Originally published: 20 July 2016

Physician-assisted dying is now legal in Canada. In the case of Carter v Canada (Attorney General) 2015, the Supreme Court of Canada struck down the provisions of the Criminal Code prohibiting it.[1] The House of Commons was responsible for amending the law in response to the Court decision,[2] and did so by passing Bill C-14.[3]

For a Bill to become law, the Constitution requires it be passed by both the House of Commons and the Senate.[4] The Senate was considered a “wildcard”[5] in the passing of Bill C-14 because of the unusually active role it played in the process.

The Fathers of Confederation intended the Senate to provide “sober second-thought”[6] in the legislative process. However, with the passage of time, the Senate has often appeared to serve as a ‘rubber stamp’, rather than as the provider of sober second thought. Senators in this case appeared to seize the opportunity to exercise their intended role when the House of Commons passed Bill C-14.[7]

Constitutionality of Bill C-14 called into question

When the House of Commons passed Bill C-14, some lawyers and pundits were left unsatisfied. They were concerned that this new legislation was not consistent with some of the requirements for physician-assisted dying laid out by the Supreme Court in Carter. In particular, they believed that it too heavily restricted access to the service.

In the Carter decision, the Court ruled that physician-assisted dying should be allowed for people who:

1. clearly consent to dying, and[8]

2. have a grievous and irremediable medical condition causing intolerable suffering.[9]

The government response to the decision restricted the definition of a “grievous and irremediable medical condition to mean that a person must be in an “advanced state of irreversible decline.”[10] More controversially, the Bill also required that the person’s natural death be reasonably foreseeable.[11]

Critics of Bill C-14 believe it is an unconstitutional attempt to limit who can access physician-assisted dying services. They argue that the Supreme Court has already stipulated what conditions are required for constitutionally permissible physician-assisted dying.[12] The federal government admitted in a case brought before the the Alberta Court of Appeal, that the Carter decision does not require an applicant for physician-assisted dying to be at or near the end of life.[13] Critics say this admission illustrates the questionable constitutionality of the Bill. The Globe and Mail Editorial Board went so far as to claim this illustrated a “fatal flaw” in the approach the Government had taken to Bill C-14.[14] It implored the Prime Minister “to at least consider the possibility that his government made a mistake.”[15]

The Senate amends Bill C-14

The questionable constitutionality of Bill C-14 motivated the Senate to act.[16] Rather than rubber stamping the Bill, Senators proposed many amendments,[17] the most significant of which removed the reasonable foreseeability of death requirement from the legislation.[18] This was a fundamental change, at odds with what the Liberal Government was advocating.

The controversial and time-sensitive nature of the physician-assisted dying debate contributed to the press coverage the Senate amendments received. This was compounded by the Senate exercising its authority against the wishes of the elected House of Commons, which is somewhat controversial in its own right. In the recent past, instances of this happening are uncommon.[19]

Recent changes to the Senate could have played a role in these events. In 2014, Justin Trudeau removed all Senators from the Liberal Party caucus, resulting in formerly-Liberal Senators sitting as independents.[20] With the election of a Liberal government in 2015, these Senators could not influence government policy. The new arrangement also meant they were not controlled by Liberal Party officials, and may not have felt compelled to toe the party line. This reform may have been the root cause of the Senate’s approach to Bill C-14 and may not be an isolated event: the House of Commons may have to contend with a more active Senate in the future.

The outcome

The Senate’s amendment to Bill C-14 meant that the Bill had to be returned to the House of Commons for reconsideration. The House of Commons stood firm and rejected the amendment to remove the reasonable foreseeability of death requirement from Bill C-14.

The final version of Bill C-14, including the reasonable foreseeability of death requirement, was sent back to the Senate to be considered a second time. Would the Senate derail the legislative process after its crucial amendment had been spurned? As it turned out, no they would not. The Senate’s opposition to the legislation dissolved. The second Senate vote, 44 in favour and 28 against, wasn’t even close.[21] Thus, after all the criticism Senators levied at the Bill the first time around on constitutional grounds, they let the House of Commons off the hook. One Senator stated they “accept the message passed by the House of Commons.”[22]

It is possible to criticize the Senate for making this very public retreat from thinking soberly. What remains to be seen however, is whether the Senate’s concerns about the unconstitutionality of the newly-enacted legislation will be proven correct. One group, the British Columbia Civil Liberties Association, is already challenging the new legislation.[23]

 

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[1] 2015 SCC 5 at para 126 .

[2] Carter v Canada (Attorney General), 2016 SCC 4 at para 14 (“The Court unanimously held in its judgment on the merits that these are matters most appropriately addressed by the legislative process.”).

[3] Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016 (as passed by the House of Commons 14 April 2016) [Bill C-14].

[4] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 55, reprinted in RSC 1985, Appendix II, No 5.

[5] Rachel Aiello, “Lobbying on physician-assisted dying continues as new law nears passage”, The Hill Times (16 May 2016), online: <www.hilltimes.com/2016/05/16/lobbying-on-physician-assisted-dying-continues-as-new-law-nears-passage/63755>.

[6] Debates of the Senate, 5th Parl, 3rd Sess, No 1 (26 March 1885) at 433.

[7] Aaron Wherry, “C-14 shows the Senate merely doing its job: The much-maligned Red Chamber passes legislation on medically assisted death”, CBC News (18 June, 2016), online: <www.cbc.ca/news/politics/wherry-senate-c14-1.3641211>.

