Court File No. 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

B E T W E E N:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and -

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant - and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

MOTION RECORD OF THE RESPONDENT/APPLICANT, THE ATTORNEY GENERAL OF CANADA (Rules 52 and 76 of the Rules of the Supreme Court of Canada)

ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 50 O’Connor Street, Suite 500 William F. Pentney Q.C. Ottawa ON, K1A 0H8 50 O’Connor Street, Suite 500 Ottawa ON, K1A 0H8 Robert J. Frater, Q.C. Donnaree Nygard Per: Robert J. Frater, Q.C. Tel: 613-670-6289 Tel: 613-670-6289 Fax: 316-954-1920 Fax: 613-954-1920 Email: [email protected] Email: [email protected]

Counsel for the Respondent Attorney Ottawa Agent for the Respondent Attorney General of Canada General of Canada

ORIGINAL TO: THE REGISTRAR

COPIES TO:

FARRIS, VAUGHAN, WILLS & MURPHY GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 25th Floor - 700 West Georgia Street Ottawa, ON K1P 1C3 Vancouver BC, V7Y 1B3 Jeffrey W. Beedell Joseph J. Arvay, Q.C. Tel: 613-786-0171 Alison M. Latimer Fax: 613-788-3587 Sheila M. Tucker Email: [email protected] Tel: 604-684-9151 Fax: 604-661-9349 Ottawa Agent for the Appellants Lee Carter Email: [email protected] et al.

Counsel for the Appellants Lee Carter et al.

ATTORNEY GENERAL OF BRITISH BURKE-ROBERTSON COLUMBIA 441 MacLaren Street, Suite 200 Legal Services Branch Ottawa ON, K2P 2H3 6th Floor – 1001 Douglas Street PO Box 9280 Stn. Prov. Govt. Victoria BC, V8W 9J7

Bryant A. Mackey Robert E. Houston, Q.C. Christina Drake Tel: 613-236-9665 Tel: 250-356-9280 Fax: 613-235-4430 Fax: 250-356-9154 Email: [email protected] Email: [email protected] [email protected]

Counsel for the Respondent Attorney Ottawa Agent for the Respondent Attorney General of British Columbia General of British Columbia

ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 720 Bay Street, 4th Floor 441 MacLaren Street, Suite 200 Toronto, ON M5G 2K1 Ottawa ON, K2P 2H3

Zachary Green Robert E. Houston, Q.C. Tel: 416-326-4460 Tel: 613-236-9665 Fax: 416-326-4015 Fax: 613-235-4430 Email: [email protected] Email: [email protected]

Counsel for the Intervener Attorney Ottawa Agent for the Intervener Attorney General of Ontario General of Ontario

ATTORNEY GENERAL OF QUEBEC NOËL & ASSOCIÉS 1200, Route de l’Église, 2ème étage 111 Champlain Street Quebec QC, G1V 4M1 Gatineau QC, J8X 3R1

Sylvain Leboeuf Pierre Landry Syltiane Goulet Tel: 819-771-7393 Tel: 418-643-1477 Fax: 819-771-5397 Fax: 418-644-7030 Email: [email protected] Email: [email protected]

Counsel for the Intervener Attorney Ottawa Agent for the Intervener Attorney General of Quebec General of Quebec

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP 1200 – 200 Burrard Street World Exchange Plaza Vancouver, B.C. V7X 1T2 100 Queen Street, Suite 1300 Ottawa, ON K1P 1J9

Agnus M. Gunn, Q.C. Nadia Effendi Tel: 604-687-5744 Tel: 613-237-5160 Fax: 604-687-1415 Fax: 613-230-8842 Email: [email protected]

Counsel for the Intervener Alliance of Ottawa Agent for the Intervener Alliance of People with Disabilities who are Supportive People with Disabilities who are Supportive of Legal Assisted Dying Society of Legal Assisted Dying Society

FARRIS, VAUGHAN, WILLS & MURPHY BORDEN LADNER GERVAIS LLP LLP World Exchange Plaza 25th Floor, 700 West Georgia Street 100 Queen Street, Suite 1300 Vancouver BC, V7Y 1B3 Ottawa, ON K1P 1J9

Tim A. Dickson Nadia Effendi R.J.M. Andersoff Tel: 613-237-5160 Tel: 604-661-9341 Fax: 613-230-8842 Fax: 604-661-9349 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Ottawa Agent for the Intervener Canadian Unitarian Council Unitarian Council

GRATL & COMPANY GOWLING LAFLEUR HENDERSON 302-560 Beatty Street 160 Elgin Street, Suite 2600 Vancouver, BC V6B 2L3 Ottawa, ON K1P 1C3

Jason B. Gratl Guy Régimbald Alison M. Latimer Tel: 613-786-0197 Tel: 604-697-1919 Fax: 613-563-9869 Fax: 604-608-1919 Email: [email protected]

Counsel for the Intervener Farwell Ottawa Agent for the Intervener Farwell Foundation for the Right to Die Foundation for the Right to Die

MILLER THOMPSON LLP SUPREME ADVOCACY LLP 3000, 700 – 9th Avenue SW 100 – 340 Gilmour Street Calgary, AB T2P 3V4 Ottawa, ON K2P 0R3

Gerald D. Chipeur, Q.C. Marie-France Major Tel: 403-298-2425 Tel: 613-695-8855 x102 Fax: 403-262-0007 Fax: 613-695-8580 Email: [email protected]

Counsel for the Intervener Christian Legal Ottawa Agent for the Intervener Christian Fellowship Legal Fellowship

GEOFFREY TROTTER LAW CORP. VINCENT DAGENAIS GIBSON LLP Suite 1700 – 1185 West Georgia Street 260 Dalhousie Street, Suite 400 Vancouver, BC V6E 4E6 Ottawa, ON K1N 7E4

Geoffrey Trotter Albertos Polizogopoulos Tel: 604-678-9190 Tel: 613-241-2701 Fax: 604-259-2459 Fax: 316-241-2599 Email: [email protected] Email: [email protected]

Counsel for the Intervener Evangelical Ottawa Agent for the Intervener Fellowship of Canada Evangelical Fellowship of Canada

SCHER LAW PROFESSIONAL CORP. FASKIN MARTINEAU DUMOULIN LLP 69 Bloor Street East, Suite 210 55 Metcalfe Street, Suite 1300 Toronto, ON M4W 1A9 Ottawa, ON K1P 6L5

Hugh R. Scher Yael Wexler Geoff Cowper, Q.C. Tel: 613-236-3882 Tel: 416-515-9686 Fax: 613-230-6423 Fax: 416-969-1815 Email: [email protected] Email: [email protected]

Counsel for the Intervener Euthanasia Ottawa Agent for the Intervener Euthanasia Prevention Coalition and Euthanasia Prevention Coalition and Euthanasia Prevention Coalition – British Columbia Prevention Coalition – British Columbia

BAKERLAW SUPREME ADVOCACY LLP 4711 Young Street, Suite 509 100 – 340 Gilmour Street Toronto ON M2N 6K8 Ottawa, ON K2P 0R3

David Baker Marie-France Major Sarah Mohamed Tel: 613-695-8855 x102 Tel: 416-533-0040 Fax: 613-695-8580 Fax: 416-553-0050 Email: [email protected] Email: [email protected]

Counsel for the Interveners Council of Ottawa Agent for the Interveners Council of Canadians with Disabilities and the Canadians with Disabilities and the Canadian Association for Community Canadian Association for Community Living Living

NORTON ROSE FULBRIGHT CANADA NORTON ROSE FULBRIGHT CANADA LLP LLP 1, Place Ville Marie, Bureau 2500 1500-45 O’Connor Street Montreal, QC H3B 1R1 Ottawa, ON K1P 1A4

Pierre Bienvenu Sally Gomery Andres C. Garin Tel: 613-780-8604 Vincent Rochette Fax: 613-230-5459 Tel: 514-847-4452 Email: [email protected] Fax: 514-286-5474 Email: [email protected]

Counsel for the Intervener Physicians’ Ottawa Agent for the Intervener Physicians’ Alliance Against Euthanasia Alliance Against Euthanasia

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4

Albertos Polizogopoulos Tel: 613-241-2701 Fax: 316-241-2599 Email: [email protected]

Counsel for the Interveners Christian Medical and Dental Society of Canada

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4

Albertos Polizogopoulos Tel: 613-241-2701 Fax: 316-241-2599 Email: [email protected]

Counsel for the Intervener Canadian Federation of Catholic Physicians’ Societies

ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA 1 Rideau Street, Suite 700 Ottawa, ON K1N 8S7

Andre Schutten Tel: 613-297-5172 Fax: 613-670-5701 Email: [email protected]

Counsel for the Intervener Association for Reformed Political Action Canada

PALIARE, ROLAND, ROSENBERG, SUPREME ADVOCACY LLP ROTHSTEIN LLP 100 – 340 Gilmour Street 155 Wellington Street West, 35th Floor Ottawa, ON K2P 0R3 Toronto, ON M5V 3H1

Gordon Capern Marie-France Major Michael Fenrick Tel: 613-695-8855 x102 Tel: 416-646-4311 Fax: 613-695-8580 Fax: 416-646-4301 Email: [email protected] Email: [email protected]

Counsel for the Interveners Canadian Ottawa Agent for the Interveners Canadian HIV/AIDS Legal Network and the HIV & HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic of Ontario AIDS Legal Clinic of Ontario

SACK GOLDBLATT MITCHELL LLP SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite 1100 500 – 30 Metcalfe Street Toronto, ON M5G 2G8 Ottawa, ON K1P 5L4

Cynthia Petersen Raija Pulkkinen Kelly Doctor Tel: 613-235-5327 Tel: 416-977-6070 Fax: 613-235-3041 Fax: 416-591-7333 Email: [email protected] Email: [email protected]

Counsel for the Intervener Dying with Ottawa Agent for the Intervener Dying with Dignity Dignity

POLLY FAITH LLP GOWLING LAFLEUR HENDERSON LLP 80 Richmond Street West, Suite 1300 160 Elgin Street, Suite 2600 Toronto, ON M5H 2A4 Ottawa, ON K1P 1C3

Harry Underwood D. Lynne Watt Tel: 416-365-6446 Tel: 613-786-8695 Fax: 416-365-1601 Fax: 613-788-3509 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Ottawa Agent for the Intervener Canadian Medical Association Medical Association

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON K1N 7E4

Russell G. Gibson Albertos Polizogopoulos Tel: 613-241-2701 x229 Fax: 316-241-2599 Email: [email protected]

Counsel to the Intervener Catholic Health Alliance of Canada

GRATL & COMPANY GOWLING LAFLEUR HENDERSON 302-560 Beatty Street 160 Elgin Street, Suite 2600 Vancouver, BC V6B 2L3 Ottawa, ON K1P 1C3

Jason B. Gratl Guy Régimbald Alison M. Latimer Tel: 613-786-0197 Tel: 604-697-1919 Fax: 613-563-9869 Fax: 604-608-1919 Email: [email protected]

Counsel for the Intervener Association Ottawa Agent for the Intervener Association québécouise pour le droit de mourir dans la québécouise pour le droit de mourir dans la dignité dignité

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP Scotia Plaza, 40 King Street West World Exchange Plaza Toronto, ON M5H 3Y4 100 Queen Street, Suite 1300 Ottawa, ON K1P 1J9 Christopher D. Bredt Ewa Krajewska Nadia Effendi Margot Finley Tel: 613-237-5160 Tel: 416-367-6165 Fax: 613-230-8842 Fax: 416-361-7063 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Civil Ottawa Agent for the Intervener Canadian Liberties Association Civil Liberties Association

BENNETT JONES LLP BENNET JONES LLP Suite 3400, PO Box 130 1900 – 45 O’Connor Street One First Canadian Place World Exchange Plaza Toronto, ON M5X 1A4 Ottawa, ON K1P 1A4

Robert W. Staley Sheridan Scott Ranjan K. Agarwal Tel: 613-683-2302 Jack R. Maslen Fax: 613-683-2323 Tel: 416-777-4857 Email: [email protected] Fax: 416-863-1716 Email: [email protected]

Counsel for the Interveners Catholic Civil Ottawa Agent for the Interveners Catholic Rights League Civil Rights League

BENNETT JONES LLP BENNET JONES LLP Suite 3400, PO Box 130 1900 – 45 O’Connor Street One First Canadian Place World Exchange Plaza Toronto, ON M5X 1A4 Ottawa, ON K1P 1A4

Robert W. Staley Sheridan Scott Ranjan K. Agarwal Tel: 613-683-2302 Jack R. Maslen Fax: 613-683-2323 Tel: 416-777-4857 Email: [email protected] Fax: 416-863-1716 Email: [email protected]

Counsel for the Intervener Faith and Counsel for the Intervener Faith and Freedom Alliance and Protection of Freedom Alliance and Protection of Conscience Project Conscience Project

