Carter et al. v. Canada (Attorney General) et al., (2015) 366 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 15, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 366 B.C.A.C. 1 (SCC);2015 SCC 5

Carter v. Can. (A.G.) (2015), 366 B.C.A.C. 1 (SCC);

    629 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] B.C.A.C. TBEd. FE.046

Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor (appellants) v. Attorney General of Canada (respondent)

Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor (appellants) v. Attorney General of Canada and Attorney General of British Columbia (respondents) and Attorney General of Ontario, Attorney General of Quebec, Council of Canadians with Disabilities, Canadian Association for Community Living, Christian Legal Fellowship, Canadian HIV/AIDS Legal Network, HIV& AIDS Legal Clinic Ontario, Association for Reformed Political Action Canada, Physicians' Alliance against Euthanasia, Evangelical Fellowship of Canada, Christian Medical and Dental Society of Canada, Canadian Federation of Catholic Physicians' Societies, Dying With Dignity, Canadian Medical Association, Catholic Health Alliance of Canada, Criminal Lawyers' Association (Ontario), Farewell Foundation for the Right to Die, Association québécoise pour le droit de mourir dans la dignité, Canadian Civil Liberties Association, Catholic Civil Rights League, Faith and Freedom Alliance, Protection of Conscience Project, Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society, Canadian Unitarian Council, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition - British Columbia (interveners)

(35591; 2015 SCC 5; 2015 CSC 5)

Indexed As: Carter et al. v. Canada (Attorney General) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

February 6, 2015.

Summary:

Gloria Taylor was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS). She brought a claim challenging the constitutionality of the Criminal Code provisions (ss. 14, 21, 22, 222 and 241) that prohibited assistance in dying. She was joined in her claim by Carter and Johnson, who had assisted Carter's mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted-suicide clinic; Dr. Shoichet, a physician from British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 886, concluded that the decision in Rodriguez v. British Columbia (Attorney General) (1993 SCC), which upheld the prohibition on assisted suicide, did not prevent the court from reviewing the constitutionality of the impugned provisions. The trial judge found that the prohibition on physician assisted dying infringed the equality guarantee under s. 15 of the Charter and was not justified under s. 1. The trial judge also found that the prohibition infringed the rights to life, liberty and security of the person under s. 7 of the Charter and that the deprivation of the claimants' s. 7 rights was not in accordance with the principles of fundamental justice, particularly the principles against overbreadth and gross disproportionality. The trial judge found the s. 7 infringement was not justified under s. 1. The trial judge declared the prohibition unconstitutional, granted a one-year suspension of invalidity, and provided Taylor with a constitutional exemption for use during the one-year period of the suspension. Taylor passed away without accessing the exemption. In a decision reported at [2012] B.C.T.C. Uned. 1587, the trial judge ordered an award of special costs in favour of the plaintiffs. The trial judge ordered the Attorney General of British Columbia to pay 10% of the costs. Canada was ordered to pay the remaining 90% of the award. Canada appealed from the trial judge's decision and the costs order. British Columbia appealed from the costs order.

The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a decision reported at (2013), 345 B.C.A.C. 232; 589 W.A.C. 232, allowed Canada's appeal on the ground that the trial judge was bound to follow the decision in Rodriguez. The court ordered that no costs be awarded to any party in the Supreme Court of British Columbia. With respect to costs of the appeal, the court did not make an order for the payment of costs by any party. The plaintiffs appealed.

The Supreme Court of Canada allowed the appeal. The court issued the following declaration, which was suspended for 12 months: "Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that 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". Having concluded that the prohibition violated s. 7, it was unnecessary to consider whether the prohibition violated s. 15 of the Charter. Special costs on a full indemnity basis were awarded against Canada throughout. The Attorney General of British Columbia would bear responsibility for 10% of the costs at trial on a full indemnity basis and would pay the costs associated with its presence at the appellate levels on a party and party basis.

