Factum in the Carter Case

Court File No. CA040079

COURT OF APPEAL

ON APPEAL FROM: THE ORDER OF THE HONOURABLE MADAM JUSTICE SMITH OF THE SUPREME COURT OF BRITISH COLUMBIA PRONOUNCED JUNE 15, 2012

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR
RESPONDENTS
APPELLANTS ON CROSS APPEAL
(Plaintiffs)

- and -

ATTORNEY GENERAL OF CANADA APPELLANT
RESPONDENT ON CROSS APPEAL
(Defendant)

FACTUM OF THE INTERVENORS, THE COUNCIL OF CANADIANS WITH DISABILITIES AND THE CANADIAN ASSOCIATION FOR COMMUNITY LIVING

Attorney General of Canada,
Appellant / Respondent on Cross-Appeal

Donnaree Nygard
Department of Justice Canada
900 – 840 Howe Street
Vancouver, BC V6Z 2S9
Tel: 604.666.3049
Fax: 604.775.5942

Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor,
Respondents / Appellants on Cross-Appeal
Joseph J. Arvay, Q.C. and Alison M. Latimer
Arvay Finlay
1350 – 355 Burrard Street
Vancouver, BC V6C 2G8
Tel: 604.689.4421|Fax: 1.888.575.3281

-and-

Sheila M. Tucker
Davis LLP
Suite 2800 Park Place
666 Burrard Street
Vancouver, BC V6C 2Z7
Tel: 604.643.2980|Fax: 604.605.3781

PART 1: STATEMENT OF FACTS

The Intervenors

1. The Council of Canadians with Disabilities (“CCD”) is a national umbrella organization representing persons with disabilities in Canada. It is accountable to a membership of several hundred thousand members through its nine provincial, seven national disability and one affiliate member organizations.

2. The Canadian Association for Community Living (“CACL”) is a national not for profit association with a long-standing history of defending the rights and advocating for the interests of persons with intellectual disabilities. It is composed of ten provincial and three territorial associations, with over four hundred local associations and more than forty thousand members.

3. The CCD and the CACL represent a broad spectrum of persons with disabilities, including people with physical, intellectual and/or mental disabilities. Some have been disabled from birth; and the others have acquired their disabilities during their lifetimes. Many are now, or have at some point been labelled “terminally ill” by a physician. Many have had doctors threaten to remove life-sustaining treatment and have had to fight to receive continuing care. Others live with pain that is both unrelenting and irremediable. CCD and CACL speak on behalf of persons who are directly engaged by the issues before this Court.

4. Both organizations have long championed the right of persons with disabilities to make decisions for themselves. It has only been with the most profound concern therefore, and following a thorough process of consideration, that they come before the Court to argue against striking down the Criminal Code prohibitions against assisted suicide and euthanasia.

5. Since the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), both organizations established processes through which to consider the compelling end of life concerns within their respective communities. Their positions on palliative care, assisted suicide and euthanasia have been repeatedly communicated to a succession of Parliamentary and Senate committees that have been mandated to review Canada’s laws concerning end of life issues. Parliament, having heard from directly affected people on both sides of the debate, has repeatedly declined to repeal the impugned provisions.

6. This Court has directed that CCD/CACL restrict their submissions to section7 of the Charter of Rights and Freedoms. Therefore these submissions do not address the issues of either stare decisis or section 15(1) of the Charter.

Carter v. Canada (Attorney General), 2012 BCCA 502 at para. 61

PART 2: OVERVIEW OF ISSUES ON APPEAL

7. The respondents assert a Charter claim that competent, terminally ill persons must be permitted to seek the assistance of physicians to obtain and administer a lethal dosage of drugs. CCD/CACL ask this Court to uphold the challenged provisions of the Criminal Code. They assert that legalizing assisted suicide and euthanasia would devalue and endanger the lives of persons with disabilities.

