“Give me liberty or give me death”, said Patrick Henry. “How ‘bout both?” said the SCC: Carter v Canada Attorney General

Introduction

Millions of Canadians waited with bated breath for the release of the landmark decision of the Supreme Court of Canada in Carter v Canada Attorney General (Carter) in which the Supreme Court was called upon to again consider the possibility of permitting assisted suicide in Canada. The Supreme Court released its landmark decision in this matter in Carter on February 6, 2015.

Twenty-two years ago the Supreme Court considered the same issue on very similar facts in Rodriguez v Canada Attorney General, (“Rodriguez”)and a divided court (5 judges to 4) concluded that the blanket prohibition of assisted suicide was constitutional.

In Rodriguez, the majority of the Supreme Court found that the blanket prohibition of assisted suicide did violate the appellants’ rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), but that such a violation was justified pursuant to the principles of fundamental justice. Only two judges of the Supreme Court in the Rodriguez decision specifically addressed the argument that the blanket prohibition on assisted suicide violated the appellants’ equality rights under Section 15 of the Charter, but in any event, the justices found that any such violation was justified under Section 1 of the Charter as a reasonable limit.

Trial and Appeal to British Columbia Court of Appeal

At trial in this matter, Justice Smith of the British Columbia Supreme Court found that the decision in Rodriguez did not prevent her from reviewing the constitutionality of the blanket prohibition on assisted suicide found in the Criminal Code of Canada because:

1. The majority of the Supreme Court in Rodriguez did not address the right to life;
2. The principals of “overbreadth” and “gross disproportionality” had not been identified at the time of the decision in Rodriguez and thus were not addressed in that decision;
3. The majority of the Supreme Court of Canada in Rodriguez “assumed” a violation of Section 15 of the Charter; and
4. The Supreme Court of Canada’s decision in Alberta v Hutterian Brethren of Wilson Colony, 2009, SCC 37, represented a substantive change to the Section 1 analysis. According to the Supreme Court in Carter, “the trial judge concluded that these changes in the law combined with the changes in the social and factual landscape over the past 20 years permitted her to reconsider the constitutionality on the prohibition on physician assisted dying”.

The British Columbia Court of Appeal however, reversed the trial judge’s decision on the basis that the trial judge was bound to follow the Supreme Court of Canada’s decision in Rodriguez. The British Columbia Court of Appeal also concluded that neither the change in legislative and social factors, nor the new legal issues relied on by the trial judge permitted a departure from the precedent set in Rodriguez.

Appeal to the Supreme Court of Canada

There were two main issues in the appeal to the Supreme Court. First, the Supreme Court considered whether the prohibition of physician assisted dying found in Section 241 (b) of the Criminal Code violates the rights of the Appellant under Sections 7 and 15 of the Charter. Specifically, the appellants advanced two claims:

1. that the prohibition of physician assisted dying deprived competent adults who suffer egregious and irremediable medical conditions that cause a person to endure physical or psychological suffering that is intolerable to that person of their right to life, liberty and security of the person under Section 7 of the Charter; and
2. that the prohibition deprives adults who are physically disabled of their right of equal treatment in under Section 15 of the Charter.

Second, the Supreme Court addressed the preliminary issues of whether the Supreme Court’s decision in Rodriguez could be revisited (i.e. whether the trial judge was bound by Rodriguez or whether the legal and social landscape had changed sufficiently to permit the trial judge to depart from Rodriguez); and additionally, whether the prohibition was beyond parliament’s power because physician assisted dying is primarily a provincial matter, being as it is, a health care related issue.

The Supreme Court found that trial courts may reconsider settled rulings of higher courts in two situations:

1. where a new legal issue is raised; and
2. where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.

The Supreme Court found that both conditions were met in this case. Notably, the Supreme Court found that the argument in this case involved a different legal conception of section 7 of the Charter than that which prevailed during the period in which Rodriguez was decided. The Court found that the new legal test applied in consideration of section 7 of the Charter now explicitly recognizes “overbreath” as a principle of fundamental justice and asks whether the impugned law interferes with some conduct that has no connection to the law’s objectives, and as a result, the Court found that this different question may yield a different answer.

The Court also found that though the trial judge erred in reconsidering the Section 1 analysis regarding whether the impugned legislation was a reasonable limit under the Charter, the trial judge was justified in reconsidering the Section 15 claim. Finally, the Supreme Court found that the provincial power over health does not exclude the power of the federal parliament to legislate on a physician assisted dying.

