Assisted Suicide and the Supreme Court of Canada

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2015-07-24 Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of Canada

Ogilvie, Chelsea

Ogilvie, C. (2015). Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of Canada (Unpublished master's thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/28714 http://hdl.handle.net/11023/2363 master thesis

University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY

Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of

Canada

Chelsea Ogilvie

A THESIS

SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE OF MASTER OF ARTS

GRADUATE PROGRAM IN POLITICAL SCIENCE

CALGARY, ALBERTA

JULY, 2015

In February 2015, the Supreme Court struck down Canada’s prohibition of physician-assisted suicide (PAS). Not only did the Carter decisions mark a historic point in the long fight to legalize PAS in Canada, but it was also the second Supreme Court case in a little over a year to revisit, and depart from, an earlier Charter precedent. Stare decisis, or precedent, is a fundamental doctrine of the legal system that judges are reluctant to ignore. However, in

Bedford, the Supreme Court outlined new criteria for revisiting a precedential decision, and these same criteria allowed for the success of Carter fourteen months later. The Supreme Court is taking a new approach to stare decisis, and this thesis used the PAS movement and Carter as a case study to explore the winning conditions for precedent reversal.

ii Acknowledgements

I would like to begin by thanking both the Social Science and Humanities Research Council and the University of Calgary’s Department of Political Science for their generous funding of this project. Beyond financial support there are several people who contributed, in one way or another, to this degree, and to them I extend my gratitude.

My supervisor, Dr. Rainer Knopff, whose assurances and gentle encouragement kept me writing, and whose suggestions and advice made that writing much more concise and coherent than it has ever been. Thank you for your patience.

My friends and colleagues who read, edited, or acted as soundboards on this and other projects (special thanks to Dave and Elsa), who laughed and adventured with me, and whose welcomed distractions made my years as a Masters student some of the best so far. Thank you for the memories.

My parents, who felt the ups and downs, stress and anxieties as much as – or sometimes more than – I did, but never gave up and never let me give up. Thank you for the unconditional love.

And Stu, whose unwavering support, constant encouragement, and occasional bribery kept me plugging away, one paragraph at a time. Thank you for everything.

iii Table of Contents

Abstract ...... ii Acknowledgements ...... iii Table of Contents ...... iv List of Symbols, Abbreviations and Nomenclature ...... v

CHAPTER 1: INTRODUCTION ...... 1 Morality Policy ...... 3 Public Opinion ...... 5 Plan of the Study ...... 11

CHAPTER 2 – RODRIGUEZ V. BRITISH COLUMBIA...... 14 The Judicial Opinions: An Overview ...... 19 The Justification Debate ...... 21 Fundamental Justice ...... 22 Reasonable Limits ...... 27 Parliament and the PAS Policy Ball: The Next Step ...... 32 Aftermath of the Rodriguez Decision: ...... 34

CHAPTER 3: POLITICAL AVOIDANCE AND RETURN TO THE COURTROOM ..37 The First Wave of Legislative Activity: Svend Robinson and Sharon Carstairs ...... 39 The Second Wave of Legislative Activity: Lalonde and the Quebec Movement ...... 40 Return to the Courtroom: Genesis of the Carter Litigation ...... 43

CHAPTER 4: STARE DECISIS: THE RULES, THE EXCEPTIONS, AND THE CHARTER ...... 47 Stare Decisis ...... 48 Traditional Reasons for Reversal: Outdated, Unworkable, Confusing ...... 53 Reversal in Constitutional Cases ...... 59 The Charter and Criteria for “Revisiting” Constitutional Precedent ...... 64 New Legal Issues ...... 65 Social Facts ...... 68 From Kindler to Burns: The Impact of Changing Social Facts ...... 71 Bedford and the Interaction of “New Legal Issues” and “Social Facts” ...... 73

CHAPTER 5: WINNING CONDITIONS FOR PHYSICIAN ASSISTED SUICIDE IN COURT ...... 76 New Legal Issues ...... 77 Social Facts ...... 80 Societal Consensus ...... 81 Jurisdictions ...... 86 Social Evidence ...... 90

CHAPTER 6: CONCLUSION ...... 97

WORKS CITED ...... 104

List of Symbols, Abbreviations and Nomenclature

Term Abbreviation

British Columbia Civil Liberties BCCLA Association

British Columbia Court of Appeal BCCA

British Columbia Supreme Court BCSC

Ontario Superior Court of Justice ONSC

Ontario Court of Appeal ONCA

Physician-Assisted Suicide PAS

Supreme Court of Canada SCC

CHAPTER 1: INTRODUCTION

Over twenty years ago, in the famous case Rodriguez v. British Columbia (Attorney

General) (1993), the Supreme Court of Canada narrowly upheld Canada’s traditional criminal prohibition of physician-assisted suicide (PAS), placing the ball of legal reform on this issue squarely into the legislative arena. However, after two decades of lobbying the federal government, Canadian advocates of PAS had no success at reforming the Criminal Code. In light of this failure, they eventually launched a second major legal challenge – Carter v. Canada

(Attorney General) – in 2011. On February 6, 2015, a unanimous Supreme Court of Canada handed down its decision in Carter, effectively reversing the Rodriguez precedent and declaring the country’s complete prohibition of physician-assisted suicide to be unconstitutional. Giving officials 12 months to come up with new legislation, the Supreme Court declared that

“grievously ill” and mentally competent adults should be allowed to request – and receive – aid in dying. As a result of this decision, Canada became the fifth country in the world to legalize physician-assisted suicide at the national level, and the first jurisdiction to do so as a direct result of a constitutional rights challenge. What changed in the two decades between Rodriguez and

Carter to finally create what René Duval called the “winning conditions” (cited in White 2011) for a renewed courtroom challenge, one that would reverse an established legal precedent? That is the central question addressed by this study.

This question is particularly intriguing because, as indicated, the successful Carter challenge made the Supreme Court of Canada the first high court in the world to use a rights document (in this case the constitutional Charter of Rights and Freedoms) to invalidate a criminal prohibition of PAS. The other recent case that might have achieved this was Flemming, an Irish case, where the Irish Supreme Court upheld their PAS prohibition, claiming that there

was no constitutional right to assisted suicide (Flemming v. Ireland & ors 2013, paras.99-108).

Failure in the courts has been the norm for PAS advocates until Carter.1

That a high court liberalization of PAS policy came as late as 2015 is surprising because

PAS falls into a category of so-called “morality policies” – contentious issues like abortion, prostitution, capital punishment or same-sex marriage – that observers note often attract significant, typically liberalizing, high-court policymaking. Seen from this perspective, one might have expected a high court to liberalize PAS policy much earlier than 2015. Instead, and in marked contrast to issues such as abortion and same-sex rights, courts throughout the liberal democratic world have been distinctly reluctant to reform traditional criminal bans of PAS.

While the Canadian Rodriguez judgment almost broke this pattern in 1993, coming just one vote short of invalidating the Canadian prohibition of PAS, it fell to Carter in 2015 to actually achieve this result.

The question becomes even more perplexing considering that the established pattern of judicial hesitation in regards to PAS cannot be explained by a lack of public support for the practice. To the contrary, the legalization of PAS has enjoyed very high levels of public-opinion support in the liberal democratic world for decades. Even though courts do not follow opinion polls in any direct or immediate sense, such high levels of support would, in theory, make the expected judicial liberalization of this area of morality policy easier and, therefore, more likely than similar liberalization of other morality policies. Indeed, high-court liberalization of morality

1 While Flemming is the closest example to Rodriguez, Washington v. Gluksburg (1997) and Vacco v. Quill (1997) out of the United States, and Pretty v. United Kingdom (2002) and R (Nicklinson & Anor) v. Ministry of Justice (2014) from the United Kingdom, were similar cases that failed to legalize PAS. 2

policies like abortion or same-sex rights, have often occurred in the context of ambiguous and polarized public opinion. The opposite has been the case with respect to PAS.

In sum, our question about “winning conditions” in Canada assumes additional significance given two more general contextual factors – 1) that PAS as a morality policy has withstood liberalizing high-court policymaking, and 2) that it has done so despite unusually high levels of public support. Let us consider these two factors in somewhat more detail.

Morality Policy

Contentious and relatively new social issues such as abortion, same-sex marriage, capital punishment, school prayer, prostitution and physician-assisted suicide all fall into the category of

“morality policies.” These policies deal with intangible, fundamental, and deeply personal values, which present themselves in passionate moral clashes over how society should legally define “right” and “wrong” (Mooney 2001, p.3). Debate over such fundamental principles quickly becomes emotional and fiercely polarized, and resolution is extremely difficult (Studlar

2001, p.38). Compromise is almost impossible in these “zero-sum games” (Tatalovich et al.

1994, p.3) as it would “offend deep-seated moral codes” (Christoph 1962, p.173). “Two-sided moral controversies,” as they are known in the literature (Smith & Tatalovich 2003; Meier 1994), are therefore politically very risky: any solution politicians propose is bound to cause offense and alienate a large number of invested citizens (Studlar 2001, p.39). To further complicate matters, morality policy conflicts draw extremely high levels of citizen participation, meaning the number of potentially offended voters is even higher. The very nature of morality policies makes them especially threatening for “risk-averse elected politicians” (ibid.).

Political avoidance of morality policy is therefore a fairly common phenomenon. Policy scholar Joyce Outshoorn describes several strategies used by politicians (particularly in the governing party) when confronted with two-sided moral controversies; refusing to acknowledge the conflict or debate, postponing meaningful action by sending issues to a committee for lengthy assessment, or offloading policy decisions to non-legislative institutions are all ways for governing politicians to avoid a direct conflict with adversarial parties over two-sided moral controversies (1996).

While these strategies can be very effective in the short term, Mooney notes that activists in morality politics are emotionally invested in their cause, and will often carry on the fight after significant losses or setbacks in the policy-making process (2001, p.14). Even if legislatures take action and create a policy, two-sided moral controversies are rarely settled indefinitely; the slighted parties continue the fight to have their fundamental values sanctioned in law. If legislative arenas are hostile to their cause, interest groups are quick to turn to other

“nonstandard” institutional avenues for policy development. In jurisdictions that have legally enforceable rights documents, the courts are an attractive option for interest groups seeking to create or reform morality policies (Studlar 2001, p.40).

As Canadian political scientist Dave Snow points out, interest groups in Canada have always been allowed access to the courts in particular situations. However, he suggests that after the enactment of the Canadian Charter of Rights and Freedoms in 1982, interest groups

“recognized the importance of developing and sustaining litigation strategies as a means of affecting policy change” (p.160). While Snow acknowledges that the viability and success of such litigation is debatable, he argues that it is difficult to deny the political opportunities opened

up by the “rights revolution”2 in Canada (p.154). Post-1982, any resistance met in Parliament on morality issues could be skirted by redirecting efforts to the courts. In the legal arena, supporters of morality policy can turn “claims into rights” and “legislation into litigation” (Lowi 2005;

Smith & Tatalovich 2003). The judicial accessibility brought on by the rights revolution, combined with political avoidance and determined interest groups, means that morality policies, or “social regulations” (Smith & Tatalovich 2003, p.14), often find their way into the courtroom.

This has certainly been the case for issues like abortion, Sunday-closing laws, same-sex rights, prisoner voting rights – and, of course, physician assisted suicide. However, while high courts have moved policy in a liberal direction on many of these issues,3 they resisted doing the same with PAS until the Supreme Court of Canada’s 2015 decision. Moreover, not only did high courts refrain from judicial involvement in PAS policy-making for much longer than they did with respect to many other morality policy issues but they did so in the face of unusually high levels of public support for PAS.

Public Opinion

While high courts do not base their decisions on public opinion, the amount of backlash following a morality policy decision is dependent on how well the judicial policy direction aligns

2 Epp (1994) argues that legal mobilization requires both well-funded interest groups as well as constitutionally entrenched bill of rights. He referred to this process as the “rights revolution.” 3 We will examine the issue of abortion in greater depth below, but the Supreme Court of Canada has also shifted the morality policy issues of Sunday closing laws (R. v. Big M Drug Mart Ltd. 1985), safe injection sites (Canada v. PHS Community Services 2011), same-sex rights protection (M. v. H. 1999; Reference re Same-Sex Marriage 2004) and prostitution regulation (Canada (Attorney General) v. Bedford 2014) in a liberal direction. 5

with trending public opinion (Persily 2008, pp.4-5).4 Making decisions on contentious morality policy would therefore presumably be easier when public opinion is strongly in favour of such change than when opinion is less favourable. However, the opposite is the case when comparing the issue of physician assisted suicide with other morality policy issues, such as abortion.

In 1973, when the U.S. Supreme Court liberalized abortion policy in Roe v. Wade, a

“slight majority” of Americans disapproved of this liberalization (Barnum 1985, cited in Luks &

Salamone 2008). Opinion polls showed that support for legalized abortion began growing in the mid-sixties, but by 1973 there was certainly no clear consensus on the divisive issue. The public opinion trend of growing support for liberalized abortion regulations was less than a decade old, and proved to be sufficiently fragile to actually start reversing by the late 1970s (Luks &

Salamone 2008). However, despite tenuous public support, the U.S. Supreme Court pushed abortion policy in a liberal direction.

Similarly, by the time the Supreme Court of Canada struck down Canada’s abortion law in Morgentaler v. The Queen (1988), effectively creating one of the most liberal access-to- abortion regimes in the liberal democratic world, there was no clear consensus or even strong trend in public opinion favouring liberalized abortion policy. An early CIPO poll in 1974 found that only 26% of Canadians believed abortion laws were too restrictive, leaving a full 56% of

Canadians who believed that access to the procedure was “about right” or “too easy” (Boyd &

Gillieson 1975). A little over a decade later, a Gallup poll found that the balance had shifted and a slight majority of Canadians (55%) were in favour of abortions in limited circumstances.

4 While courts are, by design, beyond the influence of public opinion or even public reaction to decisions, Persily notes that “lacking the power of the purse and the sword, the judiciary’s effectiveness ultimately depends on its legitimacy – the belief that its decisions are morally valid” (2008, p.5). To this extent, courts must be aware of the public faith that enables their existence. 6

However, in this poll 13% of Canadians were completely against any legalized abortions (The

Gazette 1988), and only 28% wanted the kind of unrestricted access to abortions that flowed from the Morgentaler judgment.5 It is true that some other studies showed higher support for unrestricted abortion. For example, a study by the Globe and Mail in 1985, three years before

Morgentaler, found that a “slim” majority of Canadians (53%) agreed with the statement that every woman should have unrestricted access to abortions; nevertheless, a “large” minority

(41%) disagreed (Adams et al. 1985). Even these more liberal polling results demonstrate that

Canadians had consistently been divided about liberal abortion policy since the 1970s, and there was certainly no groundswell of support for the un-restricted access by the time Morgentaler created such a policy.

It is worth noting that most of the Supreme Court judges participating in Morgentaler left the door open to less discriminatory ways of restricting abortion than the ones they invalidated; they did not mandate or require unrestricted access on constitutional grounds. Nevertheless, they created a de facto policy of few restrictions, and, as Tom Flanagan has explained, a judicially created policy status quo of this kind often has remarkable “staying power” because it is difficult for legislatures to reverse (1997). So it has been with the status quo created by Morgentaler. The relevant point for our purposes is that the Court was prepared to intervene in abortion policy, and to invalidate an existing law, even in the context of ambiguous public opinion. Five years after

5 Public support levels were similar in the U.S. at the time. A Gallup poll from 1985, a dozen years after Roe v. Wade, found that only a slight majority of Americans (55%) supported legalizing abortion under some circumstances, but the remainder of the population was evenly split between supporting legalized abortion under any circumstance (21%) and banning abortion regardless of the circumstance (21%) (Gallup 2015). George Gallop Jr. and Jim Castelli (1988) argued that public opinion was “sharply divided on the issue.” 7

Morgentaler, by contrast, the Court left the existing ban on PAS in place despite strong public support for a more liberal policy.

Indeed, public opinion polls regarding PAS had been showing substantial support for liberalized policies for decades in many countries. Gallup began asking Americans in 1947 if a doctor should be able to “end [a] patient’s life by some painless means” if the patient has “a disease that cannot be cured,” and both he “and his family request it.” Only 1 in 3 Americans agreed with this broad notion of PAS (Carroll 2007). However, by 1973 that number had jumped, and over half of respondents (53%) answered “yes” to the same question. By 1990, when opinion on abortion remained very divided, 65% of Americans favoured PAS, and by 2007 the level of support had risen to 71% of Americans (ibid). Majority support for PAS has been unquestionably clear, and on a steady increase, in the United States since the 1970s. However, despite much greater support than existed for liberalized abortion in 1973, there has been no PAS equivalent of Roe v. Wade in the U.S.

While inconsistencies in the wording of individual public opinion surveys make a direct comparison of results difficult, there are clear trends in support levels throughout the Western world. In the UK, polls have found strong support for some form of legalized PAS for decades.

The British Social Attitudes Surveys that began asking Britons whether PAS should be allowed for persons with “painful, incurable disease” in 1984 showed even higher levels of support than in the U.S. Given such qualifiers as “painful,” one would expect more support than in the less dramatically worded American Gallup surveys mentioned above. Still, it is significant that the initial 1984 version of this UK survey showed that 75% of respondents supported PAS under the specified circumstances. As in the U.S., moreover, support grew through the 1980s and 1990s,

reaching 82% in 1994 where it has remained (roughly) ever since (Select Committee on Assisted

Dying of the Terminally Ill Bill 2004; Angus Reid Public Opinion 2012).

In Australia levels of support are slightly lower than in the UK, but have still constituted a clear majority of the population for decades. A 1993 opinion survey found around 66% of

Australians supported PAS when a patient was “dying slowly and painfully” (Sikora & Lewins

2007, p.72). Given the qualifiers of “slowly” and “painfully,” this seems low by comparison to

UK responses to similar questions, but it is nevertheless a strong majority. By 2001 support had risen to 71% (ibid), and a more recent poll in 2011 found that 75% of Australians supported a liberalized PAS regime when a patient was “experiencing unrelievable suffering” (Horin). These levels are more comparable to the British results using similarly distressing language, and demonstrate a steady growth in support for legalized PAS.

Public opinion polls for PAS have not been as numerous in New Zealand as in other countries, but the few that exist show the same patterns of long-standing support and steady growth as in other Western democracies. A poll from Massey University in 2002 found that 73% of New Zealanders believed that a person with a “painful, incurable disease” should have access to PAS (Gray 2003), and similar results were found again in 2008 (Renwick 2010). A more recent poll from 2012 has shown support levels at only 63% (Horizon Research 2012), but this apparent dip in support might be attributed to the less dramatic wording of the question that asked if all “mentally competent adults” should be “entitled” to PAS if they are suffering from a

“terminal illness or irreversible physical or mental condition” that rendered life “unbearable.”

However, regardless of the potential effects of wording, all polls suggest that a clear majority of

New Zealanders would approve of legalized PAS in some circumstances. Despite high levels of support, none of these Commonwealth countries have legalized PAS.

Mirroring these comparable Western liberal democracies, opinion polls in Canada have shown equally consistent majority support for liberalized PAS for decades. While an early

Gallup poll from 1968 showed that only 45% of Canadians were in favour of legalizing euthanasia for patients with “an incurable disease that causes great suffering” (Gallup Canada

1991), a similar question posed in 1984 saw supportive responses jump to 66% (Canadian

Institute of Public Opinion cited in Hickie 2013). When Gallup repeated the 1968 survey between 1989 and 1991 – shortly before Rodriguez – they found an overwhelming majority of

Canadians (75% - 78%) were in favour of a more liberalized approach to PAS (Gallup Canada

1991, Sneiderman 2010).6 Support for legalized PAS has remained high ever since.7 Given the clear majority support for a more liberal approach to PAS, that the Court in Rodriguez nevertheless upheld the existing PAS ban stands in marked contrast to the Court’s invalidation of

Canada’s abortion law in Morgentaler, at a time when opinion was much more mixed and ambiguous.

To summarize, in light of the overall record of judicial liberalization of morality policies, even in circumstances of closely divided public opinion, the judicial pattern of restraint with respect to PAS, even when public opinion is so clearly in favour, comes as a surprise. Why did it take until 2015 for a high-court liberalization to occur in Canada? Or, more precisely – and to

6 In 1989, 77% of Canadians supported legalized PAS for patients with “an incurable that causes great suffering.” In 1990, that number climbed to 78%, and it dropped down to 75% in 1991 (Gallup Canada 1991, see also Carter (2012), para. 287). 7 Recent polls have found that anywhere from 63%-84% of Canadians support PAS in limited situations. “Canadians” here refers to national averages taken from these studies. Support can be higher or lower when measured on a provincial scale. For example, the latest Ipsos-Reid poll found that up to 89% of Nova Scotians supported “assisted dying,” while Saskatchewan and Manitoba had the lowest support levels (79%) (Dying with Dignity Canada & Ipsos Reid 2014). An older Environics poll from 2013 found support for PAS lower nationwide (71%), with BC ranking highest (80%) and Ontario lowest (63%). However, the fact that the lowest support group is still 63% demonstrates just how liberalized public opinion on PAS is. 10

come back to the animating question of this study – what changed after Rodriguez (1993) to create the winning conditions for Carter (2015)?

