Affidavit of Laurie Beachell in Carter Case

S.C.C. Court File No. 35591

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVI LIBERTIES ASSOCIATION and GLORIA TAYLOR
APPLICANTS
(Respondents/Cross-Appellants)

AND:

ATTORNEY GENERAL OF CANADA
RESPONDENT
(Appellant/Cross-Respondent)

AND:

ATTORNEY GENERAL OF BRITISH COLUMBIA
RESPONDENT
(Appellant)

AFFIDAVIT OF LAURIE BEACHELL

I, Laurie Beachell, National Coordinator of the Council of Canadians with Disabilities, in the City of Winnipeg, in the Province of Manitoba, MAKE OATH AND SAY AS FOLLOWS:

1. I am the National Coordinator of the Council of Canadians with Disabilities ("CCD") and as such have personal knowledge of the matters described in this affidavit, save and except for matters identified as being on information and belief, in which case I verily believe them to be true.

2. I swear this affidavit on behalf of the Council of Canadians with Disabilities in support of a motion to intervene in the application for leave in the above noted matter.

Council of Canadians with Disabilities (CCD)

3. CCD is a national not-for-profit umbrella association that represents people with disabilities. CCD was founded in 1976. It consists of nine provincial member groups, seven national disability organizations and one affiliate member. CCD is accountable to a membership of several hundred thousand Canadians with disabilities, and is administered by a Council of Representatives, which includes one designate from each of its seventeen member groups.

4. CCD was established by persons with disabilities to create a voice for Canadians with disabilities. Its goal is to promote the full participation of, and equal opportunities for, persons with disabilities in Canadian society. CCD's mandate includes a wide range of advocacy to improve the status of persons with disabilities, providing a democratic structure for them to voice their concerns, law reform and policy development, and undertaking test case litigation under the Canadian Charter of Rights and Freedoms and human rights legislation in support of persons with disabilities. Our specific goals are:

• to improve the status of persons with disabilities;
• to promote self-help for persons with disabilities;
• to provide a democratic structure for persons with disabilities to voice
• concerns;
• to monitor federal legislation affecting persons with disabilities;
• to promote policies determined by persons with disabilities in Canada;
• to share information and co-operate with disability organizations in Canada and in other countries; and
• to establish a positive image of persons with disabilities in Canada.

5. CCD's goal is to promote equality for persons with disabilities in all aspects of Canadian society, including before courts and tribunals. To this end, CCD engages in law reform and policy development work, and undertakes test case litigation in support of persons with disabilities under human rights legislation and the Canadian Charter of Rights and Freedoms. CCD has been actively sought out and consulted by the government of Canada on a variety of issues concerning the rights of persons with disabilities, including amendments to the Canadian Human Rights Act and the development of the United Nations Convention on the Rights of Persons with Disabilities.

6. CCD has been granted leave to intervene in numerous cases before the Supreme Court of Canada:

• Ontario Human Rights Commission v. Simpson Sears, [1985] 2 S.C.R. 536 and Bhinder v. Canadian National Railways, [1985] 2 S.C.R. 561 (bona fide occupational requirement as a defence to discrimination);
• Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (discrimination analysis under s. 15 of the Charter);
• Canadian Council of Churches v. Her Majesty the Queen and the Minister of Employment and Immigration, [1992] 1 S.C.R. 236 (s. 15 Charter rights of persons outside Canada);
• Weatherall v. Canada (AG.), [1993] 2 S.C.R. 872 (ss. 7,15(l), and 15(2) of the Charter in the context of employment and services in prisons);
• Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519 (Charter rights of a person with a disability to assisted suicide);
• Battlefords and District Co-operative Ltd v. Gibbs, [1996] 3 S.C.R. 566 (discrimination against persons with mental disabilities under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.I);
• Brant County Board of Education v. Eaton [1997] 1 S.C.R. 241 (s. 15 of the Charter and integrated education for students with disabilities);
• Eldridge v. B.C. (A.G.), [1997] 3 S.C.R 624 (s. 15 Charter right to sign language interpreters to ensure access to health care services);
• BC Superintendent of Motor Vehicles v. British Columbia Council of Human Rights, [1999] 3 S.C.R. 868 (application of the duty to accommodate to the issuance of a driver's license to a person with a disability, under the British Columbia Human Rights Code, R.S.B.C. 1996, c.210);
• Granovsky v. Minister of Employment and Immigration, [2001] 1 S.C.R. 703, 2000 SCC 28 (s. 15 and the ground of disability in the context of the Canada Pension Plan, R.S.C. 1985, c. C-8);
• Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37 (relationship between ss.15(1) and(2) of the Charter);
• R. v. Latimer, [2001] 1 S.C.R. 3,200I SCC 1 (the application of s. 12 of the Charter to an accused convicted of second degree murder of a child with a disability);
• Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] I 3 S.C.R. 657, 2004 SCC 78 (s. 15 of the Charter and access to therapy for children with autism);
• Newfoundland (Treasury Board) v. NA.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66 (ss. 15 and 1 of the Charter in the context of pay equity);
• Honda Canada Inc. v. Keays, [2007] 1 S.C.R. 650, 2008 SCC 39 (application of human rights principles in the employment law context);
• R. v. Gilles Caron, [2011] 1 S.C.R. 78 (superior court's jurisdiction to order interim costs in litigation in provincial court);
• Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (authority of human rights tribunal to order costs);
• Her Majesty the Queen v. D.A.L, [2012] 1 S.C.R. 149, 2012 SCC 5 (impact of s. 16 of the Canada Evidence Act on the rights of persons with intellectual disabilities to testify in court);
• Frederick Moore on behalf of Jeffrey P. Moore v, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education et al., (B.C.) (SCC Docket: 34040134041) (equal access to public education services for students with disabilities who require accommodation).

