Live from the SCC: Extending Time to Respond to Carter v Canada

On February 6, 2015, the Supreme Court of Canada (“SCC”) handed down its decision in Carter v Canada (Attorney General), [2015] 1 SCR 331 [Carter] – a historic ruling wherein the criminal prohibition on physician assisted suicide was declared unconstitutional, inconsistent with section 7 of the Charter.  The declaration of invalidity was suspended by one year, and is presently set to expire on February 6, 2016 – at which point sections 14 and 241(b) of the Criminal Code, RSC 1985, c C-46 will be void, in accordance with the following framework:

[126] We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter.  To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons [emphasis added].

[127] The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.  ‘Irremediable,’ it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.  The scope of this declaration is intended to respond to the factual circumstances in this case.  We make no pronouncement on other situations where physician-assisted dying may be sought [emphasis added].

[128] We would suspend the declaration of invalidity for 12 months.

Since that decision, however, much has happened.  Not only has Quebec enacted legislative response to Carter – which was quickly followed by an unsuccessful constitutional challenge before the Quebec Court of Appeal (“QCCA”) in Quebec (Attorney General) v D’Amico, 2015 QCCA 2138 [D’Amico] – but the Conservative government, which was in power at the time Carter was decided, was replaced in November 2015 by Prime Minister Trudeau’s new Liberal government.  Without any legislative response to the Carter ruling, the Attorney General for Canada appeared once more before the SCC on January 11, 2016 in Lee Carter, et al v Attorney General of Canada, et al [Carter v AG] – this time, requesting a six-month extension to the suspended declaration of invalidity.  They were supported in oral submissions by the Attorney General for Ontario.  The Attorney General for Quebec, by contrast, sought an exemption from the proposed extension, given that its Province’s remedial legislation has come into force on December 10, 2015, and has survived constitutional scrutiny by the QCCA in D’Amico.

The importance of this hearing cannot be understated, for what is a right (in this case, the right to assisted dying in certain contexts) without a remedy?  Indeed, the SCC was given the tough task of balancing the rights of grievous and irremediably ill patients with the importance of ensuring that parliament and the provincial legislatures bring into effect a “carefully designed and monitored response” to the newly recognized right to physician assisted suicide in certain contexts.

Submissions by the Attorney General for Canada

Although acknowledging that the Federal government’s request may be unusual, Mr. Robert Frater reasoned that the six-month extension ought to be granted in this case, given the numerous and complex issues that go to life-and-death decisions, as well as the need for a coordinated and democratic approach from both the federal and provincial governments.  The request, it was suggested, “is based on protection of the public and the rule of law… and ensuring that there’s a comprehensive scheme in place.”

Mr. Frater was not given an easy time by the particularly active bench, however, which challenged him on numerous bases.  Among others, Justice Abella asked about the relationship between the request for extension and the fact that a province may or may not have developed its own responses to the health issues involved; while Justice Karakatsanis pointed out that, although the two levels of government would likely be involved in legislating on this matter, the decision on this point did not require it.  In response, however, Mr. Frater noted the necessity for the Federal government to bring some clarity to the Criminal Code in delineating what conduct is permissible and what is impermissible, even if the provinces would retain some scope for acting.  Moreover, and more interestingly, he was pressed quite heavily by several judges (namely by Justice Moldaver) regarding the Federal government’s position on Quebec’s requested exemption.  On this point, Mr. Frater stated no opposition to it (despite deeming it unnecessary), on the basis of the protection of the public and the rule of law.

The bench later raised the issue of individual exemptions (upon application to a Superior Court) during the proposed six-month period of suspended validity.  Justice Abella in particular was quite vocal on this issue, questioning the harm in allowing individuals to access physician assisted suicide in accordance with the SCC’s remedial framework (as set out at paragraph 127 of Carter) where there is consent, satisfaction from a physician, and an order to that effect from a superior court judge.  Supporting her contention, Justice Abella referenced the decision in R v Swain, [1991] 1 SCR 933, where the SCC sanctioned individually tailored exemptions for particular applicants in remedying unconstitutional legislation.  With a degree of difficulty in responding, Mr. Frater suggested that this would not be the “carefully designed and monitored scheme” that the SCC contemplated in Carter.

Before Mr. Frater concluded, Justice Côté also questioned whether the joint parliamentary committee on assisted dying would be able to report its findings to the government by February 26, 2016; Mr. Frater’s response was that “realistically, they’re going to have to meet that deadline.”

Submissions of the Provincial Attorneys Generals

The Attorney General for Ontario, represented by Ms. Malliha Wilson, made oral submissions in support of the Federal government’s request.  Her central concern was the absence of a Criminal Code amendment, which has the effect of creating uncertainty as to what the provinces can and cannot do.  This, she argued, makes the drafting of remedial legislation significantly more difficult, thereby necessitating an extension of time to ensure that the remedial laws are neither underinclusive nor overinclusive.  Ms. Wilson specifically pointed to several central concerns with which the provinces are grappling, including age eligibilities, safeguards, access, and consent.  When asked about Ontario’s position on the Quebec exemption by Justices Wagner and Cromwell, Ms. Wilson stated that the Province of Ontario is supportive of it, and that such an exemption is “for clarity purposes probably,” given the QCCA’s ruling in D’Amico.