PART 3: ARGUMENT

Section 7 Rights of Persons with Disabilities

8. It has been suggested that the debate concerning assisted suicide is about terminal illness, not disability. The Court below relied on research that distinguished between persons with disabilities and persons who are terminally ill, leading to its erroneous conclusion that there was “no evidence of heightened risk of physician assisted death in Oregon or the Netherlands for individuals who were physically disabled or chronically ill…”

Reasons for Judgment of the Honourable Madam Justice Smith pronounced June 15, 2012 (“Reasons”) at para. 852 (Appeal Record, Vol. 2, pp. 109-320 and Vol. 3 pp. 321-503 at p. 345)

9. As confirmed by the declaratory order made by the Court however, it is only persons with disabilities who are intended to receive assistance in dying. People who are labelled “terminal”, based on a medical prediction, are invariably disabled.

Reasons at para. 1393(b) (Appeal Record, Vol. 3, p. 493)

10. The Court received evidence concerning why persons requested a physician assisted death. The most commonly cited reasons were “losing autonomy”, “less able to engage in activities making life enjoyable”, “loss of dignity”, “losing control of bodily functions”, “burden on family, friends/caregivers”. Less frequently mentioned are “inadequate pain control or concern about it” and “financial implications of treatment”. This information was gathered by the Oregon Health Division from physicians of persons who had received assistance in dying.

Reasons at para. 400 (Appeal Record, Vol. 2, p. 230)

11. These are all fundamental disability issues. This case concerns the section 7 Charter rights of persons living and dying with a disability.

Assisted Suicide and Euthanasia link to the History of Persons with Disabilities

12. The issue of assisted suicide arises within a recent disabled people’s history and social reality which are relevant to the lives, liberty and security of persons with disabilities.

13. The Supreme Court of Canada has not hesitated to acknowledge the history of discrimination to which Canadians with disabilities have been subjected:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions… This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or a flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration that s.15(1) of the Charter demands.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56

14. Professor Catherine Frazee, examined the darkest side of that history and found that the lives of persons with disabilities can be tenuous: Disabled people constitute a group whose profound social disadvantage manifests in acts of compassion-cloaked homicide, coercion and abandonment. Violence, and social ambivalence in the face of violence, are writ large in the social history of disability.

Expert Report of Professor Catherine Frazee at para. 65 (“Expert Report of Professor Frazee”) (Appeal Book, Vol. 36, pp. 12101-12376 at p. 12114)

15. The stereotyping, exclusion and compassionate murder of persons with disabilities described by the Supreme Court of Canada has not ended. This disturbing history must lead courts to critically examine any proposition premised on death being good for people with disabilities.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at para. 187

Persons with Disabilities are Not Immune from Stigma and Stereotyping

16. According to Professor Frazee:

Disabled people’s functional limitations and reliance upon human and technological supports are both pitied and feared. Conditions that become routine aspects of life for disabled people – such as reliance upon ventilators or feeding tubes, or the need for human assistance with intimate personal care, or bodily difficulties such as drooling or incontinence or the inability to communicate through conventional means – give rise to deep and persistent unease among persons immersed in the values of an ableist culture.

Expert Report of Professor Frazee at para. 35 (Appeal Book, Vol. 36, p. 12109)

17. Persons with disabilities, particularly those who have recently acquired a disability, are not immune from internalizing the idea that they are leading lives that have less value than those of persons who do not have disabilities. This can result in such persons expressing the belief that they “would rather be dead than live with a disability.”

Reasons at para. 848 (Appeal Record, Vol. 3, p. 343) quoting Affidavit #1 of Rhonda Wiebe at para. 17 (Appeal Book, Vol. 23, pp. 7813-7830 at p. 7817)

18. The notion that “it is better to be dead than disabled” can be very powerful, particularly for someone who has not yet experienced disability or who is surrounded by persons who reinforce this negative stereotype.

Public and media discussion is dominated by the concept of the “right to die with dignity” which reinforces the belief that “some forms of living are too burdensome, too hopeless, or too unaesthetic to merit support.”

