Reply to Appellants' Opposition to Intervention in the Carter Leave Application

SCC 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 CIVIL 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)

REPLY OF THE COUNCIL OF CANADIANS WITH DISABILITIES and THE CANADIAN ASSOCIATION FOR COMMUNITY LIVING TO THE APPLICANTS' RESPONSE TO THE MOTION TO INTERVENE
(Pursuant to Rule 50 of the Rules of the Supreme Court of Canada)

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

David Baker
Sarah Mohamed
Tel.: (416) 533-0040
Fax: (416) 533-0050
Email: dbaker@bakerlaw.ca, smohamed@bakerlaw.ca

Counsel for the Proposed Interveners, Council of Canadians with Disabilities and the Canadian Association for Community Living SUPREME ADVOCACY LLP 340 Gilmour Street, Suite 100
Ottawa, Ontario K2P 0R3

Marie-France Major
Tel.: (613) 695-8855
Fax: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca

Ottawa Agents for Counsel for the Proposed Interveners, Council of Canadians with Disabilities and the Canadian Association for Community Living

ARVAY FINLAY
1350 – 355 Burrard Street
Vancouver, BC V6C 2G8

Joseph J. Arvay, Q.C.
Alison M. Latimer
Tel.: (604) 689-4421
Fax: (888) 575-3281
Email:jarvay@arvayfinlay.com

DAVIS LLP
Suite 2800 Park Place
666 Burrard Street
Vancouver, BC V6C 2Z7

Sheila M. Tucker
Tel.: (604) 643-2980
Fax: (604) 605-3781
Email: stucker@davis.ca

Counsel for the Applicants, Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor
McMILLAN LLP
Suite 300 – 50 O'Connor Street
Ottawa, ON K1P 6L2

Jeffrey W. Beedell
Tel: 613.232.7171
Fax: 613.231.3191
Email: jeff.beedell@mcmillan.ca

Ottawa Agent for Counsel for the Applicants, Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor

DEPARTMENT OF JUSTICE CANADA
900 – 840 Howe Street
Vancouver, BC V6Z 2S9

Donnaree Nygard
BJ Wray
Melissa Nicolls
Tel: (604) 666-3049
Fax: (604) 775-5942
Email: donnaree.nygard@justice.gc.ca

Counsel for Respondent, Attorney General of Canada
DEPARTMENT OF JUSTICE CANADA
Civil Litigation Section
50 O'Connor Street, Suite 500
Ottawa, ON K1A 0H8

Christopher M. Rupar
Tel: (613) 670-6290
Fax: (613) 954-1920
Email: christopher.rupar@justice.gc.ca

Ottawa Agent for Counsel for Respondent, Attorney General of Canada

MINISTRY OF JUSTICE
Legal Services Branch
6th Floor – 1001 Douglas Street
PO Box 9280 Stn. Prov Govt
Victoria BC V8W 9J7

Jean M. Walters
Tel.: (250) 356-8894
Fax: (250) 356-9154

Counsel for the Respondent, Attorney General of British Columbia
BURKE ROBERTSON
441 MacLaren Street, Suite 200
Ottawa, ON K2P 2H3

Robert E. Houston, Q.C.
Tel.: (613) 236-9665
Fax. (613) 235-4430
Email: rhouston@burkerobertson.com

Ottawa Agent for Counsel for the Respondent, Attorney General of British Columbia

TABLE OF CONTENTS

• PART I: STATEMENT OF FACTS AND ISSUES
• PART II: STATEMENT OF LAW AND ARGUMENT
• PART III: COSTS AND ORDER SOUGHT
• PART IV: TABLE OF AUTHORITIES

PART I: STATEMENT OF FACTS AND ISSUES

1. This case concerns whether or not the prohibition against assisted suicide and euthanasia is justifiable as a means of preserving the lives and personal security of vulnerable persons with disabilities.

2. For those whom the Council of Canadians with Disabilities and the Canadian Association for Community Living ("the Disability Interveners") represent, this case literally raises issues of life and death.

3. The Disability Interveners were granted "restricted" intervener status before the British Columbia Court of Appeal[1] in that they were precluded from challenging the trial judge's findings of fact. Notwithstanding the restrictions imposed, they strongly asserted the argument contained in this Reply in oral argument.[2]

4. They seek intervener status before this Court because they consider the remedies sought by the Applicants to represent a clear and pervasive danger to the dignity, safety and lives of Canadians with disabilities. The Disability Interveners maintain that they have met the test for intervention on the leave application and that leave should be denied in this case. They rely on the facts and statement of issues set out in their original motion, submissions and this Reply.