SACK GOLDBLATT MITCHELL LLP GOWLING LAFLEUR HENDERSON LLP 20 Dundas Street West, Suite 1100 160 Elgin Street, Suite 2600 Toronto, ON M5G 2G8 Ottawa, ON K1P 1C3

Marlys Edwardh D. Lynne Watt Tel: 416-979-4380 Tel: 613-786-8695 Fax: 416-979-4430 Fax: 613-788-3509 Email: [email protected] Email: [email protected]

Daniel Sheppard Tel: 416-979-9442 Fax: 416-979-4430 Email: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Criminal Lawyers’ Association (Ontario) Criminal Lawyers’ Association (Ontario)

ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA 1 Rideau Street, Suite 700 Ottawa, ON K1N 8S7

Andre Schutten Tel: 613-297-5172 Fax: 613-670-5701 Email: [email protected]

Counsel for the Intervener Association for Reformed Political Action Canada

i

Index

Tab Page

1 Notice of Motion dated December 3, 2015 1

2 Affidavit of Carole Morency sworn December 2, 2015 12

3 Affidavit of Stephen Mihorean sworn December 2, 2015 23

A Exhibit A, complete list of experts 30

B Exhibit B, breakdown of membership numbers 33

4 Affidavit of Eric Lafleur sworn December 3, 2015 38

A Exhibit A, Letter from the province of Nova Scotia 40

B Exhibit B, Letter from the province of Saskatchewan 42

C Exhibit C, Letter from the province of Prince Edward Island 44

D Exhibit D, Letter from the province of Manitoba 45

E Exhibit E, Affidavit from the province of Ontario 47

5 Memorandum of Argument dated December 3, 2015 52

1 1

Court File No. 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and-

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant - and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

NOTICE OF MOTION

TAKE NOTICE that the Respondent, the Attorney General of Canada, hereby applies to the Court, under rules 52 and 76 of the Rules ofthe Supreme Court ofCanada for an order extending the suspension of the declaration of constitutional invalidity with respect to ss. 14 and 241 (b) of .the Criminal Code for a further 6 months, or any further or other order that the Court may deem appropriate;

AND FURTHER TAKE NOTICE that the motion shall be made on the following grounds;

(1) a comprehensive response to the Court's judgment raises important and complex issues which require extensive work by Parliament and provincial legislatures, and cannot reasonably be completed before February 6, 2015 2 2

AND FURTHER TAKE NOTICE that the following material will be relied on in supp01i of the said motion:

(1) The affidavit of Carole Morency sworn December 2, 2015; (2) The affidavit of Stephen Mihorean sworn December 2, 2015; (3) The affidavit of Eric Lafleur sworn December 3, 2015.

Dated at the City of Ottawa, Ontario, this 3rd day of December, 2015.

Applicant to the Motion ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Suite 500 William F. Pentney Q.C. Ottawa ON, KIA OH8 50 O'Connor Street, Suite 500 Ottawa ON, KIA OH8 Robert J. Frater, Q.C. Donnaree Nygard Robert J. Frater, Q.C. Tel: 613-670-6289 Tel: 613-670-6289 Fax: 316-954-1920 Fax: 613-954-1920 Email: [email protected] Email: [email protected]

Counsel for the Respondent Attorney Ottawa Agent for the Respondent General of Canada Attorney General of Canada

ORIGINAL TO: THE REGISTRAR 3 3

COPIES TO:

FARRIS, VAUGHAN, WILLS & MURPHY GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 25th Floor - 700 West Georgia Street Ottawa, ON KIP 1C3 Vancouver BC, V7Y 1B3 Jeffrey W. Beedell Joseph J. Arvay, Q.C. Tel: 613-786-0171 Alison M. Latimer Fax: 613-788-3587 Sheila M. Tucker Email: [email protected] Tel: 604-684-9151 Fax: 604-661-9349 Ottawa Agent for the Appellants Lee Carter Email: [email protected] et al.

Counsel for the Appellants Lee Carter et al.

ATTORNEY GENERAL OF BRITISH BURKE-ROBERTSON COLUMBIA 441 MacLaren Street, Suite 200 Legal Services Branch Ottawa ON, K2P 2H3 1 6 h Floor - 1001 Douglas Street PO Box 9280 Stn. Prov. Govt. Victoria BC, V8W 9J7

Bryant A. Mackey Robert E. Houston, Q.C. Christina Drake Tel: 613-236-9665 Tel: 250-356~9280 Fax: 613-235-4430 Fax: 250-356-9154 Email: [email protected] Email: [email protected] [email protected]

Counsel for the Respondent Attorney Ottawa Agent for the Respondent Attorney General of British Columbia General of British Columbia

ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 720 Bay Street, 4th Floor 441 MacLaren Street, Suite 200 Toronto, ON M5G 2Kl Ottawa ON, K2P 2H3

Zachary Green Robert E. Houston, Q.C. Tel: 416-326-4460 Tel: 613-236-9665 Fax: 416-326-4015 Fax: 613-235-4430 Email: [email protected] Email: [email protected]

Counsel for the Intervener Attorney Ottawa Agent for the Intervener Attorney General of Ontario General of Ontario 4 4

ATTORNEY GENERAL OF QUEBEC NOEL & ASSOCIES 1200, Route de l'Eglise, 2eme etage 111 Champlain Street Quebec QC, GlV 4Ml Gatineau QC, J8X 3Rl

Sylvain Leboeuf Pierre Landry Syltiane Goulet Tel: 819-771-7393 Tel: 418-643-1477 Fax: 819-771-5397 Fax: 418-644-7030 Email: [email protected] Email: [email protected]

Counsel for the Intervener Attorney Ottawa Agent for the Intervener Attorney General of Quebec General of Quebec

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP 1200 200 Burrard Street World Exchange Plaza Vancouver, B.C. V7X 1T2 l 00 Queen Street, Suite 1300 Ottawa, ON KIP 1J9

Agnus M. Gunn, Q.C. Nadia Effendi Tel: 604-687-5744 Tel: 613-237-5160 Fax: 604-687-1415 Fax: 613-230-8842 Email: [email protected]

Counsel for the Intervener Alliance of Ottawa Agent for the Intervener Alliance of People with Disabilities who are Supportive People with Disabilities who are Supportive of Legal Assisted. Dying Society of Legal Assisted Dying Society .

FARRIS, VAUGHAN, WILLS & MURPHY BORDEN LADNER GERVAIS LLP LLP World Exchange Plaza 25th Floor, 700 West Georgia Street 100 Queen Street, Suite 1300 Vancouver BC, V7Y 1B3 Ottawa, ON Kl P 1J9

Tim A. Dickson Nadia Effendi R.J.M. Andersoff Tel: 613-237-5160 Tel: 604-661-9341 Fax: 613-230-8842 Fax: 604-661-9349 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Ottawa Agent for the Intervener Canadian Unitarian Council Unitarian Council 5 5

GRATL & COMPANY GOWLING LAFLEUR HENDERSON 302-560 Beatty Street 160 Elgin Street, Suite 2600 Vancouver, BC V6B 2L3 Ottawa, ON KlP 1C3

Jason B. Gratl Guy Regimbald Alison M. Latimer Tel: 613-786-0197 Tel: 604-697-1919 Fax: 613-563-9869 Fax: 604-608-1919 Email: [email protected]

Counsel for the Intervener Farwell Ottawa Agent for the Intervener Fanvell Foundation for the Right to Die Foundation for the Right to Die

MILLER THOMPSON LLP SUPREME ADVOCACY LLP 3000, 700- 9th Avenue SW 100 - 340 Gilmour Street Calgary, AB T2P 3 V 4 Ottawa, ON K2P OR3

Gerald D. Chipeur, Q.C. Marie-France Major Tel: 403-298-2425 Tel: 613-695-8855 xl02 Fax:403-262-0007 Fax: 613-695-8580 Email: [email protected]

Counsel for the Intervener Christian Legal Ottawa Agent for the Intervener Christian Fellowship Legal Fellowship

GEOFFREY TROTTER LAW CORP. VINCENT DAGENAIS GIBSON LLP Suite 1700 - 1185 West Georgia Street 260 Dalhousie Street, Suite 400 Vancouver, BC V6E 4E6 Ottawa, ON Kl N 7E4

Geoffrey Trotter Albertos Polizogopoulos Tel: 604-678-9190 Tel: 613-241-2701 Fax: 604-259-2459 Fax: 316-241-2599 Email: [email protected] Email: [email protected]

Counsel for the Intervener Evangelical Ottawa Agent for the Intervener Fellowship of Canada Evangelical Fellowship of Canada 6 6

SCHER LAW PROFESSIONAL CORP. FASKIN MARTINEAU DUMOULIN LLP 69 Bloor Street East, Suite 210 55 Metcalfe Street, Suite 1300 Toronto, ON M4W 1A9 Ottawa, ON KIP 6L5

Hugh R. Scher Yael Wexler Geoff Cowper, Q.C. Tel: 613-236-3882 Tel: 416-515-9686 Fax: 613-230-6423 Fax:416-969-1815 Email: [email protected] Email: [email protected]

Counsel for the Intervener Euthanasia Ottawa Agent for the Intervener Euthanasia Prevention Coalition and Euthanasia Prevention Coalition and Euthanasia Prevention Coalition - British Columbia Prevention Coalition - British Columbia

BAKERLAW SUPREME ADVOCACY LLP 4711 Young Street, Suite 509 I 00 - 340 Gilmour Street Toronto ON M2N 6K8 Ottawa, ON K2P OR3

David Baker Marie-France Major Sarah Mohamed Tel: 613-695-8855 xl02 Tel: 416-533-0040 Fax: 613-695-8580 Fax: 416-553-0050 Email: [email protected] Email: [email protected]

Counsel for the Interveners Council of Ottawa Agent for the Interveners Council of Canadians with Disabilities and the Canadians with Disabilities and the Canadian Association for Community Canadian Association for Community Living Living

NORTON ROSE FULBRIGHT CANADA NORTON ROSE FULBRIGHT CANADA LLP LLP 1, Place Ville Marie, Bureau 2500 1500-45 O'Connor Street Montreal, QC H3B lRl Ottawa, ON KIP 1A4

Pierre Bienvenu Sally Gomery Andres C. Garin Tel: 613-780-8604 Vincent Rochette Fax: 613-230-5459 Tel: 514-847-4452 Email: sally. [email protected] Fax: 514-286-5474 Email: [email protected]

Counsel for the Intervener Physicians' Ottawa Agent for the Intervener Physicians' Alliance Against Euthanasia Alliance Against Euthanasia 7 7

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON KIN 7E4

Albertos Polizogopoulos Tel: 613-241-2701 Fax: 3 I 6-241-2599 Email: [email protected]

Counsel for the Interveners Christian Medical and Dental Society of Canada

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON KIN 7E4

Albertos Polizogopoulos Tel: 613-24I-2701 Fax: 316-241-2599 Email: [email protected]

Counsel for the Intervener Canadian Federation of Catholic Physicians' Societies

ASSOCIATION FOR REFORM.ED POLITICAL ACTION (ARPA) CANADA 1 Rideau Street, Suite 700 Ottawa, ON KIN 8S7

Andre Schutten Tel: 613-297-5172 Fax: 613-670-5701 Email: [email protected]

Counsel for the Intervener Association for Reformed Political Action Canada 8 8

P ALIARE, ROLAND, ROSENBERG, SUPREME ADVOCACY LLP ROTHSTEIN LLP 100 - 340 Gilmour Street 155 Wellington Street West, 35th Floor Ottawa, ON K2P OR3 Toronto, ON M5V 3Hl

Gordon Capern Marie-France Major Michael Fenrick Tel: 613-695-8855 x102 Tel: 416-646-4311 Fax: 613-695-8580 Fax:416-646-4301 Email: [email protected] Emai 1: [email protected]

Counsel for the Interveners Canadian Ottawa Agent for the Interveners Canadian HIV/AIDS Legal Network and the HIV & HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic of Ontario AIDS Legal Clinic of Ontario

SACK GOLDBLATT MITCHELL LLP SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite 1100 500 - 30 Metcalfe Street Toronto, ON MSG 2G8 Ottawa, ON KlP 5L4

Cynthia Petersen Raija Pulkkinen Kelly Doctor Tel: 613-235-5327 Tel: 416-977-6070 Fax:613-235-3041 Fax: 416-591-7333 Email: [email protected] Email: [email protected]

Counsel for. the Intervener Dying with Ottawa Agent for the Intervener Dying with Dignity Dignity

POLLY FAITH LLP GOWLING LAFLEUR HENDERSON LLP 80 Richmond Street West, Suite 1300 160 Elgin Street, Suite 2600 Toronto, ON M5H 2A4 Ottawa, ON KIP 1C3

