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Precedent Revisited: Carter V Canada (AG) and the Contemporary Practice of Precedent

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Precedent Revisited: Carter V Canada (AG) and the Contemporary Practice of Precedent MCGILL JOURNAL OF LAW AND HEALTH ~ REVUE DE DROIT ET SANTÉ DE MCGILL Montreal 2016 Montréal Editor-in-Chief Rédacteur en chef BENNY CHAN English Executive Editor French Executive Editor Rédactrice exécutive pour l’anglais Rédacteur exécutif pour le français AGATHA WONG JOSHUA CROWE Executive Managing Editor Executive Strategic Planning & Solicitations Editor Executive Online Editor Rédactrice administrative Rédacteur exécutif pour la planification Rédactrice exécutive exécutive stratégique & la sollicitation en ligne KENDRA LEVASSEUR MASSIMO ORSINI SABRINA MACH Senior Editors / Rédactrices séniors Senior Managing Editors CLAIRE BENTLEY Rédactrices administratives séniors STEFANIE CARDARELLI JEANELLE DUNDAS TARA MAGILL ELIZABETH MOUNTFORD CAMILLE MARCEAU ALEXANDRA PERSAUD ELSPETH MCMURRAY EMMA SINAI Editors / Rédacteurs Managing Editors LAURA ALFORD Rédactrices administratives XIN CI SUSAN HUMPHREY GREGORY COROSKY CAITLIN MCCANN XAVIER FOCCROULLE-MÉNARD BETTY ZHANG LAURENCE GARON ALEKSANDER GODLEWSKI Senior Online Editors PHIL LORD Rédacteurs en ligne séniors TIMOTHY NESSIM LAUREN HANON ERIC SARAGOSA JEY KUMARASAMY ZACHARY SHEFMAN CHRIS LALIBERTÉ ALEX WARSHICK Online Editors Senior Strategic Planning & Solicitations Editor Rédactrices en ligne Rédacteur sénior pour la planification stratégique COLLEEN MORAWETZ & la sollicitation JENNYFER PELLETIER JENS ZENTIL Strategic Planning & Solicitations Editors Website Administrator Rédacteurs pour la planification stratégique Administrateur du site web & la sollicitation JEY KUMARASAMY LINDA AGABY CLAIRE BENTLEY Layout Editors LAUREN HANON Rédacteurs mise en page DAVID MCLEOD KENDRA LEVASSEUR SAMANTHEA SAMUELS ERIC SARAGOSA Faculty Advisor / Professeure-conseil PROF. ALANA KLEIN Advisory Board / Comité consultatif ME CHRISTINE BAUDOUIN HON. JUSTICE NICHOLAS KASIRER, JCA ME HARRIS POULIS PROF. ANGELA CAMPBELL PROF. LARA KHOURY PROF. MARIE-CLAUDE PRÉMONT PROF. PIERRE DESCHAMPS PROF. ROBERT KOURI PROF. MARGARET SOMERVILLE MR. DEREK J JONES PROF. ANTONIA MAIONI PROF. DANIEL WEINSTOCK ISSN: 1920 – 4825 (PRINT EDITION), 1920 – 4833 (ONLINE EDITION) MCGILL JOURNAL OF LAW AND HEALTH ~ REVUE DE DROIT ET SANTÉ DE MCGILL VOL. 10, NO. 1 2016 SPECIAL ISSUE ON CARTER V CANADA (AG) EDITOR’S NOTE ......................................................................... Benny Chan v ARTICLES CARTER, MEDICAL AID IN DYING, AND MATURE MINORS ................................................. Constance MacIntosh S1 JUDGING THE SOCIAL SCIENCES IN CARTER V CANADA (AG) ...................................................................... Jodi Lazare S35 A MISSED OPPORTUNITY: AFFIRMING THE SECTION 15 EQUALITY ARGUMENT AGAINST PHYSICIAN-ASSISTED DEATH ........................ Maneesha Deckha S69 PRECEDENT REVISITED: CARTER V CANADA (AG) AND THE CONTEMPORARY PRACTICE OF PRECEDENT ..................................................................Debra Parkes S123 MCGILL JOURNAL OF LAW AND HEALTH ~ REVUE DE DROIT ET SANTÉ DE MCGILL EDITOR’S NOTE Benny Chan* The Supreme Court of Canada’s rendering of its decision in Carter v Canada (AG) on 6 February 2015 will long be remembered as a watershed moment in Can- adian legal history. In one fell swoop, all nine members of the Supreme Court of Canada declared the Criminal Code prohibitions on assisted dying to be in contra- vention of Section 7 of the Canadian Charter of Rights and Freedoms, and found that these contraventions could not be justified under Section 1. The Supreme Court gave the government one year, later extended by four months, to amend the Crim- inal Code to allow for assisted dying in limited circumstances. Following a series of advisory panels and parliamentary hearings, the government’s proposed legislation on medical assistance in dying (Bill C-14), which specifies the conditions under which an individual can legally access assisted dying, received royal assent on 17 June 2016. The Supreme Court’s decision in Carter remains to this day the only instance where the decriminalization of assisted dying was brought about by a judi- cial ruling rather than by an act of legislation. Now that the dust has settled on the specifics of Canada’s new assisted-dying regime, the time is opportune to return to the Supreme Court’s reasoning in Carter and to examine the nuances, possibilities, and tensions that lie within this extraordinary decision. The four articles in this spe- cial issue of the McGill Journal of Law and Health seek to do just that. The practice of extending assisted dying to minors is controversial, even for jurisdictions that have allowed it such as Belgium. Critics of assisted dying have long brandished the possibility