Civil Rights - Topic 201

Life - General - At issue was whether the prohibition on physician-assisted dying in the Criminal Code violated the claimants' rights under s. 7 of the Charter - The trial judge found that the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable - On that basis, she found that the right to life was engaged - The Supreme Court of Canada stated that "We see no basis for interfering with the trial judge's conclusion on this point ... The appellants and a number of the interveners urge us to adopt a broader, qualitative approach to the right to life. Some argue that the right to life is not restricted to the preservation of life, but protects quality of life and therefore a right to die with dignity. Others argue that the right to life protects personal autonomy and fundamental notions of self-determination and dignity, and therefore includes the right to determine whether to take one's own life. ... the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Conversely, concerns about autonomy and quality of life have traditionally been treated as liberty and security rights. We see no reason to alter that approach in this case. This said, we do not agree that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot 'waive' their right to life. This would create a 'duty to live', rather than a 'right to life, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment" - See paragraphs 57 to 63.

Civil Rights - Topic 205

Life - Right to die (incl. physician assisted dying) - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - [See first Civil Rights - Topic 1398 ].

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 791

Liberty - Particular rights - Physician assisted dying - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 1398

Security of the person - Health care - Assisted suicides - At issue was whether the prohibition on physician-assisted dying in s. 241(b) and s. 14 the Criminal Code violated the claimants' rights under s. 7 of the Charter - The Supreme Court of Canada stated, inter alia, "An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician's assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person" - The court concluded that ss. 241(b) and 14 of the Criminal Code, insofar as they prohibited physician-assisted dying for competent adults who sought assistance as a result of a grievous and irremediable medical condition that caused enduring and intolerable suffering, infringed the rights to liberty and security of the person - See paragraphs 64 to 69.

Civil Rights - Topic 1398

Security of the person - Health care - Assisted suicides - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - The Supreme Court of Canada found that s. 241(1)(b) and s. 14 of the Criminal Code, which prohibited physician-assisted dying, violated the claimants' s. 7 Charter rights to life, liberty and security of the person and the deprivation was not in accordance with the principles of fundamental justice - The individuals' rights were not limited arbitrarily - However, the prohibition on assisted dying was overbroad - The object of the law was to protect vulnerable persons from being induced to commit suicide at a moment of weakness - Canada conceded at trial that the law caught people outside that class: "It is recognized that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives" - The limitation on the rights of those people was in at least some cases not connected to the objective of protecting vulnerable persons - The blanket prohibition swept conduct into its ambit that was unrelated to the law's objective - The court concluded that s. 241(b) and s. 14 of the Code were not saved by s. 1 of the Charter - The limit was prescribed by law, and the law had a pressing and substantial objective - There was also a rational connection between the prohibition and its objective - However, the absolute prohibition was not minimally impairing - The court agreed with the trial judge that the risks associated with physician assisted death could be limited through a carefully designed and monitored system of safeguards - This was not a proper case for a constitutional exemption - The court declared that "Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that 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" - The court suspended the declaration of invalidity for 12 months - Nothing in the declaration would compel physicians to provide assistance in dying - See paragraphs 70 to 132.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - The Supreme Court of Canada found that the prohibition on physician-assisted dying in the Criminal Code violated the claimants' s. 7 Charter rights to life, liberty and security of the person - In considering whether the deprivation was in accordance with the principles of fundamental justice, the court stated, inter alia, that "The trial judge, relying on Rodriguez, concluded that the object of the prohibition was to protect vulnerable persons from being induced to commit suicide at a time of weakness .... Canada agrees that the prohibition is intended to protect the vulnerable, but argues that the object of the prohibition should also be defined more broadly as simply 'the preservation of life' ... We cannot accept this submission. First, it is incorrect to say that the majority in Rodriguez adopted 'the preservation of life' as the object of the prohibition on assisted dying. ... Second, defining the object of the prohibition on physician-assisted dying as the preservation of life has the potential to short-circuit the analysis. In RJR-MacDonald, this Court warned against stating the object of a law 'too broadly' in the s. 1 analysis, lest the resulting objective immunize the law from challenge under the Charter ... The same applies to assessing whether the principles of fundamental justice are breached under s. 7. If the object of the prohibition is stated broadly as 'the preservation of life', it becomes difficult to say that the means used to further it are overbroad or grossly disproportionate. The outcome is to this extent foreordained. Finally, the jurisprudence requires the object of the impugned law to be defined precisely for the purposes of s. 7 ... The direct target of the measure is the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness" - See paragraphs 71 to 78.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - The Supreme Court of Canada commented that "In determining whether the deprivation of life, liberty and security of the person is in accordance with the principles of fundamental justice under s. 7, courts are not concerned with competing social interests or public benefits conferred by the impugned law. These competing moral claims and broad societal benefits are more appropriately considered at the stage of justification under s. 1 of the Charter" - See paragraph 79.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 8380.8

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Statute deemed inapplicable (incl. doctrine of constitutional exemption) - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 8595

Canadian Charter of Rights and Freedoms - Practice - Costs - [See second Practice - Topic 7470.5 ].