Harry Underwood D. Lynne Watt Tel: 416-365-6446 Tel: 613-786-8695 Fax: 416-365-1601 Fax: 613-788-3509 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Ottawa Agent for the Intervener Canadian Medical Association Medical Association 9 9

VINCENT DAGENAIS GIBSON LLP 260 Dalhousie Street, Suite 400 Ottawa, ON KIN 7E4

Russell G. Gibson Albertos Polizogopoulos Tel: 613-241-2701 x229 Fax: 316-241-2599 Email: [email protected]

Counsel to the Intervener Catholic Health Alliance of Canada

GRATL & COMPANY GOWLING LAFLEUR HENDERSON 302-560 Beatty Street 160 Elgin Street, Suite 2600 Vancouver, BC V6B 2L3 Ottawa, ON KIP 1C3

Jason B. Gratl Guy Regimbald Alison M. Latimer Tel: 613-786-0197 Tel: 604-697-1919 Fax: 613-563-9869 Fax:604-608-1919 Email: [email protected]

Counsel for the Intervener Association Ottawa Agent for the Intervener Association quebecouise pour le droit de mourir dans la quebecouise pour le droit de mourir dans la

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERY AIS LLP Scotia Plaza, 40 King Street West World Exchange Plaza Toronto, ON M5H 3Y4 I 00 Queen Street, Suite 1300 Ottawa, ON K 1P IJ9 Christopher D. Bredt Ewa Krajewska Nadia Effendi Margot Finley Tel: 613-237-5160 Tel: 416-367-6165 Fax: 613-230-8842 Fax: 416-361-7063 Email: [email protected] Email: [email protected]

Counsel for the Intervener Canadian Civil Ottawa Agent for the Intervener Canadian Liberties Association Civil Liberties Association 10 10

BENNETT JONES LLP BENNET JONES LLP Suite 3400, PO Box 130 1900 - 45 O'Connor Street One First Canadian Place World Exchange Plaza Toronto, ON M5X 1A4 Ottawa, ON KIP 1A4

Robert W. Staley Sheridan Scott Ranjan K. Agarwal Tel: 613-683-2302 Jack R. Maslen Fax: 613-683-2323 Tel: 416-777-4857 Email: [email protected] Fax: 416-863-1716 Email: [email protected]

Counsel for the Interveners Catholic Civil Ottawa Agent for the Interveners Catholic Rights League Civil Rights League

BENNETT JONES LLP BENNET JONES LLP Suite 3400, PO Box 130 1900 45 O'Connor Street One First Canadian Place World Exchange Plaza Toronto, ON M5X 1A4 Ottawa, ON KIP 1A4

Robert W. Staley Sheridan Scott Ranjan K. Agarwal Tel: 613-683-2302 Jack R. Maslen Fax: 613-683-2323 Tel: 416-777-4857 Email: [email protected] Fax:416-863-1716 Email: [email protected]

Faith and Freedom Alliance and Protection Faith and Freedom Alliance and Protection of Conscience Project of Conscience Project 11 11

SACK GOLDBLATT MITCHELL LLP GOWLING LAFLEUR HENDERSON LLP 20 Dundas Street West, Suite 1100 160 Elgin Street, Suite 2600 Toronto, ON MSG 2G8 Ottawa, ON KIP IC3

Marlys Edwardh D. Lynne Watt Tel: 416-979-4380 Tel: 613-786-8695 Fax: 416-979-4430 Fax: 613-788-3509 Email: [email protected] Email: [email protected]

Daniel Sheppard Tel: 416-979-9442 Fax: 416-979-4430 Email: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Criminal Lawyers' Association (Ontario) Criminal Lawyers' Association (Ontario)

ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA I Rideau Street, Suite 700 Ottawa, ON KIN 8S7

Andre Schutten Tel: 613-297-5172 Fax: 613-670-5701 Email: Andre@ARP A Canada.ca

Counsel for the Intervener Association for Reformed Political Action Canada

NOTICE TO THE RESPONDENT TO THE MOTION: A respondent to the motion may serve and file a response to this motion within I 0 days after service of the motion. 12

Docket No.: 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and -

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant - and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

RespondenURespondent

AFFIDAVIT OF CAROLE MORENCY

I, CAROLE MORENCY, member of the Law Society of Upper Canada and

Barrister and Solicitor, of the City of Ottawa, in the Province of Ontario, MAKE

OATH AND SAY THAT:

1. I am a lawyer employed with the Department of Justice located at

284 Wellington Street, Ottawa, Ontario. I have been with the Department of Justice since 1991. Since 2013, I have held the position of Senior General Counsel and

Director General in the Criminal Law Policy Section of the Department of Justice. 13 - 2 -

As such, I have personal knowledge of the facts and matters deposed to in my

Affidavit. Where my knowledge is based on information from others, I believe that information to be true.

2. The Criminal Law Policy Section provides legal and policy advice to the Minister of Justice, to other parts of the Department of Justice and to other federal departments. The Criminal Law Policy Section is also responsible for monitoring trends in the criminal law, developing options for the reform of the criminal law and monitoring the implementation of criminal law reform.

3. The Criminal Law Policy Section is responsible for participating in the development of legislative plans and proposals for amendments to the Criminal

Code for consideration by the Minister of Justice. In this context, the Criminal Law

Policy Section has the responsibility for preparing legislative amendments to sections 14 and 241 (b) of the Criminal Code.

4. On February 6, 2015, in Carter v. A.G. Canada, the Supreme Court of Canada declared s. 14 and s. 241 (b) to be void insofar as they prohibit physician-assisted dying for a competent adult person who ( 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.

5. The Court suspended its declaration of constitutional invalidity for

12 months to allow for Parliament and provincial legislatures to enact legislation consistent with the parameters set out in the Court's reasons. 14 - 3 -

6. In the immediate aftermath of the February 2015 release of the

Court's decision in Carter, detailed analysis of the Court's decision took place within the federal government, including across the Department of Justice

(Criminal Law Policy Section, Human Rights Law Section, Litigation Branch, etc.) and Health Canada. This analysis highlighted the complexity of responding to the

Court's decision in a manner that appropriately balances the many societal and individual interests at stake regarding physician-assisted dying, as well as the interplay between the federal responsibility for criminal law and provincial/territorial responsibility for the delivery of healthcare.

7. In particular, while the Court's reasons provide a framework for understanding why the absolute prohibitions on physician-assisted dying unjustifiably violate the Charter, the decision did not define the specific conditions, circumstances, and practices under which physician-assisted dying should be allowed in Canada. The Court's decision did, however, note that there were risks associated with physician-assisted dying, but agreed with the trial judge that those risks could be limited through a carefully designed and managed system. (Carter, paragraph 117).

8. On May 1, 2015, officials from the Department of Justice met with provincial/territorial counterparts at the semi-annual meeting of the Coordinating

Committee of Senior Officials (CCSO) to discuss the Court's decision in Carter.

The CCSO is an established forum where officials from federal and provincial­ territorial governments regularly meet to discuss and develop measures and 15 -4- possible responses to issues confronting the Canadian criminal justice system.

Discussions related to the Carter decision at the May meetings were productive and emphasized the need for further consultation between the levels of government on appropriate responses. The CCSO met again on

November 6, 2015, where the issue was further discussed.

9. On June 10, 2015, a meeting took place between federal-provincial- territorial Deputy Ministers Responsible for Justice and Public Safety. At that meeting, the Court's decision and possible responses to it from both levels of government were discussed.

10. On May 12, 2015, the Federal-Provincial-Territorial Conference of

Deputy Ministers of Health held a teleconference to discuss the Carter decision.

At their meeting on June 11, 2015, they established an Ad Hoc Federal-Provincial­

Territorial Working Group on Physician-Assisted Dying (composed of Health and

Justice Assistant Deputy Ministers) to further facilitate coordination and consultation between levels of government on responding to the Carter decision.

All provinces are members of the Working Group except British Columbia and

Quebec, who are observers. The mandate of the Working Group is to provide a forum for information sharing and coordination, inform the development of responses at both levels of government, and explore possibilities to align federal and provincial-territorial activities related to the Carter decision. The Working

Group met by teleconference on September 17, 2015, to provide an update on activities conducted at both levels of government, and agreed to meet again once greater clarity on policy direction and any additional consultation process was 16 - 5 - received from the new federal government. The Federal-Provincial-Territorial

Conference of Deputy Ministers of Health is scheduled to meet again on

December 9, 2015 during which collaboration on the Carter response will be discussed.

11 . The previous federal government decided that in addition to consultations between officials, engagement with Canadians, experts, and key stakeholders was necessary to assist it in formulating options to respond to the

Carter decision. Accordingly, the External Panel on Options for a Legislative

Response to Carter v. Canada was established on July 17, 2015.

12. Considerable effort and resources from Health Canada, Justice

Canada and the Criminal Law Policy Section were engaged to provide advice regarding the terms of reference and establishment of the Panel, as well as supporting materials and briefings to allow it to quickly begin its work of consulting

Canadians. This work included providing the Panel with a review of international approaches to physician-assisted dying as well as backgrounders on other key issues surrounding how it could be implemented in Canada.

13. Following its formation in July 2015, the Panel immediately began to consult with Canadians, experts, and stakeholders. In addition to direct consultations with stakeholder groups, the Panel launched a website to engage

Canadians about the Court's decision as well as the broader policy issues concerning physician-assisted dying. The website included an interactive online 17 - 6 -

"issue book" to help Canadians learn about these issues, as well as an opportunity to directly provide their views and input to the Panel.

14. On August 4, 2015, Governor General David Johnston issued a writ to commence the 42nd Canadian general election for the House of Commons, which was held on October 19, 2015. The "caretaker convention" immediately went into effect when the writ was issued and lasted until the new government was sworn in on November 4, 2015. The caretaker convention requires the government to exercise policy restraint, given that when Parliament is dissolved for an election, there is not an active elected Chamber present to which the government can be held accountable.

15. Consequently, external consultations with the provinces and territories, including the activities of the Ad Hoc Federal-Provincial-Territorial

Working Group on Physician-Assisted Dying, were suspended during the writ period. The External Panel also ceased active consultations with stakeholders during this time, though it continued to receive submissions from Canadians on its website, as well as reviewing research and conducting fact-finding trips to other jurisdictions worldwide where various forms of physician-assisted dying are legally permitted.

16. The Department of Justice and the Criminal Law Policy Section continued to seek, gather, and review many relevant sources of information on the issue, both from within Canada and around the world, including commentary and research from legal scholars, courts and international human rights bodies, the 18 - 7 - medical community, empirical researchers, ethicists, philosophers, sociologists, suicide prevention experts, legislatures, and legislative committees. The

Department also monitored consultations in the medical community

(e.g., Canadian Medical Association Annual General Meeting), provincial/territorial regulators, and other stakeholders during the writ period.

17. During the writ period, the Department of Justice also actively developed briefing materials, including identifying possible parameters and approaches to support and advise the new government on how it could respond to the Court's decision and implement physician-assisted dying in Canada.

18. A new Cabinet was sworn in on November 4, 2015. The

42nd Parliament is expected to be convened on December 3, 2015. The new

Minister of Justice and Attorney General of Canada and the Minister of Health were provided briefings on responding to the Court's decision by officials within the first week of their appointment.

19. The Minister of Justice and Attorney General of Canada's Mandate letter was released to the public on November 13, 2015. The first bulleted priority included in her letter from the Prime Minister was to "lead a process, supported by the Minister of Health, to work with provinces and territories to respond to the

Supreme Court of Canada decision regarding physician-assisted death." Aspects of physician-assisted dying may be the subject of federal (criminal) or provincial

(health) legislation. 19 - 8 -

20. On November 14, 2015, the Minister of Justice and Attorney General of Canada and the Minister of Health publicly released a letter sent to the External

Panel. The letter extended the Panel's mandate by one month to

December 15, 2015, and modified it to focus on the results of the study and consultations conducted by the Panel, rather than on the development of legislative options.

21. Cabinet met on November 24, 2015 to consider the Government's proposed approach to respond to the Court's ruling. On November 25, 2015, I tasked my officials to begin working with the Department of Justice's Parliamentary

Affairs Unit, the Privy Council Office, and other federal officials to support the

Minister of Justice and Attorney General of Canada in implementing this approach including by preparing a draft motion to convene a Parliamentary Committee that would make recommendations on the scope and content of the federal response.

Such a Motion to establish a Committee could be introduced in Parliament by the

Government as early as the week of December 7-11, 2015. That week is the final week in which the House of Commons will be sitting before it resumes on January

25, 2016.