[8] Carter, supra note 1 at para 147.

[9] Ibid.

[10] Bill C-14, supra note 3, cl 3.

[11] Ibid.

[12] Joan Bryden, “Assisted Dying Bill C-14 Is Unconstitutional: Leading Expert”, Huffington Post (6 June 2016), online: <www.huffingtonpost.ca/2016/06/06/leading-constitutional-expert-says-assisted-dying-law-unconstitutional_n_10317512.html>.

[13] Canada (Attorney General) v EF, 2016 ABCA 155.

[14] Globe Editorial, “Ottawa’s assisted-suicide legislation contains a fatal flaw”, The Globe and Mail (24 May 2016), A12, online: <www.theglobeandmail.com/opinion/editorials/ottawas-assisted-suicide-legislation-contains-a-fatal-flaw/article30130762/>.

[15] Ibid.

[16] Joan Bryden, “Assisted dying bill: Senate sends C-14 back to House with 7 amendments: Senators vote 64-12 with one abstention to pass amended bill, but head count obscures senators’ mixed feelings”, CBC News (16 June 2016), online: <www.cbc.ca/news/politics/assisted-dying-c14-senate-amendments-1.3638240>.

[17] Debates of the Senate, 45th Parl, 1st Session, No 45 (8 June 2016) at 938.

[18] Ibid.

[19] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 4th ed(Toronto: University of Toronto Press, 2009) at 131.

[20] Goria Galloway & Josh Wingrove, “Trudeau cuts Liberal senators loose in push for a non-partisan Red Chamber”, The Globe and Mail (29 January 2014), online: <www.theglobeandmail.com/news/politics/trudeau-to-boot-senators-from-liberal-caucus-in-bid-to-restore-senate-independence/article16567413/>.

[21] Ibid.

[22] Catherine Tunney, “Liberals’ assisted-dying bill is now law after clearing final hurdles: Senate rejects amendment that would have sent bill to Supreme Court for review”, CBC News (17 June 2016), online: <www.cbc.ca/news/politics/assisted-dying-bill-senate-approval-1.3640195>; Contra Chantal Hébert, “Canadian Senate’s acceptance of bill C-14 start of a power struggle”, Toronto Star (18 June 2016), online: <www.thestar.com/news/canada/2016/06/18/canadian-senates-acceptance-of-bill-c-14-start-of-power-struggle.html>.

[23] British Columbia Civil Liberties Association, News Release, “ASSISTED DYING: Woman with Spinal Muscular Atrophy and rights watchdog launch legal challenge for right to die with dignity” (27 June 2005), online: BCCLA <www.bccla.org/news/2016/06/lamb-legal-challenge-launch/>.

Despite the prevalence of mental health issues in Canadian prisons,[1] a statistically tiny portion of offenders (less than 1%) seek the designation of, and are subsequently deemed, ‘Not Criminally Responsible on Account of Mental Disorder’ [NCR].[2] Those who do receive the designation are held to lack the mental capacity necessary for a finding of criminal responsibility, and rather than being sentenced in the criminal justice system, are sent to medical facilities that focus on treating their disorders.

Since individuals deemed to be NCR are detained in those facilities for an indeterminate period of time, an NCR designation can have an impact on their Charter rights. For that reason, the constitutionality of the designation has been tested in the courts. These constitutional challenges have resulted in important reforms being made to the NCR scheme in order to ensure that infringements to an individuals’ rights to life, liberty, and security of the person are reasonable and justifiable.

Recent reforms to the NCR scheme, many of which substantially increase the restrictions placed on NCR individuals lives and liberties, have not yet faced constitutional scrutiny in the Supreme Court – but may well soon, if the Crown decides to pursue the new ‘high-risk’ NCR designation in Matthew de Grood’s case.[3]

The Context – Matthew de Grood

At an end-of semester party in April of 2014, de Grood murdered five fellow university students by stabbing them repeatedly with a kitchen knife.[4] During the commission of the offences he believed himself to be, among other things, an alien engaged in a war against vampires.[5] As a result the court decided that, on a balance of probabilities, he suffered from a disease of the mind that prevented him from knowing that his actions were wrong.[6] The trial judge designated him Not Criminally Responsible.

What does ‘Not Criminally Responsible’ mean?

Generally speaking, the NCR designation is issued when an offender is found to be mentally incapable of forming the intent to commit the crime for which he or she is charged. Seeking an NCR designation can therefore be a defence to criminal charges.

If deemed NCR, offenders are placed in a locked medical facility where they are provided with medication and treatment. Though these individuals are detained for an indeterminate length of time, their detention is periodically reviewed by a panel of legal and medical experts.

A successful NCR application can be controversial, since the individual is neither tried for, nor found guilty of, the crime. A judge’s finding of NCR can thus be unpopular with the public and is often ill-received by victims of the crime. Though those designated NCR are confined to medical facilities, the designation is sometimes derided as a ‘get out of jail free card’.

On the other hand, the possibility of indeterminate detention can have a chilling effect: discouraging an accused person from pursuing the designation.[7]

‘Not Criminally Responsible’ in the Criminal Code

Being found guilty of a crime usually requires a guilty act and a guilty mind. You must have actually committed the criminal act, but – more relevant to the NCR defence – during the commission of the act you must also have understood what you were doing, and known that what you were doing was wrong.[8] This ensures that the stigma of being labelled ‘guilty’ is reserved for people who have not only done something wrong, but also intended to do so.

