reflections of a retired criminal court judge

Carter #2: A Template for Future Charter Appeals

Why Carter v. Canada Was So Speedy:

The Supreme Court of Canada (hereafter “SCC”) produced the Carter decision on assisted dying, one of the most important in its history, in record time, slightly over three and a half months. It strikes me that they were able to do so because they had already decided two key technical legal issues in their earlier decision of Canada (Attorney General) v. Bedford (the prostitution case reported at 2013 SCC 72). In Carter, they simply applied to themselves the approach they had defined in Bedford for how all appellate courts should deal with these types of cases.

Bedford and Carter are companion pieces.

Both are applications under s. 52 of the Constitution Act for a declaration that particular provisions of the Criminal Code were contrary to section 7 of the Charter.

Both dealt with issues which, on the surface, appeared to have been decided by earlier SCC decisions. Both attracted many intervenors. These are organizations interested in the issue who wanted to put their perspective before the court.

Both had massive amounts of evidence including affidavits of plaintiffs, cross-examinations, social science studies, reports, expert evidence, and a host of other social and legal materials.

Both trial judges found that, in law, they could “distinguish” the earlier SCC precedent, and declare the relevant provisions of the Criminal Code unconstitutional.

Both were overturned on appeal by their respective Courts of Appeal primarily on technical grounds. Both trial judges were upheld, in whole or in part, by unanimous (9:0) decisions of the SCC.

The ultimate result of both cases was that the Supreme Court’s declaration of invalidity was suspended for twelve months to allow Parliament to pass new laws to fill the void if they so chose.

The technical issues at stake are important and will have significant effects in future such Charter litigation. Together, Bedford and Carter form a package which tells lower courts (Courts of Appeal and trial courts) how these types of cases are to be handled in the future.

What are these two key technical issues? 1) That trial judges could revisit SCC precedents in certain limited circumstances. 2) That appeal courts should defer to all findings of fact of trial judges “absent palpable and overriding error.” In other words, if the findings of the trial judge are “reasonable” and “supported by the evidence,” appellate courts should not interfere.

Let me explain.

Whither stare decisis?

The doctrine of “stare decisis” (which means “to [stand] by decisions and not to disturb settled matters”) is a fundamental principle of our common law legal system. It has two meanings: that lower courts must follow decisions decided by higher courts in the hierarchy (“vertical stare decisis”), and that cases must be decided the same way when their material facts are the same (“horizontal stare decisis”). Clearly, the rule is designed to promote consistency, predictability, and certainty. If any judge could determine any matter however he or she wanted, without considering “stare decisis,” ours would not be a system characterized by the rule of law.

That being the case, how is it that the SCC would uphold the right of a trial judge like Justice Smith of the BC Supreme Court to deviate from their earlier decision against assisted dying in the Rodriguez case (1993)?

They did so because: 1) new legal issues were raised in Carter that had not been before the court in Rodriguez, and 2) there was a change of circumstances or evidence that ‘fundamentally shift(ed) the parameters of the debate.”

Justice Smith was not allowed to “overrule” Rodriguez, but she was permitted to “distinguish” it. In so doing, she had to consider what it was that Rodriguez actually decided and determine whether there was any room for further consideration.

The trial judge found, and the SCC agreed, that although the “who, what, when and where” (the “adjudicative facts”) of the plaintiffs in Rodriguez and Carter were the same, the context of their situation was different. The law argued by counsel, and “the legislative and social facts” in the evidence before the court were not the same.

“Legislative and social facts” are all the other evidence including facts about society at large, established by complex social science evidence, the experience in other jurisdictions where assisted death was now legal, evidence of current Canadian palliative practices and prosecution policies, and medical ethics.

The law which had developed since 1993 were new legal principles defining the Charter, particularly principles relating to “overbreadth” and “minimal impairment.” In 2012 when Carter was heard before Justice Smith in the BC Supreme Court, counsel argued these principles and the trial judge was obliged to consider them.

As the SCC said in Carter (para 44), “stare decisis is not a straitjacket that condemns the law to stasis.” The dictionary meaning of “stasis” is “a slowing or stopping of the normal flow of bodily fluids,” a condition of no action or progress, “an abnormal state in which the normal flow of blood is slowed or stopped.”

By rejecting the notion that all lower courts must “rigidly follow (SCC) Charter precedents unless and until this Court sets them aside(para 43),” the court recognized the reality of our common law legal system. It is best thought of as a living tree, rooted in fundamental principles, but which is constantly evolving as lower courts apply new law to new evidence before the courts.

Sometimes these cases go up to the hierarchy on appeal, perhaps even to the SCC. More often they do not. Together they form the “jurisprudence” which is the common judge-made law on the issue in Canada.

Modelling a doctrine of appellate restraint

In the past, Courts of Appeal applied a rule to the effect that they should show deference to the findings of trial judges on the credibility of witnesses and the objectivity of expert witnesses. The rule also said that appellate courts did not need to defer to the trial judge’s findings on social and legislative facts. The SCC expressly rejected that approach in both Bedford and Carter.

The SCC’s position on this is clear: “Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact….” (Bedford, para. 49)

The SCC goes on to note “two important practical reasons” why this should be the practice.

1) If it were not the case, appeal courts would be required to “duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences…. In a review for error—which is what an appeal is—it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.” (Bedford, para. 51)

2) As social and legislative facts may be intertwined with the adjudicative facts and with issues of the credibility of experts, it is impossible to apply different standards of review to the different types of facts. Since social science evidence is best presented through experts and the assessment of expert evidence relies heavily on the trial judge, there is no longer any rationale for different standards of review. (Bedford, paras 52-53).

In Carter, the SCC applied this doctrine of judicial restraint to themselves.. In doing so, they were modelling what they now expect from trial courts and appellate courts across the country. Among other developments, these technical decisions will likely streamline how our legal system handles these types of cases in the future, making it more efficient and more modern.

If the SCC can deal with one of its most important and most sensitive cases in such record time (three plus months), how can other courts not do the same?

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