Plan of the Study

This thesis answers the “winning conditions” question in several stages. At the outset, it is important to acknowledge that a high-court liberalization of PAS policy almost happened 20 years earlier in Rodriguez. Nevertheless, however close that decision may have been, it ultimately reflected the overall pattern of judicial reluctance to alter traditional PAS policy.

Chapter 2 will analyze Rodriguez in some detail, showing that even those judges who would have invalidated the blanket prohibition of PAS thought Parliament needed to play the central role in crafting PAS policy. The overall effect of Rodriguez was thus to put the question of PAS policy squarely into the legislative arena.

If advocates of PAS had been successful in the legislative arena, of course, the kind of renewed legal challenge represented by Carter would have been unnecessary. But they failed – repeatedly – in their legislative efforts. Eventually, PAS advocates returned to court in what became the successful Carter challenge. Chapter 3 tells the story of how the Carter litigation emerged after 18 years of legislative failure.

Was it political failure that established the “winning conditions” for the successful Carter challenge? No doubt it played an important role, but it cannot be the whole story. Why did winning conditions for a renewed challenge not exist after five or ten years of futile efforts in the legislature? Why did it take two decades? Here the role of judicial precedent comes into play.

Judges will reverse precedent, but only reluctantly, and they are especially hesitant to do so too quickly. In 2001, a second constitutional challenge sought to achieve what Rodriguez could not.

However, citing a need to respect precedent, the trial judgment of the Ontario Superior Court denied PAS advocate Jim Wakeford the constitutional validation he wanted (Wakeford v.

Canada (Attorney General) 2001). Wakeford’s appeal was then denied by both the Ontario Court of Appeal and the Supreme Court of Canada (Elliott & Carey 2002). Wakeford’s challenge clearly came too soon.

A decade after Wakeford, Justice Smith of the B.C. Supreme Court, in the initial trial of the Carter case, was willing not only to revisit, but also to depart from Rodriguez and declare assisted suicide legislation unconstitutional. In doing so, Justice Smith openly followed the lead of Ontario’s Justice Himel, who had also altered a two-decade-old Supreme Court precedent. In her trial-level decision of Bedford v. Canada (Attorney General) (2010), Justice Himel had invalidated Criminal Code prohibitions of prostitution-related activities –“keeping a common bawdy-house” and “communicating for the purposes of prostitution”– that the Supreme Court had upheld in 1990. That trial judges would so dramatically alter Supreme Court precedents in these cases showed that something was afoot regarding precedent in the early 2010s that had not existed or applied a decade earlier.

In Carter, the B.C. Court of Appeal was less impressed with Justice Himel’s Bedford decision, and Justice’s Smith use of it in her own trial-level Carter decision. The Court of

Appeal overturned Justice Smith’s trial decision, citing her lack of authority to go against a

Supreme Court precedent. Soon thereafter, however, the Supreme Court confirmed Justice

Himel’s Bedford ruling, which then set the stage for a similar confirmation of Justice Smith’s conclusions in Carter. The Supreme Court made it clear, however, that a trial court could legitimately revisit precedent only if one (or both) of two conditions were fulfilled: 1) that new legal issues were posed by a renewed challenge, and/or 2) that new “social facts” were available.

These developments regarding the right of trial judges to revisit and alter Supreme Court precedent were important factors in the success the Carter challenge to Canada’s prohibition of assisted suicide; they are explored at length in chapter 4. And what exactly were the new legal issues and/or social facts that created the “winning conditions” for the Carter challenge? That question is considered in chapter 5. Chapter 6 provides an overall conclusion.

CHAPTER 2 – RODRIGUEZ V. BRITISH COLUMBIA

Canadian courts first had to grapple with the constitutionality of assisted suicide laws in

1992, when Sue Rodriguez petitioned the Supreme Court of British Columbia (BCSC) to strike down the section of the Criminal Code that prohibits assisting in a suicide, claiming that such a prohibition violated her rights under the Charter of Rights and Freedoms. The 42-year-old mother was crusading on a personal cause – she was diagnosed with the neurodegenerative disease Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig’s disease) in 1991 (CBC 1992). At the time, Rodriguez’s life expectancy was two to three years, most of which would be spent suffering from increasingly painful physical deterioration. Final-stage ALS patients are completely dependent on medical aid for basic bodily functions, become fully paralyzed in the limbs, and often die from choking or suffocating due to difficulties swallowing and breathing

(Rodriguez 1993 BCCA, pp.4-8). In her petition to the B.C. Supreme Court, Rodriguez stated that in the face of suffering and loss of dignity, she wished to end her own life at the time of her choosing. However, she recognized that due to her worsening condition she would require assistance from “competent medical professionals” to accomplish this (Rodriguez 1992, para.2).

Specifically, she wanted a medical practitioner to “arrange for some procedure that would allow

[her] to make the ultimate choice and carry out the final act herself” (ibid.). This would only be possible if the law prohibiting such assistance was amended or struck down.

As legal scholar Neil Milton has suggested, the public discourse around assisted suicide was already growing in the early nineties, when Rodriguez launched her case (1995-1996, p.137). In 1991 the British Columbia Royal Commission on Health Care Costs, in the report

Closer to Home, recommended the decriminalization of PAS in certain medical situations

(1991). That same year, the Right to Die Society was founded in Victoria to help push for

legislative change to assisted suicide laws (The Fifth Estate 2012). In 1992, Rodriguez herself provided a video testimony asking a parliamentary subcommittee tasked with reviewing assisted- suicide laws to lift the ban on PAS (CBC 1992).

Rodriguez’s legal petition to the B.C. Supreme Court, launched with the support and encouragement of both her lawyer and the head of the Right to Die Society, bypassed the time- consuming attempt to reform the law through the political process – time which Rodriguez did not have. Framing her argument in terms of Charter rights was a powerful approach, engaging the “trumping and attention-getting effects of rights discourse and the powerful political impact of right-based arguments” (Lewis 2001, p.49). Moreover, Rodriguez and her legal team could ride on the wave of early judicial activism in morality policy cases, particularly the controversial abortion case R. v. Morgentaler.

Like Morgentaler before it, Rodriguez quickly became one of the most high-profile

Charter cases in Canadian history, making headlines both nationally and abroad.8 Rodriguez’s pleas to be able to live her life with the “inherent dignity of a human person,” control what happened to her body, and be protected from government intrusion on “fundamental personal decisions” (Rodriguez 1993 SCC, p.583) roused empathy and encouragement.9 The CBC claimed that with the words “who owns my life? Whose body is this?” Rodriguez “single- handedly catapulted the right-to-die debate onto the public stage” (CBC 1992).

While Rodriguez’s plight received significant attention, commentary was heavily divided; PAS, like most morality policies, proved to be extremely polarizing. On the one hand, as noted in the previous chapter, polls showed high levels of general public support for some

8 See, for example, The Associated Press 1993, Agence France-Presse 1993. 9 See, for example Canadian Press 1993; Johnson 1993. 15

form of legalized PAS. On the other hand, strong and passionate voices spoke against any liberalization of PAS policy, leading commentators at the time to declare that there was “no

[clear] groundswell of support” for reforming the Criminal Code (Fine 1993a). Mirroring this social rift, interest groups seeking to intervene in court also represented both sides of the debate

(Bindman 1993a).10

Rodriguez’s petition revolved around the claim that the blanket prohibition on assisted suicide contained in s.241 of the Criminal Code11 was a breach of her rights under the Charter of

Rights and Freedoms12 (hereinafter referred to as the Charter). Rodriguez based her arguments on more than one Charter right. She claimed the law infringed her “right to life, liberty and the security of the person” (s.7) because her fundamental choices concerning her body were restricted, causing mental and physical distress and suffering. She also argued that there was an infringement of her right “not to be subject to any cruel and unusual treatment or punishment”

(s.12) because the Criminal Code necessitated her prolonged suffering. Finally, she claimed that the criminalization of assisted suicide was inherently discriminatory, and violated her right to

“equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on…physical disability” (s.15) (Rodriguez 1993 SCC, pp.532-3). This last claim was based on the fact that while able-bodied persons could legally choose suicide as a

10 Intervening against Rodriguez were People in Equal Participation Inc. (disability activist group), Canadian Conference of catholic Bishops and Evangelical Fellowship of Canada, and Pro Life Society of BC and Physicians for Life Society. Intervening for Rodriguez were B.C. Coalition for Peoples with Disabilities, Dying with Dignity, and Coalition of Provincial Organizations of the Handicapped (Bindman 1993a). 11 This section states that “everyone who (a)counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years” (Criminal Code RSC 1985 Ch. 46 s. 241) 12 Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982 (UK) 1982, c 11. 16

means to end their suffering, Rodriguez was denied that choice as a combined result of her physical disabilities and the legislation that prevented others from helping her (ibid., p.524).

Rodriguez lost at every level of the judicial process, but it was not an easy win for the

Crown. In fact, the narrowness of Rodriguez’s loss, combined with the reluctance of judges at every court to tackle the messy policy issue of PAS, left the door for future reform open just enough to give Sue Rodriguez and her supporters some hope.

There were dissenting opinions in Rodriguez’s favour in both the B.C. Court of Appeal and the Supreme Court of Canada. The three-judge panel at the Court of Appeal decided against her by a margin of 2-1, while a 5-judge Supreme Court majority found against her over the dissent of the other 4 judges (expressed in 3 opinions). In both of the appeal courts, in other words, Rodriguez would have won had a single judge voted the other way. Despite the narrowness of her loss, however, the precedent set by Rodriguez v. British Columbia would prove remarkably resistant to change for the next two decades.

One reason for this resilience is that many of the judicial opinions, as we will see, agreed that most (or all) of the policy issues at stake were not well-suited for judicial resolution and should be left to Parliament. While the judicial majority was prepared to leave the issues to

Parliament altogether, most of the judges in that majority nevertheless thought Charter rights had been violated and allowed for – even encouraged - the prospect of legislative changes to assisted suicide laws. At the same time, even judges in the dissenting minority, while certainly prepared to intervene against the blanket prohibition of PAS, conceded that a complete policy design was beyond judicial competence and needed legislative participation. For example, despite providing detailed suggestions for regulatory guidelines, even dissenting Chief Justice Lamer suspended his declaration of invalidity of s.241(b) for 12 months to allow Parliament the necessary time to

“address this most difficult issue” of balancing the constitutional rights of competent adults with the protection of vulnerable citizens (ibid., p.570).

Judges on both sides of the judicial divide, in other words, wanted to see the PAS policy ball in Parliament’s court to some extent. In this context, advocates of PAS could not reasonably expect a quick reversal of even a narrow ruling upholding the existing law.13 “Winning conditions” for another judicial challenge might someday occur, but not before the path of parliamentary law reform had been thoroughly explored.

The rest of this chapter fleshes out this argument about the Rodriguez judgments in four main stages. It begins with a brief overview of the judicial opinions on whether the existing blanket prohibition of PAS infringed Charter rights, and, if so, whether those infringements could be justified. The debate between the judges turned mainly on the justification question, and the chapter thus considers in more detail the two major justification issues: 1) whether any infringements of the section 7 rights to life, liberty, and security of the person were saved because they were “in accordance with the principles of fundamental justice,” and 2) whether infringements of any of the Charter rights at stake could be justified as “reasonable limits” under section 1 of the Charter. While these two issues were considered separately in Rodriguez, there are some important similarities between the justifications tests that we will explore. Concluding the discussion of the justification debate, this chapter goes on to assess the responses of the judges to the question of institutional capacity: what roles should the courts and Parliament

13 While by no means an openly acknowledged factor in precedent reversal, some scholars have pointed out that split decisions tend to be revisited and reversed more frequently. For example, Amy Padden argues that American Supreme Court Justices Scalia and Rehnquist have given “less weight” to precedent from split decisions (1994, p.1689). See also Kniffen (1982, p.71), Muttart (2007, p.75), Arvay et al. (2012, p.67). 18

respectively play in the future of the assisted-suicide debate? The chapter concludes with a summary of both academic responses to, and general public opinion of, the outcome of the

Rodriguez case. As we will see, the Supreme Court decision was only the first real step in the movement to liberalize PAS policy in Canada.

The Judicial Opinions: An Overview

Of the 13 judges who considered Susan Rodriguez’s case, only one – the trial judge – found no violation of her Charter Rights. A second judge at the British Columbia Court of

Appeal did not consider the constitutional arguments on the technical grounds that the case presented no live legal dispute,14 but the other 11 judges – including all of the Supreme Court of

Canada judges – found prima facie infringements of Charter rights. The disagreement between minority and majority judges centred on whether those infringements could be justified.

The widespread agreement on rights violations can be quickly summarized. First, no judge found a violation of the Charter’s section 12 guarantee against cruel and unusual treatment or punishment by the state. According to Justice Sopinka for the Supreme Court majority, the pain and suffering experienced by Rodriguez was caused not by “the hands of the state,” but by her disease (Rodriguez 1993 SCC, pp.609-12). This argument echoed Justice Melvin’s position in his trial decision (Rodriguez 1992), but no other judges found it necessary to discuss section

12.

14 Justice Proudfoot of the Court of Appeal argued that there was no lis, and did not make a decision on the Charter rights claimed by Rodriguez (Rodriguez 1993 BCCA para.169). Lis, or live legal dispute, is often a requirement for adjudication. As Morton notes, “mere distaste for or opposition to a particular statute or government policy does not constitute a dispute” (2002, p.255). According to Proudfoot the case had neither a defendant nor an accused, and there was no immediate legal conflict to resolve. She also noted that this was not a reference case from Parliament which would have been an exception to the lis rule (Rodriguez 1993 BCCA, para.169). 19

Second, the section 7 rights of “life, liberty, and security of the person” dominated the judicial analysis. Of the three Court of Appeal judges, two – McEachern and Hollinrake – found prima facie infringements of section 7 rights. So did all but one of the nine Supreme Court justices. Justice Sopinka’s majority judgment at the Supreme Court summarizes the general view on this issue. For Sopinka, “the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person” (Rodriguez 1993 SCC, p.588). Since the ban on PAS deprived Ms.

Rodriguez of this kind of personal autonomy, it did, in fact, limit her security of person. The same conclusion was reached by McEachern and Hollinrake at the Court of Appeal and by Cory and McLachlin (L’Heureux-Dubé) at the Supreme Court.

Third, only Supreme Court Chief Justice Lamer focused exclusively on section 15 equality rights. Lamer based his decision on the definition of discrimination in Andrews, which focused on the effect of a law rather than its purpose.15 On this basis, he agreed with Rodriguez that the blanket ban on PAS “creates an inequality since it prevents persons physically unable to end their own lives unassisted from choosing suicide when that option is available to other members of the public. This inequality is moreover imposed....solely because of a physical disability” which was (and is) an enumerated ground of discrimination (ibid., pp.549-50). While the law was “well-intentioned” (ibid., p.566) and not overtly discriminatory, Lamer CJ concluded that it did infringe Rodriguez’s equality rights.

15 In Andrews, McIntyre defined discrimination as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society” (Andrews v. Law Society of British Columbia (1989) p.174). 20

Interestingly, Justice Sopinka, while not substantively addressing the question of a section 15 violation, as Lamer did, was nevertheless prepared to assume such a violation for the sake of argument in order to determine whether it could be justified as a “reasonable limit” under section 1 of the Charter. His majority opinion found that it could be so justified. Chief Justice

Lamer, in dissent, came to the opposite conclusion. It is this kind of justification issue, not the issue of rights infringement, which generated most of the debate amongst the judges.

The Justification Debate

Although the “reasonable limits” criterion found in section 1 of the Charter was one source of the justification debate, it was not the only, or even the main, cause for debate. In principle, the infringement of section 7 rights found by most of the judges is also subject to section 1 justification, but first it must be determined whether such infringement is saved by the qualifying provision found within section 7 itself. That section guarantees the right “not to be deprived” of “life, liberty, and security of the person … except in accordance with the principles of fundamental justice” (emphasis added). If a deprivation is in accordance with fundamental justice, there is no violation of section 7 as a whole, and it is unnecessary to proceed to the question of section 1 justification. This is what Justice Hollinrake held at the Court of Appeal, and also what Justice Sopinka’s majority Supreme Court opinion concluded. The dissenting opinions of Justice McEachern at the Court of Appeal and Justices McLachlin (L’Heureux-

Dubé) and Cory at the Supreme Court disagreed, finding that the blanket ban on assisted suicide did not comport with the principles of fundamental justice. At the Supreme Court, Justice

McLachlin then proceeded to ask whether the prohibition of PAS could nevertheless be justified as a “reasonable limit” under section 1. Not surprisingly, given her “considerable doubt whether

a law which infringes the principles of fundamental justice can be found to be reasonable and demonstrably justified” (Rodriguez 1993 SCC, p. 625), she found that it could not be so justified.

Let us consider in more detail the debates about justification under the fundamental justice criterion of section 7 and the “reasonable limits” standard of section 1.

Fundamental Justice

With little s.7 precedent to draw from, Sopinka was able to create his own principles of fundamental justice.16 He decided to use arbitrariness as his main measure of fundamental justice. According to Sopinka, the blanket prohibition on assisted suicide would infringe

“fundamental justice” if it was “arbitrary or unfair in that it is [either] unrelated to the state’s interest [or]... lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (Rodriguez 1993 SCC, p. 595). Sopinka’s approach to fundamental justice was to determine if there was a “fair balance…between the interests of the state and those of the individual” (ibid., p.521).

Establishing state interest was fairly straightforward, with all parties (including

Rodriguez17) agreeing that the government had a valid interest in “the protection of persons who may be vulnerable to the influence of others in deciding whether, when and how to terminate their lives” (ibid., p.558). Sopinka went beyond this, however, based on his view that the section’s three enumerated rights (life, liberty, and security of the person) could not be

16 Before Rodriguez, the only case that was decided on s.7 grounds was the BC Motor Vehicles reference, but according to Peter Hogg, this early decision left the Rodriguez court “completely at sea” in terms of an articulated s.7 test (2012, p.200). 17 In his opinion, Lamer CJ states that “the appellant does not appear to dispute that the legislation in question is aimed at the protection of persons who may be vulnerable to the influence of others in deciding whether, when and how to terminate their lives” (Rodriguez 1993 SCC, p.558). 22

completely divorced from one another. While the PAS ban certainly infringed “security of the person,” it also protected, rather than infringed, sanctity of “life” (ibid., pp.584-5). The PAS ban thus protected the vulnerable while simultaneously emphasizing the state’s interest in upholding the sanctity of life (ibid., p.595).18 In effect, Sopinka argued that the law was directly connected to the most fundamental of state interests – protecting and preserving human life.

Establishing the relation of s.241 to legal traditions and societal beliefs required more work. The majority opinion surveyed the history of suicide legislation, alternative end-of-life options, international experience, and various expert opinions in an attempt to understand the raison d’être of the ban on assisted suicide. Sopinka’s analysis focused heavily on the fact that there was minimal international precedent for legalizing and regulating assisted suicide, and no precedent for doing so in the context of an individual rights claim.19 In 1993 the only country that had formally legalized assisted suicide in certain circumstances was Switzerland, which had done so in a 1918 version of the penal code (Hurst and Mauron 2003). The Netherlands had a more nuanced regime, with the official law on the books criminalizing assisted suicide while regulatory medical institutions and prosecutorial guidelines permitted it for all practical purposes; formally, PAS in the Netherlands actually remained illegal until 2002 (Lewis 2007).20

18 Sopinka goes on to link this argument with the justification for ceasing capital punishment: the state cannot seemingly cheapen human life by taking it away, and must act as a role model for individuals in society (Rodriguez 1993 SCC, p.595). 19 Sopinka states that “it is significant that neither the European Commission of Human Rights nor any other judicial tribunal has ever held that a state is prohibited on constitutional or human rights grounds from criminalizing assisted suicide” (Rodriguez 1993 SCC, p.603). 20 The Dutch experience with PAS has been quite convoluted. Throughout the 1980s, Dutch judges refrained from prosecuting physicians who provided assisted suicides to patients who were suffering. After a particularly high-profile case in 1984 (the Alkamaar case), the KNMG (Royal Dutch Society for the Promotion of Medicine) created guidelines for the ethical practice of PAS. Despite efforts of the KNMG to have their regulations added to the penal code, a lack of political will meant that PAS remained officially illegal until 2002. In the interim, procedures were established and normalized through case law, 23

In any case, these countries were the exceptions, and Sopinka concluded that the legal tradition of a prohibition of assisted suicide remained “the norm among Western democracies” (Rodriguez

SRC, p.605).

