Verdins

'Sentencing Offenders with Impaired Mental Functioning: Developing Australia's 'Most Sophisticated and Subtle' Analysis' by Jamie Walvisch in 17(2) Psychiatry, Psychology and Law (2010) 187-2010  notes that

When the Victorian Court of Appeal decision in R v Verdins (2007) 16 VR 269 was handed down, it was described as Australia’s ‘most sophisticated and subtle analysis’ of the relevance of psychiatric symptomatology to sentencing. In the two years since Verdins was decided, it has been raised in over 100 cases in Victoria alone. This article examines those cases, looking at how the law has developed since 2007. In the course of doing so, the author highlights a number of gaps which still exist in relation to the sentencing of offenders with impaired mental functioning. He concludes by suggesting an approach to filling those gaps, and to addressing this complex issue in general.

Walvisch comments that -

People with mental illnesses "comprise a disproportionate number of people who are arrested, who come before the courts and who are imprisoned". Yet despite the prevalence of offenders with mental health concerns, little academic work has been done to examine the way that the law currently addresses, and should address, the sentencing of people with mental illnesses who are convicted of an offence. Instead, for the past 150 years, most of the legal works which have been written about mental illness have focused on the issue of legal responsibility. While in recent years other related issues have also been addressed (such as the disposition of offenders found not guilty by reason of insanity, or the treatment of those who have become mentally ill while in prison), the sentencing of offenders with mental illnesses remains an underdeveloped topic of study. 

Given the prevalence of such offenders in the criminal justice system, it is not surprising that this issue has received far greater attention in the courts. For example, over the past decade courts in each of the Australian jurisdictions have looked at the way in which an offender’s impaired mental functioning should be taken into account in sentencing him or her. In Victoria, this issue has been raised in over 100 cases in the past two years alone. 

To some extent, this deluge of cases in Victoria has been driven by the judgement in R v Verdins, which was handed down in 2007. In that case, the Victorian Court of Appeal identified at least six ways in which impaired mental functioning could affect sentencing: by reducing the offender’s moral culpability; by influencing the kind of sentence to be imposed; by moderating or eliminating the need for general deterrence; by moderating or eliminating the need for specific deterrence; by making a sentence weigh more heavily on the offen- der than on a person in normal health; or by creating a serious risk of imprisonment having a significant adverse effect on the offender’s mental health (the 'Verdins principles'). 

In his commentary on Verdins, Freckelton noted that the judgement is "Australia’s most sophisticated and subtle analysis of the relevance of psychiatric symptomatology to sentencing". The case liberalised the law, allowing a wide range of impairments to be taken into account in a variety of ways. However, while this landmark decision went a "substantial distance" towards clarifying the law, it also left a number of issues unresolved.  

This article looks at how Victorian law has developed in this complex area over the past two years, highlighting the gaps which still exist and which need to be addressed. It concludes by suggesting that the best way to fill these gaps and to approach the sentencing of people with impaired mental functioning – in Victoria and elsewhere – is to think clearly about the reasons why we sentence people, and to adopt a principled approach.

He goes on to note that -

courts have applied the Verdins principles in cases where the offender’s impairment has been found to (at least partly) result from the following conditions:

• schizophrenia; 

• depression; 

• bipolar disorder; 

• dysthymia; 

• acquired brain injury; 

• intellectual disability; 

• post-natal depression; 

• schizoid personality disorder; 

• post-traumatic stress disorder.

Although not yet determined, the Verdins principles may also apply where the relevant condition is ‘learned helplessness’ arising from a prolonged history of family violence. While it was intended that the Verdins principles be interpreted broadly, it has been held that they do not apply to all cases in which an offender’s mental functioning is impaired. For example, the principles have been held not to apply in the following cases: where the offender’s impairment arose from the ordinary pressures of daily life, such as

• work, financial and marital pressures; 

• where the offender’s impairment was the result of drug or alcohol use; 

• where the offender was extremely sensitive to abuse, and had a problem with impulsivity, but did not have a diagnosable clinical psychological disorder or personality disorder; 

• where the offender suffered from a conversion disorder.