7. CCD has also been granted intervener status before other courts in the following cases:

• Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C.R. 361, 2002 FCT 727 (application of ss. 7 and 1 5 of the Charter to the admission to Canada of immigrants with a medical disability);
• Wignall v. Canada (Department of National Revenue (Taxation)), [2004] I F.C.R. 679, 2003 FC 1280 (judicial review of the tax system's treatment of a disability-support bursary and the duty to accommodate); and
• McKay-Panos v. Air Canada, [2006] 4 F.C.R. 3, 2006 FCA 8 (definition of disability under the Canadian Transportation Act, S.C., 1996, c. 10).

8. CCD was the initiating party in the proceeding that resulted in the Supreme Court of Canada's decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2O07 SCC 15 ("VIA Rail"). ln VIA Rail, the Supreme Court of Canada ruled in favour of CCD. CCD was also one of the initiating parties in Air Canada v. Canada (Canadian Transportation Agency), CTA Decision No. 6-4T-42008 (leave to appeal refused by the Federal Court of Appeal (2008) FCA 194 and leave to appeal to the Supreme Court of Canada denied 2008 S.C.C.A. No. 322), in which the Canadian Transportation Agency ruled in favour of a policy of One Person/One Fare for persons with disabilities.

CCD's Intervention at the British Columbia Court of Appeal

9. CCD and Canadian Association for Community Living ("CACL") were granted joint intervention status at the Court of Appeal of British Columbia ("BCCA") in this matter. The scope of their intervention was severely limited by the order of Justice Neilsen. Attached hereto as Exhibit A is a true copy of the joint factum submitted by CCD and CACL on appeal.

10. CCD and CACL were actively considering intervening in a contemporaneous case on a comparable issue before the Quebec courts called Leblanc. I was aware, based on information which I verily believe from Catherine Frazee, who submitted affidavit evidence in both cases, that the record in Leblanc was more complete than the record in Carter. CCD and CACL therefore reasonably expected that both cases would ultimately be jointly heard by this Court. The Leblanc application was withdrawn prior to the argument of Carter in the British Columbia Court of Appeal, which means this Court will not have the benefit of a more complete record.

11. Based in part on the withdrawal of the Leblanc application, and also influenced by the decision of the Attorney General of Canada ("Canada") not to bring a motion to adduce new evidence or to advise the Court on the potential impact of the evidence it was denied the opportunity to call, CCD and CACL instructed counsel to submit orally that it would be unjust for an issue of such consequence for persons with disabilities to be decided on the basis of an incomplete record. In particular, CCD and CACL were concerned that the record did not adequately consider the dangers striking down the Criminal Code prohibitions on assisted suicide and euthanasia would create for persons with disabilities.

CCD's Motion to Intervene on the Application for Leave

(i) CCD's Position and Submissions Regarding Leave

12. It is the position of CCD, jointly with CACL, that leave to appeal should be denied in this case. CCD adopts the joint submissions, attached as Exhibit B to the affidavit of Michael Bach in the joint motion to intervene, in support of their position.

(ii) The CCD's Interest in the Application for Leave

CCD has a Real and Direct Interest at Stake Different from Other Parties

13. As mentioned above, CCD has a long history of advocacy on behalf of persons with disabilities. Through this work, CCD has gained in-depth knowledge of the prejudices faced by persons with disabilities, both generally and in relation to assisted suicide.

14. CCD has specific expertise regarding assisted suicide. It was granted intervener status by this Court in Rodriguez. Following its participation in that case, it created a Committee designated to conduct a more in depth review of the issue, including commissioning legal research, and further consideration of experience in jurisdictions where assisted suicide was legalized. Adhering to its democratic processes, CCD emerged with a more considered position on the issue: supporting the existing legislation and withdrawing its acceptance of a constitutional exemption in judicially confirmed exceptional circumstances. CCD reached the conclusion that even a narrow exemption posed a real threat to persons with disabilities. Since the Supreme Court of Canada' s decision in Rodriguez, CCD has been actively engaged in making representations to Parliamentary, Senate and legislative committees considering the issues of palliative care) euthanasia and assisted suicide. CCD supports the decisions of the federal government to retain a prohibition on assisted suicide and euthanasia, which was reached after careful consideration of the views of Canadians and in the best democratic traditions of this country.