22. Given that the House of Commons will sit for seven days in the rest of 2015 and will not resume until January 25, 2016, it is extremely unlikely that a federal response could be implemented prior to February 6, 2016, the date on which the Court's suspension of its declaration of invalidity is set to expire. 20 - g -

23. Attempting to develop and implement a response within the existing timeline of the Court's suspension would also fail to provide the new Government or Parliament with sufficient time to consider the External Panel's report summarizing its study and consultations, or complete consultations with the provinces and territories regarding the structure and operation of a Canadian physician-assisted dying regime. Apart from Quebec, it also does not appear at this time that other provinces or territories will have any appropriate responses of their own in place when the suspension expires.

24. Once the Court's decision in Carter takes effect on February 6, 2016, uncertainty exists as to the precise effect of the Court's remedy. If the Criminal

Code prohibitions in s. 14 and s. 241 (b) are completely invalid and of no effect, all consensual killings and assisted suicides (not just physician-assisted deaths) would no longer be criminal offences, absent new legislation. Alternatively, if the

Court's remedy in Carter was a "reading in" of an exception for physician-assisted dying, the provisions would otherwise remain valid, though uncertainty would still remain as to the precise circumstances in which a physician would be eligible to benefit from the exception.

25. Both of these situations pose serious risks to public safety, especially if the provisions are completely struck down. Even if the Court's remedy was a

"reading in" of a limited exception to criminal liability for physician-assisted dying for competent adults intolerably suffering from a· grievous and irremediable illness, uncertainty would remain as to precisely who would be eligible, exposing physicians and vulnerable persons to significant risks in the absence of a "carefully 21 - 10 - designed and monitored system." (Carter, paragraph 117). Such a system would not be in place if an extension of the suspension is not granted.

26. Accordingly, to enable Parliament sufficient time to enact and implement an appropriate response to the Court's decision in Carter, an extension of the Court's suspension of invalidity for six months, to August 6, 2016, is requested.

Sworn before me at the City of r)J../a_wr:Jv , in the ProvincEj _ of Ontario, this _l__ day of {)et,,ervtf, ( 2015.

Co missioner for Taking Affidavits (or as may be) 2222

Docket No.: 35591

SUPREME COURT OF CANADA

LEE CARTER, HOLLIS JOHNSON, WILLIAM SCHOICHET, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION AND GLORIA TAYLOR Appellants/Respondents

And

THE ATTORNEY GENERAL OF CANADA Respondent/Applicant

And

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

AFFIDAVIT OF CAROLE MORENCY 23 ?3

Court File No. 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BE TWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and-

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant - and-

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

AFFIDAVIT OF STEPHEN MIHOREAN

I, STEPHEN MIHOREAN, of the City of Ottawa, in the Province of Ontario, MAKE OATH AND

SAY THAT:

1. I am employed with the Department of Justice located at 284 Wellington Street,

Ottawa, Ontario. I have been with the Government of Canada since 1990 and the Department of

Justice since 1999. Since May 2015, I have held the position of Executive Director of the

Secretariat to the External Panel on Options for a Legislative Response to Carter v. Canada ("the

Panel"). As such, I have personal knowledge of the facts and matters deposed to in my Affidavit, 24

except where they are stated to be on information from others. I believe all of the information in this affidavit to be true.

2. The Panel was established on July 17, 2015 by the Ministers of Justice and of

Health. The Panel is chaired by Dr. Harvey Max Chochinov, Distinguished Professor of Psychiatry at the University of Manitoba and Director of the Manitoba Palliative Care Research Unit,

CancerCare Manitoba. The two other panelists are Catherine Frazee, Professor Emerita at Ryerson

University and foimer Co-Director of the RBC Ryerson Institute for Disability Studies Research and Education, and Benoit Pelletier, Professor of Law at the University of Ottawa's Faculty of

Law and member of the Barreau du Quebec. The Panel is supported by a small Secretariat.

3. The Panel's mandate is to engage Canadians and key stakeholders in consultation on issues that are fundamental to a federal legislative response to the Carter ruling. The Panel is to provide a final report on the results of its consultations and activities to the Ministers of Justice and of Health by December 15, 2015 ..

4. The Panel's consultation activities have focused on the following key issues:

(a) Different forms of physician-assisted dying (assisted suicide and voluntary euthanasia);

(b) Eligibility criteria and definition of key terms;

( c) Risks to individuals and society associated with physician-assisted dying; and

( d) Safeguards to address risks and procedures for assessing requests for assistance in dying and the protection of physicians' freedom of conscience.

5. Following its formation in July 2015, the Panel immediately began to consult with

Canadians, experts, and stakeholders. As of November 6, 2015, the Panel has met with 73 individual experts (27 in Canada, 14 in the United States, 14 in the Netherlands, 10 in Belgium, 25 - 3 - 25

and 8 in Switzerland). A complete list of these experts is found at Exhibit "A" to this affidavit.

The Panel has also met with 91 representatives from 46 Canadian organizations, including: the original claimants, Ms. Lee Carter and Mr. Hollis Johnson; interveners in the Carter v. Canada case: provincial and territorial medical regulatory authorities, and other stakeholders. The complete list of these groups is found at Exhibit "B" to this affidavit.

6. As of November 13, 2015, the Panel had received 311 formal document submissions from individuals and organizations.

7. The Panel hosted an "Issue Book" questionnaire on its external web site, www.ep- ce.ca, to pern1it individual Canadians to share their views on relevant issues. As of November 25,

2015, 14,949 questionnaires have been completed.

8. In July 2015, following its formation and initial introductory meetings of panel members, the Panel began its consultations by meeting with independent experts from Dalhousie . . University in Halifax. On July 31, 2015, the Panel also sent invitations to all of the interveners in the Carter v. Canada case as well as relevant medical authorities inviting them to direct consultations.

9. On August 4, 2015, Governor General David Johnston issued a writ to commence the 42nd Canadian general election for the House of Commons, which was held on October 19,

2015. As per its terms of reference, the Panel suspended its direct consultations with the interveners and relevant medical authorities during the election campaign. However, the Panel continued to receive submissions and comments from stakeholders and Canadians during the writ period. 26 -4- 2 6

10. As part of its research, the Panel also continued to meet with independent experts during and following the writ period, including professors at several Canadian universities across the country. These experts represented a wide range of disciplines, including law, public health, philosophy, ethics, medicine, and women's studies. A total of 27 Canadian experts across 19 meetings have been consulted. These persons are fully detailed iri "Exhibit A" to this affidavit.

11. From August 30 to September 9, 2015, the Panel traveled on its first study tour in order to gain insight into assisted dying practices in various European countries. During the tour, the Panel traveled to: the Netherlands, where it met with 14 experts over 7 meetings; Belgium, where it met with 10 expe1is across 10 meetings: and Switzerland, where the Panel met with a further 8 expe1is across 7 meetings. Persons and organizations consulted at these international meetings included members of governments and legislatures, health and justice system officials, representatives of groups that provide physician-assisted dying, academia, and civil society organizations.

12. From October 1-3, 2015, the Panel traveled to Portland, Oregon, USA, to complete its second study tour. During the tour, the Panel held 10 meetings with 14 experts, including physicians, members of the task force that produced guidelines for Oregon's Death with Dignity

Law, as well as groups representing persons with disabilities and organizations that support access to physician-assisted dying.

13. On October 20, 2015, immediately following the end of the election campaign, the

Panel resumed its direct consultations with interveners, relevant medical authorities and other stakeholders in Ottawa, Montreal, Vancouver, Wim1ipeg, and Toronto. The full list of organizations and representatives consulted can be found at Exhibit "B" to this affidavit. 27 - 5 - ?. 7

14. In total, throughout the Panel's direct consultations across Canada, the panel met with 91 representatives from 46 Canadian organizations. These 46 organizations consulted represent several hundred thousand members. The breakdown in membership numbers of those organizations that were consulted by the Panel can be found at Exhibit "B" of this affidavit.

15. The Panel's stakeholder and expert consultations were conducted in person, within an allotment of l 1/,i hour duration each. All sessions were recorded and have been or are being transcribed for the Panel's reference. In most cases, academics, medical authorities and civil society organizations presented formal submissions addressing the terms of the Panel's mandate, followed by detailed questioning and exchange with the Panel.

16. Each informant was questioned extensively by the Panel, selected based on their collective areas of expertise (including the law [Professor Benoit Pelletier is an expert in constitutional law], socio-political issues [Professor Frazee is an expert in human rights and disability studie.s] and medicine [Doctor Chochinov is an ·expert in palliative end-of-life care] yielding a set of interviews that cover a breadth of issues from multiple perspectives.

17. Throughout this process, the Panel has deliberately sought a broad and diverse range of perspectives. The Panel has worked to ensure that discussions of access to assisted dying and safeguards for vulnerable persons are informed by the insights and experience of patients, family members, advocates, and all members of inter-professional healthcare teams.

18. A new Cabinet was sworn in on November 4, 2015. On November 6, 2015, the

Panel completed its planned direct consultations with interveners, medical authorities and stakeholders. The Panel has now shifted its efforts to the review of its findings from the direct and 28 - 6 - . 28

expert consultations, the submissions received from Canadians and stakeholders, and the data from the online Issue Book consultation tool to prepare its report to the Ministers of Justice and of

Health. The Panel and its Secretariat intend to complete this work as soon as possible.

19. From jurisdictions that have permissive legislation with regard to some form of assisted dying, the Panel has been reminded on several occasions of the length of time required to introduce legislation that will be well understood and widely supported. Open discussion, public education, and transparent processes that seek to reconcile competing moral imperatives and build toward social consensus are, the Panel has learned, both time and labour intensive.

20. Individual citizens and advocacy groups that presented to the Panel have stressed the importance of a further investment of time in the process of implementing a regime for assisted dying in Canada. ARCH Disability Law Centre, for example, which engaged in a consultation process that included collaborative work with the Law Society of Upper Canada, a public forum, acommunity partners' roundtable and a targeted focus group meeting, concluded its submission with the following appeal: "We feel that these submissions are but the tip of the ice-berg. More information is required to truly understand how various segments of the population of persons with disabilities will respond to Physician-Assisted Dying."

21. On the basis of all of these observations, and consideration of the numerous perspectives presented to the Panel through the course of its consultation process, it appears that both professional and civil society organizations are actively engaged in processes that will permit them to make important contributions to any considerations of assisted dying legislation at the federal level. -29 7 - 29 both professional and civil society organizations are actively engaged in processes that will permit them to make important contributions to any considerations of assisted dying legislation at the federal level.

22. I have observed first hand that the Panel's meetings across Canada and internationally have been rich in content, respectful in tone, broad-reaching in implication and nuanced in nature. It is my opinion that the Panel's process has set the tone for an open and [ respectful dialogue about the implementation of assisted dying in Canada. [ [ L Sworn before me at the City of Ottawa, in the Province of Ontario, this 2nd day of December, [ ~~,Qc UJ,-' -~ Commissioner for Taking Affidavits (or as may be) l _ [ [

(_ [ l L L 30 30 External Panel on Options for a Legislative Response to Carter v. Canada Co mite externe sur les options de reponse legislative a Carter c. Canada • Exhibit• A List of Expert Consultations Experts consisted of academics, lawyers, policy advisors, advocates, physicians, government officials and others from various disciplines including human rights, health and disability studies, bioethics and philosophy. 73 experts consulted through 53 meetings in 5 countries. r Canada - 27 Experts; 19 meetings I 1. Susan Sherwin - Research Professor Emerita, Department of Philosophy and Department of \ Gender and Women's Studies, Dalhousie University (Halifax, NS) 2. Jocelyn Downie - Professor of Law; Associate Dean, Graduate Studies; Schulich School of Law, Faculty of Medicine 3. Anna MacQuarrie - Director of Global Initiatives, Policy and Human Rights, Inclusion International 4. Prof. Dianne Pothier - Holds a BA {Hons) (Dalhousie), MA {Pol Sci) (Carleton), LLB (Dalhousie) 5. Steven Estey - Human Rights Officer, Disabled Peoples International 6. Me Jean-Pierre Menard - Menard, Martin, Avocats 7. Me Michelle Giroux - Health Law advocates 8. Jocelyne St-Arnaud - Associate Professor, Bioethics, Department of Social Medicine and Prevention, University of Montreal School of Public Health r- 9. Brian L. Mishara - CRISE Director and Psychology Professor, Universite du Quebec a Montreal 10. David J. Roy- Research Chair, Faculty of Medicine, University of Montreal \_ 11. The Honourable Sharon Carstairs - Former Senator and Minister with Special Responsibility for Palliative Care 12. Dr. Isabelle Marcoux -Assistant Professor, Faculty of Health Sciences, University of Ottawa l 13. Professor Eike-Henner Kluge - Department of Philosophy, University of Victoria 14. Joshua T. Landry - Champlain Centre for Health Care Ethics; Dr. Thomas Foreman - Director, Champlain Centre for Health Care Ethics; Michael Kekewich - Ethics Consultant, Ottawa L Hospital 15. Dr. Mary Shariff-Assistant Professor, Faculty of Law, University of Manitoba 16. Dr. Carrie Bourassa - Professor of Indigenous Health Studies, First Nations University l 17. Yude M. Henteleff- Human rights lawyer; Palliative care advocate 18. David Baker - Disability Rights Lawyer, Bakerlaw; Rebeka Lau ks - Disability Rights Lawyer, [_ Bakerlaw 19. Provincial-Territorial Expert Advisory Group Convened on Physician-Assisted Dying • Dr. Jennifer Gibson (Co-Chair) - Director of the University of Toronto Joint Centre for [ Bioethics • Maureen Taylor (Co-Chair) - Physician Assistant in Infectious Diseases and Medical L Journalist,,., - 't~ ., .,.., ,.,.. .. __ ,'" o·" -!!1:3 tS f: A,H0 :i l'-- 11... 1 1l° I- '.J \,, I . . •.•···, ...... •.... ~ I. Ceci est lu piece A rn entionr.2e ~t l'~lf ,.j&\it C: 8. S TEP i-\EN \v~ Ltlo.lZEJ:sjJ__· .. ------L c:,l""fl' b<>'c·IC' 'J"1" ii'.;• 0 d ;:.:y Q I 'f"'y-fY " a. c. IS A,~;;,~~;,; ,; ;,, ;,~, , ~ J~. "( ~u:cMo;.J;,. '"-- .. !_ A Commr. & etc.! Co rnm ~:::s a i:eal'~· n t ation - 31 31 External Panel on Options for a Legislative Response to Carter v. Canada Comite e?(terne sur les options de reponse legislative a Carter c. Canada