Section 7 of the Charter: the Right to Life, Death and the Liberty to Choose

With respect to s.7 of the Charter, the Supreme Court agreed with the finding of the trial judge, that “the prohibition on physician assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable”.

Interestingly, the Supreme Court did not find that a right to death was included in the content of a right to life, but rather found that a person’s right to life was engaged when the action of the state or its laws imposed death or an increased risk of death on persons either directly or indirectly. A person’s right to choose to end their life was addressed by the court with respect to the rights of liberty and security of the person.

The Court found that:

an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like [the Appellant] to endure intolerable suffering, it impinges on the security of the person.

Ultimately the Court found that the prohibition of physician assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical conditions that cause enduring and intolerable suffering, infringes the rights to liberty and security of the person of that individual.

Principles of Fundamental Justice

With respect to the principles of fundamental justice, the Supreme Court found, in accordance with its previous decisions, that the purpose of a legal prohibition should be confined to the measures directly targeted by the law. The court found that the purpose of the prohibition on physician assisted suicide was not to preserve life, whatever the circumstances; rather, the Court found that “the direct target of the measure is the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness”.

The Court did not find that the blanket prohibition on assisted suicide was either arbitrary nor overbroad in its scope, and the Court declined to decide whether the impact of the impugned provision was grossly disproportionate to its benefits. Interestingly, the Court declined to decide whether the blanket prohibition on physician assisted suicide breached section 15 of the Charter and thus violated the Appellant’s equality rights.

Ultimately the court did not find that the violation of s.7 of the Charter was justified as a reasonable limit under s.1 of the Charter, but rather found “that the risks associated with physician assisted death can be limited through carefully designed in modern day system of safe guards.”

In terms of remedy, the court issued a declaration (suspended for 12 months) that Section 241 and Section 14 of the Criminal Code were void insofar as they prohibited 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 that causes enduring suffering that is intolerable to the individual circumstances of his/her condition.

Commentary

The obvious concern which many readers will express upon learning of this decision is whether, and to what extent the safeguards to protect vulnerable persons will be feasible, and whether this decision will cause a “slippery slope”, permitting mentally unstable or incapable persons to obtain assistance in committing suicide, when they may not be mentally fit or capable of making such a decision.

Certainly, this salient issue figured extensively in the Supreme Court’s decision in Rodriguez 22 years ago, and the Attorney General of Canada in fact made this very argument in its submissions in Carter.

With respect to this consideration, the Supreme Court observed:

concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making. Logically speaking, there is no reason to think that the injured, ill and disabled have the option to refuse or to request withdrawal of life saving or life sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to bias decision-making than those who might seek more active assistance in dying. The risks that Canada describes are already part and parcel of our medical system.

According to the Court,

it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity.

Indeed, in many circumstances, physicians do perform such assessments, which may determine whether an individual is capable of administering their property, or tending to their personal care. Physicians also determine if patients are capable of making decisions relating to their personal care. Questions arise, however, regarding the limits on the ability of medical professionals to assess capacity when the circumstances of an incorrect assessment, particularly where differences of opinion may exist as between medical professionals, means the difference between life and death.

Observers have thus far called the Supreme Court’s decision “a sign of the times”, and something which speaks to the changing culture of Canada and the approach to assisted suicide in the world at large. Perhaps this is the case. However, the Supreme Court does not comment on the structure which must be employed in the regulatory framework to ensure the safety of vulnerable individuals. On its face, and with due respect to the rights of Canadians, the Supreme Court’s decision “gets it right”, as the Supreme Court’s analysis accords with prevailing jurisprudence around the rights of Canadians under the Charter of Rights and Freedoms.

However, we ask in observation, how will this regime look in practice? Who will be the decision maker? How many professional opinions will be required to terminate one’s life? Surely a new body of case law will develop around decisions of individuals to end their lives using physician assisted suicide. But at the time being, we and all Canadians enter a new frontier of end-of-life decision-making, with a greater knowledge of the content of our liberty as Canadians.

Perhaps if Patrick Henry were around to comment on Carter today, he would not have juxtaposed the concept of liberty and the reality of death, since in Canada, it seems, true liberty now includes a right to death.

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Related posts:

The Prohibition against Physician-Assisted Suicide: it was constitutionally valid in 1993, but is it still valid in 2014? Posted on September 4, 2014 by Heather B. Hogan

The Difficult Discussion of Physician-Assisted Suicide Continues Posted on October 17, 2014 by Heather B. Hogan