PART II: STATEMENT OF LAW AND ARGUMENT

Intervention on Leave to Appeal

5. As set out in the affidavits of Laurie Beachell and Michael Bach, the Disability Interveners have an extensive history of being granted intervener status before this Court to address the interests and concerns of Canadians with disabilities. This is the first and only time they have sought leave to intervene prior to the granting of leave to appeal. The Disability Interveners fully appreciate that the granting of leave at this stage is not intended to be the norm. They assert that exceptional circumstances exist which warrant granting them leave to intervene at this stage.

6. They seek leave to intervene at this stage because they consider the record relied upon by the trial judge to be incomplete and inadequate to form the basis upon which to override existing precedent of this Court and the recent and considered opinion of Parliament upholding the law impugned by the Applicants in this case.

7. The record is incomplete because the Applicants have sought to argue this case as if it were an argument for a private constitutional exemption and without due regard to the significance of this case for all Canadians with disabilities. Having thoroughly prepared themselves beforehand, for which full credit is due them, the Applicants have sought to expedite the hearings of this matter from the filing of their initial application up to their motion to expedite proceedings before this Court. Haste made waste of the Attorney General of Canada's ("Canada") defence of the legislation, who through no fault of its own was not prepared on short notice to defend legislation which had been upheld by the Supreme Court of Canada and had recently been reviewed and endorsed by the Parliament of Canada.

8. Despite repeated objections, Canada was restricted to 30 days within which to respond to the voluminous evidence filed by the Applicants. The Applicants were given 30 days within which to reply. The order is not in the record before this Court, however the Applicants correctly point out at paragraph 11 of their Response that, with the consent of the Applicants, the trial judge granted Canada an additional twelve days within which to file its response.[3]

9. While technically correct that Canada did not raise the issue of more time to file evidence in response after the trial judge had provided her "final answer",[4] Canada continued to object to the constraints placed upon its ability to call evidence. Following the receipt of the Applicant's reply, Canada objected that much of what had been filed was not proper reply and represented splitting of the Applicant's case. Its request to be permitted to make sur-reply was denied. Canada persisted with repeated efforts to "dismiss" the matter from proceeding by way of summary trial, in order to permit it more time to adduce evidence. All such efforts were dismissed by the trial judge. After limiting Canada to 42 days within which to prepare and file its responding evidence, the only "late" evidence the Court permitted to be adduced was submitted by the Applicants.[5]

10. The inadequacy of the trial record is so fundamental and pervasive that it cannot adequately be corrected through the introduction of new evidence. This Court's Rules permitting the acceptance of new evidence contemplate evidence that could not otherwise have been adduced and that is directed to a narrow and specific finding of fact. The quantity of new evidence required in this case would be comparable to the Brandeis brief format more associated with this Court's jurisdiction on a reference than its appellate jurisdiction. Another institutional constraint would be the necessity of this Court being called upon to weigh evidence adduced and heard and cross-examined upon by the trier of fact in open court against affidavit evidence, whether or not cross-examined upon.

11. For the reasons set out by the Disability Interveners at paragraph 15 of their submissions, the proper response in such circumstances is for the Court to deny the Applicants leave to appeal.

Arguments are "New"/Not Argued Below

12. The Applicants submit at paragraph 28 of their Response that the Disability Interveners should be denied leave to intervene because it is "improper to raise issues not raised by the parties to a leave application". The Disability Interveners did not know what position Canada would be taking in response to the application for leave to appeal since their motion was filed simultaneously with Canada's response. They filed their motion to intervene because they believe the issue of deciding a case of this importance on an incomplete record ought properly to be raised at the stage of leave to appeal, which is what they have done.

13. These issues were "sufficiently raised" by Canada, both at trial and on appeal,[6] to be properly raised as reasons why this Court should refuse the Applicants leave to appeal.[7]

14. The Applicants need not have feared that Canada would "respond to the Proposed Interveners' applications"[8] and thereby split its case. No such response was filed. At the leave stage Canada has left the issue of the sufficiency of the record to the interveners.[9]

Deficiency/Sufficiency of the Record

15. To succeed, the Applicants would require the Disability Interveners to establish that there is no "cogent evidence on the relevant issues" in the trial record.[10] It is submitted that the issue for the Court to consider when deciding whether or not to grant leave to appeal is whether there is reason to be concerned that a party – in this case, the Attorney General of Canada – was denied a fair and proportionate opportunity to call the evidence that addresses the issues that arise in this case, particularly evidence that concerns whether the impugned laws are justified because they protect the lives and the security of vulnerable persons, including those with disabilities. There is no question that the trial court's adoption of the expedited trial demanded by the Applicants, and in particular the imposition of unreasonable time frames on Canada, was neither fair nor proportionate.