• Dr. Doug Cochrane - Patient Safety and Quality Officer for British Columbia and Chair of the BC Patient Safety and Quality Council • Dr. Jocelyn Downie - Professor in the Faculties of Law and Medicine at Dalhousie University • Dr. Nu ala Kenny - Professor Emeritus cif Bioethics at Dalhousie University and Former Ethics and Health Policy Advisor to the Catholic Health Alliance of Canada • Dr. Tr'evor Them an - Registrar of the College of Physicians and Surgeons of Alberta

Oregon, USA - 14 experts; 10 meetings

1. Kelly Hagan - Member of the neutral task force that worked on producing guidelines for Oregon's Death with Dignity Law 2. Kathryn Tucker- Disability Rights Legal Center t 3. Eli Stutsman and Peg Sandeen - Death with Dignity National Center 4, Barb Hansen - Oregon Hospice Association 5. Dr. Kenneth R. Stevens Jr. and Dr. Charles Bentz - Physicians for Compassionate Care Education \ Fund 6. Bob Joondeph - Disability Rights Oregon 7. Barbara Glidewell - Former Ombudsman and Director of Patient Relations, Oregon Health f Sciences University Hospital 8. Sue Porter, Kat West, Peter Reagan - Compassion and Choices 9. Dr. Katrina Hedberg - Physician, State Epidemiologist 10. Dr. Linda Ganzini - Psychiatrist/geriatrician

Netherlands - 14 experts; 7 meetings:

1. Meeting with Netherlands government officials Ministry of Health, Welfare, and Sport: • Ms. dr. M.C.H. (Marianne) Danker, Director of Public Health and Deputy Director General Health L • Mr. R.J. (Jim) Terwiel, LLM, Policy Coordinator and Deputy Head Ethics department • Ms. E.F. (Lineke) Bloemberg, MSc, Policy Officer Euthanasia, Ethics Department Ministry of Security and Justice: • Ms. M. (Maartje) van der Linden, LLM, Senior advisor on medical ethics [__ Regional Euthanasia Review Committees: • Ms. N.E.C. (Nicole) Visee, LLM, General Secretary to the Regional Euthanasia Review Committees 2. Prof. J.J.M. Van Delden - Utrecht University 3. Royal Dutch Medical Association • Dr. Giliam Juijper - Director L • Dr. Eric van Wijlick • Prof. Dr. Aart Hendricks - Health Law Professor L 32 32 [ External Panel on Options for a Legislative Response to Carter v. Canada Comite externe sur les options de reponse legislative a Carter c. Canada r + 4. Dr. Paul J. Lieverse - Cancer Institute, Erasmus MC University Medical Center Rotterdam+ 5. Prof. Johan Legemaate - University of Amsterdam 6. Parliamentary Committee on Health, Welfare and Sport • Renske Maria Leijten - Socialist Party • Linda Voortman - Green Left Part 7. Rob Jonquiere-Communications Director, World Federation for Right to Die Societies (WFRtDS), KNMG

Belgium - 10 experts; 10 meetings:

8. Prof. Etienne Montero - Dean, Faculty of Law, Universite de Namur 9. Mr. Benoit Mores - Advisor to the Federal Minister of Affairs and Public Health 10. Prof. Dr. Joris Vandenberghe - Professor of Psychiatry at KULeuven and a member of the Belgian Advisory Committee on Bioethics 11. Prof. Luc Deliens - Chair of the End-of-Life Care Research Group at the Free University of Brussels (VUB) and Ghent University 12. Kenneth Chambaere - Researcher, End-of-life Care Research Group Vrije Universiteit Brussel & Ghent University 13. Els Van Hoof- Belgian Federal MP for the Flemish Christian-democratic party (CD&V) 14. Senator Jean-Jacques De Gucht - Member of the Belgian Senate and of the Flemish Parliament (Open VLD - Flemish Liberals) 15. Ms Jaqueline Herremans - President, Association pour le Droit de Mourir dans la Dignite Belgique (ADMD) (Dying with Dignity Belgium) 16. Dr. Gert Huysmans - Palliative care physician and President, Federation of Palliative Care [ Flanders 17. Prof. Herman Nys - Professor of Health Law, KU Leuven (Katholieke Universiteit Leuven) l_ Switzerland - 8 experts; 7 meetings:

18. Mr. Silvan Luley- Executive Director, Dignitas L 19. Mr. Bernhard Sutter - Executive Director, Exit 20. Dr. Georg Bosshard - Head of Clinical Ethics, Zurich University 21. Mr. Jurg Vollenweider - Chief Prosecutor, District See/Oberland 22. Swizerland Federal Office of Justice: • Mr. Bernardo Stadelmann - Vice Director l_ • Ms. Corine Kloti 23. Dr. Karim Boubaker - Medecin cantonal du Canton de Vaud 24. Dr. Steffen Eychmuller - Head of Palliative Care Center, lnselspital r L L 33 31 External Panel on Options for a Legislative Response to Carter v. Canada + Comite externe sur les options de reponse legislative a Carter c. Canada Exhibit B List of Direct Consultations

Carter lnterveners, Medical Regulatory Authorities, Stakeholders Consultations with 91 representatives from 46 organizations representing approximately 749,415 members** as well as two claimants.

Ottawa - 6 organizations; 15 representatives; representing approximately 397,044 members: 1. Canadian Hospice Palliative Care Association - Represents approximately 3,000 members [ • Sharon Baxter, Executive Director • Tamir Virani, Communications Officer 2. Canadian Psychological Association - Represents approximately 7,000 members • Dr. Keith Wilson, Staff Psychologist - Rehabilitation Centre of the Ottawa Hospital and Associate Professor of Medicine and Psychology at the University of Ottawa • Meagan Hatch, Manager of Public Affairs and Communication l 3. Canadian Medical Association - Represents approximately 80,000 members • Dr. Cindy Forbes, President r • Cecile Bensimon, Director • Azin Moradhassel, Senior Advisor, Government Relations • Louise Sweatman, Legal Counsel L 4. Canadian Nurses Association - Represents approximately 151,404 members • Anne Sutherland Boal, Chief Executive Officer r • Josette Roussel, Senior Nursing Advisor ' 5. Association for Reformed Political Action Canada - Represents approximately 30,000 Reformed Christians • Andre Schutten, General Legal Counsel • John Sikkema, Lawyer 6. Canadian Nurses Protective Society - Represents approximately 125,000 members L • Chantal Leonard, Chief Executive Officer • Elaine Borg, Legal Counsel l • Mei St-Cyr, Law Clerk L [ **The figure reflects the aggregate number of each organization's membership. This figure does not reflect the total number of individuals represented as individuals may carry memberships for multiple organizations. This figure is a minimum number as m~m~,~~ s .~ .iQ f"information for several groups was not available. .. reicrrer1 to 1n the « n1o n J,t o · This 1s Exnib.it .. s mei1tionnee a l'aifidavit de: Ceci est la piece ...... \-- . 1 · ~ i... ) s. 1~~f w µ\ i ~~YS!2-c ' "h.. ~ Sworn be1 orc me ,h. . 2 iour de ~(EVV(~)e , "oJ.S L Assermen:e(e cleJJ mihri. ( ~~---, . ---- - & et-c ' Cornmissaire a l'asserrnentaJon l A Com1nr. · ' 34 34 External Panel on Options for a Legislative Response to Carter v. Canada Comite externe sur les options de reponse legislative a Carter c. Canada

Montreal - 3 organizations; 14 representatives; representing approximately 1,225 members: 7. Physicians' Alliance Against Euthanasia -Represents approximately 700 members • Dr. Catherine Ferrier, President • Aubert Martin, Executive Director of Vivre dans la Dignite (Partner Organization) .• Michel Racicot, Vice President of Vivre dans la Dignite (Partner Organization) • Dr. Caroline Girouard, Oncologist - Hopital Sacre-Coeur; Assistant Professor of Medicine - Universite de Montreal • Dr. Patrick Vinay, Former Dean - University of Montreal Faculty of Medicine; Former President - Fonds de recherche en sante du Quebec; Former Director of Palliative Care - Centre hospitalier de l'Universite de Montreal 8. Med PASS - Consists of 5 members • Felix Couture, M.D., C.M Candidate, Class of 2018, McGill University • Koray Demir, M.D., C.M Candidate, Class of 2018, McGill University • Michael Lang, B.C.L/L.LB Candidate, Class of 2018, McGill University • Zachary Shefman, B.C.L/L.LB Candidate, Class of 2018, McGill University l • Mark Woo, 1\11.D., C.M Candidate, Class of 2018, McGill University 9. Association quebecoise pour le droit de mourir dans la dignite - Represents approximately 520 members l • Georges L'Esperance, President • Helene Bolduc, Founder and Past President l' • Dr. Nacia Faure, Retired Palliative Care Physician and Endocrinologist • Dr. Marcel Boisvert, Retired Palliative Care Physician L Vancouver - 5 organizations; 13 representatives; representing approximately 4,302 members: 10. Euthanasia Prevention Coalition - British Columbia - Represents approximately 225 members and member organizations l • Dr. Williard Johnston, Chair 11. Protection of Conscience Project - Consists of 7 volunteers/staff members L • Sean Murphy, Administrator 12. A Network of BC Physicians - Represents approximately 70 members • Dr. Ed Du bland, Palliative Care Physician; Medical Coordinator - Burnaby Palliative L Care Program; Family Physician - Collingwood Medical Clinic • Dr. Constant H. Leung, Family Physician - Collingwood Medical Clinic L. • Dr. Jennifer Y. Tong, Family Physician - Collingwood Medical Clinic • Dr. Sherry Chan, General Practitioner in Oncology - BC Cancer Agency • Dr. Luke Chen, Hematologist and Residency Program Director - Division of [ Hematology, Vancouver General Hospital and University of British Columbia • Dr. Margaret Cottle, Palliative care physician - Vancouver Coastal Health Authority and Fraser Health Authority Home Hospice Programs L L j_ 35 35 External Panel on Options for a Legislative Response to Carter v. Canada Comite externe sur les options de reponse legislative a Carter c. Canada • 13. BC Civil Liberties Association - Represents approximately 1,000 members • Josh Paterson, Executive Director • Grace Pastine, Litigation Director • Howard Shapray, Partner - Shapray Cramer Fitterman Lamer LLP • Elayne Shapray, Assisted Dying Activist 14. Claimants in Carter v. Canada • Lee Carter, Assisted Dying Activist • Hollis Johnson, Assisted Dying Activist 15. Society of Rural Physicians of Canada - Represents approximately 3,000 mr;mbers • Dr. John Soles, President

Winnipeg - 2 organizations; 6 representatives; representing approximately 60,000 members: 16. Catholic Health Alliance of Canada - Consists of 12 organizations that make up 110 Catholic hospitals, community health centres, nursing homes, and long-term care facilities with over 60,000 staff l • Michael Shea, President and Chief Executive Officer • Daniel Lussier, Chair - Governing Council of the Catholic Health Alliance of Canada; Chief Executive Officer - Catholic Healthcare Corporation of Manitoba f • Gordon Self, Vice President - Mission, Ethics and Spirituality- Covenant Health in Alberta 17. Council of Canadian with Disabilities- Comprised of 17 member organizations • James Hicks, National Coordinator • Rhonda Wiebe, Co-chairperson - CCD Ending of Life Ethics Committee l • Jim Derksen, Member - CCD Ending of Life Ethics Committee