In looking at why the blanket ban on PAS was an established legal tradition, Sopinka turned to societal beliefs about the practice. For Sopinka, the blanket prohibition of assisted suicide existed precisely because opinions were divided on the issue. Notably, other jurisdictions had recently contemplated regulating assisted suicide, but initiatives failed at the ballot box

(ibid., pp. 604-5).21 Part of the fear of legalizing assisted suicide was the questionable success of regulatory regimes in protecting the vulnerable (ibid., p.605). Debate about the difficulty of creating effective safeguards focused on the idea of a “slippery slope,” with those opposing legalized PAS claiming any liberalization would have negative consequences. As Penny Lewis explains, there are two kinds of slippery slope. In the “legal” slippery slope, legally permitted criteria for PAS are added as society becomes desensitized to the practice (the most oft-cited example being the extension of PAS to those with non-somatic, or mental, illness and suffering).

In the “practical” slippery slope, strict legal guidelines and constraints on PAS are ignored or manipulated, leading to abuse of both the system and the vulnerable patients it was set up to protect (2007, pp.159-169). It was concern about the latter “slippery slope” that guided

Sopinka’s conclusion about the necessity of total ban on PAS. Though he did not cite any studies in particular, Sopinka claimed that evidence of problems in the Dutch system “supports the view that a relaxation of the absolute prohibition takes us down ‘the slippery slope’” to manipulation

dialogue between the KNMG and law enforcement agencies, and minor legislative reforms. For more information see Gevers 1996; Gomez 1991; Griffiths 1998, 2008; Lewy 2001; Lewis 2007. 21 In particular, Sopinka mentioned referenda in the states of Washington and California that failed to legalize PAS (Rodriguez 1993, p.604). 24

and abuse (Rodriguez 1993 SCC, p.603). Sopinka sided with critics of PAS and concluded that only an absolute ban on assisted suicide could guarantee the protection of the vulnerable, despite the fact that it admittedly also caused “suffering in certain cases” (ibid., p.605).

Sopinka also pointed to the fact that several medical associations supported the ban on assisted suicide. Nevertheless, he admitted that he was “unable to discern anything approaching unanimity” within the greater scope of society (ibid., p.607).

In sum, for Sopinka, the state’s interests in a blanket prohibition included admirable goals such as protecting the vulnerable and supporting the sanctity of life. These objectives led to the complete criminalization of the practice in Canada and most other jurisdictions around the world, giving the ban a clear foundation in the legal tradition. While Sopinka’s analysis took into account the conflicting opinions about PAS, he concluded that there was enough evidence to suggest that the ban was not opposed to societal beliefs in general (ibid., p.608). With little precedent for legalizing assisted suicide, no guarantee that regulatory regimes would accomplish important state objectives, and minimal societal consensus on the issue, Sopinka and the majority concluded that limitations on Rodriguez’s s.7 rights were in accordance with the principles of fundamental justice.

Justice McLachlin came to a different conclusion on the question of fundamental justice.

She particularly disagreed with Justice Sopinka’s conclusion that the PAS ban was non-arbitrary.

Arbitrariness for both Sopinka and McLachlin lay in a disjunction between a law and the objective or interest it was supposed to serve. A law was arbitrary for Sopinka if it was

“unrelated to the state’s interest” (ibid., p.595). Similarly, a law was arbitrary for McLachlin if it

“bears no relation to, or is inconsistent with, the objective that lies behind the legislation” (ibid., p.595). But the “objective” of the law, according to McLachlin, had nothing to do with the

sanctity of life that Sopinka identified as the relevant “state interest.” Since the lawful taking of life was allowed in circumstances such as self-defence and withdrawing medical treatment,

McLachlin argued that “sanctity of life” could not stand as an easy trump card for the state to use without further consideration (ibid., p.623). Further proof of this assessment was the fact that suicide itself had been decriminalized. The purpose of the legislation could therefore not be to prevent suicide.

Breaking from her colleagues, Justice McLachlin found that the purpose of the law was to prevent “the killing of those who have not truly and of their free will consented to death”

(ibid., p.625) – or, in other words, to prevent murder. In this sense, McLachlin argued, while the law purports to prevent abuses of consensual life-taking (or assisted suicide), in reality it actually just prohibits non-consensual life-taking (aka: homicide) - an entirely different crime for which there are separate established laws and punishments. What McLachlin considered to be the true objective of the law, therefore, did not align with the effects of the law in practice. The blanket ban on PAS did not just prevent murder (its apparent purpose), but rather often prohibited the entirely different offence of assisting someone who has clearly and actively consented to help in committing the otherwise legal act of suicide. Basing her position on the fact that suicide was legal, McLachlin argued that the law denied Rodriguez a fundamental choice about her body because of her physical disability. While McLachlin acknowledged the need to protect vulnerable individuals, she argued that the law cast the safety net too wide; Rodriguez was forced to be a “scapegoat,” caught involuntarily under government “protection” and suffering greatly for it (ibid., p.621). Such an arbitrary law could not fulfill the “principles of fundamental justice.” In McLachlin’s view, better policy alternatives were possible.

Justice Cory’s dissent went even further than McLachlin’s on the question of fundamental justice. While both Sopinka and McLachlin emphasized arbitrariness in their analysis, Cory placed human dignity at the centre of his. The very basis for section 7, he argued, was to protect “the innate dignity of human existence” (ibid., p.630). Cory argued that dignity was relevant not only to a dignified life, but also to a dignified death. Going beyond any of his colleagues, Cory thus proclaimed that section 7 protected a “right to die with dignity” (ibid., p.630). Such a right, he argued, was the basis for allowing patients to refuse treatment, and he could find “no difference” between that practice and assisted suicide (ibid., pp.630-1).

Supporting his fellow dissenters, Cory believed that safeguards could effectively achieve government objectives without restricting the rights of terminally ill patients, and the blanket prohibition on assisted suicide should be struck down (ibid., p.631).

Reasonable Limits

While Justice Sopinka’s fundamental-justice analysis meant that there was no ultimate violation of section 7 considered as a whole, just such a violation – i.e., a deprivation of “security of the person” without “fundamental justice” – existed for Justice McLachlin. She thus had to consider whether the infringement of section 7 could be justified as a “reasonable limit” under section 1 of the Charter in a way that Justice Sopinka did not. Chief Justice Lamer similarly had to address the possible section 1 justifications of the infringements of section 15 that he had found.

The Oakes test for applying section 1 requires that the rights-infringing legislative means be “proportional” to a “pressing and substantial” legislative purpose. To be proportional, the legislative means must be “rationally connected” – i.e., actually achieve – the pressing purpose.

This they cannot do if they are “arbitrary” in relation to that purpose, as McLachlin had already found in her fundamental justice analysis. In other words, the arbitrariness criterion under section

7’s “fundamental justice” component is closely related to the rational connection component of the Oakes test. If the true purpose of the law is to prevent murder, it actually caught cases, such as Rodriguez’s, where murder is not at issue.

As Justice McLachlin would later make clear (in Canada (Attorney General) v. Bedford

2013, paras.124-9), there remains an important difference between the s.7 and s.1 versions of rational connection or arbitrariness. Both are concerned with the connection between legislative means and legislative purpose, but in the s.1 version, the legislative purpose must be “pressing and substantial,” whereas in the s.7 version it need not be. This plays out in a different burden of proof in the two situations – with respect to s.1, the government bears the burden of demonstrating a “reasonable limit,” including a “rational connection”; with respect to s.7, the rights claimant bears the burden of establishing an infringement of “fundamental justice” including its “arbitrariness” component.

Despite this important difference, however, the substantive analogies between the s.1 and s.7 standards remain strong. In Rodriguez, certainly, McLachlin “entertain[ed] considerable doubt whether a law which infringes the principles of fundamental justice can be found to be reasonable and demonstrably justified on the sole ground that crimes other than those which it prohibits may become more frequent if it is not present” (1993, p.625).22 In short, the

22 In Bedford Justice McLachlin would observe that although the “significance of the fundamental rights protected by s. 7 supports [the] observation” that “a law that violates s. 7 is unlikely to be justified under s.1,” there may nevertheless “ be some cases where s.1 has a role to play” (para.129). For example, in R. v. Malmo-Levine (2003) the majority found that criminal penalties associated with marijuana use breached s.7 but were saved (and upheld) by passing the s.1 analysis.

arbitrariness she had identified in her “fundamental justice” analysis also meant that there was no

“rational connection” between the purpose of the law and its effects under the section-1 Oakes test.

Moreover, even if legislative means are “rationally connected” under the Oakes test, they may still be disproportional if they go beyond a “minimal impairment” of the relevant right(s).

This particularly raised the question whether a blanket prohibition of PAS was necessary or admissible. Lacking any significant social evidence on the effectiveness of regulations,

McLachlin did admit that abuses in a liberalized assisted suicide regime were possible. However, she did not find that such abuses would target persons with disabilities more than able-bodied individuals, discounting the argument that the ban was necessary to protect disabled citizens.

Furthermore, she argued that abuses would exist in any system of consensual life-taking

(including legal withdrawal of treatment), and therefore the possibility for abuse was not a strong enough reason for a blanket prohibition on PAS (ibid., p.626). McLachlin concluded that a blanket prohibition on assisted suicide went too far in attempting to protect the vulnerable, and in so doing infringed the rights of mentally competent disabled individuals beyond what was minimally required (ibid., p.627).

The minimal impairment standard of Oakes is sometimes cast in the language of

“overbreadth” – i.e., if the legislative means are “overbroad” with respect to the law’s purpose, they cannot satisfy the minimal impairment criterion. Chief Justice Lamer used the terms

“overbroad” and “overbreadth” to explain why the blanket prohibition of PAS did not minimally impair the equality rights at stake (ibid., p.562). Although Justice McLachlin did not employ these terms in Rodriguez, her minimal impairment analysis is entirely consistent with them.

Interestingly, “overbreadth” would become an important part of “fundamental justice”

jurisprudence under section 7 of the Charter in the years after Rodriguez. In other words, just as

“arbitrariness” is the section 7 analogue of “rational connection” under Oakes, so “overbreadth” would emerge as the section 7 analogue of “minimal impairment,” though, again, it was subject to the same distinctions regarding the relevant purposes and consequent differences of burden of proof that applied to the analogy between arbitrariness and rational connection. The development of overbreadth as a component of “fundamental justice” jurisprudence is worth emphasizing because, as subsequent chapters will show, it was among the “new legal issues” that helped to create the “winning conditions” for Carter.

Under the Oakes test, even a law that is “rationally connected” to its purpose and that minimally impairs the rights in question may not meet the “reasonable limits” standard if the cost in lost rights outweighs the benefits gained by infringing those rights. This third part of the proportionality test, the “proportionate effects” section, was not explicitly considered by the

Court in Rodriguez. In fact, it was rarely considered in any section 1 analysis, leading Peter

Hogg to conclude that it was a “redundant” part of the Oakes test (Hogg 2003, s.38.12). As we will see in chapter 5, however, this part of the section 1 analysis has recently enjoyed something of a revival. Moreover, it, too, has found an analogue in fundamental justice jurisprudence under section 7. Just as rational connection and minimal impairment are closely related to arbitrariness and overbreadth, respectively, so the newly significant proportionate effects standard of Oakes now has its counterpart in a gross disproportionality component of fundamental justice analysis.

This analogue is again subject to the different burden of proof considerations, but it also has a slightly different balancing focus; where the s.1 proportionate effects test balances the loss of individual rights and the “social benefits that flow from the law”(proven by the government), s.7 gross disproportionality balances the loss of rights with the purpose of the legislation (Bedford

2013, para.121). In a sense, this makes the gross disproportionality bar a harder one to pass– even if a law has no demonstrably beneficial effects, an important purpose could be enough to offset any negative effects on individuals. As we shall see, these post-Rodriguez jurisprudential developments also contributed to the winning conditions for Carter.

Coming back to the use of Oakes in Rodriguez, Justice Sopinka’s majority judgment insisted that, if there had been Charter violations (something he denied), they would be justified as “reasonable limits” under section 1. In particular, assuming section 15 violations for the sake of argument, Sopinka disagreed with Lamer. He did so largely on the same slippery slope grounds that informed his fundamental justice analysis. Emphasizing again that “there is no halfway measure that could be relied upon with assurance to fully achieve the legislation’s purpose” (Rodriguez 1993 SCC, p.523), namely to “effectively protect life and those who are vulnerable in society” (ibid., p.613), Sopinka concluded that the complete ban on PAS was a reasonable limit on section 15 rights.

In sum, where the majority found rights infringements were justified under a fundamental justice analysis (and to a lesser extent, under the Oakes test), dissenting judges argued that there was no justification for the Charter violations. For McLachlin, this conclusion rested mainly on s.7, while Lamer CJ used s.1. Since the dissenting justices were willing to declare the assisted suicide legislation unconstitutional, they also had to provide a remedy in their decisions. The majority found no constitutional issues to resolve, but still offered some indication of what the next step might be for advocates of PAS. As we will see, both sides of judicial debate agreed that

Parliament had to be involved in any reforms to PAS policy, leaving the door slightly ajar for the pro-PAS movement to continue pushing the issue.

Parliament and the PAS Policy Ball: The Next Step

Upon determining that s.241(b) of the Criminal Code was unconstitutional, Chief Justice

Lamer declared the assisted suicide legislation of no force and effect, subject to a twelve month delay. Acknowledging the difficulties in drafting appropriate legislation on such “contentious” and “morally laden” issues (Rodriguez 1993 SCC, p.564), Lamer allowed the full year for

Parliament to consider different policy options that would both protect vulnerable citizens and comply with the Charter rights of individuals like Sue Rodriguez. Thus, despite outlining his own policy suggestions, Lamer conceded a substantial parliamentary role in reforming the complicated legislation. In order to address Sue Rodriguez’s personal situation, Lamer was willing to allow for judicially determined constitutional exemptions until Parliament had new regulations in place. The three other dissenting Supreme Court judges deferred to Lamer’s remedy on the constitutional issue. Even McLachlin, who argued that the Court should not shy away from difficult issues and must continue to hold Parliament to strict constitutional standards, allowed the full 12 month suspension period on invalidating s.241(b) (ibid., p.629).

Lower court judges also expressed a strong desire for Parliamentary involvement. Justice

McEachern was the first judge on the Rodriguez case to offer a constitutional exemption as a resolution. However, his motives for doing so were largely driven by a hesitation to strike down the whole assisted suicide law as unconstitutional, preferring to leave any serious reforms to

Parliament. According to McEachern, judicially granted constitutional exemptions were the best way to balance the duty of the court to individuals who suffered the “severe consequences”

(Rodriguez 1993 BCCA, para.70) of the law with a fair deference to Parliament on policy- oriented questions. McEachern admitted that his solution was not ideal, claiming he had

“profound misgivings” about “almost every aspect” of the case. He urged Parliament, “in its

wisdom,” to reform the law in such a way as to prevent similar cases from being decided by judges (ibid. para.111).

Justice McEachern’s colleagues at the BC Court of Appeal shared his hesitation to force

Parliament’s hand on such a divisive issue. Justice Hollinrake argued that questions “with public opinion at either extreme,” and that dealt with “philosophical and not legal considerations,” should be left to politicians (ibid., para.143). Such “ethical dilemmas” as he called them, were historically the domain of legislatures, not judges (ibid., para.148). Even Justice Proudfoot, who refrained from deciding on the constitutional issues due to a lack of live legal dispute, felt compelled to comment on the difficult balance between judicial and parliamentary involvement in the assisted-suicide debate. In an opinion that would later be cited by the Supreme Court of

Canada, Proudfoot argued that the “ethical, moral and social issues implicit in the merits of [the

Rodriguez] case are not suited to resolution by a court (ibid., para.172).” She went on to argue that the Court of Appeal was in “no position” to assess public opinion, and that Parliament, with its unique resources, was much better-suited to such an undertaking. She wished to leave to

Parliament “the task of taking the pulse of the nation” (ibid., para.172), and concluded that PAS was “a policy decision for the Parliament of the day” (ibid., para.170).

Justice Sopinka and the majority agreed with Justice Proudfoot that the Court was not the ideal institution to weigh the many different aspects of such a complicated policy issue. Citing scholar L. Tribe, Sopinka agreed that because of the “complex character of the rights at stake,” and the “significant potential” for harm if PAS regimes are not properly constructed, the issue was best left to legislators (Rodriguez 1993 SCC, p.589). Sopinka argued that it was “not the proper function of [the Court] to speculate as to whether other alternatives available to

Parliament might have been preferable” to the blanket prohibition of assisted suicide (ibid.,

pp.614-5). While firmly supporting the constitutionality of the criminal prohibition of PAS, the majority – importantly – did not require such legislation. They upheld the constitutionality of the legislation based on the fact that Parliament had reasonably concluded that a complete ban was the best way to achieve the stated objectives of the legislation, however, they did not foreclose the possibility that other policy options – perhaps even preferable ones – would also pass this assessment. Sopinka extended his “deepest sympathy” to Rodriguez and her family, stating that he found the whole case to be “personally upsetting” (ibid., p.113). While they stopped short of actually encouraging Parliament to reassess the PAS legislation, Sopinka and the majority clearly left the ball in Parliament’s court for any future reforms to s.241(b).

Aftermath of the Rodriguez Decision:

Reactions to the decision were mixed. Anti-PAS groups were joined by academics in supporting the majority opinion, and Sopinka’s judgment was praised for being “legalistic and well reasoned” (Dundas 1994, p.812).23 Organizations supporting legalized assisted suicide lamented the outcome of the case along with scholars from the other side of the PAS debate who felt the failure of the Court to legalize PAS pointed to the limitations of legal reasoning

(Mykitiuk & Paltiel 1994, p.40).24 However, despite varying opinions about the decision, empathy for Sue Rodriguez’s plight was near universal.

Judges at all three courts expressed personal concern for Rodriguez, including those who would deny her the PAS she requested (Dundas 1994; Bindman 1993b; Rodriguez 1992;

Rodriguez 1993 BCCA, para.173; Rodriguez 1993 SCC, p.615). After the decision was released

23 For further comments in support of the decision, see Keown (1994) and Peter Russell in Fine (1993a) 24 See also Kluge (2000). 34

journalists and commentators joined the compassionate chorus, with one opinion piece arguing that “even those who applauded the ruling cannot help but be moved by the harsh realities that now face Rodriguez” (Kitchener-Waterloo Record 1994). Indeed, even pro-life groups and

Catholic organizations that had fought to uphold the blanket ban on assisted suicide “expressed sympathy for the suffering of the dying” (Douglas 1993).

There were some who believed that, because of legal precedent, the door was permanently closed on judicial review of assisted suicide legislation (Milton 1995-6, p.137).

However, most observers writing on the issue predicted that the debate on PAS was just beginning, and that the topic was “destined to come up again and again” (Jack 1993). Legal scholar Ian Dundas believed the court case would actually have minimal impact on the reality of assisted suicide in Canada: “Rodriguez will not prevent the practice of voluntary euthanasia in

Canada, nor will it curb a growing approval for the legalization of assisted suicide” (1994, p.821). Besides, most commentators agreed that the Court was far from the ideal institution to deal with the PAS debate, and that the issue would receive much better consideration in

Parliament. Peter Russell argued that anyone who felt otherwise was “overly confident about the court’s law reform role” (Fine 1993a). Other scholars shared Russell’s apprehension, pointing to the tensions between law, medicine, and ethics (Cormack 2000; Mykitiuk & Paltiel 1994; Fine

1993a, 1993b; Sopinka 1993). Mykitiuk and Paltiel described constitutional litigation as a “blunt instrument,” and argued that “complex moral and ethical issues are not properly addressed in the courts.” Instead, they suggested, these issues require the “thick description and multiple viewpoints” found in legislatures (1994, p.40-2).

Outside of academic circles, Sue Rodriguez, pro-PAS groups and the public took

Sopinka’s suggestion that legislatures would be best suited to deal with the “difficult and

troubling problem” (Rodriguez 1993 SCC, p.589) to heart. Rodriguez held onto the hope that

Parliament would act to help those in her situation in the future, and felt that her long legal battle was “worth it” if it forced politicians to consider the issues seriously (Wilson & Fine 1993).

Parliament was called on to start a “fresh, non-partisan debate” (Kitchener-Waterloo Record

1994) about end-of-life choices, and astute observers predicted that the growing awareness of, and support for, PAS would put more pressure on law-makers in the coming years (Earl Winkler, cited in Jack 1993).

The Court stepped out of the assisted-suicide debate just as the issue was “heating up”

(Jack 1993). The conversation sparked by the Rodriguez case meant that the policy problem was not going to disappear. However, with the judiciary shutting its doors to pro-PAS supporters, the responsibility for dealing with an extremely contentious and morally-laden policy issue was left with the legislative institutions. Any further action on the assisted suicide legislation would have to be taken by politicians.