Carol Gill, “Disability Constructed Vulnerability and Socially Conscious Palliative Care”, approved and adopted in Expert Report of Professor Frazee at para. 17 (Appeal Book, Vol. 36, p. 12105) and appended as Exhibit “C” (Appeal Book, Vol. 36, pp. 12133-12140)

19. Whether or not a person experiences a loss of dignity that can influence their attitude towards life is highly contextual. To cite a related example, persons targeted by hate propaganda can experience humiliation and degradation that can harm their sense of self-worth and may cause them to take drastic measures in reaction. On the other hand:

A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to groups to which he or she belongs.

R. v. Keegstra, [1990] 3 S.C.R. 697 at paras. 60-61

20. Most persons who express suicidal intentions are strongly supported to resist self-destructive impulses. Legalizing assisted suicide for persons with severe or terminal disabilities represents precisely the opposite response. Talk of “death with dignity”, and “physician assisted death” communicates a message: that death is being accepted as the rational choice for persons with disabilities.

21. Instead of suicide being recognized as irrational, or a “cry for help”, with suicide prevention as the goal, striking down the prohibition on assisted suicide ensures these suicide attempts will succeed. It reverses what is the norm for all others of actively discouraging suicide. As the Supreme Court said in Rodriguez, “Part of the purpose [of the impugned provision] is to discourage the terminally ill from choosing death over life”. Removal of the provisions clearly place persons with disabilities at significantly greater risk.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at para. 188

22. The United States Supreme Court has recognized how these powerful contextual factors can induce people, in moments of vulnerability, to choose suicide:

The State’s interest here [in prohibiting assisted suicide] goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes and “societal indifference”… “The State’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill disabled and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same as everyone else’s.

Washington v. Glucksberg, 521 U.S. 702 (1997) at 732

23. It is hard for the general public, including some who are recently disabled, to understand what it means for persons to be coping with their disabilities. Given time and support, they learn to employ adaptive supports to incorporate them into their new life-style. Alternatively those whose “dignity was fractured” are “significantly more likely to report a desire for death, a loss of a will to live, depression, hopelessness and anxiety.” Contrary to what the respondents state at paragraph 67 of their factum, there is clear evidence in the record that the wish to die can be transitory.

Carol Gill, “Suicide Intervention for People with Disabilities: A Lesson in Inequality”, 8 Issues L & Med. 37 (1992-1993) at p. 40

Expert Report of Dr. Harvey Chochinov at para. 19 (Appeal Book, Vol. 19, pp. 6374-6527 at p. 6379)

24. An assessment of whether or not a person lacks capacity to give legally valid consent does not address the contextual factors that lead people to conclude they are better off dead than disabled. By switching from suicide prevention to suicide enablement for persons with disabilities their lives are endangered.

Medical Practitioners

25. The Court below considered it appropriate for physicians to be both the gatekeepers and the instruments of therapeutic death. CCD and CACL assert that this role conflicts with their proper and necessary functions within the health care system.

Reasons at paras. 795 and 853 (Appeal Record, Vol. 3, pp. 331-332, 345)

26. When pressed, medical practitioners acknowledge the inexactness of a prognosis of imminent death. As the National Council on Disability in the United States has reported: “people with disabilities are aware of enough instances of dramatic mistakes that many of them have a healthy scepticism of medical predictions, particularly as it relates to future quality of life.” The Council concluded that “Predictions of patients’ life expectancy are particularly difficult and unreliable.” When the primary criteria for assisted suicide is a terminal prognosis, installing the physician who has made the prognosis as gatekeeper is of concern and represents a conflict of interest.

National Council on Disability, “Assisted Suicide: A Disability Perspective Position Paper” (1997) at p. 205, Expert Report of Professor Frazee, Exhibit “L” (Appeal Book, Vol. 36, pp. 12296-12315 at p. 12306)

See also Affidavit #1 of Rhonda Wiebe at paras. 33-38 (Appeal Book, Vol. 23, pp. 7822-7823)

Reasons at paras. 816-820 (Appeal Record, Vol. 3, pp. 336-337)

27. Medical practitioners tend to undervalue the quality of life of their disabled patients, whose valuation of the quality of their own lives is often significantly higher. This devaluation can lead to the “denial or withdrawal of life-saving treatment, presumptive steering toward DNR [Do Not Resuscitate] orders and/or premature surrender to ‘comfort care’.” These practices are widely feared by persons with disabilities, whose lives hang in the balance.