Toronto 30 organizations; 43 representatives; representing approximately 287,484 members: l 18. Indigenous Physicians Association of Canada • Dr. Alika Lafontaine, Vice President l 19. Canadian Association for Community Living- Represents approximately 40,000 members • Michael Bach, Executive Vice President 20. Dying with Dignity Canada \ • . Wanda Morris, Chief Executive Officer • Shanaaz Gokool, Chief Operating Officer L 21. Euthanasia Prevention Coalition - Represents approximately 15,000 followers • Alex Schadenberg, Executive Director • Hugh Scher, Legal Counsel r 22. Canadian Pharmacists Association - Represents approximately 39,000 members • Philip Emberley, Director of Professional Affairs I • Joelle Walker, Director of Government Relations 23. College of Family Physicians of Canada - Represents approximately 30,000 members L L 36 36 External Panel on Options for a Legislative Response to Carter v. Canada Comite externe sur les options de reponse legislative a Carter c. Canada . ~ • Dr. Francine Lemire, Executive Director and Chief Executive Officer 24. Canadian Society of Palliative Care Physicians - Represents approximately 350 members [ • Dr. Susan MacDonald, President 25. Christian Legal Fellowship - Represents approximately 600 members • Derek Ross, Executive Director l • John Sikkema, Associate Legal Counsel • Ruth Ross, Member 26. Canadian Unitarian Council - Represents approximately 5,150 members • Vyda Ng, Executive Director 27. Canadian HIV/AIDS Legal Network-Represents approximately 120 members and member r organizations • Richard Elliott, Executive Director [ 28. Canadian Federation of Catholic Physicians' Societies - Represents approximately 500 members • Dr. Thomas Bouchard, President [ • Dr. Renata Leong 29. Canadian Association for Spiritual Care - Represents approximately 1,100 members • Marc Doucet, President 1. 30. Canadian Psychiatric Association - Represents approximately 4,700 members • Dr. Sonu Gaind, President 1 • Glenn Brimacombe, Chief Executive Officer 31. Catholic Civil Rights League - Represents approximately 10,000 members • Christian Domenic Elia, Executive Director r • Philip Horgan, President 32. Canadian Civil Liberties Association - Represents approximately 6,500 members • Cara Faith Zwibel, Director - Fundamental Freedoms Program i 33. Evangelical Fellowship of Canada - Comprised of affiliates including 65 Ministry Organizations, 38 Educational Institutions, 47 Denominations and approximately 7,000 local church l congregations totalling approximately 2,000,000 people • Bruce Clemenger, President • Julia Beazley, Policy Analyst L 34. Federation of Medical Regulatory Authorities of Canada - Comprised of 13 Provincial/Territorial Medical Regulatory Authorities with a combined membership of L approximately 89,630 • Dr. Douglas A. Grant, President • Fleur-Ange Lefebvre, Executive Director and Chief Executive Officer r • Louise Marcus, Director of Professional Affairs 35. College of Physicians and Surgeons of British Columbia - Represents approximately 11,361 1 members • Graeme Keirstead, Legal Counsel ! L j_ 37 3 7 External Panel on Options for a Legislative Response to Carter v. Canada Comite externe sur les options de reponse legislative a Carter c. Canada

36. College of Physicians and Surgeons of Alberta - Represents approximately 10,345 members • Sarah Thomas, Senior Advisor [ 37. College of Physicians and Surgeons of Saskatchewan - Represents approximately 2,264 members • Bryan Salte, Associate Registrar and Legal Counsel f 38. College of Physicians and Surgeons of Manitoba - Represents approximately 2,682 members • Lynne M. Amason, General Counsel 39. College of Physicians and Surgeons of Ontario - Represents approximately 33,386 members • Dr. Rocco Gerace, Registrar 40. College des medecins du Quebec - Represents approximately 22,608 members l • Dr. Yves Robert, Secretary of the Directorate General 41. College of Physicians and Surgeons of New Brunswick - Represents approximately 1,761 [ members • Dr. Ed Schellenberg, Registrar 42. College of Physicians and Surgeons of Nova Scotia - Represents approximately 2,477 members L • Dr. Douglas A. Grarit, Registrar 43. College of Physicians and Surgeons of Prince Edward Island - Represents approximately 338 1. members • Dr. Cyril Moyse, Registrar 44. College of Physicians and Surgeons of Newfoundland - Represents approximately 1,289 members • Dr. Linda lnkpen, Registrar 45. Yukon Medical Council, Government of Yukon - Represents approximately 253 members • Dr. Michael Noseworthy, Registrar 46. Christian Medical and Dental Society of Canada - Represents approximately 1,700 members • Larry Worthen, Executive Director • Dr. Diane Haak, President • Dr. Donato Gugliotta, Vice President l 47. Royal College of Physicians and Surgeons of Canada - Represents approximately 44,000 members L · • Dr. Kevin Imrie, President L r L L

1. L 38

Court File No. 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and-

THE ATTORNEY GENERAL OF CANADA

Respondent/ Applicant - and-

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

AFFIDAVIT OF ERIC LAFLEUR

I, ERIC LAFLEUR, of the City of Ottawa, in the Province of Ontario, MAKE OATH AND SAY

THAT:

1. I am an employee of the federal Department of Justice and currently serve as the

departmental advisor in the Office of the Minister of Justice and Attorney General of

Canada ("the Minister's Office"). In that capacity, I act as a policy and legal advisor as

well as a liaison between the Department of Justice and the Minister's Office. Accordingly, 39 - 2 -

I am involved in a number of files in the Minister's Office including the file on physician-

assisted dying.

2. The Minister of Justice/Attorney General of Canada ·has received correspondence from

provinces regarding this, case. Attached hereto as Exhibit "A" is a letter from the province

of Nova Scotia. Attached hereto as Exhibit "B" is a letter from the province of

Saskatchewan. Attached hereto as Exhibit "C" is a letter from the province of Prince

Edward Island. Attached hereto as Exhibit "D" is a letter from the province of Manitoba.

Attached hereto as Exhibit "E" is an Affidavit from the province of Ontario.

Sworn before me at the City of Ottawa, in the Province of Ontario, this 3rd day of December, 2015. \) j Wf;i~,Q.c Commissioner for Taking Affidavits (or as may be) 40

Attorney General Justice Office of '!:he Minister - -·------·------·------PO Bo x 7, Halifax, Nova Scotia, Canada [l3J 2L6 , Telephone 902 424-4044 Fax 902 1\24-0510 • novasco tia .c;i ------·----

December 2, 2015

Dear Mlnister Wilson-Raybould:

Re: Carter et al. v Attorney General of Canada et al. (SCC File No.: 35591)

It was a pleasure to speak with you recently concerning the important issues raised by the Supreme Court of Canada's decision in Carter. I understand that Canada intends to request an extension of time from the Supreme Court of Canada in respect of the Court's February 6, 2016 deadline. I am writing to confirm that Nova Scotia supports Canada's proposed motion for a six month extension of time.

As you are aware, since the Supreme Court's decision was released, the provinces and territories have been working together· with their various stake-holders in order to assess how each jurisdiction could prepare to implement what will be required as a response to the Carter decision. These discussions have been useful and they are ongoing. To a very significant extent, how any particu)ar province responds is dependent upon Canada's legislative response to Carter. Thus, a full and meaningful collaboration between the different levels of government will be important to ensure that our laws and policies align sufficiently to meet the needs of our residents and health care communities.

Nova Scotia has not yet completed its consultations with its stakeholders and cannot do so until any potential federal parameters on this issue are known. There are a number of difficult issues we continue to examine concerning how physician-assisted dying services will be provided and what safeguards would be appropriate. We are of the opinion that Nova Scotia would benefit from its participation in a collaborative effort with Canada to develop a federal/provincial/territorial scheme which addresses the issue·s in as comprehensive a manner as possible. While much work has been done already, we understand that the proposed collaborative efforts will take some additional time than is left to us under the deadline imposed in the Carter decision. Therefore, Nova Scotia supports Canada's motion to the Supreme Court of Canada for a six month extension of time in order that we can fully accomplish our respective goals. 41

The Honourable Jody Wilson-Raybould, P.C., M.P. December 2, 2015 Page2

Please feel free to present this correspondence to the Supreme Court of Canada as confirmation of Nova Scotia's position in respect of your motion should you consider it useful to do so.

Yours truly,

Diana Whalen The Honourable Minister of Justice and Attorney General 42

iviinister of Health Legislative Building Regina. Saskatchewan S4S 083

SASKATCHEWAM

Theics1· iessEt: >l ;ahi1~1· iet ce ·17 .. rdsrrer.i to in \he affidavit o1: C - D rnentionnee a 1·amdavi1 de: t·~ , c L A+-- LEuVZ .2ol5_ December 2, 2015 ·

The Honourable Jody Wilson-Raybould, P.C., M.P. Minister of Justice and Attorney General of Canada 284 Wellington Street OTTAWA ON KIA OH8

Dear Minister Wilson-Raybould:

We write in relation to the Supreme Court of Canada's decision in Carter v. Canada, and in particular in relation to the February 6, 2016 date on which the suspension of the effect of the declaration in the decision is to expire.

Since the Supreme Court of Canada's decision, the Government of Saskatchewan has participated in provincial and territorial working groups of senior officials established in both the Health and Justice Ministries for the purposes of identifying and dealing with the issues arising out of the Carter decision. The Government has also participated with ten other provinces and territories to appoint a nine member Prov:incial-Territorial Expert Advisory Group on Physician-Assisted Dying (Expert Advisory Panel) to provide non-binding advice to participating Provincial-Tenitorial Ministers of Health and Justice on issues related to physician-assisted death. The advice provided in the Expert Advisory Panel's report will be a key component to identifying and addressing the legislative and policy decisions necessary to be considered by Saskatchewan to appropriately deal with the issues arising from the decision.

There are many issues which arise from the Carter decision which require consideration and possible legislative direction. Some of the issues being considered by Saskatchewan include: • the possible impact of the procedure on payment oflife insurance policies; • the effect of the procedure on duties to report death for investigation under The Coroner's Act, 1999; • the changes necessary to make the services insured under the provincial health insurance plan; • how such services would be addressed through interprovincial billing arrangements;

... 2 43

The Honourable Jody Wilson-Raybould, P.C., M.P. Page 2 December 2, 2015

o what procedural safeguards should be in place to ensure prognosis and capacity to consent and whether review processes should be in place if there is disagreement; • how the procedure can be made available in rural and remote areas where there are few physicians and whether other health care providers should be able to assist in such circumstances; and o how the existing advance care directive legislation or substitute health care decision making legislation should apply to the process.

Legislative changes to address the foregoing would be informed not only by the report of the Expert Advisory Panel, but also by any legislation being contemplated by the Federal Government, which to date, has not been identified. The difficulty of addressing legislative change in Saskatchewan before February 6, 2016 is compounded by the fact that an election date is set in Saskatchewan for April 4, 2016 and the Legislature of Saskatchewan is not scheduled to sit before that date.

The Government of Saskatchewan understands that the Government of Canada is considering making an Application to the Supreme Court of Canada to extend the suspension of the declaration in Carter. The Government of Saskatchewan supports such an application and would suggest an extension of a minimum of 6 months be considered to permit fuller consultation with health care providers and interes_ted parties, but· also to allow for the policy choices available to be made as consistently as possible amongst Provinces and Territories and to permit some co-ordination of their implementation. 44 Justice and Justice. el Public Safety Securite publique

i\'liniscer 11111! 1\11orn ey Ce1wn1/ Mini.,tre et pro rnre11 re gLi/11.?r. 1/e PO Box 2000, Charlo ttetown C P. 20 00, Charlouctown f'rince Edward Island i le-d u-l'rin ce -l ~ d o uarcl Canada C li\ 7NS Canada C i:\ 7N8

refsr:od to in tho af-fid avit of: December 3, 2015 Tl1is is E;d 1:bit rnen\ionnee !'affidavit de: Ceci est la piE:ce a ER I c_ L AfLf\~. ..:.;::~ ::,__------S-,N-Or_n_i~-. e -forr, ! ~ I P. ;•1 · . . 3 dc.:y o; D~CE:::- l:v( et=ie::_ 20 / c::: A

Dear Minister:

Re: Extension of Ca1-tcr decision deadline

As we discussed in our recent call, Prince Edward Island supports the request for an extension to the deadline for the Carter decision. The decision h~1s significant implications fix our citizens and the cli11ical practice issues have not yet been resolved. Jt will be important to ensure the legal and medical procedmes are well developed in advance of the pending changes, and that alignment between the federal and provincial frameworks is achieved.

