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The Prohibition against Physician-Assisted Dying: it was constitutionally valid in 1993, but is it still valid in 2014?

On October 10, 2014, the Supreme Court of Canada will hear Lee Carter, et al. v. Attorney General of Canada, et al. (date is tentative).1 At issue in Carter is the constitutional validity of the prohibition against assisted suicide at section 241(b), and other sections, of the Criminal Code.

The Appellants submit that the trial judge in Carter was correct in her conclusion that the impugned laws, which prevent the province from providing physician-assisted suicide, breach sections 7 and 15 of the Charter.2 The BC Court of Appeal overturned the trial judge’s decisions on the purely technical grounds of stare decisis: in 1993 the SCC upheld the validity of s. 241(d) in Rodriguez v. British Columbia (Attorney General),3 so the trial judge in Carter was not at liberty to come to a different conclusion on the same issue.4

The Appellants argue that much has changed since 1993. For example, in the 2013 decision of Canada (Attorney General) v. Bedford, the SCC restated the circumstances in which a lower court may not be bound by SCC precedent.5 The Appellants’ submissions focus in part on the BCCA’s application of the Bedford analysis, which they assert was incorrect.

Courts have also developed a different structure for constitutional analysis – one that may yield a different result if Rodriguez was to be considered today. For example, the Bedford decision provides that courts, when analyzing whether a breach of section 7 of the Charter can be justified under section 1, should consider, “whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest.”6 By contrast, this was a factor considered at the s. 7 stage of the SCC’s analysis in Rodriguez. Scholars suggest that this clarification in Bedford calls into question the majority’s decision in Rodriguez.

The BC Court of Appeal also appears to suggest in Carter that there may be room to reconsider the section 1 justification in Rodriguez, observing that the SCC’s application of the Oakes factors was “fairly unstructured.”7

Setting aside the changes in constitutional analysis since 1993, the ethical debate surrounding the issue of patient-assisted suicide has also shifted since 1993. The trial judge in Carter made findings that the Appellants assert were not before the SCC in Rodriguez. The trial judge found, among other things, that there are reputable Canadian physicians who would find it consistent with their ethical principles to assist hastening patients’ death if it were legal to do so; and the fact that a number of physicians doubt the existence of a valid ethical distinction between physician-assisted suicide and other, current end-of-life practices whose outcome is highly likely to be death (such as the removal of feeding tubes and life support).

These facts are important to the Appellants’ submissions because Rodriguez decision turned in part on findings that there was a moral and ethical distinction between “passive” and “active” euthanasia.

The court was split in Rodriguez; Justices L’Heureux‑Dubé, McLachlin, Lamer and Cory dissented.Justice Cory wrote:

Section 7 of the Charter, which grants Canadians a constitutional right to life, liberty and the security of the person, is a provision which emphasizes the innate dignity of human existence. Dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life.

We shall see if that reasoning gains traction this time around.

The Factums of the Parties and the 12 Interveners, including the Ontario Attorney General, are available online.

1. Lee Carter, et al. v. Attorney General of Canada, et al., 2014 CanLII 1206 (SCC) http://www.scc-csc.gc.ca/case-dossier/info/sum-som-eng.aspx?cas=35591

2. Carter v. Canada (Attorney General), 2012 BCSC 886

3. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

4. Carter v. Canada (Attorney General), 2013 BCCA 435 (CanLII) [Carter BCCA] at para 324

5. Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII)

6. Rodriguez at at para 125.

7. Carter BCCA at 319

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