COURT OF APPEAL FOR ONTARIO

Transcription

1 DATE: DOCKET: C40982, M32401 and M32416 COURT OF APPEAL FOR ONTARIO FELDMAN, CRONK and LaFORME JJ.A. IN THE MATTER OF The Processing and Distribution of Semen For Assisted Conception Regulations, S.O.R./ AND IN THE MATTER OF rule 14.05(3(d and (g.1 of the Rules of Civil Procedure 2005 CanLII (ON CA B E T W E E N : JANE DOE Appellant - and - ATTORNEY GENERAL OF CANADA Christopher D. Bredt, Monique Higham and Laura Pottie for the appellant Suzanne Duncan and Matthew Sullivan, for the respondent Respondent - and - Andrew M. Pinto for the interveners THE FOUNDATION FOR EQUAL FAMILIES and EGALE CANADA INC. and B Interveners Heard: February 14, 2005 & April 25, 2005

2 Page: 2 On appeal from the Order of Justice L. Brennan of the Superior Court of Justice dated October 30, LaFORME J.A.: [1] The Processing and Distribution of Semen for Assisted Conception Regulations 1 (the "Regulations" passed under the Food and Drug Act 2 regulate the collection, storage and distribution of semen in Canada for purposes of medically assisted conception. The Regulations apply only in respect of semen that is used, or intended for use in "assisted conception". "Assisted conception" is a procedure whereby a doctor inseminates a woman using donated semen, and it is defined in s. 1 of the Regulations as: 2005 CanLII (ON CA [A] reproductive technique performed on a woman for the purpose of conception, using semen from a donor who is not her spouse or sexual partner. [Emphasis added] [2] Accordingly, the Regulations apply to donor semen where the donor is not the woman s spouse or sexual partner; 3 and they do not apply if the semen donor is the woman s spouse or sexual partner. The terms "spouse" and "sexual partner" are nowhere defined in the Regulations. And, at the time of the commencement of the within application, men who were over 40 or gay were not eligible to donate semen. 4 [3] By way of application to the Superior Court of Justice, the appellant, a lesbian, challenged the constitutionality of the Regulations. In her application, she sought an order that would read into the definition of assisted conception the words: or other designated donor of the woman's choice. [4] The appellant submits that the Regulations violate s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms because lesbians, by definition, will not have a semen donor who is a spouse or sexual partner. She argues that a lesbian is always subject to the Regulations if she wants to be impregnated with medical or clinical assistance. In contrast, a heterosexual woman who seeks to be impregnated with the semen of her spouse or sexual partner through conception with medical or clinical assistance is not subject to any restrictions. [5] The application judge dismissed the application after concluding that it was moot. He decided it was moot for two reasons. First, the appellant had succeeded in giving 1 S.O.R R.S.C. 1985, c. F Regulations, s Regulations, s. 4(b(i and Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination July 2000, clause 2.1.