Unfortunately, in none of these cases did the court elaborate upon the reasons why the offender was not able to rely upon the Verdins principles, despite the fact that his or her mental functioning was impaired at the relevant time. It was simply assumed in each of the cases that the principles did not apply in the circumstances.

St Catherine

As someone who is not a fan of either Catherine MacKinnon or Andrea Dworkin I was interested to read 'Three Snapshots of Scholarly Engagement: Catharine MacKinnon’s Ethical Entrenchment, Transformative Politics, and Personal Commitment' by Adrienne Davis.

Davis states that

 Those who know me know that very little awes me. Those who know me very well know that one thing that does awe me is Catharine MacKinnon and her work. As I always tell my own students for props, I was a student in Professor MacKinnon's class during her year-long challenge to the Yale Law School curriculum and hiring process for faculty. In fact, I have three sets of photographs in my office: several of my family, one of Billie Holiday, and one snapped at the Yale Law Journal Centennial Banquet in 1991 that shows Professors MacKinnon and Derrick Bell, another senior intellectual icon in legal academia who transformed how we think about law and justice and who, not un-coincidentally, was on strike from Harvard Law School while Professor MacKinnon was visiting at Yale. When visitors to my office ask about that photo, I tell them that these two scholars are my intellectual forebears, academic and activist heroes who have inspired my scholarship and career. Like Derrick Bell - as a teacher, as a writer, as an activist, and a lawyer - Professor MacKinnon has embodied the subject of this essay: the engaged scholar. 

One of Catharine MacKinnon's germinal works calls attention to the political effects of modifiers. So, I was intrigued by the modifier of the conference panel that sparked this essay, the "engaged" scholar. I was struck by the quite distinct connotations invoked by this modifier. Of course there is the use I believe was envisioned by the plenary organizers as characterizing Professor MacKinnon's stunning body of legal work: engaged as in connected to something, seriously paying attention to consequences, rigorous and sustained involvement with a subject. Yet there are other connotations of engaged that I think are also helpful in understanding the scholar, modified, and hence the import of Professor MacKinnon's work for sex equality and jurisprudence more generally. There is also engaged, as in to have ceased negotiations and begun actual fighting, to have stopped hand-wringing and undertaken serious offensive and defensive measures. Finally, there is the meaning least invoked among scholars, yet the most commonly associated with the modifier: engaged, as the liminal status between single and married. That a public proclamation of connection and intention sustained not by institutionally imposed obligation but by personal commitment. In this sense, it is a connection characterized typically by confidence in past efforts and faith in the future. 

Davis continues -

This short essay offers three snapshots of Catharine MacKinnon's work, exemplifying each of these common connotations of engagement or the scholar modified. The first snapshot comes from several pieces that proved germinal for legal theory, feminist and not. 'Feminism, Marxism, Method and the State: An Agenda for Theory' and 'Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence', both published in the influential feminist journal Signs, and MacKinnon's essays on difference and dominance published in her second book, Feminism Unmodified, each portray that first, probably most anticipated connotation of engagement. Again, that is to take something seriously; to treat it rigorously rigorously and with sustained reflection; involvement; connection; paying attention to what is going on.

Brandeis

SSRN has released the short editor's Introduction by Robert F. Cochran Jr. to Louis D. Brandeis’s MIT Lectures on Law (Carolina Academic Press), summarised as -

