Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment
The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.
The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)
Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people 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.
An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right 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.
To be absolutely clear, for the purposes of their claim the appellants used “physician-assisted death” and “physician-assisted dying” to describe the situation
where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient.
Background facts and law
Gloria Taylor was diagnosed with amyotrophic lateral sclerosis (ALP), a fatal neurodegenerative disease, in 2009. She challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe. Like Sue Rodriguez before her, Mrs Taylor did “not want to die slowly, piece by piece” or “wracked with pain,” and brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assistance in dying. Her claim, and those of the other appellants, was initially heard by way of summary trial before Smith J. in the British Columbia Supreme Court, where it was upheld (see my post on that decision).
As Mrs Taylor’s condition deteriorated, and she was confined to a wheelchair, she said that there would come a point when she would have had enough, and that her present quality of life was impaired by the fact that she was unable to say for certain that she would have the right to ask for physician-assisted dying when that “enough is enough” moment arrived:
I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.
I know that I am dying, but I am far from depressed. I have some down time – that is part and parcel of the experience of knowing that you are terminal. But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality.
Mrs Taylor lacks the financial resources to travel to end her life with Dignitas in Switzerland. However, she was joined in her claim by Lee Carter and Hollis Johnson, who had assisted Ms Carter’s mother Kay in achieving her goal of dying with dignity by taking her to Switzerland. While they have not faced prosecution in Canada following Kay’s death, Ms. Carter and Mr. Johnson were of the view that Kay ought to have been able to obtain a physician-assisted suicide at home, surrounded by her family and friends, rather than undergoing the stressful and expensive process of arranging for the procedure overseas. The third appellant was William Soichet, a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited. The British Columbia Civil Liberties Association also joined their claim. The Attorney Generals of Canada and British Columbia were the main respondents in this constitutional litigation.
Although successful in the court of first instance, on appeal the ruling allowing the claim was overturned because the majority found themselves to be bound by Rodriguez v. British Columbia (Attorney General)  3 S.C.R. 519.
The Supreme Court upheld the appeal. Furthermore, it emphasised the importance of its decision by awarding the appellants special costs on a full indemnity basis to cover the entire expense of bringing this case.
A court may depart from the usual rule on costs and award special costs where two criteria are met. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not been previously resolved or that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact.
Reasoning behind the judgment
The prohibition on physician-assisted dying (in Sections 241(b) and 14 of the Criminal Code) were not saved by s. 1 of the Charter. While the limit is prescribed by law and the law may have a pressing and substantial objective, the prohibition was not proportionate to the objective.
As a result [of these provisions], people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. 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.
Not only is this choice cruel, but leaving the prohibition in place means that only “traditional modes of suicide” are left open to people in Mrs Talyor’s position. The Court did not shrink from repeating in its judgment the barbarity of these options considered by witnesses:
I was going to blow my head off. I have a gun and I seriously considered doing it. I decided that I could not do that to my family. It would be horrible to put them through something like that. . . . I want a better choice than that.
… One woman noted that the conventional methods of suicide, such as carbon monoxide asphyxiation, slitting of the wrists or overdosing on street drugs, would require that she end her life “while I am still able bodied and capable of taking my life, well ahead of when I actually need to leave this life”.
The Court did not agree with the respondents that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life:
This would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per Sopinka J.). And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect.
The existing law, said the Court, is inconsistent. It 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 Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.
In Canada, as in the UK, this debate has reached fever pitch over past two decades. A certain stalemate has settled in between opponents to legalisation who emphasise the inadequacy of safeguards and the potential to devalue human life as against a vocal minority who argue in favour of reform, highlighting the importance of dignity and autonomy and the limits of palliative care in addressing suffering. There has also been something of a sea change in the legislative landscape on the issue of physician-assisted death since Rodriguez was decided. By 2010,
eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia. The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. Colombia followed in 1997, after a decision of the constitutional court. The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009. Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.
As I have repeatedly said in my previous writing on the subject, it is somewhat surprising that the UK, a secular jurisdiction, has remained opposed to change, despite the very effective campaigns via the courts and media conducted by Pretty, Purvey, Nicklinson et al. In Nicklinson  the Supreme Court came closest to meeting this challenge, but backed off at the last minute by deciding that the evidence on safeguards against potential abuse of vulnerable people was insufficient; the buck was handed back to Parliament.
If the UK courts applied the proportionality test the way the Canadian Supreme Court does here, then they may find it easier to overcome the apparently insurmountable obstacles to reform. The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object. As the Canadian Court said, “overbreadth is not concerned with competing social interests or ancillary benefits to the general population.” If it were, it would constantly thwart the exercise of the individual’s rights by attempting to bring societal interests into the principles of fundamental justice. Societal differences – such as the broadly religious opposition to a change in this law, the fears of vulnerable people being tipped over the edge by unscrupulous relatives, the reluctance of some physicians to take on this responsibility – should play no part in the assessment of whether the interference with Diane Pretty or Debbie Purdey’s rights to autonomy and dignity is justified.
The focus is not on the impact of the measure on society or the public, which are matters for s. 1 [of the Canadian Charter], but on its impact on the rights of the claimant.
The Canadian court did not underplay the role of Parliament in this contentious matter. There is no doubt that physician-assisted death involves complex issues of social policy.
Parliament faces a difficult task in addressing this issue; it must weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying. It follows that a high degree of deference is owed to Parliament’s decision to impose an absolute prohibition on assisted death. On the other hand, the trial judge also found — and we agree — that the absolute prohibition could not be described as a “complex regulatory response” (para. 1180). The degree of deference owed to Parliament, while high, is accordingly reduced. [my italics]
It is to be hoped that, the next time a claimant like Mr Nicklinson or Ms Purdy have the courage and resources to bring this matter before the UK courts, this ruling will boost judicial morale. Throwing the matter back at Parliament has achieved virtually nothing over the years. Successive governments have not have the stomach to do what the trial judge did in this case, which is to hear and assess the extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated, and to reach the radical, but correct, conclusion that the absolute prohibition was unsupported by that evidence. None of those jurisdictions show that physicians are unable to reliably assess competence, voluntariness, and non-ambivalence in patients; nor that they fail to understand or apply the informed consent requirement for medical treatment; or indeed that there was any evidence at all from permissive jurisdictions which show
abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life
Indeed, the Supreme Court was careful to note the trial judge’s finding that not only was there no evidence of inordinate impact on socially vulnerable populations in the permissive jurisdictions, and that in some cases palliative care actually improved post-legalisation.
Nor did the Court accept the government’s argument that the appropriate relief in this case should be a stand-alone exemption, something like the change to the DPP’s guidelines that followed the UK’s Supreme Court ruling in Nicklinson. It had found that the prohibition infringed the claimants’ s. 7 rights, and issuing such an exemption in respect of these particular litigants would create uncertainty and undermine the rule of law. The only concession the Court made to the government’s argument on this point was that the declaration of invalidity should be suspended for twelve months, to give the legislature an opportunity to respond and reframe the provisions of the Criminal Code accordingly.
As for physicians’ rights to conscientious objection, the Court was not prepared to pre-empt the legislative and regulatory response to this judgment. But it was firm about the need to “reconcile” these rights with the Charter rights of patients (para 132).
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