A recent decision of Chief Justice Hinkson of the British Columbia Supreme Court in Lamb v. Canada (Attorney General), 2017 BCSC 1802 has underscored the fact that Canada is not done with the medical assistance in dying portfolio. As we know, in 2016, the Liberal government pushed through Bill C-14 over the objections of many who asserted that the Bill did not comply with the Supreme Court of Canada’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5. Indeed, in a previous post, I predicted that if the legislation passed “as is”, we would see “yet another challenge (and more people suffering unnecessarily) in the not too distant future”. Unfortunately, this prediction has come to pass.

The Plaintiffs in the Lamb decision brought an application to strike key elements of the Attorney General’s Response to Civil Claim on the basis that, because of the Supreme Court of Canada’s ruling in Carter, Canada was estopped or barred from re-litigating certain issues on the basis of the principles of issue estoppel and abuse of process. In the end, neither argument found favour with the Chief Justice and the path is paved for a complete trial with new evidence and full legal arguments on all of the issues which were in fact litigated in Carter.

On the question of issue estoppel, the Chief Justice held that unlike Carter where there was an absolute prohibition, Bill C-14 had permissive circumstances for medical assistance in dying and the evidence needed to be updated in light of both the passage of time and the areas of permissive assistance:

[72] Despite the allure of shortening these proceedings by adopting the findings of fact made in the Carter proceedings, I have concluded that the issues decided in Carter differ from at least some of those raised in the proceedings before me, and that given the new focus that may have to be brought to those issues, I should not deprive the defendant from creating the full factual matrix that the Supreme Court of Canada has stated should be available for constitutional challenges: see MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361, and British Columbia (Attorney General) v. Christie, 2007 SCC 21 at para. 28.

[73] Some of the findings in Trial Reasons that the plaintiffs wish to fix as binding upon the AGC may satisfy the Danyluk test. They include (with reference to the Trial Reasons) the following:

a) findings relating to general ethical responsibilities of physicians to act in the best interest of their patients and not break the law (para. 311);

b) cultural and historical differences between jurisdictions in Europe, the U.S., and Canada and how that relates to the ability to transpose the experiences of one system on to another (para. 683); and

c) the feasibility of properly-qualified and experienced physicians to assess patient competence to give informed consent (e.g. paras. 795, 798, 831).

[74] I find, however, that the AGC would suffer prejudice if the plaintiffs were allowed to rely on findings that were collateral to the earlier proceeding, and are unconnected to the matters in issue in these proceedings, or which are out of date. For example, I agree that expert evidence about the regimes in foreign jurisdictions should be updated, as well as the impacts of the eligibility criteria on individuals seeking assistance and on society in general. To deny such updates could cause prejudice to the AGC.

[75] I find that the principles discussed by the Alberta Court of Appeal in Allen apply with equal force to these proceedings, and I conclude that although the plaintiffs in this case are undoubtedly seeking to preserve resources and time, the prior decisions are at best binding on points of law, not questions of fact. Constitutional judgments are highly dependent on contextually-specific factual findings and therefore the factual findings of the Carter litigation cannot simply be transposed on to this contextually-distinct case.

[76] I am persuaded by the AGC that in light of the different set of questions to be answered in these proceedings, the plaintiffs’ argument that this Court should be bound by findings of fact made in a previous case involving a different legal regime and a different set of issues should be rejected. I conclude that to strike the impugned paragraphs of the AGC’s response to civil claim at this early stage in the proceedings would be highly prejudicial because it would preclude the AGC from mounting a full defense of the new regime.

[77] That full defense may go so far as questioning certain findings of fact in Carter because those findings were based on evidence that was adduced in the context of a challenge to the absolute prohibition, which was also grounded in distinct legislative objectives.

[78] I therefore reject the submission that the principle of issue estoppel warrants the relief sought by the plaintiffs on this application.

A similar submission found favour with the Chief Justice in relation to the abuse of process argument:

[98] In my view, the plaintiffs have failed to demonstrate that it is an abuse of process for the AGC to fully defend the newly enacted legislation or that not permitting them to rely on the findings of fact in Carter would amount to an abuse of process. The plaintiffs seek declaratory relief in relation to the constitutionality of the new regulatory regime, a regime that differs from the one that was considered in Carter. While the old legislation imposed an absolute prohibition on medical assistance in dying, the new legislation allows for access to medical assistance in dying subject to certain conditions, and is grounded in potentially different objectives. Therefore, the new legislation should be examined on as full a factual matrix as reasonably possible.

I am not surprised by this result. Bill C-14 was heavily debated by the parliamentarians. The Senate sent the Bill back to the House with some of the very constitutional objections that Ms. Lamb is raising. But, for whatever reason they may have had, the Liberal government chose to push the legislation through, even in the face of such objections.

As I said, I am not surprised. I am rather dismayed that all Canadians will not be able to avail themselves of the benefits of the Carter ruling until after this (again) lengthy trial is completed, a (long ) time is taken to prepare written reasons for judgment, an appeal to the Court of Appeal is prepared and heard and reasons delivered and yet again another leave to appeal application to the Supreme Court of Canada is completed, leave granted (presumably) and another appeal is conducted and another set of reasons delivered. So about 5 years….

For those who cannot avail themselves of Carter because of the limitations of Bill 14, for those who have to suffer an agonizing psychiatric pain without relief to the end of their days, for those whose minds, their very being is snipped away bit by bit by dementia when, while still mentally competent, they would have chosen a different path, and for those young Canadians who, under the age of majority, have to suffer the intolerable pain unlike others who are but a few years older, we need to look squarely at the federal government for having made the political choices over the legal directions given by the Supreme Court. I applaud the courage of the Plaintiff, Ms. Lamb, to undertake this difficult constitutional challenge. It could have been so avoidable if the government had chosen to listen to the advice of the Supreme Court.

I remain

Constitutionally yours,

Arthur Grant