The NCR defence established by section 16 of the Criminal Code directly reflects this fundamental aspect of criminal justice. However, availing yourself of the NCR defence is not a small task. Not only is there a presumption of sanity that is yours to disprove on a balance of probabilities,[9] but you must also meet the legal test set out in section 16(1) of the Code:

No person is criminally responsible for an act committed or an omission made while [1] suffering from a mental disorder that rendered the person incapable of [2a] appreciating the nature and quality of the act or omission or of [2b] knowing that it was wrong.[10]

Courts must first determine the threshold issue of whether the accused was suffering from a mental disorder. If the accused is not found to have a disorder the NCR analysis is over and the criminal process resumes. However, if the court does believe that the accused was suffering from a mental disorder, it also has to consider whether the accused could both appreciate the nature and quality of the act or omission, and knew that it was wrong.[11] If the accused was incapable of either at the time of the offence, then he or she is deemed NCR.

In de Grood’s case, the judge found that he suffered from a disease of the mind that satisfied the threshold issue: he had completely lost touch with reality because of a severe and acute psychotic episode.[12] The judge then decided that, although de Grood was capable of appreciating the nature and quality of his actions, he was incapable of knowing that his actions were wrong:[13] his delusions caused him to feel he was in a kill or be killed situation; at the time of his victims’ deaths, he believed his actions were morally justified.[14]

The Result of Being Deemed NCR

Detainment

Individuals meeting the criteria outlined in section 16(1) of the Criminal Code (that is: those deemed ‘not criminally responsible on account of mental disorder’) are not guilty, nor are they – strictly speaking – innocent. Instead, they are deemed not criminally responsible for their actions and become patients of mental institutions that emphasize treatment and recovery while de-emphasizing punishment.[15]

Although not prisons, these mental institutions do share several similarities with them: constant monitoring, locked doors, and restrictions on basic privileges. It should be noted that though patients are not forced to undergo treatment (or receive medication) against their will,[16] discharge is largely contingent on the success of their treatment.

Periodic Review

The most serious long-term impact of an NCR designation on an individual’s liberty is the ongoing review of his or her detainment conducted by a mental health Review Board. These Boards are provincial tribunals established and empowered by the Criminal Code to review the detention of every individual deemed NCR. The Review Boards sit in panels of 3-5 members.[17] Hearing cases year-round, they assess the current mental state of patients.[18] They have the power to grant an order – by majority vote – that the patient either:

• remains detained in a hospital,
• be discharged with conditions attached, or
• be discharged absolutely.[19]

An order for continued detainment maintains the significant restrictions imposed on the patient when he or she was first deemed NCR. A conditional discharge allows for a certain measure of freedom, but also typically requires the patient to report for regular hospital check-ups, take medication, and refrain from the use of drugs or alcohol.[20] An absolute discharge ends the review process and allows for a return to a ‘normal’ life. To receive an absolute discharge, the Board has to be convinced that the patient is not a “significant threat to the safety of the public.”[21]

When deciding which of these orders to make, the Board has to take into account the safety of the public (which is the “paramount consideration”), the mental condition of the accused, the reintegration of the accused into society, and any other needs of the accused.[22]

Matthew de Grood

Since the court verdict, Mr. de Grood has been held at the Southern Alberta Forensic Psychiatry Centre.[23] At the hearing, the tribunal decided that he should remain in a hospital and be granted no privileges, with a review date set for July 2017.[24] Following Mr. de Grood’s hearing, the Crown confirmed that it is considering seeking the newly established ‘high-risk’ designation in his case.[25]

“High-Risk” NCR designation

In 2014, the federal Government enacted amendments to the Criminal Code that resulted in greater restrictions on NCR individuals generally.[26] Additionally, it created a new “high risk” category in section 672.64 of the Code. This new designation allows the Crown to seek greatly increased restrictions on people who have been deemed NCR and were accused of a personal injury offence, when they feel the public would not be adequately protected by the ordinary NCR provisions.[27]

If the Board were to deem Mr. de Grood ‘high risk’ he would face:

• Potentially longer wait times between Board reviews (up to 36 months)[28]
• Detention in a hospital until the ‘high-risk’ designation is revoked by a justice of the Court of Queen’s Bench[29]
• The complete denial of unescorted visits into the community[30]
• Only being permitted escorted visits into the community for medical reasons or treatment[31]

For victims of the crime and society in general, the advantages of the new designation are the enhanced supervision of the patient, both in ensuring medication is taken while the person is detained, and in restricting visits to the community.[32]

Constitutionality of the reformed NCR legislation

As a result of previous constitutional challenges, legislative changes were made to the NCR mental health diversion process, including: (1) guaranteed frequent, individualized review of a patient’s file; (2) requirements that the Review Board decide in the way that is least onerous and restrictive to the patient; (3) requirements for an absolute discharge once a patient ceases to be a significant threat to the public.[33]

The legislative amendments under the NCR Reform Act of 2014 may well affect the overall constitutionality of the NCR system. In a change that impacts all individuals deemed NCR, the federal Government removed the section of the Code requiring the Board to decide in a way that is “least onerous and least restrictive to the accused.”[34] It also ensured that the ‘safety of the public’ became the paramount consideration.[35]

Given the outcome of previous cases challenging the NCR scheme under section 7 of the Charter, it is possible that violations to an accused’s right to life, liberty and security would be found if the new more restrictive regime were challenged. It is also possible that the ‘high-risk’ designation, which includes the most restrictive reforms to the NCR system, will be found to infringe those rights – and not at all certain that the government will be able to justify that infringement.