of a “slippery slope” as an argument against legal- izing the practice. One instantiation of the argument evokes the concern that if we allow adults access to assisted dying, there would be nothing to stop us from allowing the same access to children. The Supreme Court, perhaps sensitive to con- cerns of such slippage, ruled that the unconstitutionality of the impugned provision applies only to adults. The Court was silent, however, on who exactly constitutes an “adult.” Despite calls against legislating a strict age limit in response to the Carter decision, Parliament decided to limit access to adults over the age of 18. As Constance MacIntosh argues in her contribution to our special issue, there remains unresolved Charter issues with regard to Parliament’s imposed age limit. The Court ruled in the seminal case of AC v Manitoba that mature minors under the age of 18 had the right to refuse receiving – or request the withdrawal of – life- sustaining treatment pursuant to Section 7. MacIntosh notes that both Carter and AC “involved fact situations where the requested decision was expected to result in the death of the requestor.” Furthermore, both cases required the Court to assess * Editor-in-Chief, McGill Journal of Law and Health, Vol. 10. vi MCGILL JOURNAL OF LAW AND HEALTH Vol. 10 REVUE DE DROIT ET SANTÉ DE MCGILL No. 1 whether the potential presence of vulnerability might undermine autonomous deci- sion making. Despite parallels in the issues addressed and reasoning employed by the Court in these two judgments, Parliament imposed an absolute age restriction with regard to assisted dying that the Court refused to impose in AC with regard to the refusal and withdrawal of life-sustaining treatment. With this being the current state of the law, MacIntosh concludes that Parliament’s complete exclusion of ma- ture minors from accessing assisted dying will run afoul of Section 7. If the Belgian experience is any indication of things to come, it is only a matter of time before courts are forced to address requests for assisted dying by minors. In this sense, MacIntosh’s analysis of the legal issues may prove to be prescient. One noteworthy aspect of the Supreme Court’s decision in Carter is the amount of the social science evidence involved. All parties to the dispute acknowledged that the constitutionality of the criminal prohibitions on assisted dying hinged in large part on the empirical question of whether there can be adequate safeguards to protect vulnerable people from abuse. There have long been concerns of whether judges have the requisite competence to settle such factually complex questions, especially when the stakes are so high. Tackling this concern head-on, Jodi Laz- are’s contribution to the special issue consists in a detailed examination of Justice Lynn Smith’s treatment of the social science evidence in her trial decision. Lazare foregrounds her analysis against a discussion of the dangers that flow from sad- dling judges with large volumes of complex and conflicting evidence. The risk here is that judges will admit too much potentially unreliable expert testimony and/or misinterpret valid evidence. As appellate judges are tethered to findings of fact at the trial level, any mishandling of expert evidence by the trial judge may cause ir- reparable damage. Despite these concerns, judges are not completely hopeless when it comes to social science evidence. Indeed, Lazare argues that Justice Smith’s trial decision in Carter offers a master class in how to avoid the tendencies that so many judges fall prey to when faced with such evidence. Justice Smith was adept at identifying and mitigating the risks of unreliable expert testimonies. She was able to see through impressive-sounding credentials, assess the validity of different social science methodologies, detect expert bias, and assign proper weight to expert testimony. While Lazare’s article will likely not be the last word on Justice Smith’s handling of the social science evidence in Carter, it succeeds in challenging a commonly-held view of judges as hopelessly inept interpreters of social science evidence. One glaring way in which the Supreme Court decision deviated from the trial decision is the absence of a Section 15 equality analysis. The Supreme Court, hav- ing found that the impugned prohibitions violated Section 7, ruled that it was un- necessary to undertake a Section 15 analysis. Maneesha Deckha, in her contribution to the special issue, laments this as a missed opportunity. Justice Smith’s appli- cation of the substantive equality model deserves attention for the way in which it “exhibits a respect for the agency of those in vulnerable positions because of their physical health” and for its analysis of the “diverse perspectives within the disability community.” Deckha’s article thus draws our attention to the egalitarian 2016 EDITOR’S NOTE vii
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