the SCC explains that laws impinge on “life, liberty and security of the person” all the time. When they do, however, the caselaw has recognized three “principles of fundamental justice” which are central: laws “must not be arbitrary, over broad, or have consequences that are grossly disproportionate to their object.” (paras 71-72)

To see whether the law meets these minimum standards, the court must identify the object of the law. In this case, what is the purpose of the absolute ban on assisted dying? (para 73). The SCC found that the majority in Rodriguez had “concluded that the object of the absolute ban was to protect vulnerable persons from being induced to commit suicide at a time of weakness.” (paras 74-82). The SCC found no legal reason to disagree now. The fatal flaw of the absolute ban was not that it was arbitrary, but that it was overly broad, because it swept into its ambit people like Gloria Taylor, who clearly were not “vulnerable.” (paras 85-88)

Turning to whether the breach was justified under Section 1 of the Charter, the only question was proportionality. (paras 94-101). The key issue? Whether the absolute ban “was the least drastic means of achieving the legislative objective?” The Court found no error in the trial judge’s conclusion that, on the evidence of current practices in Canada and in permissive jurisdictions elsewhere, “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.” (paras 102-121). Since the evidence did not show that the absolute ban was minimally impairing, the SCC agreed with the trial judge that the government had not met its onus of proving that s. 1 justified the breach.

To allow Parliament, Legislatures and professional colleges time to respond to their decision, the SCC suspended the effective date of its decision for one year. (paras 126, 128, 147)

The SCC held that nothing in their declaration of invalidity would compel physicians to provide assistance in dying and “the Charter rights of patients and physicians will need to be reconciled.” (para 132)

It upheld the order of the trial judge for special legal costs against Canada for the entire proceeding, and against British Columbia for 10% of the costs of the trial. (paras 133-146)

Examples of Judicial Restraint

The SCC is very clear that their decision only applies to the factual circumstances of the plaintiffs before the court. (para 127). The SCC refused to comment about other situations when other classes of people may seek assisted death. This was the narrowest basis upon which they could deal with the case before them.

The SCC rejected arguments from the plaintiffs seeking a more expansive definition of the existing caselaw. Three examples:

  1. They declined to alter the existing law that both the feds and the provinces have concurrent jurisdiction over the issue for different purposes. (paras 49-53).
  2. They upheld the existing legal definition of the s. 7 “right to life,” that it implies a threat of death, and refused to adopt a broader, qualitative approach to the “right to life.” (paras. 59-63).
  3. They refused to consider any principle of parity because such a principle was “not yet recognized in the jurisprudence.” (para 92)

They limited their discussion of the “liberty” interest only to those who seek assistance in dying, and did not consider those who might provide such help. (para 69)

In defining the object of the existing Criminal Code ban, they rejected federal government submissions’s to broaden the definition beyond that adopted by the majority decision in Rodriguez, that the object was “to protect vulnerable persons from being induced to commit suicide at a time of weakness.” It noted that “all the parties except Canada accept that formulation of the object.” (paras 73-78).

The SCC noted that the federal government at trial had conceded that the present law caught people outside the class of people intended to be protected by the objective of the law. (para 86). This basic finding of fact helped ground the decision that the law was overly broad.

The SCC refused to consider additional legal claims or doctrines that were “unnecessary.” Three examples:

1) Having found a “severe” violation of s. 7, that decision was sufficient to deal with the case. Unlike the trial judge, the SCC declined to deal with any alleged equality rights of the plaintiffs under section 15 of the Charter. (para 93)

2) Having found a “severe” violation of s. 7 because it was “overly broad,” the SCC refused to discuss “gross disproportionality” as an element of the s. 7 analysis, as it also was “unnecessary.” (para 90)

3) Having found that the existing absolute ban did not meet the basic Section 1 Charter requirement of “not minimally impairing,” the SCC declined to “weigh the impact of the law on the rights of the appellants against the beneficial effect of the law on society.” On the well-established caselaw (Oakes, 1986), this step in the analysis also was “not necessary.”

The SCC clearly recognized when the SCC should defer to Parliament and the Legislatures, and that the standard expected from the state was not “perfection” but only what is “reasonable.”  Where there is a “complex regulatory response,” a high degree of deference is owed to…Parliament.….” The contested sections of the Criminal Code were not such a response.

As it did in Canada (Attorney General) v. Bedford 2013 SCC 72 (the prostitution case), the SCC delayed the effective date of their decision for one year. Why? “… for Parliament and the provincial legislatures to respond, should they choose to do so, by enacting legislation consistent with the constitutional parameters set out in these reasons.” ( para 126).

The SCC followed their decision in Bedford (2013), that the trial judge did have legal authority to reconsider Rodriguez and that the SCC should defer to her findings of fact as “they were reasonable and open to her on the record.” (para 109). More on these issues in my next post.

You Decide

Who is right? With this, and the post to follow (shorter I promise), you can decide. Better still, read the judgment itself, reported on the Court website at Carter v. Canada (Attorney General), 2015 SCC 5. Do not be intimidated! The first few pages are the standard mechanics of any court decision: the parties, the date of the hearing, a short summary of the judgment called a headnote, the citations, and a list of counsel who appeared at the hearing of the appeal. The actual judgment of The Court starts with a Table of Contents and paragraphs numbered sequentially from paragraph 1-148. The Court writes very well, and you will be surprised at how accessible their judgment is to read. One of the duties of judges is to write reasons for their decisions, so that litigants and the public can understand why they came to the decision they did. You decide if The Court did its job.

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