For the Attorney General for Quebec, Mr. Jean-Yves Bernard was tasked with convincing the bench to grant Quebec an exemption to any extension that may flow from the decision of the SCC in the present matter.  Mr. Bernard’s main caution was against the potential uncertainty that may flow from the refusal to grant this exemption, particularly in light of the Province’s democratically enacted (and now in-force) assisted dying legislation, as well as the force of the D’Amico decision.  Pointing to the fact that the Criminal Code provisions continue to exist until February 6, Justice Cromwell asked whether Quebec was seeking a retroactive exemption from the suspension as of December 10, 2015 – to which counsel replied in the negative. As from Quebec’s perspective, the law has to do with medical care, to which modifications to the Criminal Code on physician assisted suicide would not apply.  Indeed, Mr. Bernard downplayed the role of the Federal government in its criminal law power, positing that the bulk of the work needs to be done by the provinces.

Submissions of Joseph Arvay on Behalf of the Appellants

Mr. Joseph Arvay appeared on behalf the Appellants in the Carter decision to oppose the extension.  His submissions were by far the most entertaining with several notable back-and-forth exchanges with the justices, as well as a jab at both the Harper and Trudeau governments.  With reference to the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying Report, Mr. Arvay began by questioning the necessity of a legislative response from the decision in Carter by the Federal government, noting that any action taken that would narrow the SCC’s holding in that case would be unconstitutional.  For this reason, he contended that any action taken could only have the effect of expanding the Carter ruling by offering more permissive guidance.  Indeed, in the absence of any Parliamentary response, Mr. Arvay suggested that the default would be the remedial framework set out in paragraph 127 of Carter, thereby calling into question the need for a legislative response in the first place.

Justice Wagner took that opportunity to press counsel on whether he believed that the SCC should not have granted the suspension in the first place.  Mr. Arvay admitted that he did, but suggested to the bench that there were many who did not.  Shortly thereafter, Justice Moldaver further took issue with the submission that Parliament can only expand the Carter ruling, suggesting that the Federal government in authorizing physicians to kill people “may want judicial approval first [or]… to put in measures that ensure so far as possible that we are not killing people who really ought not to be killed” – or at least take the opportunity to properly define “grievous” and “irremediable” for the purposes of Charter compliance.  After reminding the Court once more that the legislature’s response could only be more permissive than the default Carter framework, Mr. Arvay advised of the dangers inherent in bright-line legislative definitions, suggesting instead that the interpretation and implementation of the above terms should be contextualized on a case-by-case basis.

Looking at the other side of the equation, Mr. Arvay reminded the bench of those Canadians who continue to live in horrible suffering (or in effect, may be at risk of pre-mature death), eagerly awaiting the time that they can act on their right to die. He also put to the Court the difficult decision of determining whether the Federal government’s request trumps the suffering and pre-mature death of those terminally ill patients (see Carter, para 1). In anticipation of a floodgates argument, however, Mr. Arvay was careful to note that “there is not going to be a rush to the doctors’ offices to die on February 6; most people don’t want to die, most physicians – all physicians – will be reluctant to accede to the request unless a compelling case is made.  There is no fear that refusing the extension is going to put the public in harm; it’s totally fanciful.”

Responding to Justice Abella, Mr. Arvay submitted that, should the proposed extension sought be granted (an order which he adamantly opposed), there should be an individual interim exemption available to those who meet the qualifications at paragraph 127 of the Carter decision, in the event the suspension was to be extended.  He questioned the logic in granting the proposed exemption to the Province of Quebec, and denying it to all other Canadians – specifically as Quebec’s legislative framework largely mirrors that which was set out in Carter – in making his case for individual exemptions upon application to a judge.

Of course, a hearing like this would not be complete without some political reference. Shortly before closing, Mr. Arvay took the opportunity to criticize both the Harper and the Trudeau regime in their response (or lack there of) to the physician assisted suicide ruling, stating that:

“Obviously, this court has to take into account that this government has been incredibly dilatory in responding to this Court’s decision, and that’s surely the case with the previous government but we have real concerns with the present government too.  The worry we have is that the present government might seem to be almost pursuing this issue in the same way as this past government, which is not how to implement the carter decision, but whether to.  […] We’re accused of naivety about the difficulties of the legislative process.  […] If I’m naïve, it’s naïve in thinking that the Department of Justice has read the Carter decision and had advised the Minister of Justice that ‘this is all you have to do – the work has been done!’”

What to Look Out For

The SCC unsurprisingly took this matter on reserve, with judgment and written reasons to follow at some unspecified point in the future.  However, we should not anticipate this decision to be handed down in several months time with the suspension of invalidity due to expire in only 26 days time. The nine-judge bench will likely sense the urgency, and deliver a verdict before long.  The comments from the bench suggest that the extension is the more likely option, despite the battery of questions directed at Mr. Frater.