Constitutionality of the “High-Risk” designation

Potential Challenge

Should Mr. de Grood wish to contest the additional restrictions that a ‘high-risk’ status entails, he might make a constitutional argument that the new legislative reforms unjustifiably infringe his right to life, liberty, and security of the person as guaranteed by section 7 of the Charter of Rights and Freedoms.

He could argue, for example, that the recent amendments to the Code are not a minimal impairment of his right to liberty because of the possibility that he may spend a much longer, even more indeterminate period of time in a mental institution. His inability to engage in community visits could also be problematic: if deemed ‘high-risk’, he would (for example) likely not be allowed out to attend the funeral of a loved one. As he has not been found guilty of a crime the Crown may not be able to justify such an infringement upon his rights.

The difficulties of justifying those infringements

The government could argue that the new ‘high-risk’ designation is designed to ensure that individuals accused of a personal injury offence (who are found Not Criminally Responsible for their actions) are no longer a threat to their victims or communities before they are released.[36] The court will then need to balance the accused’s right to life, liberty and security against the government’s goal of ensuring public safety.

The biggest hurdle for the government will likely be proving that the provision allowing an accused to wait up to three years between Board reviews is not only an effective way, but also among the least intrusive ways, of meeting its public safety objective. Another hurdle will be justifying the inability of ‘high risk’ individuals to seek supervised community visitation privileges for any non-medical reason, no matter how compelling, before their ‘high-risk’ designation is revoked.[37]

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[1] As can be seen in both the 2009/10 and 2014/15 annual reports of the Correctional Investigator, mental health is a significant concern for prisons. Over 20% of individuals admitted into federal prisons are taking a prescribed medication for a psychiatric condition. Additionally, 30% of female offenders have previously been hospitalized for psychiatric reasons: see John Howard Society, “Fact Sheet – Prisons and Mental Health”, online: <http://johnhoward.ab.ca/docs/factsheets/FactSheet110402-PrisonsAndMentalHealth.pdf>; Canada, “Annual Report of the Office of the Correctional Investigator 2009-2009” (29 June 2009), online: <www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/annrpt20082009-eng.pdf>; Canada, “Annual Report of the Office of the Correctional Investigator 2014-2015” (26 June 2015), online at 12-18: <www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/annrpt20142015-eng.pdf>.

[2] Zoran Miladinovic & Jennifer Lukassen, “Verdicts of not criminally responsible on account of mental disorder in adult criminal courts, 2005/2006-2011/2012” Statistics Canada (2014), online: <www.statcan.gc.ca/pub/85-002-x/2014001/article/14085-eng.htm#a1>.

[3] Note that the ‘high-risk’ designation has, however, been applied by the courts. See e.g. R v Carter, 2015 CarswellOnt 15574, 125 WCB (2d) 285. The ‘high-risk’ designation has been applied retroactively to an individual already in the NCR scheme when the amendments were introduced: R v Schoenborn, 2015 BCSC 2254 .

[4] R v de Grood, 2016 ABQB 294 at paras 18-19 .

[5] Ibid at paras 90-92.

[6] A mental disorder is defined by the Criminal Code in section 2 as a “disease of the mind”. Case law has determined that a ‘disease of the mind’ includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning”: Cooper v the Queen, [1983] 1 SCR 240 at 1159; see also de Grood, supra note 5 at paras 105-07.

[7] Paola Loriggio, “Not criminally responsible defence not a 'get out of jail free card': lawyer” (17 December 2014), online: <www.ctvnews.ca/canada/not-criminally-responsible-defence-not-a-get-out-of-jail-free-card-lawyer-1.2152709>.

[8] The Canadian Criminal Law Notebook, “Actus Reus and Means Rea”, online: <www.criminalnotebook.ca/index.php/Actus_Reus_and_Mens_Rea>.

[9] Canadian Criminal Code, RSC, 1985, c C-46, s 16(2), (3) .

[10] Ibid [emphasis added].

[11] See Kjeldsen v the Queen, [1981] 2 SCR 617, R v Chaulk, [1990] 3 SCR 1303 , R v Ooommen. [1994] 2 SCR 507.

[12] de Grood, supra note 5 at paras 116-17.

[13] Ibid at para 129.

[14] Ibid at para 120-28.

[15] Alberta Health Services, “Information: Southern Alberta Forensic Psychiatry Centre”, online: <http://www.albertahealthservices.ca/info/service.aspx?id=1921>.

[16] Criminal Code, supra note 9 at s 672.55 (1).

[17] Government of British Columbia, “Mental Health Review Board”, online: <www2.gov.bc.ca/gov/content/health/about-bc-s-health-care-system/partners/colleges-boards-and-commissions/mental-health-review-board>; Government of Ontario, “Ontario Review Board: About Us”, online: <www.orb.on.ca/scripts/en/about.asp>; Government of Alberta, “Review panels: formal patients under the Mental Health Act”, online: <www.health.alberta.ca/newsroom/mental-health-act-panels.html>.

[18] Ibid.

[19] Criminal Code, supra note 9 at s 672.54.

[20] Department of Justice, “Research Report: The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” (January 2006), online: <http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr06_1/rr06_1.pdf> at 3.

[21] Ibid at 2.

[22] Ibid.