CHAPTER 3: POLITICAL AVOIDANCE AND RETURN TO THE COURTROOM

Even though the Rodriguez decision was a loss for pro-PAS groups in Canada, many of

Sue Rodriguez’s supporters remained optimistic that politicians would take up the debate. Along with the judges who urged legislative involvement on the contentious issue, the outpouring of sympathy for Rodriguez and the unprecedented levels of media coverage were promising;

Parliament was well-situated to consider the morally-charged policy area. Moreover, the federal

Parliament was the only legislature that could authoritatively reform criminal legislation regarding assisted suicide since the Criminal Code is under federal jurisdiction. Nevertheless, provinces do have an important role to play in prosecuting offences under the Criminal Code and it was in fact officials in British Columbia who were the first to act on the Rodriguez decision.

Days after the Supreme Court declined to change the Criminal Code, B.C’s Attorney

General, Colin Gablemann, was already investigating ways to relax prosecution for people involved in an assisted suicide (Hunter & Bolan 1994). Five weeks later, the B.C. Ministry of the

Attorney General released new prosecution guidelines to give prosecutors more leeway in assisted suicide cases (Cernetig 1994). The new policy required that Crown Counsel consider the motivations of the suspect, the physical and mental health of the victim, and whether or not public interest would be served through prosecution. If the suspect acted out of compassionate grounds to alleviate the suffering of a mentally competent and terminally ill adult, charges would likely not be pressed (British Columbia 2004).

This approach was an interesting way to circumvent potential federal inaction on reforms to the Criminal Code. While observers concluded that the new provincial prosecutorial guidelines were a result of Sue Rodriguez’s probable impending assisted suicide (Hunter &

Bolan 1994), the attorney general’s office refused to speculate on whether or not it would lay charges if she chose to take her own life with assistance (Franck 1995).

The risk of criminal charges did not stop Svend Robinson, Sue’s long-time friend and MP for Burnaby-Kingsway, from being present during her physician-assisted suicide on February 12,

1994. Robinson was originally under investigation for his potential role in Rodriguez’s death, as well his refusal to name the doctor who gave Sue her lethal drugs. However, in June of 1995 the special prosecutor assigned to the investigation declared that Robinson would face no charges.

According to the prosecutor there was no proof of Robinson’s direct involvement, and his refusal to name the offending doctor did not constitute an obstruction of justice (Western Report 1995).

As the nation mourned Rodriguez, the decision not to lay charges in her death triggered a mixed response. While many felt that the investigation was a “waste of public resources” and saw no need to prosecute Robinson or any doctor willing to help Rodriguez (Franck 1995), others criticized the B.C. Attorney General and worried that that the lack of legal repercussion for a law so “openly breached” would encourage similar behaviour and give Robinson the upper hand in his quest to legalize assisted suicide (Western Report 1995). Rodriguez’s death, much like her life, triggered debate and conversation.

Immediately after Rodriguez’s death there was a flurry of action and promises made in

Parliament. The Justice Minister at the time, Alan Rock, stated that Parliament should consider the issue of assisted suicide, and Prime Minister Jean Chretien promised a free vote on the issue in the House of Commons (Butler et al. 2013, p.20). The Senate passed a motion to create the

Special Committee on Euthanasia and Assisted Suicide, and Svend Robinson introduced a bill in the House of Commons to amend the Criminal Code provisions on assisted suicide (ibid., pp.20-

1) (this was the second of two bills, discussed below, introduced by Robinson). However, despite

lofty professions, nothing substantial was done. PAS supporters initially had hoped that the government would act on the Supreme Court recommendations, but it quickly became clear that most politicians had little desire to open up such a messy topic for serious consideration. As

Senator Carstairs pointed out in an interview about assisted suicide, “if government can avoid controversy they’ll choose to avoid controversy” (Marr 1998). With the exception of a few incidents, the government carefully sidestepped any serious discussion of assisted suicide in the decades following the Rodriguez decision, despite several vocal and adamant political proponents of the practice. This chapter examines the legislative developments surrounding assisted suicide laws, which can be divided into two waves. The chapter concludes by recounting how the Carter litigation was launched after almost two decades of political failure.

The First Wave of Legislative Activity: Svend Robinson and Sharon Carstairs

The first “wave” of the political PAS movement was led by Svend Robinson and Sharon

Carstairs. Robinson was the first and most vocal parliamentarian to take up Sue’s cause both before and after her death. His private members bill, Bill C-215 was the first initiative taken by an MP after Rodriguez’s loss in court. The House debated the bill on its second reading, but dropped it from the Order Paper in September 1994. Robinson made one final push to change assisted suicide laws in 1997 after his close friend travelled to the U.S. to have a physician- assisted suicide (Rinehart 1997). When this call for a debate on the issue was ignored, he introduced a motion (M-123) to create a special committee to study euthanasia and physician- assisted suicide. Even this request was voted down by his fellow MPs (Pugliese & Todd 1998), foreshadowing how difficult it would be to use legislative avenues to amend assisted suicide laws.

During the same time Svend Robinson was working to effect change in the House of

Commons, Sharon Carstairs was also bringing the issue of assisted suicide and end-of-life care into the spotlight in the Senate. Carstairs was motivated by the case of Mary Jane Fogarty.

Fogarty was a Halifax woman who helped her neighbour commit suicide, and was found guilty in 1994 but received only a suspended sentence (Canadian Press 1995). Carstairs supported the compassionate sentence, but pointed out that without any government input, judges were effectively shaping assisted suicide law in a lenient direction. Carstairs called on the government to open the debate on the issue (Newswire 1995).

When her requests for a debate were ignored, Carstairs introduced her first Senate bill (S-

13) to reform assisted suicide legislation in 1996. However, the bill died when Parliament adjourned for the summer. Three years later Senator Carstairs made her second attempt at legal reform with bill S-2 (Butler et al. 2013, p.20). Even though some hopeful observers claimed that the bill marked the “rebirth” of the debate about assisted suicide in Canada (Aubry 1999), little came from it. The bill was referred to a Senate subcommittee and was not mentioned again

(Butler et al. 2013, p.20).

The Second Wave of Legislative Activity: Lalonde and the Quebec Movement

After Carstairs’ two failed attempts at reform, the outspoken senator lamented the political inaction on PAS laws. She claimed that Canadians needed “another Sue Rodriguez” to heat up debate and push the legislative hand on reform (Canadian Press 1997). Her observation was astute, and with no public figure to personalize the fight for legalized PAS, Parliament remained silent for several years. Then, two high profile assisted suicide cases in 2004 ushered in the second wave of parliamentary consideration of PAS. Evelyn Martens, a 73-year old great

grandmother from B.C., was acquitted on charges of helping two other B.C. women commit suicide. In Quebec, Marielle Houle was criminally charged for helping her son, who suffered from multiple sclerosis, end his life. These cases once again stirred up national debate on assisted suicide, dividing experts and citizens alike (The Province 2004). Moreover, they prompted

Liberal Justice Minister Irwin Cotler to call for a Parliamentary debate on the issue (Tibbetts

2004). Cotler argued that much had changed in the decade since Rodriguez, and suggested that the laws surrounding assisted suicide might be out of date (Tibbetts 2004).

Cotler’s own Liberal government did nothing in response to his request. However, in

2005, another major advocate for assisted suicide took over the campaign from Robinson,

Carstairs and Cotler. Francine Lalonde, a Bloc Québécois MP, introduced her first bill to amend the Criminal Code’s assisted suicide section. Bill C-407 sought to legalize physician-assisted suicide under certain conditions and with outlined restrictions. The bill received harsh criticism from other MPs. Conservative MP Jason Kenney likened the proposed legislation to practices in

Nazi Germany, while Irwin Cotler’s parliamentary secretary Paul Macklin believed the bill was

“premature, flawed, and too broad” (Thompson 2005). After only one hour of debate on the complex and controversial issue, a vote was tentatively called for December of 2005. However, with the dissolution of Parliament for the federal election, the bill died on the Order Paper

(Butler et al. 2013, p.22).

Lalonde introduced a near-identical bill (C-562) in June of 2008, but this also died when

Parliament dissolved for another election (ibid., p.17). Lalonde’s third, and final, attempt at legal reform came in 2009. This time, the bill (Bill C-384) made it to a free vote in the House of

Commons. Fifteen years after Jean Chretien promised his free vote on PAS, MPs cast their ballots. Bill C-384 was defeated on April 21, 2010, by an overwhelming majority. With only 59

votes “for” and 228 “against,” Parliament seemingly sent a final, clear message, ending two decades of failed legislative attempts to reform PAS legislation. However, the interest and debate generated by Lalonde’s initiatives had some political commentators predicting that the issue was far from resolved and was “bound to resurface in the future” (Hébert 2010).

Indeed, for the first time since Rodriguez in 1993, the nation seemed to be taking the issue of physician-assisted suicide seriously. Major interest groups such as the Council for

Canadians with Disabilities made sure their opinions were heard by both politicians and the general public (Stone 2009). Various MPs spoke out on the issue, including quadriplegic MP

Stephen Fletcher from Manitoba, who would later become a vocal spokesperson for the cause.

Canadians were following the story, and the vote made major news headlines across the country.

The Canadian Medical Association was paying close attention to the “euthanasia agenda,” and noted that the “momentum for legislative change” was growing throughout Canada.

Quebec, in particular, stood out for its support of PAS (Collier 2009, pp.463-4.). The majority of the votes for Lalonde’s bill came from either Bloc MPs or other MPs from Quebec,25 and the

Quebec College of Physicians released a report that recommended assisted suicide as “part of appropriate care in certain particular circumstances” (cited in Collier 2009, p.463). Following the publication of the report, the government of Quebec created the Special Committee on Dying with Dignity to examine the issue, demonstrating the province’s willingness to engage in the conversation about assisted suicide in a meaningful way, even if the federal government would not do the same (Butler et al. 2013, p.15).

25 For a full breakdown of the vote see the Open Parliament record: http://openparliament.ca/votes/40- 3/34/ 42

The committee heard from over 250 witnesses, including lawyers from the Quebec Bar.

In September of 2010, legal experts suggested that with a combination of prosecution guidelines similar to those in BC, and a strict regulatory policy, the province of Quebec could effectively legalize assisted suicide without addressing reforms to the Criminal Code (Barreau de Quebec cited in Butler et al. 2013, p.15). While no concrete legal report would be released until 2013, it was becoming clear that if the province decided to move forward to legalize assisted suicide, there was a possibility it could be done unilaterally. This was an important development since the federal government remained adamant in its opposition to legalizing physician-assisted suicide, despite growing public interest and support (Stone 2013).

Return to the Courtroom: Genesis of the Carter Litigation

Provincial efforts to liberalize PAS policy – such as Quebec’s legislative initiative and

B.C.’s new prosecutorial standards – would not, of course, satisfy those who wanted nationwide, legalized access to PAS, and eventually renewed litigation efforts emerged. As noted in

Chapter 1, Jim Wakeford’s 2001 legal challenge clearly came too early to surmount the barrier of stare decisis, and PAS advocates refocused on the political process. After another decade of political failure, however, they were ready for a second courtroom battle.

On April 26, 2011, the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit to challenge the constitutionality of the Criminal Code provisions that banned physician- assisted suicide. As an organization dedicated to protecting and expanding civil liberties in

Canada, the BCCLA claimed public interest standing in the lawsuit based on their professed demonstrated interest in, and advocacy for, legalized PAS (Carter et al. 2011a, pt.1 paras.36-9).

They also argued that they were fighting the lawsuit on behalf of the patients seeking PAS who

were too sick for a legal battle, and also for their members who might one day want a physician to help them die with dignity (ibid., para.39).

Adding to their cause, the organization included a pro-PAS physician as a plaintiff. Dr.

Shiochet, a family physician, testified that end of life care should include PAS for patients with certain degenerative disorders, and that if the practice were to be legalized he would be comfortable performing such procedures (ibid., paras.32-5). While both the BCCLA and Dr.

Shiochet had compelling arguments, their positions lacked lis, or a live legal dispute; no crimes had been committed and no charges had been laid.

Bringing the most legal weight to the lawsuit was a couple who had helped to make arrangements for a third party to travel abroad for an assisted suicide. Lee Carter and Hollis

Johnson had accompanied Kay Carter (Lee’s mother) to a Dignitas clinic in Switzerland where she ingested a fatal dose of phosphate solution and died peacefully. The couple feared prosecution in Canada based on their involvement in Kay’s self-inflicted death, and wished to see PAS legalized in Canada so that others would not have to go through the same ordeal they did (ibid., paras.10-30). Carter and Hollis, unlike the BCCLA or Dr. Shiochet, were potentially in direct conflict with the law.

The BCCLA lawsuit failed to produce more than a handful of headlines in the media, despite its potential for affecting serious and significant changes to PAS policy in Canada.26

While the story of Carter and Johnson was described as “tough…both mentally and physically”

(Claxton 2011), causing “unbearable emotional stress” to the couple and their family (Mulgrew

2011), it was not enough to stir the nation into a new debate about PAS. The flurry of interest in

26 Proquest search turned up four relevant articles, none of which were from a national media source. (Oct 5 2014) 44

the case came after Gloria Taylor, a grandmother suffering from ALS, joined the lawsuit in June of 2011.

Gloria Taylor was first diagnosed with ALS in 2009, and at the time was given only one year to live. Her muscles had begun to atrophy and her doctor predicted she would be paralyzed within six months. While she fared much better than expected, Taylor experienced steady physical deterioration (Carter et al., 2011b). In the face of her looming debilitation, Taylor crafted “Plan B” – a plan to have someone assist her with taking her own life (CBC 2012). She believed Canada’s PAS laws to be “archaic” and when she heard about the BCCLA lawsuit, she immediately called the civil liberties organization (Theodore 2011). According to Taylor, she told the BCCLA that they were “missing one thing, and that’s the person who’s dying. And that’s me” (CBC 2012).

Taylor’s observation directly echoed Senator Carstairs’ earlier prediction that Canada needed another Sue Rodriguez to push the pro-PAS agenda. Both women were right; with the announcement that Taylor had joined the BCCLA lawsuit, interest in the case sky-rocketed.

Nearly every media article, of which there were several, drew the parallel between Rodriguez and Taylor. While acknowledging other “public flare-ups” of the PAS debate in Canada post-

Rodriguez, reporter Jim Nelson (2011) claimed that it was Taylor who truly “re-kindled the controversy over euthanasia.”

Aside from drawing attention to the cause, Taylor’s inclusion lent both legal weight and a sense of urgency to the case. While Carter and Hollis were potentially in conflict with PAS laws, the criminal provisions would have a far greater impact on Taylor. Because of this, her rights claims were much stronger. Given Taylor’s deteriorating health, The Supreme Court of British

Columbia agreed to fast-track the case. This gave the BCCLA and the other plaintiffs only three

months to prepare arguments in support of Taylor’s Charter rights claims that would be strong enough to win a risky constitutional challenge. In particular, this judicial challenge would somehow have to clear the hurdle of “stare decisis” that had tripped up Jim Wakeford in 2001.

They obviously succeeded, but how? What had changed with respect to the doctrine of precedent that secured for the Carter litigants what had eluded Wakeford? The next chapter explores that question.

CHAPTER 4: STARE DECISIS: THE RULES, THE EXCEPTIONS, AND THE

CHARTER

Jim Wakeford’s legal challenge in 2001, just eight years after the Supreme Court’s

Rodriguez ruling, highlighted the height of the stare decisis hurdle. Wakeford had been living with AIDS, and when his condition worsened he wished “to end his life by his own act, with dignity and with medical assistance” (Wakeford v. Canada (Attorney General) 2001 ONSC, para.2). He hoped to circumvent the stagnant political avenues by convincing the judges to reconsider the Rodriguez decision. Like Rodriguez, Wakeford based his case on a s.15 equality rights argument, claiming that because of his debilitating illness he could not commit the legal act of suicide like able-bodied individuals. Like Rodriguez, he lost. Indeed, he lost because

Rodriguez lost: “[t]he obvious difficulty for the plaintiff,” stated the trial judge, “is the decision of the Supreme Court of Canada in Rodriguez” (ibid., para.5). For Justice Swinton of the Ontario

Superior Court (ONSC), Wakeford’s claims failed on a strict reading of the Rodriguez precedent

– the facts and arguments of the two cases were almost identical, and the ONSC was bound by the precedent set by the higher Supreme Court of Canada. Wakeford lost for the same reasons at the Ontario Court of Appeal (Wakeford v. Canada (Attorney General) 2001 ONCA). The

Supreme Court of Canada subsequently denied his application for leave to appeal.

Yet, as high as the stare decisis barrier is, it is clearly not completely insurmountable; stare decisis is not an “inexorable command” (Payne v. Tennessee 1991, para. 828). Laws must change as society progresses and evolves, and there are instances when a breach of stare decisis is justifiable, or even necessary, to bring the law in-line with modern values and priorities.

Moreover, judges are only human and mistakes are made. As Lord Denning once argued in an

Australian courtroom, “the doctrine of precedent does not compel your Lordships to follow the

wrong path until you fall over the edge of the cliff” (cited in Ostine v. Australian Mutual

Provident Society, para.489). A strict adherence to obsolete or problematic decisions does not foster confidence in the judicial system, and an inability to correct past mistakes is a rigid practice that is unforgiving of human error.

For such reasons, the Supreme Court in particular must be able to occasionally revisit and revise its decisions. It had an opportunity to do so in the 2001 Wakeford case, but, in denying leave to appeal, it chose not to avail itself of that opportunity. What changed between Wakeford and its decision, some years later, to hear the Carter case? To answer that question, we need a better understanding of the doctrine of stare decisis and the reasons for departing from it. This chapter will explore the doctrine as it is traditionally understood, examining the rules governing both the use of precedent, and when it can be overturned. These rules apply fairly universally across all types of law, though – as we will see – constitutional jurisprudence is one exception. In

Canada the Charter, a constitutional document, complicates the application of stare decisis for a number of reasons: the Charter is fairly young and its interpretation is still developing and evolving, and the evidence required to settle Charter disputes is less fixed and falsifiable than in most other case law. In the recent Bedford decision, Chief Justice McLachlin articulated two criteria for revisiting precedent in Charter cases. Together, these criteria set the stage for the

“winning conditions” that played out in Carter.

Stare Decisis

Stare decisis, or “standing by a decision,” is a fundamental doctrine in the common law legal tradition. Treating like cases alike, or adhering to precedent, “promotes the evenhanded, predictable, and consistent development of legal principles” (Payne 1991, para.827). With stare

decisis, the law becomes more transparent and individuals can confidently conduct their affairs in line with the law, knowing that what was decided in one case will inform how a similar case will be treated. To achieve this transparency, judges must remain impartial and apply precedent evenly across all cases. Stare decisis, in other words, directly promotes and facilitates the founding liberal democratic principle of equality before the law (Padden 1994).

But how does stare decisis achieve equality before the law in a system of many judges, in multiple courts, at different levels, and (in federal systems) across jurisdictions? Is every judicial ruling an immediately binding precedent for every other judge in the system? Not quite. The literature distinguishes between horizontal and vertical stare decisis. Horizontal stare decisis refers to the role of precedent among judges at the same judicial level and from the same jurisdiction (Parkes 2007). At the level of trial judges in Canada, the judgment of one trial judge is not strictly binding on another judge trying a similar case. Two trial judges can decide like cases differently, and the second ruling does not displace or overrule the first one. As Justice

Wilson of the BC Supreme Court explained, “I have no power to override a brother judge. I can only differ from him” (Re Hansard Spruce Mills Ltd. 1954 cited in Parkes 2007, pp.158-9). Thus there is no binding horizontal precedent at the trial level.

That said, trial judges do attempt to respect and follow the earlier judgments of their colleagues in like cases. Having indicated his ability to “differ” from a “brother judge,” Justice

Wilson went on to say “the effect of … doing so is not to settle but to unsettle the law.” The confusion of different precedents pointing in different directions both sows uncertainty and conflicts with the principle of equality before the law. Thus, while trial judges will depart from horizontal precedent for various reasons, “non-binding comity” is an important norm among judges of the same court or level of court within a jurisdiction (Parkes 2007, p.160). Indeed, even

though it is not required, trial judges will even find “persuasive” precedent in the non-binding trial court rulings of other jurisdictions. We have seen, for example, that in the Carter litigation

Justice Smith’s British Columbia trial judgment found a persuasive, though non-binding, precedent in Justice Himel’s Ontario trial judgment in Bedford, the prostitution case that also challenged a Supreme Court precedent set two decades earlier.