Expert Report of Professor Frazee at paras. 37-38 (Appeal Book, Vol. 36, p. 12109)

Reasons at para. 194 (Appeal Record, Vol. 2, p. 168)

28. The medical profession is involved in the allocation of healthcare resources, including life sustaining or pain mitigating treatments such as palliative care, which are acknowledged to be in short supply. There is a clear connection between the denial of treatment and expressions of a wish to die. Reasons at paras. 188-193 (Appeal Record, Vol. 2, pp. 167-168)

29. The end of life process is already a perilous time for persons with disabilities. What has not sufficiently been emphasized is the extent to which such treatments can be refused or withdrawn over the objections or without the consent of the person, or the extent to which people with disabilities can feel pressured to agree to their discontinuance. By introducing the issue of assisted suicide into the end-of-life discussions between physicians and their patients, the conflicted position of the physician is heightened. CCD and CACL are concerned that some vulnerable persons would feel encouraged to die or fear that they would have to justify their desire not to be euthanized. This represents a clear danger to the lives of people with disabilities particularly during periods of vulnerability. Research based upon reports from physicians neither addresses nor alleviates that concern.

Reasons at paras. 799-808 (Appeal Record, Vol. 3, pp. 332-334)

Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII) currently on reserve before the SCC

30. The role of the physician is properly engaged by responding to the needs of and enhancing the dignity of persons with serious and potentially terminal disabilities. This is crucial to suicide prevention. By focusing on this role, physicians can greatly reduce the likelihood disabled persons with a terminal prognosis will feel the need to end their lives prematurely.

Expert Report of Dr. Harvey Chochinov at paras. 41-42 (Appeal Book, Vol. 19, p. 6388)

The Current Law is Fundamentally Just

31. Section 7 of the Charter guarantees all Canadians the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court first determines whether or not there exists a deprivation of life, liberty or security of the person. In the event of a deprivation, the Court must then determine whether the deprivation is in accordance with the principles of fundamental justice.

32. The Supreme Court of Canada in Rodriguez decided that the impugned provisions restrict the security of persons, defined by their disability, to choose to commit suicide with the assistance of a physician. CCD/CACL’s submissions are confined to the issue of whether or not the deprivation accords with principles of fundamental justice.

33. CCD/CACL accepts that “the government’s objectiv[e] of preserving life”, in the “non-religious sense”, as was accepted in Rodriguez, is engaged in this case. Preservation of life therefore must be included in the assessment of what the principles of fundamental justice require in this case.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at paras. 125 126, 140 and 149-150

34. Finally, the Court in Rodriguez decided that the purpose of the impugned provision is the protection of the lives of vulnerable persons who might decide in moments of weakness to commit suicide. As these intervenors have submitted above, vulnerability can be strongly strongly influenced by contextual factors such as stigma and stereotyping.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at para. 149

Reasons at para. 926 (Appeal Record, Vol. 3, p. 369)

35. In A.C. the Supreme Court of Canada recognized a state interest in protecting the lives of adolescents who were legally capable of giving or withholding their consent to treatment, including a decision to accept or refuse life-sustaining treatment. The safeguards, established by law and applied by a child welfare agency and ultimately a court, were justified on the basis that adolescents may potentially be vulnerable, thereby engaging a state interest in ensuring they are protected from harm. The Court examined the impugned legislative provision, including the mode of its application, and determined that an adequate balance was achieved between the liberty interest of the individual and the state’s interest in protecting the life of the individual, meaning the legislative restriction on the individual’s liberty was in accord with the principles of fundamental justice.

A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 at paras. 16 and 108

36. The safeguards were premised on the potential vulnerability of the adolescents called upon to make decisions that other persons, not deemed to be comparably vulnerable, were entitled to make independently in consultation with their physician. A.C. differs from this case in that this case concerns the question of removing safeguards deemed necessary for all other persons except persons with disabilities with a terminal prognosis. Nevertheless, both involve the existence of a state interest in protecting persons considered to potentially be vulnerable.

