The Supreme Court decision legalizing assisted suicide in Canada was shaped by judges with biases, conflicts of interest and personal connections hindering their impartiality, a motion filed at the very same court alleges.
The explosive allegations in the motion, filed by an Ontario man battling a terminal illness, seek to upend Carter v. Canada, the 2015 Supreme Court of Canada ruling that struck down the ban on assisted suicide, upholding an earlier ruling in the BC Supreme Court.
In his 162-page application, Roger Foley alleges a web of connections between Justice Lynn Smith, the judge who decided the case at the BC Supreme Court, and one of the plaintiffs, the British Columbia Civil Liberties Association (BCCLA).
His filing also accuses then-chief justice Beverley McLachlin of prejudicial personal bias in favour of legalizing assisted suicide.
The Chief Justice of the Supreme Court dismissed Foley’s motion without a hearing on Oct. 21, the day of the federal election. No reasons were provided.
Through his lawyer, Foley declined to comment on this story.
Foley has no direct connection to the case, though he previously made headlines for exposing a London, Ont. hospital’s offer of assisted suicide despite his desire for home care.
The allegations in Foley’s affidavit have not been tested in court.
The motion says the Supreme Court’s unanimous decision to strike down the assisted suicide ban was “predetermined,” which Foley contends is why Smith’s alleged bias and conflicts of interest went unchallenged.
“There is a reasonable apprehension of bias that Chief Justice McLachlin’s decision was fixed, staged and predetermined, and infected with bias,” the notice of motion reads. It goes onto say McLachlin “infected the remaining panel of judges” to such an extent that vacating the judgement is the only option.
Justice Lynn Smith and the BCCLA
Before being appointed as a judge, Lynn Smith served on the board of directors for the BCCLA, though that didn’t stop her from presiding over the Carter case, in which the civil liberties organization was not merely standing as counsel, but as a plaintiff.
This is one of several connections presented in Foley’s motion before the Supreme Court that he says points to a biased judgement at the BC Supreme Court, which went unchallenged later on at the Supreme Court of Canada.
The connections presented in this story have been verified independently by True North based on publicly available documents.
Smith is named as a “past Board member” in the BCCLA’s 2003 annual report. The affiliation is also noted in several biographies of Smith published by the University of British Columbia, where she previously served as dean of the school.
The BCCLA’s communications director did not respond to repeated inquiries from True North regarding Smith’s role and length of service with the organization.
Her support for the organization was not limited to board membership, however. When Smith chaired the Law Foundation of British Columbia from 1996 to 1997, she “provided funding and extended and increased grants to the BCCLA at a rate higher than the BCCLA had ever received from the Law Foundation of BC previously,” Foley alleges in his affidavit, citing a 1996 report from the BCCLA treasurer thanking the foundation for its “generous support.”
Smith, who also served as a Trudeau Foundation mentor and is now the acting Conflict of Interest Commissioner in British Columbia, declined to be interviewed by True North.
At the time Smith was hearing the Carter case, her daughter, lawyer Elin Sigurson, was working on at least one BCCLA case. She also had working relationships with several of the lawyers representing the Carter plaintiffs.
Foley alleges Sigurdson was a “staff lawyer” for the BCCLA while Carter was before the BC Supreme Court. There’s no record of her being referred to as such by the BCCLA, though the organization’s 2011 and 2012 annual reports do name Sigurdson in their lists of “lawyers who have volunteered their time to the BCCLA.”
She was also co-counsel on a high-profile solitary confinement case alongside Grace Pastine, the BCCLA’s litigation director and a member of the Carter legal team.
Sigurdson previously worked with Joseph Arvay, the lead counsel for the plaintiffs in Carter, at his firm Arvay Finlay. She also worked with Sheila Tucker, another Carter lawyer.
Sigurdson did not wish to be interviewed, but addressed several questions raised by True North in an email.
Her work with Arvay, Pastine and Tucker was all on matters “unrelated” to Carter, she said, noting her employment at Arvay Finlay ended in 2010 and the Carter trial at the BC Supreme Court didn’t take place until November 2011.
“It is…my understanding that my having worked at Arvay Finlay was raised with all counsel and no objection was raised,” she wrote.