 In the mid-1890s, Louis Brandeis taught a course on law to undergraduates at MIT. Brandeis later said, “Those talks at Tech marked an epoch in my own career.” At the time of the lectures, Brandeis had been practicing law for 15 years, had published the Harvard Law Review “Right to Privacy” article, was head of one of the nation’s most successful law firms, and had begun the public interest advocacy for which he would soon earn the title “The People’s Lawyer.” In the lectures, Brandeis presents his views of areas of law in which he would lead the country over the next five decades as activist lawyer and Supreme Court Justice — anti-trust, labor, privacy, criminal procedure, legal ethics, legislation, evidence, the judicial role, and jurisprudence. In some areas of the law, we see the foundations of Brandeis’s later work. In others, we find Brandeis taking positions that were the opposite of those he would take in the future. A careful examination of the lectures reveals that the “epoch” he identified in his career was his change of views as to the value of legislation. Prior to the lectures, Brandeis was a strong supporter of the common law and was skeptical about legislation. During the lectures, he grew to believe that legislation was a necessary response to the rapidly developing industrial and economic challenges of the day. He would become the foremost defender of legislation in the following century.

Visceral Notice

Experiencing 'privacy warning fatigue' (or simply incomprehension)?

'Against Notice Skepticism in Privacy (and Elsewhere)' by M. Ryan Calo in 87 Notre Dame Law Review (2012) 1027-1072 reflects empirical work noted earlier this year.

Calo argues that -

Requiring notice is a very popular way to regulate. It is also among the most heavily criticized. This article undermines the case for notice skepticism by exposing two erroneous assumptions critics of notice commonly make. 

The first assumption is that notice is monolithic. It is not. Notice consists of several, distinct strategies. It is surprisingly common for a lawmaker to select the wrong form(s) of notice for the particular context or concern. A statute will require a warning, for instance, where other categories of notice such as reporting or notification would be more effective and less costly. 

The second assumption is that notice must consist of language or its symbolic equivalent. Experience itself can also constitute a form of non-linguistic or “visceral” notice, one less susceptible to cognitive and other limitations. Electric cars, being silent, put pedestrians at risk. Officials could post warnings throughout the city that many would miss or tune out or ban the technology altogether. Instead, some regulators have proposed requiring that electric car manufacturers reintroduce an engine noise. Various emerging techniques can change our mental models in legally relevant ways without recourse to text or symbols. 

The prevailing notice skepticism should not succeed in convincing lawmakers, academics, and others to abandon notice as a strategy without first acknowledging and correcting these errors. Officials, meanwhile, should look to these insights as they consider mandatory notice going forward.

He concludes that -

Mandatory notice is a popular but controversial form of regulation. It is popular because it is perceived by government and industry as easier, cheaper, and less invasive than restricting conduct. It is controversial in that many are skeptical that notice ever works in practice. The arguments against notice, in online privacy and elsewhere, tend to follow the same pattern: notice is ineffective because consumers never see it and, when they do, they cannot make much use of it. The understandable conclusion that notice does not work in practice has led skeptics to reject notice entirely as a regulatory strategy — an action that would send regulators back to the proverbial square one. 

It may well be that, no matter how popular or advantageous a strategy, we need to abandon mandatory notice in favor of something else. This Article has argued that extreme skeptics of notice move too fast, however, in rejecting the potential of privacy notice to warn or inform consumers. Emerging strategies that do not necessarily rely on words or symbols to convey salient information to consumers may not be susceptible to the same withering critiques as more traditional notice. Especially given the paucity of alternatives, such “visceral” notice strategies are worthy of further exploration to ensure we know the full panoply of options available to regulators and courts. 

In short, this Article has identified a radical new dimension to notice in one context and urged further investigation. Without it, reports of the death of notice remain exaggerated. Although the focus of the Article has been online privacy - where notice is among the only affirmative obligations websites face and where opportunities for innovation are perhaps unique - its insights go beyond privacy or the Internet. We might explore the potential of visceral notice in contexts as variable as traffic safety, cyberbullying, and water purity. 

What is needed in each instance is a commitment on the part of regulators and industry to innovate around notice, an open mind on the part of critics, and a willingness within multiple disciplines to assess the results of such innovation. The way forward in notice is difficult but, this Article has argued, it is also worthwhile.

Speed

The Australian Institute of Criminology (AIC) has reported on a project to "identify the typical characteristics and offence types of amphetamine user detainees in Western Australia".

