Live from the SCC: Carter v Canada
Early on a rainy morning, I arrived to the Supreme Court of Canada and was lucky enough to be able to watch the Carter v Canada (Attorney General) [Carter] appeal. In this case, several plaintiffs challenged the Criminal Code provisions prohibiting physician assisted suicide and voluntary euthanasia under sections 7 and 15 of the Charter. This case is notable, as in Rodriguez v British Columbia (Attorney General),  3 SCR 519 [Rodriguez], a case with almost the same circumstances as this one, the Court upheld the impugned legislative provisions in a split decision. Justice Sopinka, writing for five members of the Court, held that the laws infringed Ms. Rodriguez’s right to security of the person, but that the infringements did not contravene the principles of fundamental justice.
In Carter, the trial judge, Justice Lynn Smith, found in favour of the plaintiffs. She held that section 7 was infringed and that this could not be justified under section 1 of the Charter. In her view, Rodriguez did not constrain her, as section 7 developed much and the evidence before her was markedly different. However, in a 2-1 decision, the Court of Appeal for British Columbia overturned this decision, holding that Rodriguez was binding. While a future post will deal with the disposition of the appeal, in this post I hope to highlight some of the things that the parties emphasized in their submissions, issues the justices focused on in their questions, and reactions from the bench and audience.
The Key Terms
Early on in the hearing, the Court spent time distinguishing between terms such as assisted suicide (patient gives the final act), physician assisted suicide (physician gives the final act), and the broader term of physician assisted dying. For the appellants, Joseph Arvay was also clear to distinguish between different types of euthanasia, noting that he only supported voluntary euthanasia.
One of the key questions in this case is whether Rodriguez was binding on the trial judge. In the appellants’ view, Justice Smith was correct to hold that the section 7 jurisprudence had developed and the social and legislative facts were sufficiently different. Intervening on the side of the respondents, the Attorney General of Ontario discussed the importance of setting a clear standard for stare decisis. Upon giving his overview, the Chief Justice asked whether counsel was going to tell the Court that stare decisis was an unwritten constitutional principle. Counsel said yes, that it was both unwritten and written, drawing laughs from the bench and the audience.
The Principles of Fundamental Justice
Another notable interaction with the bench occurred when Justice Rothstein asked Mr. Arvay a question relating to the principles of fundamental justice. Referencing the Court’s jurisprudence in Canada (Attorney General) v Bedford,  3 SCR 1101, he asked how a law could be both overbroad and grossly disproportionate. In Bedford, the Court defined the former term as a law that is connected to the state’s objective but affects or restricts non-related conduct, while the latter term was defined as a law that is too extreme in promoting the government’s objective.
Mr. Arvay responded by arguing that he only needed to prove that the Criminal Code provisions were either overbroad or grossly disproportionate, not both. Justice Rothstein then countered by stating that the Court, however, had to determine which it was. Mr. Arvay told the court that he could help, drawing some laughs from the bench and the audience.
Mr. Arvay’s Costs Submission
Mr. Arvay finished his submissions by asking the Court to award the appellants special costs on this appeal. In his argument, he joked that working on cases such as this pro bono was not the best business model.
Conflating Tests – The Attorney General of Canada’s Submissions
All in all, I found that the bench was a bit confused throughout the Attorney General of Canada’s submissions. Robert Frater began by laying out the Attorney General’s position that Rodriguez was good law and binding on Justice Smith, and that in any case the section 7 and 15 of the Charter challenges cannot succeed. He then discussed the history and the purpose of the provisions surrounding suicide. He argued that as attempted suicide was decriminalized, parliament recognised that there were better strategies than criminal sanctions to discourage suicide. Notably, in regards to the section 15 argument, Justice Abella got the Attorney General to concede that the current legislative scheme had the effect of differential treatment against those who cannot commit suicide on their own (as physician-assisted suicide is illegal).
It is these sorts of discussions about the purpose and effect of the laws that often left the bench asking where Mr. Frater and his co-counsel Donnaree Nygard were in their submissions in regards to the legal tests for sections 7, 15, and 1 of the Charter. In fact, Chief Justice McLachlin asked Mr. Frater—near the beginning of his submissions—where he was in his section 7 analysis, as he did not seemingly discuss violations to life, liberty, and security of the person first. In my view, the Attorney General may have been able to frame and organize their oral arguments in a way that more clearly fit into the relevant Charter legal tests, as this would have made it easier for the bench to follow.
As expected, after all the parties and interveners provided their oral submissions, Chief Justice McLachlin announced that the decision was being taken under reserve. The hearing was a pleasure to watch, and given the seriousness of the issue, there were still moments where quips form the justices drew laughs in the courtroom.