15. On account of its advocacy experience, CCD understands the importance of a full factual record in a determination of rights. Through CCD's contributions, representation and expertise in both court and public policy forums, it has informed courts and policy makers of the dangers that legalized assisted suicide poses to persons with disabilities.

16. This experience has convinced CCD that persons with disabilities will be disproportionately disadvantaged by a re-evaluation of the legality of assisted suicide, based on a factual record that is incomplete. As mentioned before, these debates concern life and death decisions affecting persons with disabilities. As such they must be made cautiously, and on the basis of as much information as possible. CCD is deeply concerned that a decision by the trial judge to impose an expedited procedure in this case resulted in an incomplete record. In particular, CCD does not believe that Canada was afforded a just or sufficient opportunity to call evidence concerning the impact legalizing assisted suicide and euthanasia would have on persons with disabilities. Having recently participated in an open and democratic legislative process in which these issues were considered from every possible perspective, CCD is deeply concerned that any judicial intervention be based on consideration of the best available evidence, and following consideration of all intertwined public policy issues. CCD is of the view that this did not occur in this case.

17. As such, CCD has a real interest in the outcome of the leave application, which may lead to a re-determination of the rights of persons with disabilities. This implicates the CCD's mandate, as well as the individuals and interests it represents.

CCD's Relevant and Necessary Input

18. CCD has received no confirmation that Canada, or another party with standing, will identify, the deficient record in response to the leave application. CCD believes it is absolutely crucial that this point - and the related implications to persons with disabilities that the deficient record creates - be raised at the leave stage, as it is relevant.

19. Without confirmation that this point will be raised by a party with standing, another party, representing the interests of persons with disabilities prejudiced by the inadequacy of the record, should be permitted to make the argument. CCD and CACL, with their broad based representation, expertise and history before the courts, are well-equipped to do so.

CCD's Input is Different and Useful

20. CCD brings a unique perspective to the application for leave to appeal. CCD is the only national cross-disability organization representing groups and individuals with a variety of different disabilities in Canada. Because its purpose is to secure equality for persons with diverse disabilities in all aspects of society and law, including in health care and social supports, CCD is best able to raise concerns that, if leave to appeal is granted in an action with a deficient factual record, the re-opening of the debate around doctor assisted-suicide will undermine and threaten the lives of people with disabilities. Along with CACL, it may be the only party to raise this argument.

21. CCD, given its experience advocating for persons with disabilities on the issue of assisted suicide, is also able to provide unique insights into the implications of a deficient factual record on this appeal for persons with disabilities. As such, CCD believes that no other party can provide this perspective with the same level of experience and expertise that CCD can.

22. The CCD's submissions point out sources that are missing from Canada's evidentiary record, which may be useful to understanding the harms posed by assisted suicide to persons with disabilities. This is another contribution that sets CCD's submissions apart from others.

23. CCD believes that all of this unique information is useful for a determination of whether leave to appeal is appropriate in this case.

Prejudice to CCD or Others

24. CCD cannot see how its intervention will prejudice other parties in the application for leave. CCD is not seeking costs on its motion to intervene, nor does it seek to delay the hearing of the leave application.

25. CCD, on the other hand, will be prejudiced if it cannot provide its perspective, jointly with CACL, on the leave application.

26. CCD intervened at the BCCA, and in Rodriguez before it, because the Criminal Code prohibition on assisted suicide is of fundamental importance to the community of persons with disabilities. As representatives of persons with disabilities, CCD has a strong interest in the jurisprudential principles and the legal analytical issues that lie at the heart of the decision to which leave to appeal is being sought, in particular, the protection of life.

27. If leave to appeal is granted on a deficient record, the harms to persons with disabilities, in relation to assisted suicide, will not be fully weighed. The individuals, rights and interests CCD represents will be prejudiced, unless the CCD has an opportunity to voice these concerns.

Conclusion

28. For all of the above reasons, CCD, jointly with CACL, has taken the unusual step of bringing a motion to intervene on the leave application, to ensure that this Court has full insight into the deficient and unbalanced factual record, and the resulting impact on persons with disabilities, in assessing whether to grant leave to appeal on this application.

29. CCD requests that it be allowed to intervene, jointly with CACL, on the leave application, without prejudice to its right to apply as an intervener in the appeal, if leave is granted.

30. CCD does not seek an award of costs on this motion and requests that there be no costs awarded against it.

31. I make this affidavit in good faith and for no other or improper purpose.

SWORN BEFORE ME at the City of Winnipeg, on November 21, 2013.

Dean Hfichert
A Notary Public in and for the Province of Manitoba

LAURIE BEACHELL