However, the norm of non-binding horizontal comity – precisely because it is non- binding – does not prevent the emergence of conflicting precedents in like cases at the same level of court. Indeed, it is probably unwise to always let the first ruling be the last word on a legal issue. The norm of horizontal comity is arguably non-binding precisely to permit some degree of sober second thought by same-level judicial colleagues in subsequent cases in the same jurisdiction. One function of appeal courts is to restore equality before the law when such conflicting precedents emerge at the trial level. While Justice Wilson’s difference from “a brother judge” does not “override” the ruling of that colleague, an appeal court can and will overrule one or other of the lower court judgments – or perhaps both to some extent – to settle the controversy for the entire jurisdiction, thus re-establishing the essential purpose of stare decisis.

The appeal court’s ruling brings us to the concept of “vertical stare decisis,” which refers to the precedents set by higher courts for lower ones. Unlike horizontal stare decisis among trial courts, which is governed by a norm of non-binding comity, vertical stare decisis dictates that precedents set in higher courts are binding on all courts below them in the relevant jurisdiction.

Decisions from Canada’s highest provincial courts of appeal are not only binding on lower courts, but tend to be more binding in a horizontal sense as well. This is because appeal cases are generally heard by panels (typically 3 judges) rather than by the whole bench, thus

introducing issues of horizontal stare decisis within a particular court of appeal. To apply to appeal court panels the same norm of non-binding horizontal comity that characterizes the relationship between trial judges – i.e., to allow a subsequent panel to differ from an earlier one in like cases – would obviously undermine the unifying function of appeal courts. Accordingly, horizontal stare decisis is considered binding among panels of the same appeal courts. Otherwise the law within a province could again become “quite uncertain” (ibid., pp.153-5).

Among the appeal courts of different provinces, however, horizontal stare decisis has the same non-binding character as exists at the trial court level. That is, a decision from any provincial court of appeal may differ from any other in like cases. This makes some sense with respect to laws within provincial jurisdiction. If federalism allows provinces to enact different laws with respect to the same policy realm under their jurisdiction, might it not permit different judicial interpretations of similarly worded provincial laws? After all, federalism exists precisely to enable the different treatment of like cases. But provincial courts of appeal also hear cases arising under federal laws, like the Criminal Code, where the different treatment of like cases among the provinces raises serious “equality before the law” concerns. Just as the law within a province should, over time, be unified so that like cases are treated alike, so federal law throughout the country should be unified for the same reason. And just as provincial courts of appeal perform the unifying task within provinces via the doctrine of binding vertical stare decisis, so the Supreme Court of Canada performs it for the country as a whole. In other words, the Supreme Court’s decisions are vertically binding on all lower courts throughout the country.

It is for this reason that Jim Wakeford lost his 2001 case. It is also why Carter lost at the B.C.

Court of Appeal, where the majority judgment applied the doctrine of vertical stare decisis much as it had earlier been applied in the Wakeford case.

Yet, as noted above – and as underlined by the ultimate outcome in Carter – stare decisis is not a completely rigid norm. For the Supreme Court in particular there must be some freedom within the “prudential” doctrine of stare decisis for judges to justifiably abandon a precedent. At the same time, this flexibility stands in direct opposition to the consistency and predictability that stare decisis promotes (Shapiro & Mosvick 2011, p.124). To help minimize this tension, judges generally agree that precedent reversal should occur infrequently, and only when absolutely necessary. Chief Justice McLachlin, writing for the majority of the Supreme Court in Ontario

(Attorney General) v. Fraser, argues that the seriousness of “overturning” a precedent “cannot be overstated,” and that a “high threshold” exists “for reversing a precedent” (2011, paras.57-60).

Later, in Bedford, McLachlin would similarly hold that “the threshold for revisiting a matter is not an easy one to reach.”

In Carter, the Supreme Court obviously concluded that the threshold for “revisiting”

Rodriguez had been met. Moreover, disagreeing with the B.C. Court of Appeal in Carter, the

Supreme Court, relying on Bedford, decided that the process of judicial reconsideration did not have to wait until the Supreme Court agrees to hear an appeal from lower courts that have followed the rule of vertical stare decisis. Instead, lower courts, including trial courts, are entitled under certain circumstances to actively kickstart the reconsideration process and relax vertical stare decisis, as trial judges Himel and Smith had in Bedford and Carter respectively.

Below, we will consider a possible distinction between “reversing” and “revisiting” precedent, but both certainly involve departing from precedent to some extent.

Traditional Reasons for Reversal: Outdated, Unworkable, Confusing

Even though judges are hesitant to openly reverse precedent, a series of justifications has evolved over the decades to allow such reversals when they are necessary. Very rarely will judges step outside of the accepted reasons for precedent reversal when openly abandoning stare decisis. For the purpose of this thesis, we will examine several justifications that have worked their way into the legal tradition. Interestingly, none of the standard or most common reasons for reversal has relevance to the Carter case. Indeed, it is because they do not apply that they are worth understanding. Carter, and Bedford before it, represents a new type of revisitation that breaks from these traditional reasons for reversal.

Among the reasons for precedent reversal, there are three that are particularly well- established, and therefore relatively uncontroversial: that a precedent is obviously outdated, that it is unworkable, and that it is confusing.

The least controversial reason for relaxing stare decisis and departing from precedent is that the precedential decision is simply outdated (Muttart 2007, p.72). The law in Canada pre- dates even Confederation; as a Commonwealth country, Canada inherited hundreds of years of

British case law along with the common law system. Precedential decisions could therefore be quite old. One example of an outdated precedent comes from the well-known Cattle Trespass case. In 1959 the Supreme Court heard a case involving a man who crashed his jeep into cattle on a highway, and the farmer whose livestock was killed by the jeep. The court was asked to decide whether the blame lay with the driver or the farmer (Fleming v. Atkinson 1959). The trial judge had originally split responsibility between the two men, but buried “in the nooks and crannies of the common law,” was a British law that allowed farmers the right of way for their animals on roadways (Weiler 1974, p.58). This common law originated in the end of the

medieval period when highways were first constructed in England for horse-drawn buggies. The roadways were dedicated by adjoining landowners, and the right of passage for the public was subject to the risk of straying animals. However, such a risk was negligible, since even large animals on the road posed little risk to slow-moving traffic. The Supreme Court of Canada narrowly decided to ignore the archaic precedent because the historical facts on which it was based held “no relevancy” to the case at bar (Fleming 1959, p.535): highways in Ontario were property of the Crown, and adjacent landowners had no claim to control the right of passage.

Furthermore, straying livestock posed a serious risk to fast-moving modern motorists, and therefore conflicted with the principle of negligence from Donoghue v. Stevenson (1932) in

Canadian tort law.

As Weiler explains, Donoghue v. Stevenson established that a person was required to

“take reasonable care of his behaviour” so as not to create the risk of physical injury to others

(1974, p.61). The Court determined that the farmer had neglected to prevent his cattle from roaming on the highway, and was therefore responsible for any injuries caused by the animals.

While the dissenting justices on the Supreme Court, as well as the judges from lower courts, chose to apply the historic immunity of “cattle trespass” on highways, Justice Judson and the

Supreme Court majority decided that applying such outdated British common law did nothing to bring the law in line with changing circumstances and “new conditions” (Fleming 1959, p.535).

The medieval British precedent was therefore overturned to accommodate the “needs of the

[modern] situation” (ibid.).27

27 For another example of an outdated precedent see Ordon v. Grail (1998), where the defendant attempted to use maritime law cases from 1808 and 1917 to bar a lawsuit over the death of a man using one of his pleasure crafts. 54

Bringing old common law up to speed to align with society’s modern needs is a major reason for overturning or abandoning precedent. Daved Muttart conducted a quantitative analysis of precedent reversal in Canada and found that in most cases where the Supreme Court explicitly overruled an outdated precedent, the new decision mentioned the need to “keep common law in step with the evolution of society” (2007, p.78). There is rarely backlash over such clearly necessary reversals. If serious opposition to judicial alteration of the common law does arise, moreover, the legislature can enact a statute to reverse or modify the judicial decision. The same is true with respect to precedents of statutory interpretation; these, too, can be reversed by the legislature.

Clearly, the justification for departure from precedent illustrated by Fleming does not apply to the Supreme Court’s reversal of precedent in Carter. The Court in Carter was not changing a very old and obviously outdated common law rule; nor was it simply engaged in reversible statutory interpretation. It was reversing its own constitutional-law precedent, which was only 20 years old. Despite this categorical difference, it is worth noting that – traditionally – abandoning a precedent due to clearly different or conflicting circumstances is a widely accepted practice.

Another justification for departing from precedent is that the original decision is unworkable in practice. While the decision itself may be legally sound, the far-reaching applications of the law may cause practical difficulties. As legal scholar Debra Parkes points out, it is often difficult to predict the consequences of a newly articulated law, approach to legal analysis, or legal principle (Parkes 2007, p.152). It is often only when the decision is applied that the problems become apparent.

R. v. Askov is arguably the most famous example of this legal dilemma in Canada. The

1990 decision involved the Charter right to a “trial within a reasonable time” (s.11(b)). The

Supreme Court decided that “institutional delay” would constitute a breach of s.11(b), and argued that six to eight months was the reasonable limit for an accused person to wait for a trial

(R. v. Askov 1990). As a direct result of the Askov decision, more than 40,000 criminal charges were dropped (mostly in Ontario) because the “reasonable time” for a trial had expired (Baar

2002). Amidst criticism from law-enforcement agencies and the public, the Court “corrected” its mistake 16 months later in R. v. Morin (1992). Morin was the next s.11(b) case to reach the

Supreme Court after Askov, and the Court used the opportunity to clarify the Askov rule.

Sopinka, writing for the majority, cautioned that the six to eight month time limit was meant only as a guideline, and was not intended to be applied literally to every jurisdiction (Morin 1992;

Morton 2002, p.369). Sopinka chose not to apply the Askov precedent to the Morin case, and opted instead to relax stare decisis due to practical issues.

More recently, Justice Rothstein raised a similar problem in Attorney General v. Fraser

(2011). Rothstein justified his (dissenting) opinion to reverse the recent Health Services decision on labour rights – in part – because of the practical difficulties it caused through conflicts with other legislative regimes. Arguing that the approach to collective bargaining articulated in Health

Services raised “significant problems relating to workability” (Fraser 2011, para.175) and disrupted the long-standing model of dealing with labour relations in Canada, Rothstein voted to relax stare decisis and reverse the four-year old Health Services precedent (ibid., para.229).

Rothstein wrote in dissent, however. The Court’s majority formally maintained the Health

Services precedent.

This “unworkability” justification for departing from precedent is, like the outdated justification, not terribly relevant to Carter. The Rodriguez decision to uphold the Criminal Code provisions did little to affect either law enforcement procedures or future judicial considerations.

There were no unforeseen practical consequences of maintaining the ban on assisted suicide.

While this ban was undesirable for pro-PAS groups, it was certainly not unworkable. From a legal standpoint, the Criminal Code provisions had worked for decades, and in upholding this status quo the Supreme Court did little to affect this.

Apart from being unworkable in a very practical sense, court decisions can also cause confusion by conflicting with established legal principles. Thomas Bateman outlines one example of this problem in Canada in his study of the evolution of s.15 interpretation, which deals with equality and discrimination (2011). The first case to tackle the broad and vague

Charter provision was Andrews v. Law Society of British Columbia in 1989. Andrews laid out a fairly straightforward test to determine if s.15 was engaged: a law was discriminatory if it unfairly distinguished an individual “based on personal characteristics attributed to [that] individual solely on the basis of association with a group,” and not on merits (1989, paras.174-

5). However, Bateman notes that throughout the 1990s the Andrews test was complicated with the introduction of the principle of human dignity as an underlying component to of s.15. The court seemed to be suggesting that the purpose of s. 15 was to uphold dignity, and any laws that made an individual feel as though his or her dignity was affronted would be unconstitutional

(2011).

By 1999 the court was “fragmented” on the proper interpretation of s.15, “much to the frustration of lawyers and litigants alike” (ibid., pp.586-7). In what Bateman considered a

“collective effort” the Supreme Court justices wrote a unanimous decision in Law v. Canada

(1999), which outlined a new, complicated test for s.15. The new test attempted to uphold the

Andrews test, while adding a subjective component of human dignity. Dignity became a core element of s.15, not merely an underlying value (Law v. Canada 1999). The vague and very subjective nature of “feeling dignified” led to a myriad of decisions that created a “teeter-totter” effect between the subjective aspects of the Law test and the more objective Andrews test

(Bateman 2011, p.589). The academic community heaped heavy criticism on the Law test for

“muddying” the already complicated approach to s.15 (ibid., p.591).

Almost a decade later, the Supreme Court once again attempted to set down a unified approach to s.15. In R. v. Kapp, the court backtracked through almost twenty years of jurisprudential development to return to a s.15 test that was almost identical to the Andrews test.

In doing this, they effectively abandoned the precedent set in Law. The justification for ignoring stare decisis was grounded in the admission that “several difficulties [had] arisen from the attempt in Law to employ human dignity as a legal test” (R. v. Kapp 2008, para.21). McLachlin and Abella echoed recent academic criticism and explained that “human dignity is an abstract and subjective notion that [can]…become confusing and difficult to apply” (ibid., para.21).

While the Kapp decision never explicitly cited the academic criticism as a justification for stepping away from Law, the body of literature was clearly influential: the decision cited over twenty academic sources in two footnotes.

Though interesting, the confusion argument for precedent reversal is also not particularly relevant to Carter. Rodriguez upheld the law prohibiting assisted suicide, and in doing so supported the legal and social status quo. Since the case did not necessitate any changes or suggest any nuances in the law, it clearly did not cause confusion in the legal community. If anything, Rodriguez further solidified the criminal status of PAS.

Reversal in Constitutional Cases

Even though the “unworkability” and “confusion” justifications illustrated by Askov and

Kapp do not work for Carter, those cases are relevant to Carter in another sense: they involve departure from constitutional precedents rather than from precedents of common-law or statutory interpretation. This distinction is quite important – the constitutional nature of Carter is the foundational factor that compensates for the fact that none of the traditional arguments for precedent reversal apply. It is claimed that constitutional law cases, including Charter cases, require a somewhat more relaxed approach to stare decisis. At the same time, departures from precedent should not be too easy, even in constitutional cases. Finding the right balance can sometimes produce some legal fancy footwork.

The criteria for precedent reversal in constitutional cases need to take into account that constitutional precedents can be particularly rigid, thus posing special challenges to legislatures that do not find them socially or politically desirable. As noted above, if a decision revising the common law or interpreting a statute proves unworkable or confusing, legislators can simply change the problematic law. For example, had the government wanted to reinstate a highway immunity law for straying cattle after the Fleming decision, an ordinary statute would have sufficed.

However, cases dealing with constitutional law are much more difficult to circumvent and therefore carry much more weight. Once the Supreme Court interprets the Constitution a certain way, there are only two options for overriding the decision. First, if the case involves

Charter sections 2 or 7-15, the legislature can displace the decision by re-enacting the invalidated statute with a clause specifying that it shall operate “notwithstanding” Charter rights,

under s.33 of the Charter. However, not only is s.33 limited to a select number of Charter provisions, but it has also proven to be politically very undesirable. In most cases, using the notwithstanding clause is not a politically viable option. The second route for dealing with a problematic decision is amending the constitution itself. Given the complexity of constitutional politics – particularly in Canada, where some observers suggest the country wears a

“constitutional straightjacket” (MacCharles 2014) – this is generally possible only in theory, and nearly impossible in practice.

In light of the difficulties associated with both section 33 and constitutional amendment, the only realistic way around undesirable constitutional decisions is often judicial reconsideration. Indeed, both scholars and judges argue that for this reason the principle of stare decisis should “operate more flexibly” in constitutional cases to allow for legal change as society progresses (Mitchell 2007, p.18. See also Shapiro & Mosvick 2011, pp.124-5; Arvay et al. 2012, pp.74-5).

For example, in Attorney General v. Fraser (2011), Justice Rothstein explained that,

Health Services (an undesirable precedent, in his view) was “not susceptible to being corrected in a lasting way by the legislative branch.” He went on to argue that only the Court had the realistic ability to address the errors of Health Services in a meaningful way, admitting that this required the relaxation of stare decisis (Fraser 2011, para.141). American Justices Scalia and

Rehnquist have also explicitly reversed precedent because of constitutional constraints (Padden

1994, p.1689), though overall, the examples of such blatant overruling remain minimal.

Quantitative evidence from Canada and the US suggests that practitioners in both legal systems understand the special nature of constitutional law: precedent reversal is increasingly more frequent with constitutional cases than statutory cases. Christopher Banks, looking at

American Supreme Court precedent reversals from 1979-1991, found that 60% of reversals were constitutional, and only 29% were statutory (1991, p.263). In Canada, Daved Muttart found that precedent reversal in constitutional cases had been rising at a steady rate since 1975 (2007, p.80), though it spiked dramatically after the adoption of the Charter of Rights and Freedoms in 1982

(Muttart 2007; Epp 1996, pp.772-3). Legal observers have suggested that the Supreme Court is

“increasingly willing” to relax stare decisis in Charter cases, even when the precedential decision is relatively recent (Parkes 2006 p.143; Muttart 2007; Knopff 2012; Mitchell 2007;

Thomas 2011). We will explore the reasons for this in further detail below.

However, even if we accept that departing from precedent is easier in Charter cases, we should keep in mind that it was in a Charter case, Fraser (2011), that Justice McLachlin emphasized the “high threshold” for “reversing a precedent,” and in another Charter case,

Bedford, that she insisted “the threshold for revisiting a matter is not an easy one to reach”

(Bedford 201, para. 44). As suggested above, the difference between “reversing” and “revisiting” may be significant for McLachlin. In Fraser, McLachlin rejected Justice Rothstein’s attempt to

“reverse” Health Services, whereas in Bedford (and subsequently in Carter) she “revisits” – and clearly departs from – precedents set two decades earlier. In neither of the latter two cases does the language of “reversing” precedent appear; the softer language of “revisiting” is always used instead.

In preferring the language of “revisiting” to that of “reversal,” McLachlin sides with

Justice Smith, the trial judge in Carter, against the B.C. Court of Appeal. Justices Newbury and

Saunders – the majority of the Court of Appeal panel – allowed the appeal on the grounds that

Justice Smith had no right as a trial judge to overturn or reverse the Supreme Court Rodriguez precedent. They did not accept Justice Smith’s claim that she was not reversing Rodriguez but

merely distinguishing it from Carter. At the Supreme Court, Justice McLachlin did accept

Justice Smith’s claim. In other words, McLachlin’s linguistic distinction between reversing and revisiting precedent reflects the difference, much discussed in the literature, between overruling and “distinguishing” precedents. Distinguishing comes in different varieties, however, and the kind of revisiting evident in Bedford and Carter is arguably the kind of “hard distinguishing” described by Muttart.

As Muttart explains, “explicit overruling,” or reversing of precedent is actually quite rare at all levels of the judiciary. Even though there are several accepted reasons for relaxing stare decisis, the weight of the legal doctrine leads lawyers and judges to prefer techniques like

“distinguishing,” which can sometimes effectively reverse a precedent without technically or explicitly abandoning it (2007). Distinguishing is a long-accepted strategy that involves differentiating a current case from a precedential decision. Even if the issues and facts in the cases are similar, precedent only exists regarding “what was actually decided” (also known as the ratio decidendi, or ratio) (Parkes 2007, p.138). Lawyers will argue that a new case requires the court to decide either a different legal issue, or a similar issue using a different approach. In this way, the judges do not have to overturn an earlier precedent, but just add to the jurisprudence with a new decision and both cases remain legally binding.

Distinguishing can be both transparent and entirely without controversy. However, this strategy can become what Muttart refers to as “hard distinguishing” (2007, p.65). With hard distinguishing, either hairsplitting distinctions are made, or the grounds for distinguishing are

“doubtful or not readily apparent” (ibid., p.65). This issue arises when the ratio of the precedential case is not entirely clear. As Parkes notes, determining exactly what was decided in an earlier case can be “an interpretive task in itself” (2007, p. 140). For example, the Court in

Rodriguez focused primarily on the “security of the person” interests in order to assess

Rodriguez’s s.7 claims. However, both the majority and Chief Justice Lamer mentioned the

“right to life” in their opinions as well. Was the latter discussion merely tangential, or was it thorough enough to constitute ratio? The answers to these types of questions are not immediately apparent, but they are important. If there was no decision about Sue Rodriguez’s “right to life” claims, then there is no precedent and a new case could be distinguished (or hard distinguished) on these grounds.

This “legal fancy footwork” constitutes a type of “non-explicit reversal” and allows judges and lawyers to avoid openly abandoning stare decisis (Muttart 2007, p.66). However, just because judges do not admit to reversing a precedent does not mean that it is not happening.

Muttart argues that a precedent has effectively been changed if future cases would be decided differently as a direct result of the new decision, or if the decision “clearly effects a modification in the law” (ibid., p.66). This kind of change certainly occurred in Bedford (at all judicial levels) and in Carter in the trial court and at the Supreme Court of Canada. Non-explicit reversals of this kind are particularly useful at the trial level, where lower court judges are bound by vertical stare decisis,28 but they are done by all levels of the judiciary.