[23] Kevin Martin, “Alberta Review Board hearing will determine treatment for Matthew de Grood” Calgary Herald (11 July 2016), online: <www.calgaryherald.com/news/crime/alberta-review-board-hearing-will-determine-treatment-for-matthew-de-grood>.

[24] Meghan Grant, “Calgary house party killer Matthew de Grood says 'no one deserves the pain I caused' at 1st NCR hearing” CBC News (13 July 2016), online: <www.cbc.ca/news/canada/calgary/matthew-degrood-ncr-hearing-brentwood-murder-1.3678110>.

[25] Tania Kohut, “What a high-risk NCR designation could mean for Matthew de Grood” Global News (25 May 2016), online: <www.globalnews.ca/news/2721739/what-a-high-risk-ncr-designation-could-mean-for-matthew-de-grood/>.

[26] Criminal Code, supra note 9 at s 672.54.

[27] Ibid at s 672.64 (1).

[28] Ibid at s 672.81 (1.31).

[29] Ibid at s 672.84 (1).

[30] Ibid at s 672.64 (3).

[31] Ibid.

[32] Canadian Resource Centre for Victims of Crime, “Arguments Presented Before the Standing Committee on Justice and Human Rights in Support of Bill C-54” (12 June 2013), online: <https://crcvc.ca/wp-content/uploads/2011/10/C-54-NCR-Reform-Act_Justice-Cttee_Jun13.pdf>.

[33] Ibid.

[34] Not Criminally Responsible Reform Act, SC 2014, c 6, s 9 . See for comparison, Criminal Code, supra note 9 (version in force between Dec 12, 2013 and May 31, 2014).

[35] NCRRA, supra note 37 at s 9.

[36] Ibid at SUMMARY.

[37] Ibid.

R v Saeed applies the existing police ‘search incident to arrest’ powers to a new form of search: a penile swab. The case is a good example of how the courts assess the constitutionality of police searches when heightened privacy interests are at stake.

Facts

Ali Hassan Saeed was arrested for sexual assault after he was accused of forcing intercourse on a young woman at a house party. Upon his arrest, and without a search warrant, the police sought to examine his penis for the DNA of the complainant to use as evidence of the intercourse. This consisted of running a cotton swab along the length of the outside of his penis. The police left Mr. Saeed restrained for a period so that he could not wash himself while they interviewed witnesses. They then allowed Mr. Saeed to conduct the swab himself, under supervision.[1]

Relevant Law

Police searched Mr. Saeed using their ‘search incident to arrest’ legal power, which allows police to conduct searches without warrants directly after making an arrest. Police may use this power when they have lawfully arrested a suspect, when the search is truly ‘incidental’ or related to the crime for which the accused was arrested, and when the search is conducted reasonably.[2]

All police searches, with or without a warrant, must conform to section 8 of the Canadian Charter of Rights and Freedoms,[3] which protects against unreasonable search and seizure. Police searches must be authorized by law, that law must be reasonable, and the search must be reasonably conducted.[4]

Issues

The issue in this case was whether the penile swab violated Mr. Saeed’s constitutional right to be secure from unreasonable search and seizure. If the ‘search incident to arrest’ power of the police did not allow this type of search, or if this type of search was an unreasonable exercise of that power, or the way this particular search was carried out was unreasonable, then the Court could refuse to admit the DNA evidence.

Decision and Section 8 Charter Analysis

The majority of the Court held that the ‘search incident to arrest’ power authorized this type of search, that it was a reasonable exercise of the power, and that this specific search was conducted reasonably.

Authorized by Law

Firstly, the Court concluded that the police had the authority under the ‘search incident to arrest’ power to conduct penile swabs as a search without having to obtain a warrant. This was because DNA evidence could be destroyed if the police did not act quickly, and so the search was ‘incidental’ to the arrest.[5] The search was also conducted in a manner that was minimally invasive to Mr. Saeed,  took little time, and was reasonably conducted.[6]

The Law Authorizing the Search is Reasonable

The court then considered whether conducting penile swabs using ‘search incident to arrest’ breached section 8 of the Charter. It acknowledged that people have a heightened expectation of privacy when it comes to their own bodily information,[7] which must influence a decision on the reasonableness of a ‘search incident to arrest’ legal power.

In a previous case, R v Stillman, the Supreme Court had held that the ‘search incident to arrest’ power authorizing police to seize bodily samples of an accused, such as hair or dental impressions, was unreasonable, and that police would need a warrant for that form of search.[8]

In Mr. Saeed’s case however the officers were not seizing the accused’s bodily information.[9] Rather, they were searching for the complainant’s bodily information, in the form of traces of the complainant’s DNA on Mr. Saeed’s penis. Thus the Court concluded that a person who is arrested has no heightened expectation of privacy when the police search for the DNA of another person on his body and therefore that this type of search was a reasonable exercise of the ‘search incident to arrest’ legal power.

The Search was Conducted Reasonably

The court went on to outline a list of factors to guide police in conducting penile swabs, to ensure that they will do so in a reasonable way that complies with the Charter. For example, police should administer the swab in private at a police station, they should allow the accused the opportunity to carry it out himself, and the accused should remain as clothed as possible.[10] The court also found that the police had conducted a reasonable search of Mr. Saeed in the present case, as they had acted within these guidelines.