3 Page: 3 birth as a result of self-insemination and, therefore, she no longer required the declaration she sought. Second, the federal government had revised the semen donor process to allow semen banks to collect semen from all known donors, including donors who were previously excluded. In light of his decision on the mootness issue, the application judge also declined to exercise his discretion to decide the Charter issues. [6] The appellant appeals the decision of the application judge. For the reasons that follow, I conclude that there is no basis to set aside the decision of the application judge on the mootness issue, nor would I accede to the appellant's request that this court hear and determine the constitutional issue as a court of first instance. However, following the original argument in this court, another woman in the same situation as the appellant, referred to as Susan Doe, has now moved to be added as a party. For the reasons set out below, I would grant that motion. I would confirm the decision of the application judge and remit the Susan Doe matter back to another judge of the Superior Court for an expedited hearing on the constitutional challenge CanLII (ON CA [7] For ease of reference, I will first set out the regulatory framework and a brief history as it relates to this case. THE REGULATORY SCHEME [8] The Regulations impose obligations on semen banks regarding donor screening and exclusion, as well as requirements for semen testing and storage prior to distribution. The Regulations incorporate, by reference, a July 2000 Directive issued by Health Canada regarding the technical requirements for donor insemination. The July 2000 Directive sets out a list of excluded donors, which includes men over 40 and men who have had sex even once with another man since [9] The federal government, having discovered that some semen banks were not complying with their testing obligations, ordered that all semen be quarantined. The Regulations were amended in December 2000 to create a special access program for quarantined semen. Under this program, a doctor can apply for special authorization permitting the distribution of this semen in exceptional circumstances, and the semen can be released if it tests negative for HIV and Hepatitis B and C. [10] The federal government released two Guidance documents that review the special access provisions of the Regulations (December 2000 Guidance document, and set out alternative testing requirements (October 2001 Guidance document. [11] In response to the appellant's application, the federal government released a further Guidance document in November 2002 to make the special access program available in respect of new semen from a donor who would otherwise be excluded under the July 2000 Directive.

4 Page: 4 BACKGROUND [12] The appellant lives with her partner and their daughter. Her partner conceived their daughter using B s semen. B is a gay man over 40 and has an on-going relationship with the appellant and her family. The appellant and her partner wanted another child using B s semen so that their children would be genetically related. B was granted limited Intervener status on the application. [13] After unsuccessfully attempting to self-inseminate using B's semen, the appellant learned that because of the Regulations, her doctor could only perform assisted insemination using semen from a woman's spouse or sexual partner or from an anonymous donor. Under the Regulations, if the appellant wanted to be inseminated with B's semen, she and B would be required to go to the sperm bank, have B participate in a screening process, and have B's semen quarantined for six months. Moreover, B would have to qualify in the same manner that an anonymous donor would, including that: (i he would have to be under the age of 40, and (ii he could not have had sex with a man since CanLII (ON CA [14] B did not qualify on either of these criteria and the semen bank rejected him as a semen donor and would not collect his semen. Consequently, the Regulations prohibited the appellant from obtaining assisted insemination even though she had chosen a donor whom she personally knew. [15] The appellant subsequently became pregnant as a result of self-insemination using B's semen without clinical intervention. She gave birth to a baby boy. Thus, by the time her application was argued at the Superior Court, she had conceived and had already given birth. [16] Furthermore, as noted above, in response to the appellant s application, the federal government had changed the Guidance document to the special access program to make the program available in respect of new semen from a donor who would otherwise be excluded. As a result, when the application was heard, the federal government had indicated that it planned to revise the semen donor procedure so that semen banks could collect semen from all known donors, whether they would otherwise be excluded by the Regulations. [17] Under the special access program, a woman's physician can make a submission to Health Canada requesting access to the semen of a donor known to the patient who is excluded from donating, without providing any identifying characteristics or the sexual orientation of the woman or her known donor. The physician, however, must indicate that he or she has explained and identified the risks to her. In addition, semen from men over 40 years of age or who have had sex with other men could only be used after meeting the storage and testing requirements.