Our province has been actively involved in a number of rr·r initiatives and is begiiming the process of consultation with community stakeholders. Premature implementation of this decision will only serve to increase confusion and ri sk polarizing professional organizations who are crucial to this significant change to Canadian social policy.

Today we have received the Final Report of the Provincial-Territorial Expert Advisory Group on Physician -Assisted Dying, we seek additional time to properly bring these recom1:nendations to government and our community, and continue the work tO\vards a national framework.

Thank you for advancing the request for an extension, and feel free to include this letter of support in the application.

Yours truly,

Wade MacLauch.lan Minister and Attorney General

Tel/Tel.: 90 2 3 68 515 2 so11.pe.rn Fax/ rekc. : 902 368 4:JIO 45

ATTORNEY GENERAL MINISTER OF JUSTICE

Room 104 Legislative Building · Winnipeg, Manitoba CANADA R3COV8

December 2, 2015

The Honourable Jody Wilson-Raybould Minister of Justice and Attorney General of Canada 284 Wellington Street Ottawa ON KIA OH8

Dear Minister:

Manitoba Justice has been advised of your department's intention to seek an extension of the stay of invalidity granted by the Supreme Court of Canada in Carter v. Canada (Attorney General) on February 6, 2015. Given Manitoba's desire to ensure that phys.ician-assisted dying is implemented in this· province in a fair, effective and ethical manner, we would support your motion seeking a further six months to implement this important medical procedure. Given the multitude of issues to be considered by both levels of government, Manitoba is desirous of more opportunity tQ develop its position and to ensure that the approach it takes is aligned and compatible with the federal response and the response of the other provinces and territories.

The government of Manitoba is of the view that a pan-Canadian approach to physician­ assisted dying is advisable. In order to develop this approach, Manitoba has pruiicipated in joint federal/provincial/territorial committees that are working towards the implementation of physician..:assisted dying. Manitoba is one of eleven provinces and territories that engaged the assistance of an Expert Advisory Group to undertake consultations and prepare a report to assist in the development of provincial policies and legislation. Manitoba received the report of the Advisory Group on November 30, 2015, though it is not yet public. · The report contains 43 recommendations covering such issues as the rules and procedures to be followed to assess eligibility; reporting mechanisms to ensure transparency and compliance with policies and procedures; developing a process that both provides access but also respects the rights of conscientious objectors; procedures to be followed by faith-based and non faith-based health care institutions; oversight and review processes; health professional education and training; and public 46 2 education and engagement. Manitoba is desirous of having an opportunity to carefully consider this report, to discuss it with our provincial and territorial colleagues, and to make it available for public comment prior to finalizing its regime.

The government of Manitoba has also identified a need for provincial legislation dealing with aspects of physician-assisted dying. Amendments are being considered to The Vital Statistics Act, The Fatality Inquiries Act, The Insurance Act and The Health Care Directives Act. The Expert Advisory Group has also indicated the desirability of provincial/tenitorial legislation to implement 21 of its recommendations. Manitoba's next opportunity to introduce legislation implementing physician-assisted dying will be during the legislative session scheduled for February 20-March 15, 2016.

The government of Manitoba is also desirous of reviewing any legislation proposed by the federal government prior to finalizing its own approach in order to ensure appropriate alignment and co-ordination. To date we have not been made aware of any proposed changes to the Criminal Code that your government may be proposing.

Based on the work to still be done, Manitoba would support the motion to the Supreme Court to extend the stay of invalidity. Physician-assisted dying is a constitutionally protected right and one that should be available to Canadians as soon as possible. However, it is a complex issue and therefore it is important that adequate time be a\)l\lable to ensure that it is carefully and fairly regulated by all jurisdictions.

o ~ sincer 47

sec COURT FILE NO. 35591 IN THE SUPREME COURT OF CANADA {ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET,

.. s is E;xhii:;i~ "' " .reteT~J} JMlITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION in affidavit of AND GLORIA TAYLOR ...... L.\.~ .... L

· ···:.:: .. :.:_: :~;~~~;·· .. ~ ~1'.fORNl!'Y GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH v01"t1.,,;::,.,.,arre I:. ··"''-·· COLUMBIA and ATTORNEY GENERAL OF QUEBEC

INTERVENERS

AFFIDAVIT OF PATRICK DICERNI

(sworn December 3, 2015)

I, Patrick Dicerni, Assistant Deputy Minister of the Ontario Ministry of Health and Long-Term Care of Toronto, Ontario, MAKE OATH AND SAY AS FOLLOWS:

I. I am the interim Assistant Deputy Minister for the Strategic Policy and Planning Division of the Ministry of Health and Long-Term Care. In addition, I have been tasked with leading on behalf of my Ministry the implementation of physician assisted dying {"PAD"). As such, I have knowledge of the matters deposed in this affidavit. 48

2

2. I make this affidavit in support of the motion by the Attorney General of Canada to extend the period of the suspension for six months of the declaration made by this Honourable Court in Carter v Canada, 2015 SCC 5 ("Carter").

3. The Government of Ontario ("Ontario") has been working since February 2015 to develop and assess options to implement PAD in Ontario in a manner that is consistent with this Court's decision and within the parameters of its jurisdiction over health. Ontario has made significant progress towards this goal, but many details of the available options still need to be considered carefully, including any potential interactions with the Criminal Code. Allowing more time for Parliament to consider and enact amendments to the Criminal Code would ensure that Canadians have the benefit of thorough, consistent and well developed federal and provincial legislation to allow access to PAD in appropriate cases while also protecting vulnerable persons from harm.

Ontario's Progress to Date

4. Ontario's approach to the implementation of PAD 1s guided by a number of core objectives:

(1) to ensure that appropriate safeguards are in place to protect patients and to respect the moral and conscientious objection rights of physicians and institutions;

(2) to ensure that patients, families, providers and institutions understand the rules governing PAD in Ontario; and,

(3) to seek a consistent national, or pan-provincial and territorial, approach to PAD.

5. Ontario's strategy in developing an approach to implementing PAD has three components: (1) a provincial-territorial expert advisory group; (2) public consultations; and (3) consideration of policy issues relating to implementation of PAD.

(1) The provincial-territorial expert advisory group 49

3

6. On August 14, 2015, Ontario, in collaboration with 10 other provinces and territories, established an expert advisory group to seek advice from stakeholders and experts and to consider key policy questions related to the implementation of PAD by provinces and territories.

7. The members of the provincial-territorial expert advisory group on physician-assisted dying include patient, health care, ethics and legal experts from across Canada.

8. The provincial-territorial expert advisory group invited 250 stakeholder groups from across Canada to complete a survey and to provide written submissions on a wide range of issues related to the implementation of PAD. The groups included health care provider associations, professional regulators, faith-based groups, health institutions, academic institutions, and patient, social, and legal advocacy groups. The expert advisory group received 53 completed surveys and delivered an interim report summarizing the responses on October 30, 2015.

9. The provincial-territorial expert advisory group held further panel discussions with certain experts and national stakeholders and then carried out its own deliberations. It is expected that the final report and recommendations of the provincial-territorial expert advisory group will be made public on December 14, 2015.

(2) Public consultations by Ontario

10. Broad public engagement is underniay in Ontario as well. Ontario invited the public to complete an online survey and to provide further input through a public e-mail account. Ontario received over 5,500 submissions from members of the Ontario public which are now being organized for careful review. In addition, Ontario is planning in-person consultations across the province.

11. In parallel to the work of the provincial-territorial expert advisory group and Ontario's on-line consultations, Ontario has also been carrying out its own policy analysis of the options for implementing PAD. This has included detailed research and analysis of the systems in place in other jurisdictions and direct engagement with stakeholders. To date, Ontario has met with dozens of organizations and intends to have further meetings with additional health, legal, patient, faith and aboriginal groups. 50

4

12. The organizations Ontario has consulted to date include the Ontario Medical Association, the College of Physicians & Surgeons of Ontario, the College of Nurses of Ontario, the Ontario Hospital Association, the Ontario Psychological Association, the Registered Nurses Association of Ontario, Dying With Dignity Canada, Cancer Care Ontario, the Ontario Renal Network, the Ontario AIDS Network, the Canadian Association of Retired Persons, the Canadian HIVI AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario, ARCH Disability Law, the Advocacy Centre for the Elderly, the Law Commission of Ontario, the Office of the Chief Coroner, the Canadian Bar Association, the Canadian Civil Liberties Association, the Criminal Lawyers' Association, the Advocates' Society, the Canadian Association of Black Lawyers, the Federation of Asian Canadian Lawyers, the South Asian Bar Association and French-Language Health Planning Entities.

(3) Policy questions relating to the implementation of PAD

13. Given the complexity of the health care system and of patients' circumstances, there are many issues that governments must address in order to build an appropriate system, including:

• How should PAD be administered? • What safeguards need to be in place? • How should competency be assessed? • Where can PAD take place? • What oversight and reporting should there be? • How should patient and physician rights be balanced?

14. For provinces and territories, any consideration of these implementation issues must take place against the backdrop of the Criminal Code provisions that impact on PAD. For example, Ontario would welcome clarity in the Criminal Code on such questions as:

• To what extent can non-physician professionals in the health care sector lawfully assist a physician who is providing PAD?

• Could any such non-physician professionals provide assistance in dying independently of, or under the supervision of, a physician? 51

5

• At what points in the process of requesting PAD must <1 patient be competent? ·

15. Having these and other issues in the Criminal Code unresolved creates uncertainty for patients, providers, regulators and provincial and territorial governments. Allowing Parliament more time to consider these questions would assist Ontario, in focusing their policy-making efforts on those options that would best work harmoniously with the Criminal Code.

16. I am avvare that the Province of Quebec has enacted the Act Respecting End-of-L{fe Care, RSQ c S-32.000 I ("Quebec Act"), \.vhich was scheduled to come into force on December I 0, 2015 and which was declared to be constitutionally inoperative on December I , 2015 by the judgment of Pinsonnault J .C.S. in D 'Amico a11d Saba v. Quebec.

17. In the event that Quebec seeks an order that its Act be allowed to operate during any extension to the period of the suspension of this Court's declaration in Carter, Ontario would support this request. Allowing Quebec' s Act to operate during the period of any further suspension would permit Ontario to consider Quebec's experience with the operation of PAD, and would thereby assist in infonning the policy-making process in Ontario.

18. I S\Vear this affidavit in connection with the present motion and for no other or improper purpose.

Sworn before me at the ) City of Toronto, in the ) Province of Ontario . ) This 3rd clay of December, 2015 ) Patrick Diccrni

A Commissioner: etc. U ~ A\(\ '\ C\ (3\-( D\( c C'.'S

I I ,--- ,,, d_ \ -i ,. I ....-:___ \ ) (' l::t. ~.:>"-\ -\ \ I !.-- -...... > v '-' 52 1

Court File No. 35591

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents - and -

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant - and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

MEMORANDUM OF ARGUMENT .

PART I-OVERVIEW and STATEMENT OF FACTS

A. Overview

1. This is a motion to extend, for a further 6 months, the suspension of the declaration of constitutional invalidity of ss.14 and 241 (b) of the Criminal Code. Without a further extension, the law will be in a very uncertain state on February 7, 2016, creating risk to vulnerable Canadians, and confusion about the scope of criminal liability. While the Government has moved with diligence to respond to this Court's order, the intervention of a federal election and the inherent difficulty of developing policy and legislation in this complex area has made it impossible for the Government to develop an appropriate response before the current suspension expires. 53 2

2. The applicant also requests that the motion be expedited. Because the decision on this motion will directly affect how the Government of Canada responds to this Court's judgment, the Government would like to know the result of this motion at the earliest opportunity. Accordingly, we propose that the Court require that the parties respond to this application within three days to facilitate this Court's early consideration of the motion.

B. Statement of Facts

3. On February 6, 2015, this Court rendered its decision. The key paragraphs setting out the conclusions of the Court on the constitutional issues are paragraphs 126-128:

We have concluded that the laws prohibiting a physician's assistance in te1minating life (Criminal Code, s. 24l(b) ands. 14) infringe Ms. Taylor's s.7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s.1 of the Charter. To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

The appropriate remedy is therefore a declaration that s.241 (b) and s.14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and iITemediable 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. "Irremediable", it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.

We would suspend the declaration of invalidity for 12 months.