'Amphetamine users and crime in Western Australia, 1999–2009' by Natalie Gately, Jennifer Fleming, Robyn Morris & Catherine McGregor concludes that

Relative to detainee amphetamine non-users, the typical profile of a detainee amphetamine user (defined as use within the past 30 days) emerged as including a higher proportion of females; non-Indigenous, 24–28 years of age, single with no dependent children, unemployed, educated to year 10 or lower, living at the home of another person, and first arrested before the age of 18. In regard to other substance use, a typical detainee amphetamine user, when compared with detainee non-users was more likely to have tried alcohol before the age of 18 but less likely to have drunk at risky levels in the previous 30 days; more likely to have used cannabis, heroin, illegal benzodiazepines and amphetamines before the age of 18; and more likely to have used cannabis, heroin and illegal benzodiazepines in the previous 30 days than amphetamine non-users. 

This profile suggests that failure to reduce amphetamine use in Western Australia may have financial ramifications through unemployment costs such as Centrelink payments, as well as public health costs as a result of poly-drug use. The profile also indicates a transient lifestyle and reduced ability of users to find employment because of lower education and current substance use. There may also be an increased risk in this population for mental health complaints either as a result of substance use or the lifestyle it coincides with. Further, there is a vulnerability associated with the young age and gender of amphetamine users, and it is not unreasonable to anticipate problems for these females if they become pregnant. 

In regards to offence types, the study determined that amphetamine users were more likely than amphetamine non-users to commit property offences, robbery and related offences, illicit drug offences, fraud offences and weapons offences. These results support the findings of the Amphetamines in Queensland project by Lynch et al. (2003), although the present study did not find a high prevalence of assault charges within this population. This difference may be explained by the type of data collected. Lynch et al. (2003) used a community sample that self-reported previous offences, whereas the current project measured offence types based on current police charges at the time of data collection. The current findings are also consistent with those of McGregor and Gately (2008), who reported that amphetamine users were more likely to be charged with theft, illicit drug and weapons offences. These findings identify common patterns in crimes committed by amphetamine users in Australia. 

Of particular note, amphetamine users were no more likely to commit violent offences than amphetamine non-users, even when considering the frequency of amphetamine use. This supports and extends the findings of Smith and Rodwell (2009), who also found no association between amphetamine use and violent crime. This provides further evidence against a relationship between amphetamine use and violence.

The report argues that in WA a significantly greater proportion of amphetamine users who committed offences relating to -

• robbery, extortion and related offences (1.6 times non-amphetamine user rate); 

• unlawful entry with intent/burglary, break and enter (1.8 times non-amphetamine user rate); 

• theft and related offences (1.8 times non-amphetamine user rate); 

• fraud, deception and related offences (1.4 times non-amphetamine user rate); 

• illicit drug offences (2.6 times non-amphetamine user rate); 

• prohibited and regulated weapons and explosive offences (2.1 times non-amphetamine user rate); and 

• crime against property (1.5 times non-amphetamine user rate).

The differences were especially large for the  'crime against property' category; specifically for illicit drug offences, theft and related offences, and unlawful entry with intent/burglary, break and enter. Amphetamine non-users were found to have a significantly greater proportion of detainees committing offences relating to -

• public order offences (1.5 times amphetamine user rate); 

• sexual assault and related offences (3.8 times amphetamine user rate); and 

• abduction, harassment and other offences against the person (1.67 times amphetamine user rate).

Personality Rights

Facebook is reported to have agreed to settle a Californian personality rights (aka publicity rights) class action suit by five Facebook 'members', with U$10 million reportedly going to charity.

The people had alleged that the social network service violated their rights to control the use of their own names, photographs and likenesses by publicising their 'likes' of certain advertisers in its 'sponsored stories' feature without offering them scope to opt out or paying them for Facebook's use of their personas.