5 Page: 5 [18] Consequently, pursuant to the special access program, B could have donated his semen and it could have been used to artificially inseminate the appellant, assuming the necessary application had been made, and that B s semen was stored for six months and did not test positive for HIV or Hepatitis B or C. ANALYSIS [19] This court asked the parties to first argue the mootness question without hearing submissions on the Charter issues. The court was of the view that this approach would avoid unnecessary argument if it concluded that the application judge did not err in dismissing the application because of mootness. 5 [20] The application judge considered and applied the principles set out in the seminal authority on the mootness doctrine namely, Borowski v. Canada (Attorney General 6. As I have said, after finding the matter to be moot, he declined to exercise his discretion to decide the Charter issues CanLII (ON CA [21] The general rule at common law is that courts should decline to decide cases that have become moot. Exceptions to the general rule may be demonstrated through a twopart test found in Borowski: (i the court must determine whether the required tangible and concrete dispute between the parties has disappeared and the issues have become academic; and (ii if the response to the first question is affirmative, the court must decide if it should nevertheless exercise its discretion to hear the case. [22] As the following will demonstrate, the application judge considered and applied all the relevant factors, and he made no errors of fact or law in the proper exercise of his discretion. (i Had the dispute disappeared? [23] The application judge held that there were two grounds on which to decide that the tangible and concrete dispute between the parties had disappeared. First, because the appellant had successfully become pregnant with B s semen using the self-insemination method, she no longer needed to have recourse to clinical insemination. Thus, as the application judge found, the foundation of her litigation ceased to exist and she personally had nothing to gain or lose from this litigation. I agree. [24] Second, the application judge held that the appellant's case also became moot when the special access program was changed and her access to B s semen was authorized. I disagree with this part of the application judge's decision. 5 See Tamil v. Co-operative Homes Inc. v. Arulappah (2002, 49 O.R. (3d 566 (C.A. at para [1989] 1 S.C.R. 342 at 344.

6 Page: 6 [25] It is unclear on the record before us whether there has been a change in the access program that complies with the Regulations and that allows the appellant access to B's semen. The appellant argues that the November 2002 Guidance document conflicts with the Regulations, which require a semen bank to reject a donor who is in an excluded group. However, even if the restriction formerly applicable to B had been properly removed, the appellant's chosen donor would still have been subject to the six-month quarantine testing process. As I will discuss further below, it was this six-month quarantine issue that was central to the appellant's constitutional challenge. That portion of the appellant's contest remained and, in and of itself, would not have rendered her application moot. Nevertheless, the application judge was entitled to hold that the appellant's case was moot on the basis of the first ground identified by him. (ii Should the case have been heard? 2005 CanLII (ON CA [26] Because the general rule is that a court should not hear a case where there is no live controversy between the parties, the discretion to hear such a case is limited to exceptional situations. 7 The appellant had the onus of convincing the application judge that it should make an exception to the application of the general rule in this case. 8 [27] Borowski provides direction and sets out three factors to be considered when deciding whether to exercise judicial discretion and hear a case that has become moot. The three factors are: (1 Whether an adversarial relationship still exists between the parties. (2 Whether special circumstances exist in the case so as to justify the expenditure of scarce judicial resources. (3 Whether there is a need for the Court to be sensitive to its role as the adjudicative branch in our political framework. 9 [28] Any one, or a combination, of these factors, may supersede the absence of another to support a court's decision to hear or refuse to hear a case that is moot. And, the discretion to hear moot cases is not constrained by a rigid application of pre-established criteria. 10 Each case should be decided on its own circumstances and with careful regard to the usual practice to decline to decide the merits of moot cases. [29] The application judge was of the view that the Charter issues should not be heard. In brief, he concluded that: (i the necessary adversarial context was present during the 7 Tamil, supra, note 1 at para Payne, infra, note 7 at para Borowski, supra, note 6 at Borowski, supra, note 6 at 363. See also Tamil, supra, note 5 at para. 17.