16. In addition to producing an incomplete and imbalanced record, it resulted in the exclusion or oversight of evidence that could have resulted in different findings of fact on key issues. To illustrate, after the release of the trial judgment in this case, the High Court of Ireland had the benefit of the evidence in this case, plus additional evidence upon which to decide the identical issue.[11] That Court reached diametrically opposed conclusions about the threat to vulnerable persons in Belgium, the Netherlands and Switzerland from those reached by Justice Smith and upheld the impugned legislation prohibiting assisted suicide and euthanasia.

17. The Disability Interveners have provided examples of evidence that fits under the umbrella of the evidence that Canada asserts it was prevented from calling by the procedural orders of the trial judge: evidence of "elder abuse and prejudice faced by persons with disabilities in both society at large and in the medical community".[12] With this evidence, the High Court of Ireland was able to come to "an understanding of what counts as 'vulnerable' [which] was different from that in the [Battin] study," a study to which the trial judge in this case attached great weight.

18. The Applicants have provided no response to the anticipated impact of calling evidence concerning the statistical validity of the Battin study, which essentially asks physicians who have ended a person's life whether or not they complied with the law or committed a criminal offence[13]; to the fact that key disability expert Professor Catherine Frazee's affidavit was "hastily prepared" in this case and significantly different in Leblanc[14] or the absence of affidavit evidence from the leading authorities on the threat assisted suicide and euthanasia pose to persons with disabilities.[15]

Conclusion

19. There is no obligation to grant leave to appeal in a case on what is acknowledged to be an important issue for persons with disabilities, when the method of hearing chosen by the Applicants effectively has meant crucial evidence of the threat to persons with disabilities, posed by assisted suicide and euthanasia, is not available to this Court.

PART III: COSTS AND ORDER SOUGHT

20. The Disability Interveners respectfully request that their motion for intervention be granted and that their submissions be filed as part of the record on the Applicant's application for leave to appeal. Any concern about the Applicant's ability to respond to the Disability Intervener's submissions can be addressed by ordering that the Applicant's Response to the Disability Interveners' motion to intervene be filed with the Court as reply submissions.[16]

21. Finally, the Disability Interveners respectfully request no award of costs and request that no costs be awarded against them.

All of which is respectfully submitted this 11th day of December, 2013.

______________________________
David Baker and Sarah Mohamed
Counsel for CCD/CACL

PART IV: TABLE OF AUTHORITIES

• [1] Order of Justice Neilsen November 20 and 26, 2012. The Disability Interveners reject the proposition that their failure to intervene at trial is tantamount to an acknowledgement of disinterest of lack of concern about the issues before this Court. They did not seek leave to intervene at trial because of (1) the resources required to do so, (2) the existence of strong judicial precedent on point, (3) the priority they attached to active participation in the recent consideration of the issue in the Parliament of Canada and (4) the fact that there was at least one other challenge before the courts at the time of the trial. The Disability Interveners concur with the Applicant's statement at paragraph 8 and footnote 6 of its Response that interveners at trial sought and were denied the right to adduce any evidence.
• [2] British Columbia Court of Appeal, Oral Submissions of CCD and CACL, online, http://www.courts.gov.bc.ca/Court_of_Appeal/webcast/webcast.html, 3:45:00 onwards.
• [3] Response of the Applicants, paragraph 11.
• [4] Response of the Applicants, paragraph 12.
• [5] Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII) ["Carter TJ"], paras. 120-136.
• [6] See Factum of the Attorney General of Canada in Affidavit of Michael Bach, Exhibit "A".
• [7] Minister of Justice and Attorney General of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr, [2008] 2 SCR 143 at paragraphs 14-19.
• [8] Response of the Applicants, paragraph 30.
• [9] It is submitted that Canada's oversight, noted at BCCA per Finch C.J. at paragraphs 196-197, and evident at http://www.courts.gov.bc.ca/Court_of_Appeal/webcast/webcast.html, March 19 at 2:34:00-2:38:00, precludes neither the Attorney General of Canada nor the Disability Interveners from raising the issue of the sufficiency of the record, nor seeking to adduce new evidence [see Khadr, supra at paragraph 19] in the event leave is granted.
• [10] Response of the Applicants, paragraphs 31, 32 and 39.
• [11] Fleming v. Ireland and Ors, [2013] IEHC 2 at paragraph 96 (judgment affirmed by Irish Supreme Court on appeal: see [2013] IESC 19).
• [12] Factum of the Attorney General of Canada in Affidavit of Michael Bach, Exhibit "A" at paragraph 195.
• [13] Affidavit of Michael Bach, paragraph 36.
• [14] Affidavit of Michael Bach, paragraph 32-33.
• [15] Affidavit of Michael Bach, paragraph 35.
• [16] Khadr, supra at paragraph 16.