28 The issue of vertical stare decisis for trial-level courts has been well documented. As Toth explains, “a trial level judge may have the authority to revisit a settled issue of the law, but due to the binding effect of vertical precedent, that trial level judge may not have the authority to overrule the previous decision” (2012, p.44). Since appellate courts are not self-starting, any case seeking to overturn a precedent must begin at the trial level. This creates a tension that has led to the development of literature on “anticipatory overruling,” a doctrine (officially rejected by judges and many academics (Parkes 2006)) that allows lower courts to ignore precedent when it is clear the original decision will be overturned by higher courts (for a full explanation, see Kniffen 1982). 63

The Charter and Criteria for “Revisiting” Constitutional Precedent

How, then, do the courts decide when the difficult threshold for reversing or (more commonly) “revisiting” a precedent has been met in Charter cases? What are the relevant criteria? Justice McLachlin provided much of the answer in Bedford, which was decided two years before Carter.

As we have noted, Bedford preceded Carter in departing from a two-decade-old precedent involving controversial morality policy. Both Bedford and its precedent, Reference re ss.193 and 195 (1990, hereafter referred to as the Prostitution Reference), dealt with the constitutionality of legislation that criminalized aspects of prostitution, particularly running bawdy houses (Criminal Code s.193) and soliciting for the purposes of prostitution (ibid., s.195).

While the Prostitution Reference determined that the bawdy-house provision did not infringe the

Charter, it did find that the ban on soliciting infringed the freedom-of-expression rights of prostitutes under s.2(b) of the Charter and their right to “liberty” under section 7. The Court’s majority, however, found that the infringement of freedom of expression was a “reasonable limit” under section 1 of the Charter, while the infringement of s.7 liberty was in accord with the

“principles of fundamental justice.” This precedent held for over 20 years, until Terri Jean

Bedford and other sex-workers challenged the same Criminal Code provisions on the grounds that their s.7 rights to life, liberty, and security of the person were infringed by laws that made a legal profession unnecessarily dangerous (Bedford 2013). The Bedford challenge succeeded at all levels of the judicial process (trial, provincial court of appeal, and Supreme Court). Clearly,

Bedford got over the difficult “threshold” for revisiting a precedent. How?

Writing for a unanimous Supreme Court in Bedford Chief Justice McLachlin outlined two criteria for reconsidering precedent: 1) that a new legal issue has been presented, and 2) that

there has been “a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (2013, para.42). Both of these criteria are particularly relevant in

Charter cases, and played a decisive role in Bedford and Carter. We will examine them in greater detail.

New Legal Issues

While any area of law can grow and evolve, developments in jurisprudence and interpretation have been much more pronounced in Charter law than any other legal arena. There are a few reasons for this. First, the Charter is a relatively new legal document. It was entrenched in the constitution in 1982, so judges have only been interpreting the Charter for around 30 years. This means that there are some Charter provisions that have seen very little judicial review, and others that have yet to be applied in decisions.29 Every time a new Charter issue is decided, it changes the body of jurisprudence.

Furthermore, even when an issue has been decided, the “living tree” approach to constitutional interpretation means that it is prone to further changes and developments. As judges build on earlier cases and expand the interpretation of Charter protections, the growth in jurisprudence opens new legal issues for consideration. For example, after Egan v. Canada

(1995), where the Court decided sexual orientation was an analogous ground for discrimination under s.15, there were much greater opportunities for same-sex rights claimants. The later cases of Vriend v. Alberta (1998) and M. v. H. (1999) were both based on the newly established, and

29 Don Stuart provides an excellent list of unanswered Charter questions, and issues remaining to be decided. While it is now almost a decade old, it does provide an clear example of the types of Charter issues that have not been settled by the Supreme Court (2006/2007). 65

expanded, s.15 interpretation that included sexual orientation as a ground for discrimination

(Cossman 2000). The rate of growth of Charter jurisprudence – a result of being a relatively young body of law combined with the intentional “living tree” approach to interpretation – means that “new legal issues” will often arise in Charter cases, even with respect to policy issues, such as prostitution or euthanasia, where precedents already exist.

However, Justice McLachlin’s Bedford opinion made it clear that legal issues settled in the precedential Prostitution Reference could not be recast as “new” legal issues and revisited by trial judges in subsequent litigation. In particular, trial judges were bound by the clear decision in the Prostitution Reference that the soliciting ban was a “justified limit on freedom of expression”

(2013, para.46). That was not a “new legal issue.” New issues did, however, arise with respect to section 7 of the Charter. These were of two kinds. First, substantive s.7 rights that did not play a significant role in the 1990 Prostitution Reference were emphasized in Bedford. Whereas the

1990 Prostitution Reference found only an infringement of s.7 liberty rights, the plaintiffs in

Bedford successfully asked the Court to find infringements of rights to life and security of the person – issues that were not considered in 1990. This effectively made the safety of prostitutes much more central than it had been in the Prostitution Reference, a point we will return to.

Second, the s.7 “principles of fundamental justice” had undergone considerable interpretive development since 1990. In the Prostitution Reference, then-Chief Justice Dickson decided that any limitations to s.7’s liberty rights were in accord with the principles of fundamental justice (PFJ) because the laws that restricted the freedoms of sex workers were not

“vague.” “Vagueness” was the only principle considered (1990, para.1141). After 1990, however, three new principles of fundamental justice had been articulated, and these constituted

“new legal issues” justifying a reconsideration of the precedent established by the Prostitution

Reference.

The first of the new fundamental-justice developments was the “arbitrariness” principle that we saw at work in Rodriguez, three years after the Prostitution Reference.30 The other two principles – “overbreadth” and “gross disproportionality” – emerged after Rodriguez, as noted in chapter 2. “Overbreadth,” was first articulated in 1994’s R v. Heywood, and established that a law must be “necessary to achieve the State objective.” If a law went beyond what was necessary, it could infringe individual rights “for no reason” (R v. Heywood 1994, p.792).31

“Gross disproportionality” came from Malmo-Levine, where the Supreme Court majority decided that a law would be grossly disproportionate if it was an “extreme” approach to addressing a legitimate state concern, and if the adverse effects of the law were not proportionate to the purpose of the law (R. v. Malmo-Levine 2003, paras.143-4). A law that breached any of these principles could fail a s.7 analysis.

Just as the new s.7 legal issue of “security of the person” highlighted the safety of prostitutes, so the new principles of fundamental justice would make it more difficult to justify ways in which the Criminal-Code prohibitions of prostitution-related activities might endanger the otherwise legal activity of sex work. Together, these new legal developments provided the basis for distinguishing Bedford from the Prostitution Reference. Ultimately, of course, a different outcome would depend on evidence regarding the connection between the Criminal

30 In fact, the Supreme Court’s initial use of “arbitrariness” as a principle of fundamental justice came in Rodriguez. The principle was later affirmed in cases like Chaoulli (2005) where it proved essential to the decision (see also Hogg 2012). 31 See also R. v. Demers (2004),where the court struck down a law requiring regular reassessments of persons mentally unfit to stand trial because – in part – it was “not the least restrictive of the unfit person’s liberty and not necessary to achieve the state’s objectives” (para.43). 67

Code provisions and the actual safety (or lack thereof) experienced by prostitutes. This brings us to Justice McLachlin’s second criterion for reconsideration – changes in “circumstances or evidence.”

Social Facts

In addressing the shift in evidence or circumstances, Justice McLachlin used a well- established distinction in the literature between “adjudicative” (or “historical”) facts on the one hand, and “social” or “legislative” facts on the other. Donald Horowitz, who coined the terms, describes adjudicative or historical facts as “the events that have transpired between the parties to a lawsuit”(1977, p.45). In other words, these facts seek to determine the “who, what, where when and why of a specific event or claim” (Bedford 2012, para. 128). Parties to a dispute may have different accounts of the events, or even contradictory historical facts. In this situation it is up to impartial judges, through cross-examination and expert testimony, to ascertain the truth of the situation and apply the law accordingly.

Historical facts are well suited to the adversarial process of determining which party to a dispute is in line with the law, or whether or not a law has been broken. However, they are less helpful in Charter cases, where the law itself is on trial. True, a litigant’s experience with a law can certainly play a role in determining if there is a rights infringement, but ultimately a Charter case must determine if a particular law or policy infringes an individual’s right in a way that is contrary to the “principles of fundamental justice” (s.7) and/or is not justifiable in a free and democratic society (s.1). To answer these justification questions, a judge needs to know not just the particular circumstances of the actual parties to a case, but also the “recurrent patterns of behaviour” which inspire or influence policy creation and development (Horowitz 1977, p.45).

As Maioni and Manfredi put it, determining whether an impugned policy unjustifiably infringes the Charter entails understanding the varied and far-reaching effects of complex policies that involve “multiple stakeholders, constantly changing facts and evidence, and predictive assessments of future implications” (2005, p.56). The factual circumstances of the immediate parties to the case will not suffice. For Sujit Choudhry, the proportionality stage of the Oakes test, and especially its minimal impairment component, often comes down to a

“factual dispute about the nature of social problems and the effectiveness of government policy instruments in combatting them” (2006, p.524). The same is true when courts consider such section 7 “fundamental justice” issues as “arbitrariness,” “overbreadth,” and “gross disproportionality,” which, as we saw in chapter 2, are roughly analogous to the section 1 tests of rational connection, minimal impairment, and proportionate effects, respectively. In this respect, the development of “new legal issues” under the s.7 fundamental justice standard enhance and shape the role of social facts in the s.7 context.

It is changing social facts (or changing knowledge of social facts) that can justify a departure from precedent in Charter cases. True, entirely new adjudicative evidence may surface

(such as physical remains in a murder trial or a paper trail in a fraud case), but once such facts have been determined they are not likely to change. This rigidity and permanence of historical facts obviously does little to encourage re-examination of previous decisions. They are not the kind of facts most likely to shift “the parameters of debate” about the constitutionality of a particular law or policy. Social facts, by contrast, are, in Maioni and Manfredi’s words,

“constantly changing.” They change as society and social science evolves. While historical facts are provable (and falsifiable) through cross-examination and expert testimony, social facts are more difficult to nail down. New, previously unknown (or underappreciated) evidence may come

to light. Moreover, new social-science studies are constantly refuting the “truth” of previous work, and similar data can produce contradictory conclusions. This implies that the evolution of factual understanding might justify different legal outcomes with respect to a particular policy over time. Thus both Thompson Irvine and Bradley Miller maintain that because section 1 is

“heavily fact-based” (Irvine 2011, p.14), “new or different facts, once fed into a proportionality test…[can] mandate a different result” (Miller 2011, also Irvine 2011, pp.13-4). The same, of course, applies to the analogous justification issues under the s.7 principles of fundamental justice.

Lawyer and academic Adryan Toth refers to this phenomenon as “precedent expiration,” which stipulates that the constitutionality of a law “exists on a time-based spectrum and…therefore…has the potential to change over time,” depending on changing social facts. In his view, precedent expiration allows for social-fact based Charter jurisprudence to develop in- step with society. Toth considers the doctrine of precedent expiration to be a “necessary corollary of the ‘living tree’ doctrine of the constitution and the inevitability of society’s development over time” (Toth 2012, p.51). Parkes similarly thinks that maintaining strict stare decisis in the face of changing social evidence relevant to the Oakes test will undermine confidence in the justice system (Parkes 2007, p.137). Arvay, Tucker and Latimer go so far as to suggest a judicial duty to reconsider a Charter precedent when new facts or factual understandings suggest a different outcome under the Oakes test (2012, p.78). Again, the same considerations apply to the analogous justification issues that arise under section 7’s

“fundamental justice” component.

We need now to consider how the two reconsideration criteria set out in Bedford actually work in practice to justify departures from established precedent. Bedford itself, of course,

provides an important example, one that had a significant effect on the Carter litigation. Before further exploring the Bedford example, however, it is worth considering a pre-Bedford sequence that nicely illustrates the way in which justification questions can be altered by new or changing social facts, resulting in the departure from established precedent. Two extradition cases – R. v.

Kindler (1991) and United States v. Burns (2001) – constitute this earlier reconsideration sequence.

From Kindler to Burns: The Impact of Changing Social Facts

In both Kindler and Burns, the appellants to the Supreme Court of Canada were charged with murder in the United States – Kindler was convicted and Burns was wanted for trial. Both men faced the possibility of the death penalty upon their extradition back to the American justice system, as the Canadian government did not require an assurance against its use. Both cases revolved around s.7 of the Charter, with appellants arguing that extradition would violate their rights to "life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

In Kindler, a 4-3 majority concluded that there was no violation of s.7. While the judges admitted that Kindler's life, liberty and the security of person were threatened, they could not concede that it was done outside the principles of fundamental justice. A major justification for this position was the hope of keeping Canada from becoming a "safe haven" for American criminals facing the death penalty. While Kindler pre-dates the articulation of Sopinka’s s.7 guidelines of arbitrariness and fairness, the extradition policy was understood to have an important purpose. Justices McLachlin and La Forest both accepted this claim, despite arguments that there was "little statistical evidence" that such an objective was founded on actual

experience (Kindler v. Canada, p.853). Moreover, the majority rejected pleas to consider flaws in the American justice system, such as the acknowledged arbitrariness of the death penalty, or the psychological dangers of the "death row phenomenon." Such issues were beyond the scope of Charter application, and (of greater significance to this chapter) were not sufficiently supported by evidence (pp.837-8). Because the extradition did not violate the principles of fundamental justice – it did not "shock the conscience" of Canadians (a threshold set in a previous extradition case) – it did not violate the Charter (p.838).

Exactly a decade after the Kindler decision, the Court faced a parallel case in United

States v. Burns. However, in this second extradition case, the court reached a unanimous decision that extraditing criminals without assurances against the use of the death penalty violates s.7 of the Charter. As the Court explained, "a balance which tilted in favour of extradition without assurances in Kindler...now tilts against the constitutionality of such an outcome" (Burns 2011, p.290).

What, exactly, caused the balance to tip? For the most part, the relevant historical facts about the death penalty and extradition policy remained the same from 1991 to 2001: in the decade following Kindler, the list of countries that had abolished the death penalty grew, but the

Court made it clear that any discussion of such a complex issue required also examining

"philosophic positions informed by beliefs and social science evidence from outside the inherent domain of the judiciary" (ibid., para.71).

Social facts, therefore, played a large role in the Burns decisions. In particular, the court focused on "awareness of the potential for miscarriages of justice, together with broader public concerns about the taking of life by the state, as well as doubts about the effectiveness of the death penalty as a deterrent to murder in comparison with life in prison without parole for 25

years" (ibid., para.3). Furthermore, the pressing social purpose from Kindler – keeping Canada from becoming a safe haven – was discredited in Burns. The court stated that "there is no evidence whatsoever that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a “safe haven” than the death penalty, or even that fugitives approach their choice of refuge with such an informed appreciation of tactics" (ibid., para.141).

With little social evidence in favour of allowing extradited fugitives to face the death penalty, the Court concluded that there was a s.7 infringement where there had not been one ten years earlier; the affront to the appellants' life liberty and security of the person was no longer understood to be in accordance with the principles of fundamental justice.

Bedford and the Interaction of “New Legal Issues” and “Social Facts”

While Kindler/Burns relied exclusively on a “change in the circumstances of evidence” surrounding extradition without assurances, the Court in Bedford made use of both new legal issues and developments in social evidence to revisit, and depart from, the Prostitution

Reference. As previously mentioned, the Supreme Court originally determined that a law prohibiting communication for the purpose of prostitution was in violation of s. 2(d) freedom of expression rights, but was justifiable as a reasonable limit under s.1. This claim was therefore off limits to the judges in Bedford. However, other new claims were accepted and were assessed in light of both new legal issues (particularly new principles of fundamental justice) and developments in social evidence.

Sex workers Terri Jean Bedford, Amy Lebovitch and Valerie Scott claimed that the communication and bawdy-house provisions, as well as a law that banned living off the avails of prostitution, violated their s.7 security of the person rights (a new legal issue) and were not in

accord with the new principles of fundamental justice – arbitrariness, overbreadth and gross disproportionality. This new approach to s.7 raised safety concerns that were not considered in the Prostitution Reference,32 necessitated an examination of the dangers of prostitution, and relied on extensive social facts that were “not available in 1990” (Bedford 2013, para.41). With over 25,000 pages of evidence (ibid., para.15), the plaintiffs demonstrated that the dangers of prostitution – a legal activity – were heightened, if not caused, by effective criminalization of

“in-call” sex work. The new social facts showed that sex work was safest when conducted from a fixed location, with clear communication prior to engagement in order to screen potential clients, and/or with the help of support staff like bodyguards and receptionists (ibid., paras.62-3). None of these safety precautions were legal under the Criminal Code provisions.

Given the dangerous and potentially fatal nature of street prostitution, Chief Justice

McLachlin found that the bawdy-house provision violated the s.7 rights of sex workers. She argued that the real harms facing sex-workers on the street were “grossly disproportionate” to the purpose of the bawdy-house law, which was to “prevent community harms in the nature of nuisance” (ibid., para.131). McLachlin struck down the “living off the avails of prostitution” provision for similar reasons. Using the principle of “overbreadth,” she found that the legislation went beyond what was necessary to protect sex workers from pimps, and instead caught “non- exploitive” individuals who might contribute to the prostitutes’ safety (such as bodyguards or drivers). The new principles of fundamental justice, combined with new social facts about both

32 Justice Lamer, in a concurring opinion, did address the safety of sex workers. However, he did so somewhat marginally, and only to support the prohibitions on communication. Lamer argued that by discouraging street solicitation, young, vulnerable women would be deterred from entering the dangerous practice and would be less likely to interact with exploitive pimps (Prostitution Reference 1990, pp.1193- 1194) . 74

the dangers of prostitution and ways to make the practice safer, led to a different outcome in

Bedford than the Prostitution Reference twenty years earlier.

This combination of new legal issues and developments in social evidence was essential to the Bedford decision. The relationship between these two criteria for revisiting precedent is also central to Carter. The next chapter will explore how the interaction of legal issues and social facts created the “winning conditions” for a departure from Rodriguez.

CHAPTER 5: WINNING CONDITIONS FOR PHYSICIAN ASSISTED SUICIDE IN

COURT

Even before Chief Justice McLachlin articulated her two criteria for reconsidering precedent in Bedford, the plaintiffs in Carter were hopeful that both new legal issues and social- fact developments in the decades since Rodriguez would be substantial enough to encourage a reconsideration of the PAS issue. Regarding new legal questions, the plaintiffs followed the same strategy that would later be successful in Bedford: they emphasized substantive section 7 rights that had not received much attention in Rodriguez, as well as the emergence of

“overbreadth” and “gross disproportionality” as new principles of fundamental justice. As a further argument, they also highlighted the “proportionate effects” component of the section 1

Oakes test, which, as we have seen, roughly corresponds to section 7 “gross disproportionality.”

In terms of social facts, the plaintiffs claimed that the evidence presented in Rodriguez

“simply bears no comparison” to newly available evidence (Carter et al. 2011c, para.29). In particular, they pointed out that Sopinka’s decision had been based on the fact that it was impossible to determine a societal consensus on the divisive issue, that a ban on PAS was the international norm, and that there was no guarantee a liberalized regime could prevent abuse and protect vulnerable persons. The plaintiffs argued that none of these assumptions held up in the face of new social-fact evidence. To use McLachlin’s terminology in Bedford, the Carter plaintiffs essentially argued that “change[s] in the circumstances or evidence [had] fundamentally shift[ed] the parameters of the debate.” This chapter shows how “new legal issues” interacted with new “social facts” to create the “winning conditions” for Carter.

New Legal Issues

In Bedford, “security of the person” was the substantive s.7 right that had not been adequately addressed in the Prostitution Reference, which had focused, as far as s.7 was concerned, on the “liberty” rights of prostitutes. In Carter, the opposite was the case – “security of the person” had been addressed in Rodriguez, but, according to the Carter plaintiffs, neither

“liberty” nor “life” had been adequately considered in 1993. Justice Smith agreed with this assessment in the Carter trial judgment, finding that while she was bound by the Rodriguez precedent with respect to “security of the person,” Carter was distinguishable in part because it engaged the other s.7 rights (2012, paras.1300-1322). The Supreme Court agreed.

Overbreadth, as a component of s.7’s fundamental justice dimension, was another of the new legal issues addressed by the plaintiffs in Carter. In Rodriguez, the majority decided that the blanket ban on assisted suicide was not “arbitrary” because it was fair, and well-grounded in social and legal traditions. However, because the s.7 overbreadth principle had not been developed by 1993, it was never explicitly discussed. Arguably, it is possible to deduce from

Sopinka’s discussion of the minimal impairment issue under s.1 that the majority would have concluded that the blanket prohibition on PAS was not overbroad. According to Heywood, which was decided a year after Rodriguez, an analysis of overbreadth must determine whether or not chosen legislative means are “necessary to achieve the State objective” (Heywood 1994, p.792, emphasis added), which is obviously very similar to the minimal impairment criterion in Oakes.