7 Page: 7 three days of hearing; and (ii there was no longer a concern regarding the conservation of judicial resources given that the application had already been argued. Nevertheless, when considering the third branch of the test, he was sensitive to the need not to intrude on the role of the legislature and declined to decide the Charter issues. [30] As to the first factor, the application judge found that an adversarial context continued to exist between the parties. I generally agree with this conclusion. The appellant's claim that her chosen donor was treated differently under the Regulations than the spouse or known sexual partner of a heterosexual woman remained a live issue. That is to say, while B could have donated his semen, and it could have been used, the Regulations required that his semen be quarantined for six months for testing. In contrast, a heterosexual woman's spouse or known sexual partner's semen requires neither quarantine nor testing CanLII (ON CA [31] As I will discuss below, it is now alleged that the same donor quarantine issue confronts another woman; however, at the time of the application judge's decision, the appellant no longer faced this hurdle. Further, at the time of the application, this quarantine issue was capable of review through the normal litigation process by another litigant. Thus, the application judge did not err when he held that the appellant's application was moot on the facts and circumstances that were before him. [32] The second factor in the Borowski test is concerned with the prudent use of scarce judicial resources. As this court held in Tamil, the need to promote the efficient use of judicial resources should not be approached on an ad hoc basis. 11 The question before the application judge was whether the case should have been permitted to continue to absorb judicial resources once it became moot. However, since the application had been completely argued before him, including the Charter issues, it can hardly be said that this factor should have been decided differently. In the circumstances, it was a non-issue for the application judge. [33] I turn then to the third factor, upon which the application judge declined to decide the Charter issues. He concluded that he should be sensitive to the court's role and avoid intruding into the role of the legislative branch of government, including the role of the executive branch. Taking into account the positive responses of Health Canada to the appellant's concerns, and on the record before him, the application judge was entitled to decide this issue as he did. (iii Should the Court of Appeal decide the case on the merits? [34] In the end, the appellant has not satisfied her onus of establishing that the application judge should have decided the Charter issues even though the case was moot. 11 Supra, note 1 at para. 31.

8 Page: 8 Accordingly, I conclude that the application judge did not err in refusing to determine the Charter issues. However, this does not end the matter. [35] This court was asked to hear the merits of the constitutional challenge even if it decided that the application judge was correct and the case is moot. The appellant relied on a series of authorities that she says support this court's authority to hear the Charter issues even though her case is moot. In my opinion, we should decline to do so. [36] As this court noted in Payne v. Ontario (Minister of Energy, Science and Technology, the general rule is that a court will not hear a moot appeal unless the party seeking to have it heard convinces the court to make an exception to the rule. 12 [37] There is an important distinction between this case and those relied upon by the appellant. Unlike the appellant's case, each of the authorities to which this court was referred involved a situation where the substantive issue in dispute had been adjudicated. In other words, in each of the cases relied upon by the appellant, the lis between the parties was adjudicated and became moot after trial, but prior to appeal. For example, in Law Society of Upper Canada v. Skapinker 13 the original applicant became a citizen and member of the Law Society -- which was the lis between the parties - after the original hearing but before being heard by the Supreme Court. This was also true, essentially, in Andrews v. Law Society of British Columbia. 14 In contrast, in this case, the constitutional issues raised by the appellant have yet to be determined and the appellant's challenge of the Regulations was rendered moot prior to argument of her application CanLII (ON CA [38] The appellant asserts that some endorsement for this court hearing the matter is found in the reasons of Finlayson J.A. in Horsemen's Benevolent and Protective Ass. of Ontario v. Ontario Racing Commission. 15 However, the findings and conclusions of Finlayson J.A. in that case must be read and understood in the context of the history of the proceedings and the record before the Court of Appeal. In Horsemen's, the issue of mootness was not argued by the parties or decided by the Divisional Court. Instead, White J., writing for himself in the Divisional Court, merely commented that quashing the original order of the Commission when the conduct giving rise to it was complete "would accomplish no useful purpose". 16 The issue of mootness was not argued before the Divisional Court; nor did White J. decide the dispute in question on the basis of mootness. [39] This court was not directed to any authority where a Court of Appeal reversed the decision of a court or tribunal of first instance that the case was moot. 12 ( O.A.C. 48 at para [1984] 1 S.C.R [1989] 1 S.C.R (1997, 37 O.R. (3d 430 (C.A. at See Horsemen's (1995, 25 O.R. (3d 206 (Ont. Div. Ct. at 222.