Constitutional Law - Topic 2502

Determination of validity of statutes or Acts - General principles - Aim or purpose of statute - [See first Civil Rights - Topic 8344 ].

Constitutional Law - Topic 2505

Determination of validity of statutes or Acts - General principles - Doctrine of constitutional exemption - [See Civil Rights - Topic 3107.2 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or Acts - General principles - Declaration of invalidity - [See Civil Rights - Topic 3107.2 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - [See Constitutional Law - Topic 7506 ].

Constitutional Law - Topic 6505

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Health - [See Constitutional Law - Topic 7506 ].

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - The main issue in this appeal was whether the prohibition on physician-assisted dying found in s. 241(b) and s. 14 of the Criminal Code violated the claimants' rights under ss. 7 and 15 of the Charter - The appellants accepted that the prohibition on assisted suicide was, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 - However, they said that the doctrine of interjurisdictional immunity meant that the prohibition could not constitutionally apply to physician-assisted dying, because it lay at the core of the provincial jurisdiction over health care under ss. 92(7), (13) and (16) of the Constitution Act, 1867, and was therefore beyond the legislative competence of the federal Parliament - The Supreme Court of Canada stated that " ... the appellants have not established that the prohibition on physician-assisted dying impairs the core of the provincial jurisdiction. Health is an area of concurrent jurisdiction; both Parliament and the provinces may validly legislate on the topic ... This suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and focus of the legislation. We are not satisfied on the record before us that the provincial power over health excludes the power of the federal Parliament to legislate on physician-assisted dying. It follows that the interjurisdictional immunity claim cannot succeed" - See paragraphs 49 to 53.

Courts - Topic 19

Stare decisis - Authority of judicial decisions - Constitutional issues - [See Courts - Topic 126.1 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - The main issue in this appeal was whether the prohibition on physician-assisted dying found in s. 241(b) and s. 14 of the Criminal Code violated the claimants' rights under ss. 7 and 15 of the Charter - A preliminary issue was whether the trial judge in this case was bound by the decision in Rodriguez v. British Columbia (Attorney General) (1993 SCC), which upheld the prohibition on assisted suicide - The Supreme Court of Canada stated that "Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that 'fundamentally shifts the parameters of the debate' ... Both conditions were met in this case. The trial judge explained her decision to revisit Rodriguez by noting the changes in both the legal framework for s. 7 and the evidence on controlling the risk of abuse associated with assisted suicide. The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. ... The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez. ... we conclude it was open to the trial judge to reconsider the s. 15 claim as well, given the fundamental change in the facts" - See paragraphs 42 to 48.

Criminal Law - Topic 1321

Offences against person and reputation - Suicide - Aiding or abetting a person to commit suicide - [See Civil Rights - Topic 3107.2 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - [See second Practice - Topic 7470.5 ].