In his section 1 minimal-impairment analysis in Rodriguez, Sopinka explicitly stated that there was “no halfway measure that could be relied upon with assurance to fully achieve the legislation’s purpose” (Rodriguez 1993 SCC, p.523). A blanket prohibition, in other words, was in fact necessary.

However, this thought experiment about what Sopinka might have done hardly carries the same weight as an explicit consideration of the principle of overbreadth. The plaintiffs in Carter argued that a new s.7 analysis should be conducted, focusing on the new principle of fundamental justice. They claimed that an analysis of overbreadth would have a different outcome than in 1993, especially in light of new experience (or new social facts) showing that regulatory regimes can be effective at ensuring only those who “are terminally ill and genuinely desire death” (Rodriguez 1993 SCC, p.614) attain a physician-assisted suicide. Because they thought it could no longer “be maintained that the vulnerable cannot be protected under a regulated, permissive regime,” the plaintiffs argued that the blanket ban on PAS was overbroad and a breach of the principles of fundamental justice (Carter et al. 2011c para.237). Justice Smith found that since there was no discussion of overbreadth in Rodriguez, it constituted a new legal issue that she was able to assess. The Supreme Court agreed.

The third new legal issue addressed by the Carter plaintiffs was gross disproportionality

(s.7) or disproportionate effects (s.1). As with overbreadth, the s.7 doctrine of gross disproportionality was not available to the Rodriguez court. According to the articulation of this principle in Malmo-Levine a decade later, a law is grossly disproportionate if the means used to address a valid state objective are “extreme,” and therefore are disproportionate to the purposes of the law (Malmo-Levine 2003, paras.143-4 and 169). In PHS Community Services (2011) the

Court appeared to deviate slightly from this purpose-based definition, choosing instead to balance the deleterious effects of the law on individuals against the social benefits (or positive

effects) the law produced (para.133).33 However, the Court backtracked in Bedford, affirming that a consideration of “the beneficial effects of a law for society” belonged in the section 1 analysis (2013, paras.122-5). It is the “proportionate effects” part of the Oakes test that measures the benefits of an impugned law against the “severity” of the “deleterious effects…on individuals or groups” (R. v. Oakes 1986, p.140), though the confusion between the two analyses points to their similarities.

Even though the “proportionate effects” test had been articulated years before Rodriguez, it was not independently considered during the section 1 analysis in that case, nor was it even mentioned. This is not surprising since, as we have seen, this particular test had been used so infrequently that Peter Hogg claimed that it was “redundant” (2003, s.38.12). However, the plaintiffs argued that it constituted a third “new legal issue” because for the first time in 2009, the proportionate effects test was explicitly used to determine a s.1 analysis (Alberta v. Hutterian

Brethren of Wilson Colony 2009).

Again, it is highly likely that Sopinka and the majority would have upheld assisted suicide legislation in both a s.7 gross disproportionality and a s.1 proportionate effects analysis; not only did they not find a blanket prohibition “extreme,” but the importance of protecting vulnerable citizens and upholding the sanctity of life would have arguably outweighed any deleterious effects experienced by select individuals. However, the plaintiffs in Carter argued that such claims would be more difficult to make today, where new social facts demonstrated that the “untold and certain suffering to those Canadians who need the option of physician assistance in dying” is in fact grossly disproportionate to “any speculative benefit that Canada

33 In their Written Submissions, the plaintiffs interpreted this to be a measure of “the known benefits of a liberalized regime against the known harms of an absolute prohibition” (Carter et al. 2011c, para.244). 79

might derive” from a complete prohibition of the practice (Carter et al. 2011c, para.246). For the plaintiffs, new social evidence made it difficult to conclude with any certainty that only a complete ban on PAS would guarantee the dual goals of protecting vulnerable patients and the promoting respect for life. Instead of a prohibition on assisted suicide, they suggested that a less harmful and more proportionate policy should be put into place (ibid., paras.245-6). Here, too, the plaintiffs got a receptive hearing from Justice Smith and the Supreme Court. Although

Justice Smith, having found the blanket ban on PAS to be overbroad, did not think it necessary to consider “gross disproportionality” under s.7, she did go on to conclude that the ban was “so extreme as to be disproportionate to any legitimate government interest” under s.1 (Carter 2012, para.1378).

Social Facts

Although the emergence of overbreadth and gross disproportionality as “new legal issues” provided an important reason for reconsidering the Rodriguez precedent, they would not have been enough to warrant a complete departure from Rodriguez. As indicated, had these doctrines been available to Justice Sopinka, they would not likely have changed his mind. It was the addition of new social evidence that made the argument for revisiting Rodriguez and departing from the blanket prohibition fully convincing to Justice Smith and the Supreme Court of Canada. The changing social-fact evidence falls into three categories: 1) societal consensus on the issue of PAS, 2) jurisdictions that have legalized some form of PAS, and 3) empirical evidence on the effectiveness of PAS regimes.

Societal Consensus

Societal consensus on the legal status of PAS has always been a difficult thing to measure, and there are several ways to assess attitudes towards the divisive issue; public opinion polls, media attention, the positions of various interested stakeholders, and the outcomes of past attempts at legalization are some indicators that can be used to “take the pulse of the nation”

(Rodriguez 1993 BCCA, p.172). In 1990, Sopinka argued that he could not determine anything approaching societal consensus on the issue. While there may never be unanimity on such a polarizing policy area, support for some form of legalized PAS is arguably clearer today than it was two decades ago.

At the time of the Rodriguez decision, Canadian and international public opinion polls did show support for some form of legalized PAS to end intolerable suffering,34 but only one major public opinion poll from 1990 was presented during the Rodriguez trial (Carter 2012, para.287; Sneiderman 2008). 35 Instead of focusing on the lone opinion poll, Sopinka relied more heavily on the many strong and vocal organizations that opposed any reform to the PAS ban.36

He pointed specifically to several medical organizations (such as the Canadian and British

Medical Associations and the American Nurses Association) that were opposed to legalizing

PAS, and concluded that there was nothing “approaching unanimity” in society’s stance on PAS

(Rodriguez SRC p.607). As we saw in Chapter 2, the only consensus that Sopinka could find supported the blanket ban of the practice: several failed attempts to change assisted suicide

34 See, for example, poll information from the Introduction, pp. 7-9. 35 There were other polls, but there is no evidence that they were mentioned in Rodriguez. For example, an Environics poll from 1992 found that 64% of Canadians supported some form of PAS (Environics Institute 2013). 36 For a complete list of intervenors see above Chapter 2 note 4. 81

legislation in the United States led him to conclude that “the societal concern with preserving life and protecting the vulnerable rendered the blanket prohibition preferable to a law which might not adequately prevent abuse” (Rodriguez 1993 SCC, p.605). In 1993, the debate over legalized

PAS was just beginning, and while there were clear factions that supported a liberalized policy, the issue received nowhere near the amount of attention that it has garnered recently.

It is clear that interest in, and support for, PAS is on the rise worldwide. As the debate has heated up, countless public opinion surveys have been commissioned. As we saw in Chapter

1, most of these polls show high levels of public support for some form of physician-assisted suicide. While only one poll in favour of PAS was mentioned in Rodriguez, it is now less plausible to ignore the plethora of national, regional, and even municipal polls measuring support for policy liberalization.37 The use of public opinion data in constitutional cases is not without controversy; in fact, even the plaintiffs admit that polls should have limited influence on the interpretation of the law (Carter et al. 2011c, para.39). Nevertheless, the quantitative evidence is useful in the examination of “social consensus” around PAS both in Canada and internationally.

According to the plaintiffs, the consensus has “shifted from 1993 to the present,” and support is growing for legalized PAS (Carter 2012, para.282).

This steady increase in public support for legalized PAS may be attributed, in part, to the attention garnered from the failed legislative attempts at policy reform outlined in Chapter 3, and the more recent launch of the BCCLA’s lawsuit. Another explanation may be the increased awareness of, and focus on, end-of-life issues; as the baby boomer generation ages, health and

37 For example, Faron Ellis with the Citizen Society Research Lab in Lethbridge has conducted annual surveys at both a municipal and provincial levels to determine support levels for PAS, among other issues (Ellis 2009-2014). 82

medical questions become more important (Lewis 2007, Lewy 2010). Furthermore, many PAS

“martyrs” or advocates have kept the topic squarely in the media spotlight, fuelling this growing awareness. Names like Donald Law, Susan Griffiths, Edward Hung and Gillian Bennett are, like

Sue Rodriguez or Gloria Taylor, synonymous with the campaign to legalize PAS. All four made heartfelt public appeals to the Canadian government to amend the criminal code ban on assisted suicide. While Dr. Law died of brain cancer in Canada, Griffiths and Hung travelled to

Switzerland to access assisted suicide, and Bennett killed herself near her home on Bowen Island in the presence of her husband of sixty years.38

These deaths all involved Canadians, but similar stories are making waves in other countries as well. 29-year-old Brittany Maynard became an international celebrity when she moved from California to Oregon in 2014 to take advantage of that state’s liberalized PAS policies. Maynard suffered from terminal brain cancer, and was credited with renewing the national debate on assisted suicide when she made her end-of-life plans public in an online video message. Such stories have not been limited to North America. In 2012, French President

François Hollande promised to work towards decriminalizing certain aspects of PAS after several high-profile cases stirred national debate on end-of-life options (Radio France

Internationale 2014). In Australia, right-to-die advocate Philip Nitschke caused debate and controversy when his medical license was revoked over advice he gave to a man suffering from depression (Purtill & Fisher 2014), and in South Africa, pro-PAS groups are considering options for legal action after the public suicide of Member of Parliament Mario Oriani-Ambrosini led to

38 The following sources offer coverage on Law, Griffiths, Hung and Bennet respectively: Kirkey 2013, Rabson 2013, Powell 2014 and Moore 2014. 83

calls for a national debate on assisted suicide (Thelwell 2014). The examples are numerous and come from all around the globe

Moreover, in putting a human face to a policy issue, the influence of popular culture in shifting public debate (however small a shift it may be) should not be ignored. For example, in

2004, American actor/director Clint Eastwood’s Academy-Award winning film Million Dollar

Baby brought assisted suicide into the public imagination. In the film, Eastwood’s character, a devout Catholic, administers a fatal dose to his young (and recently disabled) protégé to help her fulfill her wish to die. It was especially noteworthy that Eastwood, a known conservative, was the actor who portrayed the character who eventually administered the fatal dose. Since Million

Dollar Baby, other depictions of assisted suicide have appeared in film, television, and theatre.39

Reporter Robin Henig refers to the pop culture assisted suicide references as a “bellwether for changing views” (2014).

While isolated incidents have attracted media attention in the past, this sustained level of discussion is new. At least one American study suggests that high-profile advocates, such as

Maynard, increase public support for PAS (Thompson 2014). Indeed, efforts are under way in her home state of California to introduce legislation to legalize the practice (Dobuzinskis 2015).

Around the world, awareness of liberalized assisted suicide policies has grown significantly since 1993. Opinion polls have mirrored society’s increased openness towards the practice, with support in most countries reaching well above 60% (Banfield 2010).

39 For example, in the season finale of HBO’s ‘Girls,’ and as the basis of the plot in BBC-3 sitcom ‘Way To Go,’ (Henig 2014). In 2013, Verb Theatre in Calgary premiered The Dandelion Project, a play by Col Cseke about assisted-suicide (http://www.verbtheatre.com/the-dandelion-project/). 84

As public support for the practice has risen, several professional medical associations have also relaxed their stance on PAS. In 1993 Sopinka declared that there were no medical associations on board with liberalized PAS. This too, has changed. In their written submissions to the Supreme Court of British Columbia in 2011, the Carter plaintiffs noted that organizations such as the Canadian Hospice Palliative Care Association, the American Academy of Hospice and Palliative Care, the Swiss Academy of Medical Sciences, and the American Medical

Women’s Association are either supportive or neutral on the issue of PAS (Carter et al. 2011c, paras.275-6).

Where professional medical associations do remain officially opposed to assisted suicide, moreover, the plaintiffs argued that they do not speak for all physicians, or even all member physicians (ibid., para.276). For example, they point out that the American Medical Association represents only 20% of American physicians, and its position on PAS is obviously opposed by medical associations in states which permit the practice. Likewise, while the Canadian Medical

Association (CMA) remained officially opposed to PAS before Carter, the Quebec Medical

Association (QMA) supported legalization and regulation of the practice (Quebec Medical

Association 2014). To further complicate the division in Canada, by the time the Supreme Court heard the Carter appeal, the CMA had “softened” its stance, saying that it would allow its members to act on conscience when dealing with end-of-life care and requests for PAS – should it become legal (Picard 2014). Some organizations, like the Royal Australian & New Zealand

College of Psychiatrists openly admit that there is “no consensus within the College membership” on the issue, and take no formal position (2011). While few medical associations openly support legalized PAS, it is also no longer possible to argue that they unanimously oppose the practice.

Overall, it is clear that social attitudes towards PAS have shifted since Rodriguez. Not only has the practice become more normalized through attention-grabbing crusaders, but public opinion polls have indicated a steady increase in support for allowing PAS in certain circumstances. Furthermore, even medical associations – once staunchly opposed – have begun relaxing their positions and taking either a positive or neutral stance towards PAS. All of this evidence points to a societal consensus that is leaning further in favour of liberalized PAS policies.

Jurisdictions

Nothing, however, makes the shift in favour of PAS more obvious than the fact that several jurisdictions have successfully legalized some form of the practice since the Rodriguez judgment. In 1993, Sopinka argued that the status quo had been effectively sanctioned through failed attempts to reform PAS law. As proof, he mentioned referenda in Washington and

California that were unsuccessful at overturning the blanket prohibition on PAS (Rodriguez 1993

SCC, p. 604). In the decades since Rodriguez, however, several jurisdictions have successfully implemented legalized PAS regimes, and many more are currently engaged in debates about whether or not to reform laws banning the practice.

When Sue Rodriguez brought her case to the Supreme Court of Canada, Switzerland and the Netherlands were the only countries in the world to allow some form of regulated assisted- suicide. However, while Switzerland legalized “altruistic assisted-suicide” in a 1918 version of the penal code, it did so without mention of physicians or other healthcare providers (Hurst &

Mauron 2003). Consequently, until the opening of Swiss assisted-suicide clinics in 1990, the experience with assisted suicide involved mostly laypersons helping loved ones. Even the

famous assisted-suicide clinics that institutionalized the practice tend to rely on non-physician volunteers as opposed to healthcare professionals (Lewy 2010, p.89). Indeed, Swiss physicians have actually been discouraged from practicing assisted suicide by the Swiss Academy of

Medical Sciences. As a result, the Swiss example is quite different from the medical regime requested by Rodriguez (Hurst & Mauron 2003). Sopinka’s Rodriguez judgment mentioned the

Swiss example, but it did not disturb his conclusion that physician assisted suicide is “nowhere

… expressly permitted” (Rodriguez 1993 SCC, pp.601-2).

Nor did the more obviously physician-centered regime that existed in the Netherlands at the time of Rodriguez affect Sopinka’s conclusion. True, the Dutch model, where the legal community worked closely with the KNMG (Dutch National Medical Association) to regulate

PAS in certain situations, was closer than the Swiss model to what was requested by Rodriguez.

However, while the official regulations were crafted in 1990 and added to the country’s Burial

Act, PAS remained illegal under the Dutch Penal Code until 2002 (Gevers 1996), well after the

Rodriguez judgment. Indeed, Sopinka’s opinion emphasized that physician-assisted suicide remained “officially illegal” in the Netherlands (Rodriguez 1993 SCC, p.603). In 1993, in other words, the murky legal environment surrounding PAS in the Netherlands was far from an airtight example for Rodriguez and the pro-PAS movement. For Sopinka, a “blanket prohibition of assisted suicide” remained the “norm among Western democracies.” and he was not inclined to stray from this international standard (Rodriguez 1993 SCC, p.605).

By the time Canada’s Supreme Court heard the Carter appeal, however, this norm had begun to change. While the majority of Western democracies still ban PAS, nine jurisdictions

(four national and five subnational) had legalized some form of physician-assisted suicide: The

Netherlands, Belgium, Luxembourg, Colombia, the American states of Oregon, Washington,

Montana, Vermont, and the Canadian province of Quebec.40 In Scotland, Israel, Connecticut and

New Jersey, the issue had begun working its way through legislatures,41 while in New Mexico the constitutionality of the ban on PAS was before the courts (Contreras 2015). Based on such developments, the plaintiffs in Carter called into question Sopinka’s observation that a blanket prohibition on PAS is the norm among Western democracies (Carter et al. 2011c, paras.29-32).

Lawyer René Duval (council for Ginette Leblanc, a Quebec woman hoping to fight the PAS ban before her death in 2013) also pointed to the international experience with legalized PAS as a key change since Rodriguez. According to Duval, the emergence of PAS in “comparable countries” to Canada helped create “winning conditions” to bring the issue before the courts again (White 2011).

True, the institutional venue through which PAS regimes have been liberalized has been different from the judicial remedy suggested in Carter. Most liberalization has occurred through legislative change; of the jurisdictions listed above, only Columbia and Montana arrived at legalized PAS through judicial actions, and neither case involved constitutional rights.42 While a

40 The legality of the Quebec regime had not been challenged on jurisdiction grounds prior to the Supreme Court Carter decision, nor had it been implemented as an end-of-life option by Quebec physicians. At the time of writing (May 2015), no patient has been granted a physician-assisted suicide in the province. 41 For information on Scotland, Israel, Connecticut and New Jersey, see Black (2013), JTA (2014), Associated Press (2015) and Jordan (2014) respectively. At the time of writing (June 2015), only the Scottish debate has been resolved, with the assisted suicide bill losing in the Scottish Parliament. 42 The experience in both of these jurisdictions is a little complicated. In Colombia, a Supreme Court decision formally legalized the practice in 2007, but the legislature has never removed the prohibitive laws from the books, nor has it passed legislation formally legalizing the process. The Canadian Parliamentary Report classifies the legal status of PAS in Colombia as “unknown” (Butler et al. 2013). The legal status of PAS in Montana is also murky. The Montana Supreme Court stopped short of requiring legalized PAS, but did decide that it was in-step with current statues regarding end-of-life decisions. In short, the Court could see no legal or logical distinction between withdrawal of treatment and advanced directives, and PAS. However, since the 2009 decision, the House in Montana has been unable to pass legislation one way or the other clarifying the PAS policy. The most recent initiative (HB 88

district (trial level) court in New Mexico did rule that a blanket ban on PAS was unconstitutional, the decision has been appealed and is working its way through the state court system (Contreras 2015). Sopinka’s statement that “a prohibition [on PAS] has never been adjudged to be unconstitutional or contrary to fundamental human rights” (Rodriguez 1993 SCC, p.605), was still (mostly) true at the time of the Carter challenge – Carter v. Canada is the first example of such a decision by a high court.

Importantly, however, the growth in the number of jurisdictions with regulatory regimes

(however, they have emerged) made a significant contribution to the outcome in Carter. At the

Carter trial, Justice Smith was persuaded by the experience of other jurisdictions that the complete ban on PAS was not, in fact, necessary. Instead, she argued “a system with properly designed and administered safeguards could…[meet government objectives] while permitting… competent, fully-informed persons acting voluntarily to receive physician-assisted death” (2012, para.1367. The availability of more tailored, rights-respecting approaches in other jurisdictions meant that Canada’s blanket ban was indeed overbroad.

Of course, this conclusion could not depend on the mere existence of regulatory regimes in other jurisdictions. It depended more critically on an assessment of the success of these regulatory regimes. Thus, in referring to the “winning conditions” for an internationally unprecedented high court decision on assisted suicide, Duval had in mind not just the gradually growing number of jurisdictions that have legalized PAS since 1993, but also new comparative social science evidence on the effectiveness of such PAS regimes, particularly their ability to allay the kinds of concerns that animated Justice Sopinka’s Rodriguez judgment. Now that

477) tied in a 50-50 vote on March 13, 2015 and is awaiting possible reconsideration (Standard State Bureau 2015). 89

legalized policies have been in place for some time, a wealth of studies exist examining all aspects of these regulated systems: who requests PAS and under what circumstances, how often is PAS performed, how strictly guidelines are followed, how well the systems prevent abuse, and whether there is evidence of a slippery slope are all topics of social science studies from around the globe. This important information was simply not available to the Court in Rodriguez, and therefore forms an integral part of the “changes in circumstances or evidence” that shifted the

“parameters of the debate” in Carter.