Dissenting Opinions

Two of the Supreme Court Justices disagreed with the Court’s decision that the search in this case was lawful. Justice Abella would have held that the search was an unjustifiable and unreasonable intrusion on Mr. Saeed’s bodily integrity and privacy, and would therefore have excluded the DNA evidence from consideration by the Court.[11] She considered this search to be analogous to the collection of bodily samples in the Stillman case and reasoned that “a genital swab does not just require the individual to expose his or her genitals to state scrutiny, it asks that individual to violate his own bodily integrity by collecting potentially self-incriminatory evidence from that most private of areas.” From her perspective, the impact on Mr. Saeed's privacy interests was “as profound as one could imagine.”[12]

Justice Karakatansis agreed with Justice Abella generally. However, unlike Justice Abella, she would still have admitted the DNA evidence. Section 24(2) of the Charter allows evidence obtained in violation of Charter rights to be excluded from a trial when its “admission…would bring the administration of justice into disrepute.”[13] Since the police did not yet know whether penile swabs were constitutional and had performed the search in good faith, and since the evidence was essential to the prosecution’s case, Justice Karakatansis felt that admitting the evidence would not harm the reputation of the justice system.

Conclusion

Section 8 of the Charter serves as a protection against unreasonable police searches. As scientific capacity increases and new forms of searches appear, the courts must determine whether these searches are reasonable, or whether they are an unacceptable breach of an accused’s privacy. As the search in this case was for DNA evidence of the complainant, not the accused, the Court held that the penile swab was a reasonable form of search. This case therefore will not condone a swab-search for an accused’s own DNA. Furthermore, this case may not apply to female genital swabs, as those might be considered more invasive.

 

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[1] R v Saeed, 2016 SCC 24 paras 8-29 .

[2] Ibid at 37.

[3] Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[4] Saeed, supra note 1at 36.

[5] Saeed, supra note 1 at at 50.

[6] Ibid at 49.

[7] Saeed, supra note 1 at 38.

[8] R v Stillman, [1997] 1 SCR 607 paras 42-46.

[9] Saeed, supra note 1 at atat 45.

[10] Ibid at 78.

[11] Ibid at 94.

[12] Ibid at 152.

[13] Charter, supra note 3, s24(2).

Lawyers in Canada have debated whether or not to permit physician-assisted dying for over two decades. In the 2015 Carter v Canada (Attorney General)[1] decision, the Supreme Court ruled that Canada’s prohibition on physician-assisted dying was unconstitutional. The Court issued a suspended declaration of invalidity, giving Parliament time to amend the Criminal Code. Parliament was unable to draft new legislation before the suspension ran out.

When the declaration took effect the legal community was divided over what the Supreme Court of Canada had actually declared: were the Criminal Code provisions struck down in their entirety, or only partially – to the extent that the SCC deemed them inconsistent with the Constitution?

Physician-assisted dying background information

Helping a person commit suicide was forbidden by section 241 of Canada’s Criminal Code.[2] Section 14 also made it legally impossible for a person to consent to death.[3] These Criminal Code prohibitions were controversial because they prevented people from accessing physician-assisted death.[4] Many lawyers raised questions about the constitutionality of these provisions, believing them to breach a person’s right to life, liberty and security of the person protected by section 7 of the Charter of Rights and Freedoms.[5]

The Criminal Code prohibitions were found to interfere with “fundamentally important and personal medical decision-making”[6] and to impose pain and stress on the claimant  by “depriving her of control over her bodily integrity.”[7] For these reasons, the provisions were found to infringed her rights under section 7 of the Charter.  The Court did not find that those infringements were justified violations of her rights under section 1.[8]

The Supreme Court provides a suspended declaration of invalidity

After deciding that Canadians’ Charter rights were violated by the Criminal Code prohibitions, the Supreme Court considered how the breach should be remedied. Since the Constitution is the highest law in the land, every other law must conform to it:[9] if there is an inconsistency between a law and the Constitution, the law has no effect, to the extent of the inconsistency.[10] The Court declared the Criminal Code prohibitions to be unconstitutional and invalid. However, the Court appreciated that the government might want to enact other legislation controlling aspects of physician-assisted dying.

Generally, a declaration of invalidity by the Court takes effect immediately. But in certain cases the invalidity of a law can be postponed. Without a great deal of explanation, the Court decided to postpone the effect of their ruling, issuing what is called a suspended declaration of invalidity. The sections of the Criminal Code prohibition would become void one year after the ruling was given.

Unfortunately, the government was unable to draft new legislation within the one-year time frame provided by the Supreme Court.[11] Though the government received a four month extension of the deadline from the Court,[12] it still did not pass new legislation within the extended time frame.[13]

This chain of events drew the attention of the legal community. Approximately two-weeks passed between the time the declaration took effect and when a new law was passed. Lawyers debated the impact of the gap: were the Criminal Code provisions struck down in their entirety, or only partially – to the extent that the SCC deemed them inconsistent with the Constitution? The confusion stemmed largely from the ambiguous language used by Supreme Court in crafting the suspended declaration.

When the Supreme Court declared the Criminal Code prohibitions void, it did so only “insofar as they prohibit physician-assisted death.”[14] What did the Supreme Court actually intend that declaration to mean? There are two different opinions on the issue.

