The Carter Decision — The Supreme Court of Canada and Physician-Assisted Suicide

Introduction

The issues of death or dying are never easy to face. Following a series of court decisions in Canada the focus on these issues, particularly on physician-assisted suicide, has prompted many Canadians to consider the impact of end-of-life legislation on their lives. At the heart of the discussion are two interests that must be balanced: "On the one hand," states the Supreme Court of Canada ["SCC"], "stands the autonomy and dignity of a competence adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable."

Carter v Canada (Attorney General) ["Carter"] serves as an illustration of the challenge faced by the courts in balancing these equally important interests in the face of irremediable illnesses, diseases, and disabilities. More specifically, the SCC was asked to determine the constitutional validity of the prohibition on physician-assisted suicide.

Case History

Physician-assisted suicide is prohibited in Canada because a person cannot consent to have death inflicted on him under s. 14 of the Criminal Code ["Code"], and the aiding or abetting of a person to commit suicide is a criminal offence under s. 241(b). Twenty-one years earlier, the SCC considered this in the case of Rodriguez v. British Columbia (Attorney General) and upheld the prohibition in a slim 5:4 decision due to concerns of potential abuse and ineffective safeguards. Though these concerns remain, the legal landscape has changed since then as public attitudes towards physician-assisted suicide has grown more sympathetic. In this context, the case of Carter was brought before the British Columbia Supreme Court by five plaintiffs seeking the legal right to physician-assisted suicide.

Spearheading the case was the plaintiff, Gloria Taylor, who suffered from a fatal neurodegenerative disease known as amyotrophic lateral sclerosis. Other plaintiffs included Lee Carter and Hollis Johnson, who helped Carter's mother travel to Switzerland for an assisted suicide, a physician seeking the right to perform assisted suicide, and the British Columbia Civil Liberties Association. Opposing the case were the federal and provincial government. They countered that the prohibition was needed to protect the sanctity of life and the vulnerable in society.

At the British Columbia Supreme Court, the trial judge held that the prohibition against physician assisted suicide for competent adults who suffer intolerably as a result of a grievous and irremediable medical condition was invalid. She concluded that the prohibition violated the guaranteed rights of these individuals to life, liberty, and security of the person under s. 7 and to equality before and under the law under s. 15 of the Charter of Rights and Freedom ["Charter"]because it was overbroad and could not be justified under s. 1 of the Charter.

At the Court of Appeal the trial decision was overturned as the majority allowed the appeal on the ground that the trial judge was bound by stare decisis to follow the SCC's decision in Rodriguez. The plaintiffs were granted leave to appeal and brought their case to the SCC.

Ruling of the Supreme Court of Canada

The SCC allowed the appeal and upheld the trial judge's decision that s. 241(b) and s. 14 of the Code unjustifiably infringed s. 7 of the Charter. They concluded that the sections "are of no force or effect to the extent that they prohibit 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."

First, the SCC addressed whether the trial judge was bound by Rodriguez under the doctrine of stare decisis, which formed the basis of the Court of Appeal's decision. They held that the trial judge was entitled to revisit the SCC's decision in Rodriguez as the argument before her involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. The SCC found that, in particular, "the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez... The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez."

Next, the SCC held that the prohibition on physician assisted dying infringed the guaranteed right to life, liberty, and security of the person for a specific group of individuals in a manner that was not in accordance with the principles of fundamental justice. These individuals were deprived of life as the prohibition forced them to take their own lives prematurely out of fear of further suffering. The SCC also agreed with the trial judge that "an individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy." As a result, the prohibition denied people in this situation the ability "to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving [them] to endure intolerable suffering, it impinges on their security of the person."

In analyzing whether the prohibition could be saved by s. 1 of the Charter, the SCC found that the infringement of an individual's s. 7 right was not justified. Despite the law having a pressing and substantial objective, the Code's blanket prohibition on physician-assisted suicide was not proportionate to the objective. The prohibition was meant to "protect vulnerable persons from being induced to commit suicide at a time of weakness." However, the prohibition also caught people outside the class of protected persons. It limited the rights of this unintended group who are not connected to the objective, making the prohibition unnecessarily overbroad and therefore not minimally impairing. Having concluded it violated s. 7, the SCC did not consider whether the prohibition also violated s. 15 of the Charter.

As an appropriate remedy, the SCC suspended the declaration of invalidity for 12 months to allow for Parliament and the provincial legislatures to respond, "by enacting legislation consistent with the constitutional parameters set out."

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