Social Evidence

The evidence surrounding the effectiveness of legalized PAS regimes is perhaps the most significant category of influential social facts. As previously discussed, the Rodriguez decision hinged heavily on whether or not the limits to Rodriguez’s Charter rights could be justified under ss. 1 and 7. In particular, Sopinka focused on the fact that there was no evidence to support the position that anything other than a blanket prohibition of assisted suicide would keep vulnerable persons from either being euthanized involuntarily, or coerced into committing suicide. Such concerns were not surprising. The risk of abuse and the “slippery slope” to all sorts of morally reprehensible medical killings had been a main focus of political and philosophic discussion on the topic of assisted suicide for decades leading up the Rodriguez case,43 and this became an important part of Sopinka’s argument in Rodriguez.

43 Writing in 1987, G.D. Coleman described the body of literature on assisted suicide and euthanasia as “massive” (p.267). A selection of early work on the topic includes Weir (1977), Batton & Mayo (1980), Simmons (1983), Lamb (1988), O’Rourke (1991) and Gomez (1991). 90

Sopinka cited a Working Paper by the Canadian Law Reform Commission that questioned the ability of any regulatory policies to prevent “excesses or abuses” that would go beyond providing an end to the suffering of terminally ill patients. According to Sopinka, critics of the Dutch system claimed that “involuntary active euthanasia” – the unauthorized or unsolicited killing of a patient through active means such as drug administration – was on the rise under the new regulations, leading the Netherlands on its first steps down the proverbial

“slippery slope” (Rodriguez 1993 SCC, p.603). Indeed, vocal critics such as John Keown (1991) and Carlos Gomez (1991) drew attention to troubling findings about the number of physician- assisted suicides that had taken place in the country under their regulatory regime, and the number of those deaths (around 1000, or 0.8% of all deaths44) that were apparently not requested by the patients themselves. In particular, the findings of the Remmelink Commission, sponsored by the Dutch government, offered statistics on the frequency and characteristics of assisted death in the Netherlands. For example, authors Paul J. Van Der Mass et al. argued that while the numbers – almost 2000 deaths per year – indeed seemed high, there was little evidence of abuse of the system, nor of a slippery slope (Van Der Mass P.J. et al. 1991, p.673). While all of this information was available to the courts, it was not cited in any of the judicial opinions. Indeed,

Sopinka’s invocation of “critics of the Dutch approach” did not even reference any of these early studies (Rodriguez 1993 SCC, p.603).

Despite potential evidence disputing the “slippery slope” (Van Der Mass P.J. et al. 1991),

Sopinka and the majority agreed with critics’ arguments and the Canadian Law Reform

Commission’s conclusions that “there is no certainty that abuses can be prevented by anything

44 Keon (1991) elaborates on the statistics given in PJ Van Der Mass et al. (1991). 91

other than a complete prohibition [on assisted-suicide]” (Working Paper cited in Rodriguez 1993

SCC, pp.600-1). Indeed, by 1993 there was little conclusive evidence trending in either direction.

What minimal evidence there was came primarily from the Netherlands, where Dutch scholars themselves lamented the lack of serious scholarship on assisted suicide, as well as the inherent difficulties of studying such a controversial topic (Van Der Mass P.J. et al. 1991). The absence of conclusive evidence was noted by some; McLachlin, for example, disagreed with how the majority framed their decision on the “chance” or the “possibility” of abuse. All that was known for certain, she argued, was that Sue Rodriguez would suffer unnecessarily, and unjustifiably, from the ban. Any further conclusions about the negative impacts of a liberalized regime were just speculation (Rodriguez 1993 SCC, p.621). Overall, the lack of experience with legalized

PAS made it impossible to know exactly how likely the chance or possibility of abuses or the emergence of a slippery slope would be.

After almost twenty years of experience with legalized PAS, there are still many vocal opponents who question the effectiveness of any regulatory regimes. Critics still agree with

Sopinka’s decision and argue that legalized PAS is bound to lead down a slippery slope of abuse and desensitization to state-sanctioned death (Keown 2002; Sommerville 2008; Schadenberg

2015). However, countless studies have been produced since the Rodriguez decision, making an impressive – and challenging – record of social science evidence to draw from. The development of this social-fact record has cast doubt on the slippery slope argument, and made the debate about its validity more two-sided than it was in 1993.

The study of assisted suicide regimes began in earnest in 1997 with the passing of

Oregon’s Death with Dignity Act (DWDA). Only one major study was produced during the first year of the DWDA, and it concluded that many of the fears about legalized PAS were not

realized; few patients were old or disabled, the number of prescriptions for lethal drugs was relatively low, and an even fewer number of patients actually died from taking their lethal medication (Chin et al. 1999). After the first decade of Oregon’s experience with PAS, Courtney

Campbell (a known critic of PAS45) conceded that the safeguards in the DWDA were working effectively to protect patients from wrongful deaths (2008). Likewise, Ann Jackson, the former executive director of the Oregon Hospice Association and firm opponent to the DWDA, changed her position to support PAS after being convinced it was “practiced responsibly in Oregon”

(Carter 2012, para.409).

Studies in the Netherlands came to similar conclusions. While these studies did uncover some problems with the regulatory regimes, they also determined that many concerns about abuse were unfounded; individuals accessing PAS tended to be younger, terminally ill cancer patients with multiple complications, not disabled or elderly individuals (Lewy 2011, p.33).

These findings have been echoed by Belgian researchers as well, who have worked off independent studies (Chambaere et al. 2010; Smets et al. 2010) as well as bi-annual reports from the Belgian Federal Control Commission (Lewy 2011, p.78)

However, not all studies agree that the available regulations are enough to prevent abuse.

Wendy Hiscox argued that several studies of the Oregon situation contained “misleading conclusions” (2007, p.205), a result (in part) of the self-reporting method used to gather information from physicians practicing PAS. In her own work, Hiscox found that many safeguards were being ignored or under-used; for example, psychiatric referrals, an oft-cited

45 Campbell herself admits that she has argued that the DWDA was “a moral mistake.” Despite capitulating on the effectiveness of safeguards in her 2008 article, she continued to affirm her position that other options should be prioritized at the end of life (p.46). 93

measure to prevent mentally ill persons from obtaining lethal prescriptions, were used in only

4% of patients prescribed lethal drugs (ibid.,, p.207).46 Jose Pereira has similarly written about the ineffectiveness of safeguards in the Netherlands and Belgium. Pereira argued that evidence of non-reporting (as high as 40%-50%) and non-requested euthanasia (20%-32%) directly undercut studies that praised the effectiveness of safeguards (Pereira 2011).47

In short, for each study in favour of legalized PAS there seems to be one opposing the practice. This phenomenon can be quickly demonstrated by a Google search for “physician- assisted suicide evidence.” The search brings up articles such as “Evidence for the Practical

Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia” (Smith 2005) and

“No ‘Slippery Slope’ Found with Physician-Assisted Suicide” (Smith 2007)48 within the top ten results. Such discord is not uncommon in social science research, but, as we saw in Chapter 4, it does complicate the task of adjudicating social evidence by requiring judges to evaluate the credibility of such studies.

However, despite dissenting and critical reports on the effectiveness of PAS regulatory regimes, the plaintiffs in Carter had extensive social evidence from numerous jurisdictions to draw from that supported their position that safeguards were working, and that the slippery slope

46 This point was later countered by Dr. Linda Ganzini who suggested the decline in psychiatric assessments was due to harmless reasons, such as hospice or palliative care facilities having confidence in their own mental health workers to perform adequate assessments (Carter 2012, para.450). 47 Interestingly, Pereira’s study was directly attacked and discredited in the paper “Pereira's attack on legalizing euthanasia or assisted suicide: smoke and mirrors” (Downie et al. 2012). The authors concluded that Pereira did not base his claims on any reliable evidence and that his paper “should not be given credence in the public policy debate” on PAS (p.133). Upon cross-examination of Pereira at trial, Justice Smith of the BC Supreme Court made similar allusions to his credibility and the quality of his research (Carter 2012 paras.337 & 664). 48 This blog post cites the study “Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in “vulnerable” groups.” (Battin et al. 2007) 94

argument was unfounded.49 These studies in favour of legalized PAS were not available to

Rodriguez and her legal team in 1993, leading to Sopinka’s conclusions that there was no evidence to support the proposition that anything other than a complete prohibition of PAS would protect vulnerable population groups. As a result, justification balance under ss.7 and 1 of the Charter tipped in favour of the ban.

The new studies were available to Justice Smith in the Carter trial, however, and she found them convincing. So did Chief Justice McLachlin at the Supreme Court. For McLachlin, the overbreadth issue, along with the related s.1 question of whether the blanket prohibition was the “least drastic means of achieving legislative objectives,” were at the “heart of the case”

(Carter 2015, paras.103-4). Applying the new social facts to the new legal issue of overbreadth, both the trial and Supreme Court concluded that the complete prohibition went too far, and was not necessary to protect vulnerable persons. As such, the ban was in accord with neither the s.7 principles of fundamental justice nor s.1 reasonable limits.50 The emergence of (arguably) successful regulatory regimes provided critical evidence to demonstrate that there were other

Charter-compliant policy options available to Parliamentarians who were concerned with protecting vulnerable persons and preventing abuses. Because of this, both Justice Smith and the

Supreme Court concluded that since it is possible, with carefully designed safeguards, to

“establish a regime that addresses the risks associated with physician-assisted death,” the blanket

49 While ten jurisdictions have legalized some form of PAS, only four have been studied extensively: Oregon, The Netherlands, Belgium and Switzerland have the oldest legalized assisted-suicide regimes and therefore have been the subjects of the majority of PAS studies. Jurisdictions like Washington, Montana and Luxemburg have only recently legalized the practice, and the legality of PAS in Colombia remains unresolved. There is little social-science data from any of these jurisdictions (Carter 2012 paras.404, 605- 620). 50 Chief Justice McLachlin has stated that it would be difficult for a law which was not in accord with the principles of fundamental justice to be justified under s.1. She reiterated this position in Carter (2015, para. 95). 95

prohibition could not pass the minimal impairment part of the s.1 analysis (Carter 2015, para.117).

Justice Smith concluded her decision by striking down the PAS ban as unconstitutional, with a 12-month delay to give Parliament time to draft new legislation. The Supreme Court applied the same remedy, making Canada the first jurisdiction to legalize PAS through a constitutional rights challenge. This “historic” judgement (MacCharles 2015) was hard won.

Going up against the hurdle of stare decisis, the plaintiffs successfully gauged that the time was right for a renewed legal challenge. Not only was public support strongly in favour of legalizing

PAS, but evidence from permissive regimes spoke to the effectiveness of safeguards at protecting vulnerable persons. From a legal standpoint, developments in s.7 jurisprudence leaned in favour of precedent reversal, and allowed the plaintiffs to use the less-controversial strategy of distinguishing. While the Appeal Court overturned the trial-level win for the Carter plaintiffs, the Supreme Court in Bedford laid out the criteria for revisitation that paved the way a high court success in Carter. The Carter plaintiffs could not have asked for a more perfect storm of winning conditions to see their case to victory.

CHAPTER 6: CONCLUSION

As a morality policy, assisted suicide has shown surprising resistance to judicial liberalization, especially in light of the high levels of public support for its legalization. This phenomenon is not unique to Canada; a blanket ban on PAS has persisted in most Western democracies despite attempts at policy reform. Thus far only five countries in the world have legalized some form of physician-assisted suicide. With the Supreme Court decision handed down on February 6, 2015, Canada became the fifth of these countries, and the first to do so through a constitutional rights challenge.

This courtroom victory for Canada’s pro-PAS movement was ground-breaking. With the judicial door closed (at least temporarily) after the narrow Rodriguez Supreme Court loss in

1993, activists lobbying for a more permissive PAS policy turned to the legislature. As Chapter 3 indicated, efforts from dedicated individuals, interest groups, Members of Parliament, and

Senators alike failed to gain any ground in the fight to reform the prohibitive PAS policy. Like most morality policies, PAS faced staunch political avoidance due to its controversial and highly divisive nature. This battle for legislative reform lasted for almost two decades, and culminated in a long-promised vote in the House of Commons. However, when Francine Lalonde’s Death with Dignity Bill lost 228-59, it was clear that “winning conditions” for PAS policy reform did not exist in the legislative arena.

Not only did the Carter decision accomplish what twenty years of Canadian political activism failed to do, but it also won an “uphill battle” (Miller 2012) against the 1993 Rodriguez precedent. As Jim Wakeford’s loss demonstrated in 2001, this was – understandably – no easy feat. We saw in Chapter 4 that stare decisis, or standing by a decision, is a critical aspect of the common law tradition. It brings consistency, transparency, and predictability to the legal system.

While adhering to precedent is not dogma – precedents can be reversed under certain well- defined circumstances – it is a highly respected practice that judges are loathe to disregard. What were the “winning conditions” for the alteration of precedent – the Charter reconsideration – that occurred in Carter? That is the animating question of this thesis.

The answer lies, in large part, in recent developments regarding the circumstances under which precedents can be revisited. As demonstrated in chapter 4, none of the traditional (and limited) justifications for precedent reversal applied in the Carter litigation, but new ones had begun to emerge, especially in the almost contemporaneous Bedford challenge to prostitution- related criminal offences. The Bedford litigation began before Carter did, and was decided by the Supreme Court of Canada before Carter was, but the two streams of litigation overlapped to a significant extent. In particular, Justice Himel’s trial decision in Bedford, which revisited and altered an earlier Supreme Court precedent upholding the prostitution laws, gave hope to the

Carter plaintiffs, and inspired the similar conclusions of Justice Smith in the Carter trial. True, the B.C. Court of Appeal rejected Justice Smith’s departure from stare decisis, but soon thereafter the Supreme Court of Canada supported Justice Himel’s Bedford judgment, setting the stage for a similar outcome in Carter.

Bedford set out two criteria for revisiting Charter precedents: 1) the presence of “new legal issues,” and 2) the emergence of new “social facts,” especially new social evidence bearing on the question whether a prima facie rights infringement can be justified as a “reasonable limit” under s. 1 of the Charter, or (in the case of a s.7 rights infringement) whether it is in accordance with the “principles of fundamental justice.”

Both criteria for Charter reconsideration were fulfilled in Carter. The requisite new legal issues included the emergence of overbreadth and gross disproportionality as violations of the s.7

“principles of fundamental justice.” As for social facts, the Carter plaintiffs insisted that the record of evidence now looked vastly different from the evidence available to the court in 1993

(Carter et al. 2011c, para.29). When Sopinka and the Supreme Court majority decided that a blanket prohibition was a justifiable limit on Sue Rodriguez’s Charter rights, they did so based on the fact that there was no consensus in Canadian society that favoured changing the status quo, a PAS ban was the norm in Western democracies, and there was no evidence to prove that a liberalized regime could accomplish the important goal of protecting vulnerable persons from abuse (Rodriguez 1993 SCC, pp.601-5,614-5). As the previous chapter outlined, new social facts strongly challenged these conclusions.

The result of these factors coming together was what BCCLA director Josh Patterson called a “historic victory” for PAS supporters (CVTNews.ca 2015). After unusual judicial reluctance to liberalize the morally charged policy, nearly two decades of failed attempts at legislative reform, and a failed legal challenge in Wakeford, the plaintiffs in Carter successfully convinced the Supreme Court to abandon its own twenty year old precedent and strike down the once-upheld blanket prohibition on physician assisted suicide.

The BCCLA and the other Carter plaintiffs were “grateful,” “absolutely delighted,” and even amazed by what Hollis Johnson called a “courageous decision” on the part of the Supreme

Court. This accolade from Johnson is not surprising, given the contentious nature of the issue and the vocal opposition to PAS legalization by both the government and certain Canadian interest groups. Conservative MP Steven Fletcher acknowledged that politicians would rather

“have their eyes scratched out” than deal with such a divisive issue, but insisted that

Parliamentarians could not shy away from the important discussion. Supportive Green Party

Leader Elizabeth May encouraged Parliament to take “immediate action” in legislating a new

PAS regime, while opponents of liberalized PAS cautioned the government to consider the

“devastating consequences” of the slippery slope launched by the Supreme Court’s decision

(CTVNews 2015). Among the mixed reactions, legal experts speculated that much like

Rodriguez before it, Carter would hardly be the final word in the PAS morality policy debate, suggesting that the hardest part was yet to come (Sossin 2015). Tom Flanagan observes that if they do not wish to repeat the experience with abortion – i.e., preserving the absence of law created by Morgentaler – opponents of PAS would be well advised to work for a legislated compromise (2015).

The full impact of the Carter decision on Canadians’ end-of-life choices has yet to be seen, though it will clearly be monumental. At the time of writing there have been no developments on policy reform, but it will certainly be an interesting and important development to follow. However, while the potential effect of Carter on healthcare policy are dramatic, personal, and immediately felt, it is not the only area to be impacted by this historic decision.

Perhaps even more interesting, at least from a legal standpoint, are the potential effects of Carter

(and by extension Bedford) on the doctrine of stare decisis as it applies to constitutional law, and

Charter cases in particular.

It is difficult to deny that the articulation the Bedford criteria, and their subsequent affirmation in Carter just fourteen months later, will change the way Canadian courts deal with revisiting precedential decisions. Until Bedford, legal observers could only speculate that the

Supreme Court was taking a progressively more relaxed approach to stare decisis (Irvine 2011,

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Muttart 2007), despite paying the necessary lip service to the doctrine.51 With the Bedford criteria, the Court essentially validated and codified new reasons for abandoning stare decisis, which apply particularly to Charter cases.52 Not only did Bedford articulate a procedure for the

Supreme Court to reconsider its own cases, but it also sanctioned trial judges revisiting precedential Supreme Court decisions. This too was affirmed in Carter. As we saw in Chapter 4, vertical stare decisis is generally much more rigid than horizontal stare decisis, making this move by the Supreme Court quite significant.

Some legal experts welcomed what they saw as the new direction for revisitation outlined in the two cases. Marion Lane, for example, argued that the clear rules would help to

“streamline” and modernize the Canadian legal system (ibid.). Other commentators saw

McLachlin’s statement that “stare decisis is not a straightjacket that condemns the law to stasis”

(Carter 2015, para.44) as evidence that the living tree approach to constitutional litigation is alive and well (Truesdale & Sigurdson 2015, Casey 2015, Bill 2015). One observer went so far as argue that a more relaxed approach to stare decisis in Charter cases reflected a recognition of the “utmost importance of the preservation of Charter rights” (Casey 2015).

Not everyone was so optimistic. Legal expert Dwight Newman worried that with Bedford and Carter, the Supreme Court had “opened an enormous Pandora’s Box” (2015). Newman’s comments echo the more ominous criticism of lawyer Albertos Polizogopoulos, who warned that

Bedford would cause “legal chaos, frivolous legal proceedings, and jurisprudential uncertainty” as all Supreme Court precedents were cast to the wayside (2014). Polizogopoulos went on to

51 In Fraser, the majority argued that the importance of the legal doctrine “cannot be overstated” (2011 para.6), and in Bedford McLachlin suggested that the “threshold for revisiting a matter is not an easy one to meet” (2914, para.44) 52 For more on this argument, see pp.65-7 above. 101

argue that with Bedford, McLachlin had deconstructed the basis of the Canadian legal system, dooming it to “years, perhaps decades” of uncertainty and incoherence (ibid.).

Do the back-to-back revisitations of Bedford and Carter indicate a stare decisis free-for- all as Polizogopoulos suggests? Perhaps, but there are already some judicial calls for caution. For example, in R. v. Caswell, a recent trial-level decision out of Alberta where the two-judge majority dismissed arguments for precedent revisitation that were based on the Bedford criteria,

Justice Brown warned that while Bedford represented a “significant new exception to stare decisis” (2015, para.36), trial courts should still exercise restraint in revisiting Supreme Court precedents. Citing Carter, Brown maintained that stare decisis remained “fundamental to our legal system” (ibid., para.39), and argued that “legal stability is not the same as legal stasis”

(ibid., para. 39). In other words, the Bedford criteria should be applied sparingly and in only the strictest sense. Brown made it clear that not all Charter precedents should be up for reconsideration, steering what legal expert Dwight Newman called an extremely wise course through the new criteria and traditional approach to stare decisis (2015).

Of course, more work will need to be done to understand the impact of Bedford and

Carter on Charter litigation in the coming years. While only preliminary conclusions can be drawn at this point, this thesis suggests that certain cases will be more likely than others to come under reconsideration. In particular, cases centred on s.7 are especially open to revisitation based on new legal issues, while cases decided on either s.7 or s.1 will be significantly impacted by any major developments in social evidence. Because Bedford and Carter shared these factors, one might consider them more “companion pieces” (Lane 2015) than the start of trend towards “open season on stare decisis” (R. v. Caswell 2015, para.37), but the same factors that contributed to the winning conditions of Carter will certainly invite other attempts at precedent reversal in

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Charter cases. Time will tell how many of these invitations will be accepted by the Supreme

Court of Canada.

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