Opinion 1: The Code provisions were invalidated entirely

The first opinion is that the Criminal Code provisions were entirely struck down by the Carter ruling.[15]

This view is appealing for two main reasons. The first is that this approach is consistent with prior court rulings which do not accept partial declarations of invalidity.[16]

The second reason this opinion is appealing is its logical rigour. This view recognizes that the Supreme Court can choose between a limited number of remedies when deciding a case. The choices included striking the provisions down entirely,[17] reading the provision down,[18] or making the legislation constitutional by reading new terms into it.[19]

The purpose of suspending a declaration is to “ensure there is a law in place while Parliament responds.”[20] The need for this would only arise when the remedy granted is to strike the provision down.[21] If the law is remedied by the Court, rather than struck down, there would be little reason to provide Parliament with time to craft a new law.

According to this view, not only did the Supreme Court choose to entirely strike down the provision, it is impossible to think otherwise because of the suspended declaration they provided. As Professor Peter Sankoff puts it: “the very existence of the suspension is proof that s241(b) is completely invalid on June 7.”[22]

If this opinion is believed, there would be significant implications for Canadian law. Since the suspended declaration of invalidity elapsed before a law was put in place, Canada temporarily had no prohibitions on helping someone commit suicide. Indeed, this would mean even a person without medical training could have helped someone commit suicide.[23] The only restriction in this situation would have been ensuring that an assistant’s actions did not constitute homicide,[24] which remains illegal in Canada.[25]

Opinion 2: The Code provisions were partially invalidated

The second opinion is that the Criminal Code provisions were only partially struck down by the Carter ruling.[26]

This opinion recognizes that the Constitution does not prevent the Supreme Court from declaring a law partially invalid. In fact, the Constitution dictates that a law violating Charter rights is invalid “only to the extent of the inconsistency.”[27] Thus, the Carter ruling does not actually delete provisions of the Criminal Code: all it does is “[narrow] the ambit” of those prohibitions.[28] From this point of view, though the remedy may not be supported by past rulings, the Supreme Court was just doing what the Constitution entitled it to do.

However, lawyers of this opinion were confronted with the question: if this is the case, why suspend the declaration?[29] The answer they provide is that the Court was respecting Parliament’s role in the legislative process.[30] It shows an “implicit acceptance … that it would be far better for Parliament to set out the precise circumstances under which physician-assisted suicide is non-criminal, rather than leave it to the lower courts to interpret.”[31]

If this opinion is preferred, the impact on Canadian law would be comparatively minor. Since the Court only partially struck down the law, the rest of the law stays untouched. Thus, physician-assisted dying would have been permitted only to the extent that it was allowed by the Carter decision: other forms of assisted dying or assisted suicide would have remained prohibited.[32]

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[1] 2015 SCC 5 .

[2] Criminal Code, RSC 1985, c C-46 s 241(b).

[3] Ibid, s 14.

[4] “End-of-Life Law & Policy in Canada”, Health Law Institute, Dalhousie University (2016), online: <eol.law.dal.ca/?page_id=236> (“Historically, all forms of assisted suicide were an offence under s 241 of Canada’s Criminal Code).

[5] Joan Bryden, “Leading constitutional expert says assisted dying law unconstitutional”, Maclean’s (6 June 2016), online: <http://www.macleans.ca/news/canada/leading-constitutional-expert-says-assisted-dying-law-unconstitutional/>.

[6] Ibid at para 65.

[7] Ibid.

[8] Ibid at para 123.

[9] Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[10] Ibid.

[11] Carter v Carter (Attorney General), 2016 SCC 4 at para 2.

[12] Ibid at para 2.

[13] Joan Bryden, “Trudeau insists assisted-dying bill must pass by June 6” CTV News (28 May 2016), online: <www.ctvnews.ca/politics/trudeau-insists-assisted-dying-bill-must-pass-by-june-6-1.2921900>.

[14] Carter 2015, supra note 1 at para 127.

[15] Peter Sankoff, “Fifteen Minutes on Carter, The Assisted Dying Bill and Constitutional Remedies” (May 31, 2016), online: YouTube <www.youtube.com/watch?v=JnWXzUyoLIo> at 00h:12m:51s.

[16] Peter Sankoff, “29/ Thus, to conclude, I see no jurisprudential precedent for this interpretation. It is also illogical in light of the suspension.” (1 June 2016 at 7:44) online: Twitter <www.twitter.com/petersankoff/status/738003273504808960?ref_src=twsrc%5Etfw>; see also Kent Roach, Constitutional Remedies in Canada, 2nd ed (Toronto: Carswell, 2015) (loose-leaf release No. 26), ch 14 at 14-5.

[17] Ibid at 14-1..

[18] Ibid at 14-15

[19] Ibid at 14-52.3.

[20] Peter Sankoff, “11/ Hear me out. You suspend a declaration to ensure there is a law in place while Parliament responds.” (1 June 2016 at 7:28am) online: Twitter <www.twitter.com/petersankoff/status/737999373833928707?ref_src=twsrc%5Etfw>.

[21] Peter Sankoff, “12/ But if s241(b) was not invalidated completely, there is no need to suspend. It was always there, just w/ new judicial exceptions.” (1 June 2016 at 7:29am) online: Twitter <www.twitter.com/petersankoff?ref_src=twsrc%5Etfw>.

[22] Peter Sankoff, “16/ Hence, the very existence of the suspension is proof that s241(b) is completely invalid on June 7, otherwise it has no reason for being.” (1 June 2016 at 7:33am) online: Twitter <www.twitter.com/petersankoff/status/738000446032207872?ref_src=twsrc%5Etfw>.

[23] Sankoff, supra note 15 at 13:39.

[24] Sankoff, supra note 15 at 14:10.

[25] Criminal Code, supra note 2, s 222.

