Assisted Suicide in Canada

Canadian adults in grievous, unending pain have a right to end their life with a doctor’s help, the Supreme Court of Canada has ruled.

The Court explained why it was creating a new constitutional right to autonomy over one’s death in some circumstances:  Those who are severely and irremediably suffering, whether physically or psychologically, “may be condemned to a life of severe and intolerable suffering” by the government’s absolute ban on assisted dying. “A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

The unanimous ruling extends constitutional rights into a new realm. The decision was summarized by Judge Wayne Gorman:

In Carter v. Canada (Attorney General), 2015 SCC 5, February 6, 2015, T was diagnosed with a fatal neurodegenerative disease. She challenged the constitutionality of the Criminal Code  provisions prohibiting assistance in dying (section 241(b) of the Criminal Code prohibits anyone from aiding or abetting a person in committing suicide and section 14 of the Criminal Code indicates that no person “is entitled to consent to have death inflicted on him”).

The trial judge found that the prohibition against physician assisted dying violated section 7 of the Charter and was not justified under section 1 of the Charter.  The Crown appealed.

A majority of the British Columbia Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide.

An appeal was taken to the Supreme Court of Canada.

The appeal was allowed.  The Supreme Court held that section 241(b) of the Criminal Code  unjustifiably infringes section 7 of the Charter  and was of no force or effect to the extent that it prohibits 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.

The Supreme Court also held that the prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27)  of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health.

Though the constitutionality of sections 14 and 241(b) of the Criminal Code were the main issues in this appeal, from a trial judge’s perspective this decision also raises another interesting legal issue: the application of the doctrine of stare decisis.

 STARE DECISIS

The Supreme Court of Canada noted that the “doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  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” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42)”

The Supreme Court held that both conditions were met in this case (at paragraphs 46 to 48):

The argument before the trial judge involved a different legal conception of s. 7  than that prevailing when Rodriguez was decided.  In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez.  The majority of this Court in Rodriguez acknowledged the argument that the impugned laws were “over-inclusive” when discussing the principles of fundamental justice (see p. 590).  However, it did not apply the principle of overbreadth as it is currently understood, but instead asked whether the prohibition was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (p. 595).  By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the law interferes with some conduct that has no connection to the law’s objectives (Bedford, at para. 101).  This different question may lead to a different answer.  The majority’s consideration of overbreadth under s. 1  suffers from the same defect: see Rodriguez, at p. 614.  Finally, the majority in Rodriguez did not consider whether the prohibition was grossly disproportionate.

The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.  The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613).  The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 136, per Rothstein J.).

While we do not agree with the trial judge that the comments in Hutterian Brethren on the s. 1  proportionality doctrine suffice to justify reconsideration of the s. 15  equality claim, we conclude it was open to the trial judge to reconsider the s. 15  claim as well, given the fundamental change in the facts.

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