9 Page: 9 [40] Unlike cases such as Skapinker, Andrews and Tremblay v. Daigle, 17 this court is not in a position to make a fully informed decision on the Charter issues raised in this appeal. While we have the complete record of the parties, we do not have the benefit of a reasoned decision from the court of first instance. In my view, there is a significant difference between the procedure and holdings in the authorities referred to and the facts of this case. Most significant is the fact that in the case at bar the application judge dismissed the application solely because the case was moot at the time of the first hearing. In each case to which this court was referred, there were decisions of the court below on the merits of the actual dispute between the parties. [41] It is true that the application judge -- after first refusing to decide the Charter issues -- proceeded to make certain "observations" on them. He provided a brief review and analysis of the issues, followed by commentary, and went on to suggest what his decision would have been, were he deciding the issues. Nonetheless, it is clear that the application judge did not deliver any judgment, or make any orders in connection with the Charter issues CanLII (ON CA [42] An appeal to this court lies from a final order or judgment. The only decision of the application judge is that the appellant's application was moot. The observations of the application judge on the Charter issues did not finally dispose of those issues; nor are they relevant to persuade this court to decide the substantive issues in the case. His observations do not form part of the order appealed from. This court, in my view, should not act as a court of first instance in this case. [43] In the result, the appellant has not discharged her onus of convincing this court to make an exception to the general rule so as to warrant hearing her constitutional challenge on its merits at this time. Accordingly, I would decline to do so. Although this would ordinarily be sufficient to dispose of this appeal, an additional matter came before us that must be addressed. THE MOTION [44] While the appellant's appeal of the dismissal of her application for mootness was under reserve by this court, Susan Doe and D (the "proposed Intervener" brought a motion for leave to intervene as parties to the appeal. Susan Doe and D claim to be in the same circumstances that the appellant and B were in prior to the appellant successfully self-inseminating. Susan Doe has been unsuccessful in her efforts to self-inseminate using D's semen and therefore her case is not moot. The motion was heard on April 25, [1989] 2 S.C.R. 530.

10 Page: 10 [45] The motion record confirms that there is a dispute that continues to exist that will affect the rights of other women in the same position as Susan Doe, namely the donor quarantine issue. There are stark differences between the proposed Interveners and the respondent on the rationale for the need for such quarantine. The proposed Interveners submit that it is an issue of informed consent while the respondent argues it is a required health issue. To date, the dispute has not been resolved to the satisfaction of the proposed Interveners by legislative action. In such circumstances, adjudication by the courts is generally necessary to finally resolve the dispute. [46] It is now clear that another woman is confronted with the donor quarantine issue that the appellant challenged in her application. Thus, a similar case has arisen and it is not moot. I have no reason to doubt that additional cases may arise in the future. The Charter issues in this case, I believe, have ramifications beyond the personal situation of the appellant that justify the expenditure of judicial resources. Finally, I believe there is some urgency to this constitutional question CanLII (ON CA DISPOSITION [47] In my view, in the interests of time, conservation of costs and especially given that no material facts are in dispute, it is just that the motion relief be granted. Accordingly, and for all these reasons, the decision of the application judge is confirmed but the Susan Doe application is remitted to another judge of the Superior Court for an expedited hearing on the Charter issues. The application should be returned on the following terms: (1 Susan Doe will be added as the party and D will be added as an Intervener. The terms of intervention shall be those set out in the order of Dyson J. dated February 7 th, 2003 as they relate to B, and the record shall remain as is. (2 Subject to (3 below, the original Jane Doe record, together with the record of the parties on this motion, shall form the entire record on the return. (3 Cross-examinations, if any, shall be limited to the affidavits filed on the motion and shall be completed within sixty days from the release of these reasons. The transcripts from those cross-examinations, if any, shall form part of the record on the return.

11 Page: 11 COSTS [48] Given the unique character of these proceedings, the mixed results, and the relief granted by this court, there will be no order as to costs. RELEASED: JUN KNF H.S. LaForme J.A. I agree K. Feldman J.A. I agree E.A. Cronk J.A CanLII (ON CA