37. Vulnerability in A.C. was recognized to be variable based in part upon the social context in which the person functioned, such as “family relationships and broader social affiliations”. It also involves an assessment of evolving capacities collectively described as “maturity”.

A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 at paras. 93-96

38. In A.C. the Court determined that a respectful and rigorous assessment could be performed which would assess a range of factors that extended far beyond those considered by a physician when assessing capacity to give a legally valid consent. The process was judicial, involved an agency mandated to call evidence to ensure the adolescent’s “best interests” were fully examined by the Court and was subject to public review, including the potential for an appeal.

A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 at paras. 96 and 157

39. CCD/CACL adopts the submissions of the Attorney General of Canada at paragraphs 52-56 of his factum concerning the serious short-comings of the safeguards established in jurisdictions where assisted suicide and euthanasia are permitted.

40. Beyond these short-comings, CCD/CACL submit that the vulnerability factors identified in their factum, including stereotyping and the conflicted position of medical practitioners in relation to persons with disabilities, are not amenable to assessment through a medical procedure such as that contemplated by the Court below. Issues such as prejudice, stereotypes and misinformation are as fundamental to the issue of vulnerability as are the existence of coercion, harassment, intimidation or duress. A person’s attitude toward living with disability is affected by many factors, including the availability of supports and treatment; the impact of discrimination, prejudice and stereotype; and by the structural disadvantage which shapes the experience of disablement. In such a context, there is no conceivable process capable of safeguarding against undue influence, error or abuse. A procedural authority to sanction the termination of the lives of certain persons with disabilities is therefore not in accord with the principles of fundamental justice. CCD/CACL, like the National Council on Disability in the United States which carefully considered these issues, accept that nothing short of an absolute prohibition would ensure the vulnerabilities engaging the impugned sections’ purpose are addressed. Absent such a prohibition, vulnerable persons, in moments of weakness, would be induced to commit suicide.

National Council on Disability, “Assisted Suicide: A Disability Perspective Position Paper” (1997) at p. 209-211, Expert Report of Professor Frazee, Exhibit “L” (Appeal Book, Vol. 36, p. 12310-12312)

41. CCD/CACL reject the proposition that it is presumptively true that a disabled person with a terminal prognosis is better off dead. Yet this is the presumption that underlies the withdrawal of the protection given to all others contemplating suicide. The Supreme Court of Canada in Rodriguez accepted that “there is no certainty that abuses can be prevented by anything less than a complete prohibition [of assisted suicide]”; and further that “[t]here is no half way measure that could be relied upon with assurance to fully achieve the legislation’s purpose”. It is respectfully submitted that this remains as true today as it was when Rodriguez was decided.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at paras. 162 and 188

42. In order to ensure against such proactive termination of the lives of persons with disabilities, CCD/CACL submit that the restrictions resulting from the Criminal Code prohibitions on assisting suicide and on euthanasia are justified and in accord with the principles of fundamental justice.

PART 4: NATURE OF ORDERS SOUGHT

43. CCD/CACL request to be permitted to make 10 minutes of oral submissions at the hearing of the appeal.

44. The CCD and the CACL further request an order that the appeal be allowed and that the trial judgment be set aside.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 24th DAY OF DECEMBER, 2012.

BAKERLAW
Barristers and Solicitors
4711 Yonge Street
Suite 509
Toronto, ON M2N 6K8

David Baker LSUC#: 17674M
Meryl Zisman Gary LSUC#: 58271L
Tel: 416.533.0040 ext. 222 / 240
Fax: 416.533.0050

Email: dbaker@bakerlaw.ca, mgary@bakerlaw.ca

Counsel for the Applicants, the Council of Canadians with Disabilities and the Canadian Association for Community Living

LIST OF AUTHORITIES

• A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181
• Carter v. Canada (Attorney General), 2012 BCCA 502
• Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624
• R. v. Keegstra, [1990] 3 S.C.R. 697
• Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII)
• Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519
• Washington v. Glucksberg, 521 US 702 (1997)