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Carter V. Canada (Attorney General), 2012 BCSC 886 Date: 20120615 Docket: S112688 Registry: Vancouver

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Carter V. Canada (Attorney General), 2012 BCSC 886 Date: 20120615 Docket: S112688 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Carter v. Canada (Attorney General), 2012 BCSC 886 Date: 20120615 Docket: S112688 Registry: Vancouver Between: Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor Plaintiffs And Attorney General of Canada Defendant And Attorney General of British Columbia Defendant And Farewell Foundation for the Right to Die -and- The Christian Legal Fellowship -and- Canadian Unitarian Council -and- Euthanasia Prevention Coalition and Euthanasia Prevention Coalition – British Columbia -and- Ad Hoc Coalition of People with Disabilities Who are Supportive of Physician-Assisted Dying Intervenors Before: The Honourable Madam Justice Lynn Smith Reasons for Judgment Counsel for Plaintiffs Joseph J.M. Arvay, Q.C., Sheila M. Tucker, Alison M. Latimer, and Grace M. Pastine Counsel for Attorney General of Canada Donnaree Nygard, Keith Reimer, Toireasa Jespersen, Melissa Nicolls, Megan Volk and BJ Wray Counsel for Attorney General of British Columbia George H. Copley Q.C. and Craig E. Jones, Q.C. Counsel for Farewell Foundation for the Right to Die Jason Gratl and Marius Adomnica Counsel for Euthanasia Prevention Coalition Hugh R. Scher, Joel V. Payne and John A. Campion Counsel for Christian Legal Fellowship Gerald Chipeur, Q.C. Bradley Miller and Michael Morawski Counsel for Canadian Unitarian Counsel Tim Dickson and Brent L. Rentiers Counsel for The Ad Hoc Coalition of People with Angus M. Gunn, Jr. Disabilities Who are Supportive of Physician- and Sarah F. Hudson Assisted Dying Place and Date of Hearing: November 14-18, 21-25, 28, December 1-2, 5-9, 12-14, 16, 2011, April 16, 2012 Vancouver, B.C. Place and Date of Judgment: Vancouver, B.C. June 15, 2012 Table of Contents I. SUMMARY II. INTRODUCTION A. Nature of the Claim B. Terminology III. THE PLAINTIFFS A. Gloria Taylor B. Lee Carter and Hollis Johnson C. Dr. William Shoichet D. Standing of Dr. Shoichet and BCCLA IV. CRIMINAL CODE PROVISIONS AND THEIR HISTORY A. The Impugned Provisions B. Legislative History C. Private Members’ Bills and Senate Reports Since Rodriguez V. EVIDENTIARY AND PROCEDURAL RULINGS A. Evidence 1. The Record 2. Evidence Admitted Past the Deadlines a) The Royal Society Expert Panel Report and the Report of the Canadian Parliamentary Committee on Palliative and Compassionate Care b) The Select Committee of the Assemblée Nationale de Québec B. Summary and Expedited Trial C. Scope of Reply VI. EXPERT OPINION EVIDENCE VII. MEDICAL ETHICS AND MEDICAL END-OF-LIFE PRACTICES A. Introduction B. Relevance of the Ethical Debate 1. Positions of the Parties 2. Analysis C. Current State of the Law and Practice in Canada Regarding End-Of-Life Care 1. Palliative Care Practice 2. Assisted Suicide and Voluntary Euthanasia Practice 3. The Law a) The Informed Consent Requirement b) Potentially Life-Shortening Symptom Relief c) Palliative Sedation d) Withdrawal of Treatment against the Consent of Substitute Decision-Makers e) Summary D. Evidence 1. Opinions of Ethicists 2. Evidence of Practitioners 3. Positions of Professional Bodies 4. Public Opinion 5. Public Committees 6. Prosecution Policies E. Analysis 1. Summary of the Ethical Debate 2. Conclusions about the Ethical Debate a) Would Canadian physicians be willing to assist patients with hastening death if it were legal to do so? b) Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible and is the distinction between suicide and assisted suicide ethically defensible? c) Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society? VIII. EVIDENCE FROM OTHER JURISDICTIONS A. The Major Challenges to the Effectiveness of Safeguards B. Review by Jurisdiction 1. Oregon and Washington 2. Netherlands 3. Belgium 4. Switzerland 5. Luxembourg 6. Montana 7. Colombia C. Impact of Legal Physician-Assisted Dying on Vulnerable Populations D. Analysis of the Evidence about Effectiveness of Safeguards 1. What level of compliance have the permissive jurisdictions achieved with respect to their safeguards? 2. Do the safeguards effectively prevent abuse of vulnerable individuals? 3. What inferences can be drawn with respect to the likely effectiveness of comparable safeguards in Canada, given different cultural contexts? E. Impact on Palliative Care F. Impact on Physician-Patient Relationship IX. SAFEGUARDS: FEASIBILITY A. Introduction B. Areas of Risk 1. Competence a) General b) Cognitive Impairment c) Depression 2. Voluntariness 3. Informed Consent 4. Ambivalence 5. Vulnerable Individuals a) Elderly people b) People with disabilities C. Addressing the Risks D. Conclusion X. IMPACT OF RODRIGUEZ V. BRITISH COLUMBIA A. General Principles Regarding Stare Decisis B. What did Rodriguez Decide? C. What Remains Open for Decision in This Case? 1. Section 7 a) Role for Consideration of Societal Interests in S. 7 Analysis; Relationship between S. 7 And S. 1 b) Later-Recognized Principles of Fundamental Justice i. Overbreadth ii. Gross Disproportionality iii. Analysis 2. Section 15 3. Section 1 D. Conclusion XI. EQUALITY A. Does the Law Create a Distinction Based on an Enumerated or Analogous Ground? 1. Enumerated or Analogous Ground 2. Effects-Based Discrimination 3. Comparisons 4. Benefit Provided by Law 5. What counts as a “distinction”? 6. Conclusion B. Is the Distinction Discriminatory in that it Creates a Disadvantage by Perpetuating Prejudice or Stereotyping? 1. First Contextual Factor: Pre-Existing Disadvantage 2. Second Contextual Factor: Correspondence Between the Law and the Claimant’s Circumstances 3. Third Contextual Factor: Ameliorative Purpose 4. Fourth Contextual Factor: Nature of the Interest Affected C. Conclusion XII. JUSTIFICATION A. The Rodriguez Conclusion on S. 1 B. The Analytical Framework C. Burden and Standard of Proof, Deference and Context D. Are the Limits on Charter Rights Prescribed by Law? E. Is the Purpose of the Legislation Pressing and Substantial? 1. What is the purpose of the legislation? 2. Is that purpose pressing and substantial? F. Proportionality 1. Rational Connection 2. Minimal Impairment a) Introduction b) Principles c) Positions of the Parties d) Analysis 3. Proportionality of Effects XIII. LIFE, LIBERTY AND SECURITY OF THE PERSON A. Introduction B. Deprivation 1. Liberty and Security of the Person 2. Life 3. Nature of the Deprivation C. Principles of Fundamental Justice 1. Arbitrariness 2. Overbreadth 3. Gross Disproportionality D. Section 1 Justification XIV. REMEDY A. Declaratory Relief B. Constitutional Exemption TABLE OF CASES I. SUMMARY [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician- assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson. [2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions. [3] I will summarize, in brief, my findings of fact and legal reasoning. [4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation). [5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing. [6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death. [7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it. [8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people. [9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium,
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