Sigurdson said she ensured there was an ethical wall – a process for lawyers to separate themselves from cases and processes that could generate conflicts of interest – between her and Carter.
“There were no occasions on which I spoke to Madam Justice Smith or any of the litigators involved about the Carter litigation while the matter was before Justice Smith,” Sigurdson wrote. “The sole reference made to me by any of these individuals about the litigation was to convey to me at the outset that no one involved would communicate with me about the case in any way while it was before Madam Justice Smith.”
Sigurdson also said she has “never been employed by the BCCLA as a staff lawyer,” though did not respond to an email asking her to clarify her role with the BCCLA and on its cases.
The connection between Smith and the BCCLA doesn’t sit well with André Schutten of the Association for Reformed Political Action, which intervened in Carter to uphold the assisted suicide prohibition.
“There’s an old adage in law that justice must not only be done, but that it must also manifestly be seen to be done,” Schutten told True North. “And as a human rights lawyer fighting for the full and equal protection of the law for persons with disabilities, I don’t see justice done when there appears to be a conflict here.”
Schutten said there are “lots of judges in British Columbia” without close relatives attached to the plaintiffs that could have heard the case.
“So while the rules of professional conduct can allow for this ‘ethical wall’ to be erected on this particular file, it’s too big of an issue, too fundamental a policy change, for that to be sufficient,” he said, adding it would have been “prudent” for Smith to have recused herself from the start.
Beverley McLachlin said in her memoir she “had come full circle” when the Supreme Court of Canada, with her as the chief justice, unanimously avowed assisted suicide was a right in the 2015 Carter decision.
In the same book, Truth Be Told, published earlier this year, McLachlin reveals a longstanding attachment to assisted suicide that, by her own account, may have jeopardized her ability to assess it impartially.
Her previous husband Rory, while dying of cancer, asked her to help him end his life, decades before it became legal.
“One morning, as he lay in his bed in our home, he asked a special thing of me – to give him the morphine we had been doling out drop by drop in a single massive dose. ‘I want to die now,’ he said,” McLachlin wrote.
“Tears in my eyes, I left the room. I could not do it. I had always thought of myself as gutsy. I had never shrunk from unpleasant things. But this, I knew in my heart, I could not do. Because it was against the law. Because I could not physically bring myself to do it.”
So strong were her feelings about the matter that she weighed recusing herself from the 1993 Sue Rodriguez case on assisted suicide. She even approached the chief justice at the time, Antonio Lamer, with her concerns.
“I do not have settled views on the outcome, but I feel very close to it after (Rory’s death),” she recalled saying to him.
“Judges are human beings. They bring their lived experiences to the cases they decide. That is good, provided they remember that their ultimate duty is to be faithful to the law,” she quoted him as replying.
Schutten agrees that lawyers and judges will have their own opinions on contentious social and political issues, but noted McLachlin’s admissions reveal a far more fundamental issue in Canada.
“I’d say the problem is not whether she was objective enough,” Schutten said. “It is a much deeper problem, post-Charter, that allos judges to set public policy on very complex political and social issues, when that is not their job. It is Parliament’s job…. Chief Justice Lamer reminded Justice McLachlin that her ultimate duty is to be faithful to the law, but the tendency of our Supreme Court (and lower courts as well) is not to be faithful to what the law is, but rather to change the law to what they prefer it to be. That’s the problem.”
McLachlin did not sit the case out, instead pushing to strike down the assisted suicide ban, though it was ultimately upheld in a 5-4 decision. She said in a 2009 interview with Steve Paikin that her dissent would “provide seeds for future developments.”
Interestingly, in an unrelated section of that interview, she draws a much firmer line for avoiding conflicts than she appeared to have done with Rodriguez, and by extension Carter.
McLachlin said even something like support for a sports team could be enough to warrant recusal if that team was involved in a case before the Supreme Court.
“I think we try to watch out for things that are issues that could come before the courts,” she said in the interview. “And we don’t want to either take a stand or be seen as taking a stand on those issues…. We have to preserve not only our actual impartiality, but the appearance of impartiality. So we try to avoid getting involved in anything contentious in the community.”
McLachlin did not respond to several emailed requests for comment.