[26] Michael Plaxton, “After June 6th: What was the remedy in Carter” CBA National (June 2, 2016), online:

<www.nationalmagazine.ca/Blog/June-2016/After-June-6th-What-was-the-remedy-in-Carter.aspx>.

[27] Constitution Act, 1867, supra note 9.

[28] Plaxton, supra note 26.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

Introduction

Section 12 of the Canadian Charter of Rights and Freedoms protects against “any cruel and unusual treatment or punishment.” Like other Charter rights, section 12 can only be triggered by government action. For example, a parent using corrective force in a family setting is not bound by section 12, because a parent is not the government.[1] On the other hand, imposing mandatory minimum prison sentences is considered government action, and therefore, could be the subject of a section 12 Charter challenge. In such a case, the length or the mandatory nature of the sentence could be considered cruel and unusual treatment or punishment.

In order to engage section 12 of the Charter two issues must be considered:

1. treatment or punishment
2. cruel and unusual

Treatment or Punishment

First, a court must ensure that there is actual treatment or punishment inflicted on a person. The primary purpose of the law does not have to be for punishment in order for section 12 to be engaged. For example, in R v Wiles, the Supreme Court of Canada confirmed that prohibiting a convicted drug offender from possessing firearms could be considered punishment under section 12.[2] In that case, the purpose of that prohibition was to take away the privilege to possess weapons, but the court held that the offender’s section 12 right was still affected because not allowing the possession of the firearm could have some punitive effect on that person.[3] However, the court held that Mr. Wiles had not established that his section 12 Charter right was violated in this case, because prohibiting weapons relates to a “valid and important” state interest: protecting the public and the police officers involved with enforcing drug offences.[4] Here, the court confirmed that Parliament can prohibit a person from possessing firearms “upon conviction of certain criminal offences where it deems it in the public interest to do so.”[5]

Cruel and Unusual

Once a court has established that there has been treatment or punishment, it must then determine whether the treatment or punishment is both cruel and unusual.[6] It is not enough to be one or the other. The treatment or punishment must be both. The terms “cruel” and “unusual” have not been concretely defined, nor has it been fully determined what makes an action both cruel and unusual. However, Canadian courts have narrowed the definitions of these terms to include the following categories:

1)      treatment or punishment that is barbaric in itself

This includes any treatment or punishment that would be considered cruel and unusual as the penalty for any offence, no matter the severity of the crime.[7] Examples include lobotomizing dangerous offenders or castrating sexual offenders.[8]

2)      treatment or punishment that is grossly disproportionate to the offence

According to the Supreme Court’s decision in R v Smith, treatment or punishment is grossly disproportionate if the punishment imposed on the offender is too severe or excessive for that specific crime or where there are specific circumstances surrounding the offender or the case that create a gross disproportionality.[9] Some factors that a court would consider include the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case.[10] Like Smith, much of the law on gross disproportionality thus far has focused on mandatory minimum sentences, which are a form of punishment. In the 2015 case of R v Nur, the Supreme Court of Canada shed more light on whether a mandatory minimum prison sentence is both cruel and unusual, because it is grossly disproportionate to the offence.

To determine whether treatment or punishment – in this case, a mandatory minimum sentence - is grossly disproportionate, the court in Nur suggested a two-step process. First, the court must determine whether the mandatory minimum imposes a cruel and unusual punishment for the person bringing the case forward.[11] The individual circumstances of the person convicted must be considered. An example of this could be a law that imposes a minimum 10-year sentence for illegally possessing firearms where the convicted person doesn’t have any prior firearm offences. The length of sentence would be disproportionate given the person’s lack of prior criminal activity.

Next, the court must consider whether it is reasonably foreseeable that the mandatory minimum could impose cruel and unusual punishment on other offenders.[12] For example, Mr. Nur did not argue that the mandatory minimum was too severe for him, but that it could be too severe for others. In that case, the court decided that the mandatory three-year sentence could be cruel and unusual punishment for some people, such as for those who have no prior firearm offences.[13] Therefore, because the mandatory minimum sentence could be considered grossly disproportionate in some cases, the court decided that the mandatory minimum sentence was a violation of section 12 of the Charter.

Thus, section 12 protects individual offenders from receiving punishments that are grossly disproportionate to their particular circumstances, but section 1 allows this right to be “overridden to achieve some important societal objective.”[14]

Conclusion

The courts have not yet provided a concrete definition of cruel and unusual punishment. Most of the law surrounding section 12 of the Charter to date has focused on mandatory minimum sentences. These sentences have a role in deterring and denouncing specific crimes, but the Charter ensures that a court weighs whether these sentences are disproportionate to the offences to which they are attached. If the punishment is too severe for the offence given the offender’s circumstances, the mandatory minimum sentence would be considered both cruel and unusual.

 

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[1] Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCR 1 at para 48.

[2] R v Wiles, 2005 SCR 84 at para 3 .

[3] Peter Hogg, Constitutional Law of Canada 5th ed (Toronto: Carswell, 2007) at 53-2 .

[4] Wiles, supra note 2 at para 9.

[5] Ibid.

[6] Hogg, supra note 3at 53-3.

[7] Ibid.

[8] R v Smith, [1987] 1 SCR 1045 at para 56 .

[9] Ibid at para 55.

[10] Ibid.

[11] R v Nur, 2015 SCC 15 at para 46.

[12] Ibid at para 58.

[13] Ibid at para 83.

[14] Smith, supra note 8 at para 55.