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - The Supreme Court of Canada stated that "Some reference to this Court's jurisprudence on advance costs may be helpful in refining the criteria for special costs on a full indemnity basis. This Court set the test for an award of advance costs in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. LeBel J. identified three criteria necessary to justify that departure from the usual rule of costs ... The Court elaborated on this test in Little Sisters, emphasizing that issues of public importance will not in themselves 'automatically entitle a litigant to preferential treatment with respect to costs' ... The standard is a high one: only 'rare and exceptional' cases will warrant such treatment ... In our view, with appropriate modifications, this test serves as a useful guide to the exercise of a judge's discretion on a motion for special costs in a case involving public interest litigants. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. In those rare cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim. Where these criteria are met, a court will have the discretion to depart from the usual rule on costs and award special costs" - See paragraphs 138 to 141.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - Taylor was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS) - Taylor, joined by others, brought a claim challenging the constitutionality of the Criminal Code provisions that prohibited assistance in dying - The trial judge found that the prohibition infringed ss. 7 and 15 of the Charter and was not justified under s. 1 - The trial judge declared the prohibition unconstitutional and granted a one-year suspension of invalidity - The trial judge awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case - The trial judge ordered the Attorney General of British Columbia to pay 10% of the costs - Canada was ordered to pay the remaining 90% of the award - The British Columbia Court of Appeal allowed Canada's appeal on the ground that the trial judge was bound to follow the decision in Rodriguez (1993 SCC) which upheld the blanket prohibition on assisted suicide - The court ordered that no costs be awarded to any party in the Supreme Court of British Columbia - With respect to costs of the appeal, the court did not make an order for the payment of costs by any party - The Supreme Court of Canada allowed the plaintiffs' appeal - The court held that s. 241(b) and s. 14 of the Criminal Code, which prohibited physician assisted dying, unjustifiably infringed s. 7 of the Charter - The court held that the trial judge did not err in awarding special costs to the appellants in the truly exceptional circumstances of this case - The court ordered the same with respect to the proceedings in this court and in the Court of Appeal - Nor did the trial judge err in awarding 10% of the costs against the Attorney General of British Columbia - She concluded that the Attorney General of British Columbia had taken a full and active role in the proceedings and should be liable for costs in proportion to the time British Columbia took during the proceedings - It would be unusual for a court to award costs against Attorneys General appearing before the court as of right - However, the court saw no reason to interfere with the trial judge's decision to do so or with her apportionment of responsibility between the Attorney General of British Columbia and the Attorney General of Canada - See paragraphs 133 to 146.

Practice - Topic 8331.1

Costs - Appeals - Costs of appeal - Public interest - [See second Practice - Topic 7470.5 ].

Cases Noticed:

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, dist. [para. 5].

Washington v. Glucksberg (1997), 521 U.S. 702, refd to. [para. 9].

Vacco v. Quill (1997), 521 U.S. 793, refd to. [para. 9].

Pretty v. United Kingdom, No. 2346/02, ECHR 2002-III, refd to. [para. 9].

Fleming v. Ireland, [2013] IESC 19 (BAILII), refd to. [para. 9].

R. (ex rel. Nicklinson) et al. v. United Kingdom (Ministry of Justice), [2014] N.R. Uned. 110; [2014] 3 All E.R. 843; [2014] UKSC 38, refd to. [para. 9].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 28].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 37].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 303 C.C.C.(3d) 146; 2013 SCC 72, appld. [para. 44].

Fraser et al. v. Ontario (Attorney General), [2011] 2 S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 47].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 50].

William v. British Columbia et al., [2014] 2 S.C.R. 256; 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 50].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 51].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 53].

Schneider v. R., [1982] 2 S.C.R. 112; 43 N.R. 91, refd to. [para. 53].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 62].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 64].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 64].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 64].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 67].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [para. 67].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 67].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 67].

Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [para. 67].

Nancy B. v. Hôtel-Dieu de Québec (1992), 86 D.L.R.(4th) 385 (Que. Sup. Ct.), refd to. [para. 67].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 80].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 80].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 81].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 89].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 94].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 97].

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 100 B.C.L.R.(4th) 28; 2009 BCCA 563, disapproved [para. 134].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 137].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 137].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 138].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 144].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

Hegeman v. Carter et al., [2008] Northwest Terr. Cases Uned. 48; 74 C.P.C.(6th) 112; 2008 NWTSC 48, refd to. [para. 144].

Polglase v. Polglase (1979), 18 B.C.L.R. 294 (S.C.), refd to. [para. 144].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 15(1) [para. 21].

Criminal Code, R.S.C. 1985, c. C-46, sect. 14, sect. 21, sect. 22, sect. 222, sect. 241 [para. 19].

Authors and Works Noticed:

Singleton, Thomas J., The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter (1995), 74 Can. Bar Rev. 446, p. 449 [para. 80].