4. Following the Court's judgment, the Depaiiment of Justice began work on recommendations to the Ministers for a federal response. Among the steps taken were: 54 3

• Analysis of the complex issues that had to be addressed1 • Meeting with provincial and territorial officials, and participating on a federal­ provincial territorial working group on physician-assisted dying that was established on May 12, 20152 • Establishment of an External Advisory Panel on July, 17, 2015 3

5. On July 1 2015, the former Ministers of Justice and Health, the Honourable Peter MacKay and the Honourable Rona Ambrose, announced the appointment of an Expert Panel to consult and report on legislative options to respond to this Cami's decision. The Panel's terms of reference require it to consult with key stakeholders and summarize the results of its consultations to the Ministers of Justice and Health. Its original mandate required it to report by November 15, but on November 14 the mandate was extended to December 15, 2015. 4 The tenns of reference limited the types of consultation that could take place during the federal election campaign. 5

6. The federal election campaign began on August 2, 2015, when the Governor General dissolved Parliament, and continued until Election Day, October 19, 2015. The "caretaker convention" that governs government activities during election campaigns meant that there were limitations on the work that could be done, both during the lengthy election period and until the new government was sworn in on November 4, 2015.6

7. The Expert Panel has done a prodigious amount of work in a relatively sho1i time. The Panel has met with interested groups across the country, consulted with experts both in Canada and in countries that have provided legislative access to physician-assisted dying, and provided an online questionnaire for individual Canadians, which has yielded over 14,000 responses. 7 The Panel's work has demonstrated that a large number of individuals

1 Affidavit of Carole Morency dated December 2, 2015, paras. 6-7 (''Morency Affidavit") 2 Morency affidavit, paras.8-10 3 Morency affidavit, para. 11 4 Morency affidavit, para. 20 5 Affidavit of Stephen Mihorean dated December 2, 2015, paras. 3,9 ("Mihorean affidavit") 6 Morency affidavit, para.14 7 Mihorean affidavit, paras. 5-8, 11-16 55 4

and groups are fully engaged in the process, and the Government has been counselled to take great care in crafting any legislation on physician-assisted dying.8

8. New Ministers of Justice and Health were sworn in on November 4, 2015. Both Ministers were briefed on the status of this case and the state of policy development work in their first week of office. On November 24, Cabinet met to discuss the issue. The Government's plans include a desire to set up a committee to study the issues. It is possible that such a Committee may be set up in the week of Dec. 7-11, 2015, the final sitting week for Parliament in this calendar year. 9

PART II- ISSUES

9. Should the Court extend the suspension of the declaration of constitutional invalidity in this case? Should the motion be expedited?

PART III-ARGUMENT

A. The Test for Extending the Period of Suspension

10. From time to time, this Court has suspended declarations of constitutional invalidity when necessary to maintain order and protect the rule of law. 10 That principle has been applied many times in criminal cases, where public safety may be at risk without a suspension. 11 The importance of protecting public safety has meant that the Court has, on occasion, extended the initial suspension where the legislative process was ongoing. 12

11. This Court has yet to set out a specific test for when an extension of time should be granted in these circumstances. The main issue must clearly be whether the circumstances prompting the original suspension have changed in any way: has the need

8 Mihorean affidavit, paras. 19-20 9 Morency affidavit, para. 21 10 Re Manitoba Language Rights, [1985] 1 S.C.R. 721 11 Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101 at para.167; R. v. Demers, [2004] 2 S.C.R. 489, at paras. 56-64 12 R. v. Feeney, (1997] 3 S.C.R. !008; Swain v. The Queen SCC File# 19758 (Oct. 28, 1991) 56 5

for a suspension been attenuated, or have the potential negative consequences of continuing a suspension been reinforced? 13 Factors that govern applications for extensions in other areas, 14 such as the reasons for the delay, the diligence of the government in responding to the Court's order, and the length of the extension sought, might also play a part. The overriding concern, however, must remain the protection of the public.

B. The Need for the Extension

12. The concerns that prompted this Court to suspend the declaration of invalidity have not dissipated since judgment was delivered. As this Court noted in its reasons:

Parliament faces a difficult task in addressing this issue; it must weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying. 15

"Those who might be at risk" in the cun-ent context means vulnerable people who might be at risk of a premature death, contrary to their true wishes. The significance of such a risk cannot be overstated.

13. The nature of the challenge facing Parliament has not changed. The Court accepted that a legislative response would require a "carefolly designed and monitored system of safeguards." 16 Indeed, it was the possibility of crafting a scheme with such safeguards that led the Court to reject the idea that weakening the prohibitions will inevitably lead to the casual termination oflife, including the lives of individuals who did not wish to die. 17 The statutory regimes in place in Oregon, Washington, Vermont, Belgium, Luxembourg and the Netherlands illustrate the difficult choices that must be made and the diversity of potential responses. The challenge of crafting a new regime that takes account of diverse interests now falls to a new Parliament, to new Ministers of Justice and Health, and to

13 Schachter v. Canada, [1992] 2 S.C.R. 679 at 715-17. 14 In terms of extensions of time generally, R. v. Roberge, [2005] 2 S.C.R. 469, at para.6 15 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 98 16 Carter at para. 117 17 Carter at paras. 114-117 57 6

their provincial and te1Titorial counterparts. All possible options will be carefully considered.

14. The task facing Parliament is a daunting one. The affidavits of Carole Morency and Stephen Mihorean describe the extensive nature of the work done so far, and the very high level of engagement of individuals, experts and groups in the issues. Thorough Parliamentary consideration of the range of possible responses will take time, since Parliament will want to hear further from individuals, experts and groups, and debate the issues. Canada has been counselled by experts in foreign jurisdictions with comparable legislation to take the necessary time to consider a new law. 18 With the exception of Switzerland, all of the jurisdictions have comprehensive legislative regimes; in a federal state such as Canada, the response can be more complicated still, as governments work together to ensure a harmonious system of regulation.

15. The task facing provincial legislatures will be equally daunting. The impact of any new laws will be felt by a variety of regulated medical professionals (physicians, nurses, pharmacists) and institutions (hospitals, hospices, nursing homes). Provincial regulation is a necessary and important pai1 of a comprehensive response to this Court's decision.

C. The Government's Diligence in Responding

16. As set out in the affidavits of Carole Morency and Stephen Mihorean, the Government has been diligent in doing preparatory work in response to the Court's decision. Work has been continuous. Because of the importance of the issues, outside expertise has been sought, both at the federal level and at the provincial. Consultations between governments have been undertaken.

17. Preparation of the government response has been inhibited by the fact of an intervening election campaign, which has meant less than the usual amount of sitting time for Parliament this fall, and less time for the new Ministers who must implement the federal

18 Mihorean affidavit, para. 9 58 7

response. The election also imposed some limitations on the work of federal officials 19 and the federal Panel.20 In the circumstances, the government response has been as diligent as possible.

D. The Length of the Suspension Sought

18. The length of a further suspension sought, 6 months, is reasonable in the circumstances. In Swain, the Court granted an additional period of 3 months to the original 6 month "transition period", with the possibility of further extensions as legislation moved through Parliament.21 In Feeney, a one month extension was granted to an original "transitional period" of 6 months.22 At the time of the extension order in Feeney, remedial legislation was before Parliament; the order contemplated that the extension would continue until Royal Assent was granted.

19. Here, no bill is before the new Parlian1ent. Given the significance of the task and the need for a complex regulatory regime, the preparation of appropriate federal and provincial responses will be a formidable challenge. Six months is a reasonable request in the cunent circumstances.

E. The Potential Impact on Rights Holders of Extending the Suspension

20. There will be an undeniable impact on competent adults who are prepared to give free and informed consent to physician-assisted death within the proposed 6 month extension period. However, it is important to remember that the interests of people desiring assisted dying are not the only interests at play here, though they too would benefit from clear laws at the federal and provincial levels. Vulnerable individuals, including people with disabilities, have concerns that must be addressed.23 Other stakeholders, such as

19 The "caretaker convention" is described on the website of the Privy Council Office: http://www.pco­ bcp.gc.ca/index.asp?lang=eng&page=convention&doc=convention-eng.htm 20 Mihorean affidavit, para. 9 21 Swain v. The Queen, SCC File #19578, Oct.28,1991 22 R. v. Feeney, [1997] 3 S.C.R. 1008 23 Mihorean affidavit, para.20 59 8

physicians who might be called upon to assist (some of whom may object to providing assistance), families and the police also require legislative guidance.

21. This Court recognized in its decision that "aspects of physician-assisted dying may be the subject of valid legislation by both levels of government. "24 Of all the provinces and territories, Quebec has done the most to prepare for a revised regulatory framework through the passage of its Loi concernant !es so ins de fin de vie.25 Given the lengthy period of study that preceded the Quebec legislation, there is much all jurisdictions can learn from Quebec: Implementation of that law is currently the subject oflitigation in that province.26 In other provinces, work on responses to the Carter decision continues; Nova Scotia, Saskatchewan, Prince Edward Island, Manitoba and Ontario have all requested that the Attorney General of Canada seek an extension of the suspension, and that the federal government, the provinces and the territories continue to work collaboratively to design an appropriate framework. 27

22. Legislation in this area involves complex issues of social policy, where governments must mediate between the competing claims of different groups. In such circumstances, this Court has adopted a deferential approach to legislators.28 The fact that the potential impacts of any legislation will be felt by multiple groups justifies a further extension, as Parliament strives to respect the impacts on all concerned.

F. The Legal Uncertainty in Respect of the Remedy Granted

23. A further factor justifying an extension of the current suspension is the uncertainty with respect to the remedy granted by the Court. The exact nature of the remedy imposed by this Court is uncertain.

2 ~ Carter at para.53 25 RLRQ, c. S-32.0001 26 D 'Amico et Saba c. Procureure Generate du Quebec, Dec. 1, 2015, No. 500-17-082567-143 (C.S.Q.). Quebec has announced it will appeal the judgment. 27 Affidavit of Eric Lafleur dated Dec. 3, 2015, exhibits "A", "B", "C", "D" and "E". 28 Little Sisters Book and Art Emporium v. Canada (Minister ofJustice), [2000] 2 S.C.R. 1120, at para.221; Chaoulli v. Quebec (Attorney General), [2005] I S.C.R. 791, at para.94 60 9

24. The Court's judgment describes the remedy at para. 127 as follows:

The appropriate remedy is therefore a declaration that s.241 ( b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination oflife; and (2) has a grievous and i1Temediable 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. "hTemediable", it should be added, does not require the patient to unde1iake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.

25. There are two possible readings of this part of the judgment.29 Either the Court has struck down the provisions in their entirety, or the provisions have been "read down" (or an exception has been "read in"). This ambiguity gives rise to a very high level oflegal uncertainty. Moreover, without a comprehensive legislative response, each of the interpretations results in unacceptable risks, uncertainty, or both. If the provisions have been struck down, all consensual killings and assisted suicides (not just physician­ assisted ones) would no longer be criminal offences after February 6, 2016. If the · provisions were read down, much would still be unclear, for example: in what precise circumstances a physician would be able to benefit from the exception; what steps a physician would have to take to determine the genuineness of the person's wish to die; how to respect some physician's reluctance to participate.

Conclusion

26. The public interest in the issues raised in this case could not be higher. Parliament is, or will shortly be, fully engaged in studying the issues to inform an appropriate response, as are provincial and territorial legislatures. Many interest groups are also fully engaged in

29 The meaning is not further clarified by the Couti's formal order, which does not provide answers to the constitutional questions. 61 10

making their concerns knO\vn. Parliament should be given a further opportunity to consider all possible responses to this Comi's decision.

PART IV- ORDER SOUGHT

27. The applicant requests an order extending the suspension of constitutional invalidity of ss. 14 and 241 (b) of the Criminal Code for a further 6 months.

28. Parliament has an impo1iant oppo11unity to begin dealing with a response to this Court's decision in the last House of Commons sitting week this year, Dec.7- 11. The Government is working towards a motion to establish a special committee in that week.30 To facilitate Parliament's critical work, it is requested that the timelines for the respondent/appellant to respond to these issues be shortened to three days, and the applicant/respondent be given one day to reply.

All of which is respectfully submitted Dated at Ottawa, this 3rd day of December, 2015

Robert J. Frater Q.C. {)G'-'\Donnaree Nygard Counsel for the Applicant/Respondent

30 Morency affidavit, para. 21 62 11

PART V AUTHORITIES

Case law Referred to at paragraph

L Canada(Attorney General) v. Bedford, [2013] 3 S.C.R. 1101 IO

2. Carter v. Canada (Allorney General), [2015] 1S.C.R.331 21

3. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791

4. D 'Amico et Saba c. Procureure Generale du Quebec, Dec. 1, 2015, 21 No. 500-17-082567-143 (C.S.Q.)

5. Little Sisters Book and Art Emporium v. Canada (Minister of 22 Justice), [2000] 2 S.C.R. 1120

6. R. v. Demers, [2004] 2 S.C.R. 489 10

7. R. v. Feeney, [1997] 3 S.C.R. 1008 10, 18

8. R. v. Roberge, [2005] 2 S.C.R. 469 11

9. Re 1\1anitoba Language Rights, [1985] 1 S.C.R. 721 10

10. Schachter v. Canada, [1992] 2 S.C.R. 679 11

11. Swain V. The Queen, sec File #19758, Oct.28,1991 IO, 18