Julia Lamb, et al. v. Attorney General of Canada

(British Columbia) (Civil) (By Leave)


Canadian charter (Non-criminal) - Civil procedure, Abuse of process - Charter of Rights – Civil procedure – Issue estoppel – Abuse of process – Challenge to constitutionality of replacement legislation following declaration of invalidity of previous legislation – Plaintiffs indicating intention to rely on facts found in the trial on the constitutionality of the previous legislation – Defendant government refusing to admit those facts remain true or are applicable to the new case – Application to strike those portions of the government’s statement of defence and related relief – Whether the doctrines of abuse of process or issue estoppel can apply, in the context of a constitutional challenge to a replacement law, to factual findings made in the challenge of the original law.


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This Court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5, declared sections 241 and 14 of the Criminal Code of no force and effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. As a result, the federal government proceeded to amend the Criminal Code, to include the current provisions on medical assistance in dying (sections 241.1 and following). Ms. Lamb and the BCCLA filed a notice of civil claim in the Supreme Court of British Columbia (BCSC), challenging the constitutional validity of certain aspects of these new provisions on the basis that the legislation perpetuates the same constitutional flaw identified in Carter. The notice of civil claim indicated the plaintiffs would rely on the findings of fact made by the trial judge and upheld by this Court in Carter. In its response, the Attorney General of Canada (AGC) did not admit that the facts remained true or that they were applicable to the new case. Ms. Lamb and the BCCLA brought an application to strike those portions of the AGC’s response and for related relief, arguing that the Carter findings were binding in the current litigation and were required to be accepted as pled unless the AGC demonstrated the existence of fresh evidence sufficient to warrant its re-litigation. The BCSC dismissed the application and the appeal was also dismissed.