Counsel:

Joseph J. Arvay, Q.C., Sheila M. Tucker and Alison M. Latimer, for the appellants;

Robert J. Frater and Donnaree Nygard, for the respondent, the Attorney General of Canada;

Bryant Mackey, for the respondent, the Attorney General of British Columbia;

S. Zachary Green, for the intervener, the Attorney General of Ontario;

Jean-Yves Bernard and Sylvain Leboeuf, for the intervener, the Attorney General of Quebec;

David Baker and Emily Shepard, for the interveners, the Council of Canadians with Disabilities and the Canadian Association for Community Living;

Gerald D. Chipeur, Q.C., for the intervener, the Christian Legal Fellowship;

Written submissions only by Gordon Capern, Michael Fenrick, Richard Elliott and Ryan Peck, for the interveners, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario;

André Schutten, for the intervener, the Association for Reformed Political Action Canada;

Pierre Bienvenu, Andres C. Garin and Vincent Rochette, for the intervener, the Physicians' Alliance against Euthanasia;

Geoffrey Trotter, for the intervener, the Evangelical Fellowship of Canada;

Albertos Polizogopoulos, for the interveners, the Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians' Societies;

Written submissions only by Cynthia Petersen and Kelly Doctor, for the intervener, Dying With Dignity;

Harry Underwood and Jessica Prince, for the intervener, the Canadian Medical Association;

Albertos Polizogopoulos and Russell G. Gibson, for the intervener, the Catholic Health Alliance of Canada;

Marlys A. Edwardh and Daniel Sheppard, for the intervener, the Criminal Lawyers' Association (Ontario);

Jason B. Gratl, for the interveners, the Farewell Foundation for the Right to Die and Association québécoise pour le droit de mourir dans la dignité;

Christopher D. Bredt and Margot Finley, for the intervener, the Canadian Civil Liberties Association;

Robert W. Staley, Ranjan K. Agarwal, Jack R. Maslen and Philip H. Horgan, for the interveners, the Catholic Civil Rights League, the Faith and Freedom Alliance and the Protection of Conscience Project;

Angus M. Gunn, Q.C., and Duncan A.W. Ault, for the intervener, the Alliance Of People With Disabilities Who are Supportive of Legal Assisted Dying Society;

Tim Dickson and Ryan J.M. Androsoff, for the intervener, the Canadian Unitarian Council;

Hugh R. Scher, for the interveners, the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition - British Columbia.

Solicitors of Record:

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia; Davis, Vancouver, British Columbia, for the appellants;

Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent, the Attorney General of British Columbia;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;

Bakerlaw, Toronto, Ontario, for the interveners, the Council of Canadians with Disabilities and the Canadian Association for Community Living;

Miller Thomson, Calgary, Alberta, for the intervener, the Christian Legal Fellowship;

Paliare Roland Rosenberg Rothstein, Toronto, Ontario; Canadian HIV/AIDS Legal Network, Toronto, Ontario; HIV & AIDS Legal Clinic Ontario, Toronto, Ontario, for the interveners, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario;

Association for Reformed Political Action Canada, Ottawa, Ontario, for the intervener, the Association for Reformed Political Action Canada;

Norton Rose Fulbright Canada, Montreal, Quebec, for the intervener, the Physicians' Alliance against Euthanasia;

Geoffrey Trotter Law Corporation, Vancouver, British Columbia, for the intervener, the Evangelical Fellowship of Canada;

Vincent Dagenais Gibson, Ottawa, Ontario, for the interveners, the Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians' Societies;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, Dying With Dignity;

Polley Faith, Toronto, Ontario, for the intervener, the Canadian Medical Association;

Vincent Dagenais Gibson, Ottawa, Ontario, for the intervener, the Catholic Health Alliance of Canada;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Gratl & Company, Vancouver, British Columbia, for  the  interveners, the Farewell Foundation for the Right to Die and Association québécoise pour le droit de mourir dans la dignité;

Borden Ladner Gervais, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Bennett Jones, Toronto, Ontario; Philip H. Horgan, Toronto, Ontario, for the interveners, the Catholic Civil Rights League, the Faith and Freedom Alliance and the Protection of Conscience Project;

Borden Ladner Gervais, Vancouver, British Columbia, and Ottawa, Ontario, for the intervener, the Alliance Of People With Disabilities Who are Supportive of Legal Assisted Dying Society;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the Canadian Unitarian Council;

Scher Law Professional Corporation, Toronto, Ontario, for the interveners, the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition - British Columbia.

This appeal was heard on October 15, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada. The following judgment was delivered by the Supreme Court in both official languages on February 6, 2015.