The settlement in Fraley et al v. Facebook, Inc. (Case CV-11-01726) was apparently reached last month but came to public notice this weekend. Given Facebook's somewhat cavalier approach to privacy and other law the settlement isn't discernible on the corporate site. A class certification hearing was apparently held on 31 May, with federal judge Lucy Koh having refused to dismiss the suit - launched in April 2011 - for want of standing. That is in contrast with the tendency of US federal courts to dismiss privacy actions on the basis that the plaintiffs haven't been able to prove they'd been harmed by alleged privacy violations.

In December last year Koh indicated that "Plaintiffs have adequately alleged unlawful, unfair and fraudulent conduct". She noted that "California has long recognised a right to protect one's name and likeness against appropriation by others for their advantage," and that the value of a "sponsored story" advertisement was considered by Facebook to be at least twice and up to three times the value of a standard Facebook ad without a friend endorsement. Interestingly the plaintiffs were represented by law firms that have a greater profile for dealing with automobile and workplace injury and employment disputes than intellectual property or publicity rights law.

The plaintiffs had alleged that -

1 Facebook violated California's right of publicity statute (Civil Code s 3344), which protects against misappropriation of a person's identity for monetary gain; 

2 the Sponsored Stories, being "unlawful, fraudulent, and unfair", violated California's unfair competition law; and 

3 Facebook's actions constituted unjust enrichment.

Facebook contested those three causes of action, arguing that -

1 the plaintiffs lacked standing because they had failed to allege any actual monetary/commercial injury (because their names/likenesses lacked commercial value); 

2 s 230 of the Communications Decency Act (CDA)  - broadly equivalent to safe harbour provisions in Australian law - protected Facebook because the Sponsored Stories constituted mere "editorial functions"; 

3 Facebook's actions fell within the right of publicity law's exception for "newsworthy" content; 

4 the unfair competition claims failed because Facebook does not charge its users; and 

5 California does not recognize an unjust enrichment claim.

Koh ruled in favor of the plaintiffs apart from dismissing the unjust enrichment claim. She found that the plaintiffs did have the standing on the basis of the alleged violation of the Californian publicity rights statute, held to constitute a concrete and particularized injury. The court rejected Facebook's claim for dismissal under s 230 of the CDA because Facebook created - at least in part - the Sponsored Stories, a creation above and beyond mere editorial functions.

Facebook argued that the Sponsored Stories were "newsworthy" within the meaning of the publicity rights statute because users are "public figures to their friends". That argument did not find favour with the court; Koh held that the newsworthiness exemption in the statute did not apply to "commercial rather than journalistic" uses. (Interestingly the court noted in obiter that the fact that users might be "celebrities to their friends" was sufficient to establish that the users had commercially exploitable names and likenesses protected under the statute.) The court also ruled for the plaintiffs with respect to Facebook's argument that the plaintiffs consented to the Sponsored Stories by agreement to Facebook's terms of service, and ruled that Facebook's profiting from the Sponsored Stories sufficed to show actual damages (at least at the motion to dismiss stage).

Koh rejected Facebook's challenge to the unfair competition claim, but dismissed the unjust enrichment claim. She held that unjust enrichment is only a remedy or measure of damages on another claim rather than an independent cause of action in California. On that basis the right of publicity and the unfair competition claims survived.

The US$10 million settlement seems a cheap way to buff Facebook's profile (and head off extension of the suit to several million consumers), particularly amid criticism - in my view justified - that prices paid at its IPO were unrealistically high and that the company doesn't embody privacy best practice.

Euthanasia

I'm reading with interest - not least for discussion in this semester's Mental Health & the Law unit - the decision by Smith J of the Supreme Court of British Columbia in Carter v. Canada (Attorney General) 2012 BCSC 886.

In essence, the Court has found that Canadian laws banning doctor-assisted suicide are unconstitutional. On to the national Supreme Court!

Smith J summarises her decision at [1] to [19] -

The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge.  They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.

Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.

I will summarize, in brief, my findings of fact and legal reasoning.

Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).

Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.

Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.

Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.

The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.

Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.

The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.

I turn to the legal issues. 

The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.

Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided.  Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.

Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter.  Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.

The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.

The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness.  That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.

The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.

The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.

The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.