Carter Applicant v. Attorney General of Ontario, et al., 2016 ONSC 2022
CITATION: Carter Applicant v. Attorney General of Ontario, et al., 2016 ONSC 2022
COURT FILE NO.: 16-062
DATE: 20160321
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carter Applicant - and - Attorney General of Ontario, et al.
BEFORE: The Honourable Justice C.J. Conlan
COUNSEL: Ms F., for the Applicant Mr. Green and Mr. Ryan, for the Respondent, Attorney General of Ontario
ENDORSEMENT
Conlan J.
Introduction
[1] The right, in certain circumstances, to choose to end one's life with the help of a trusted physician. The importance of being able to apply to the court, in private, to exercise that right. Freedom of the press. Public access to the courts. The goal of enhancing public confidence in the administration of justice.
[2] These issues do not have to collide with one another, although they tend to be on that course.
[3] On 21 March 2016, in the Central West Region, I heard a Motion brought by the person referred to in the style of cause herein, the "Carter Applicant" (note that this is not the same way that the person is identified in the style of cause on the face of the documentation filed, however, I have elected to be especially vague herein because I am not certain whether reference to the person in the same way as in the documents filed might inadvertently disclose the person's identity).
[4] I received materials filed by the Carter Applicant. I heard submissions by counsel for the Carter Applicant and by counsel for the Attorney General of Ontario.
[5] The Carter Applicant has applied to this Court for relief in accordance with the decisions of the Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 (“2015 decision”) and Carter v. Canada (Attorney General), 2016 SCC 4 (“2016 decision”).
[6] The subject matter of the Application is physician-assisted dying. As such, the solemnity of the task given to this Court cannot be overstated.
The Legislative Background
[7] In its 2015 decision, the Supreme Court of Canada found that the criminal law provisions which prohibit physician-assisted dying violate section 7 of the Charter, are not in accordance with the principles of fundamental justice and cannot be saved by section 1 of the Charter. Consequently, sections 241(b) and 14 of the Criminal Code were declared void in certain circumstances. The declaration of invalidity was suspended for twelve months. No provision was made for personal exemptions during the twelve-month period.
[8] In its 2016 decision, the Supreme Court of Canada extended the suspension period. That period will now expire on June 6, 2016. The majority of the Court granted an exemption so that persons who, during the extended period of suspension, wish to seek assistance from a physician in accordance with the criteria set out in the Court's 2015 decision can apply to the superior court of their jurisdiction for relief.
The Motion
[9] This Endorsement is deliberately cryptic to protect the confidentiality of the Carter Applicant, family and the physician. It is also relatively brief because it is imperative that it be released forthwith.
[10] The Motion seeks relief aimed at ensuring the anonymity of interested parties. For instance, the Carter Applicant seeks a publication ban, an Order that the issues be heard in Court in the absence of the public, an Order that all documents filed use pseudonyms or initials for all interested parties, and an Order that the Court file be sealed.
[11] I am aware of a scant number of other similar motions in Canada. I am not aware of any other case in the country, however, that included a request by a similarly situated applicant to dispense with notice of the motion to the media. That is the immediate issue that confronts this Court. It is an entirely novel one.
[12] The Attorney General of Canada takes no position on the Motion.
[13] The Attorney General of Ontario takes no position on the Motion but raises the concern that this Court is being asked to adjudicate the confidentiality issues absent any opportunity for the media to attend and make submissions.
Discussion
[14] I am cognizant that this Carter Applicant deserves to be heard without delay. I admire the courage of the Carter Applicant, and I undertake to hear the Motion and the Application on a priority and urgent basis. For those reasons, I seize myself of both the Motion and the Application. The Carter Applicant supports me doing so, and the Attorney General of Ontario does not oppose it.
[15] At the same time, however, I share the concern of counsel for the Attorney General of Ontario. There is a long-standing principle in Canada of open and public access to the courts. In many ways, the media helps facilitate that objective. As the Supreme Court of Canada has observed, the open court principle is a hallmark of our democratic society in that it is aimed at ensuring that justice is administered according to the rule of law and not arbitrarily. Further, the open court principle is intertwined with our constitutionally-protected freedom of expression. Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332.
[16] When there is a motion before any court that requests the degree of confidentiality that is asked for here, including a sealing order, it is presumed that the media will be notified before the motion is heard. In other words, as Justice Nordheimer observed fairly recently, the media should always be notified of a request for a sealing order unless there is a court order dispensing with the notice requirement. M.(A.) v. Toronto Police Service, 2015 ONSC 5684 (Div. Ct.).
[17] I am not insensitive to the submissions made by counsel for the Carter Applicant, which include allusions to more pain and suffering caused by further delay and the alleged limited public interest in allowing the media to address issues already canvassed in other similar cases.
[18] I am not satisfied, however, that there is sufficient reason demonstrated here to depart from the presumption that the media ought to be notified of the relief being sought.
[19] I am able to minimize the risk of any further prejudice to the Carter Applicant by offering an early date to hear both the Motion and the Application - a date less than two weeks from when counsel first appeared before me, upon notice given to the media.
[20] Given the very short turnaround period, and given that I will further accommodate the Carter Applicant by having both the Motion and the Application returnable on the same date, and given that I have taken every step possible in this Endorsement to protect the confidentiality of the Carter Applicant in the interim, upon balancing the competing interests identified in the opening paragraph herein, I do not believe that dispensation of any notice to the media is appropriate in these circumstances.
[21] Judges make the best decisions in the adversarial arena. We are able to give the most sober and thoughtful consideration to a contentious issue when we have heard, or at least permitted ourselves the chance to hear, the other side of the debate.
[22] At the suggestion of counsel for the Attorney General of Ontario, I was prepared to appoint amicus curiae to make submissions to the Court on the distinct issue of whether the media ought to be notified of the Motion.
[23] The Carter Applicant chose, instead, to give notice to the media. I respect that decision. I then directed to whom that notice shall be given.
[24] For these reasons, I decline to hear the Motion in the absence of notice to the media.
[25] The Motion and the Application are therefore adjourned to the date and place specified in the Interim Order that I signed at Court on March 21, 2016.
The Honourable Justice C.J. Conlan
DATE: March 21, 2016
COURT FILE NO.: 16-062
DATE: 20160321
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carter Applicant
- and - Attorney General of Ontario, et al.
BEFORE: Justice C.J. Conlan
COUNSEL: Ms F., for the Applicant Mr. Green and Mr. Ryan, for the Respondent, Attorney General of Ontario
ENDORSEMENT
Conlan, J.
DATE: March 21, 2016