Friday, May 3, 2013

Physician Assisted Suicide; Carter v. Canada (Attorney General) BCSC; the learned decision of the Honourable Justice Smith

Further Update

I am pleased to advise that the Supreme Court of Canada ("SCC") has restored the decision of the Honourable Justice Smith as she then was of the British Columbia Supreme Court:

I have done a review of the SCC decision and it can be found here:



Disappointingly the BC Court of Appeal has overturned the decision of the Honourable Justice Smith.  I have not reviewed the case thoroughly but since it is reputed that 68% of Canadians support physician assisted suicide perhaps Parliament should intervene and pass legislation in support of a well supervised and prescribed physician assisted suicide.  I understand an appeal to the SCC will be made.


I am adopted.  My biological mother gave me up to two wonderful persons; my adoptive Mother and Father.  I think this potentially precarious manner in which my life started has motivated me to take interest in issues related to the right to life and right to cause death.  In this regard, the right to abortion has already had a storied history in Canada and lead to the Supreme Court of Canada upholding the right of women to abortion in R. v. Morgentaler.   This is a link to an excellent summary of the decision.
In Morgentaler, the Supreme Court of Canada held that the provision against abortion in the Criminal Code of Canada was unconstitutional because it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to security of the person.  I accept the judicial wisdom in this decision though continue to query the cut-off date when a pregnancy can be terminated.  I think that women owe a duty to prospective adopted children to terminate the pregnancy as soon as possible.  But this is not the subject of this blog.  A new right to life and right to cause death topic has seized the attention of our Courts and is currently winding its way up to the Supreme Court of Canada.  This issue has been described as an individuals right to "Physician-Assisted Suicide".  This poses the question of if and under what circumstances is it okay to assist a person in dying.

In Carter v. Canada (Attorney General)  an encyclopedic 400 page decision  the Honourable Madam Justice Lynn Smith of the Supreme Court of British Columbia held that sections in the Criminal Code of Canada which made it a crime to assist a person to commit suicide were unconstitutional because they violated an individual's equality rights pursuant to section 15 and also violated section 7 rights to security of the person.  This case is also significant in the manner in which the learned Justice Smith applied what was described as the amended section 1 saving test which emerged from the decision in the Hutterian Brethren case.  Using the amended test Justice Smith determined that the deleterious effects of the subject criminal code sections did not limit the section 15 and 7 rights as little as possible as is now required.  Justice Smith commented about the new test at page 280:

“[994] It is true, as the defendants submit, that the Supreme Court did not enunciate a new test. However, in my view Hutterian Brethren marks a substantive change, rather than the addition of a nuance. The Court made clear that the final step in the proportionality analysis is neither redundant nor a mere summary of the first two steps, although, as Professor Hogg observed, it had come to be viewed that way. Courts are to widen their perspective at the final stage to take full account of the deleterious effects of the infringement on individuals or groups, and determine whether the benefits of the legislation are worth that cost. That is a different question than whether the legislation is rationally connected to the government’s objective or impairs the rights as little as possible.  [995] I agree with the plaintiffs that the Supreme Court of Canada, in Hutterian Brethren, put life into the final balancing step in the analysis of proffered justifications for infringements of Charter rights.

The written decision of Justice Smith is impressive.  Even if you odd not agree with the outcome, the thorough, logical and exhaustive manner in which Justice Smith took on this difficult issue is worthy of examination.  Also of note is the manner in which Justice Smith dealt with the Supreme Court of Canada's earlier decision in the Rodriguez v. British Columbia case which it was suggested had already decided these issues.

As I read this voluminous decision I did reflect on comments made to me some 20 years previous by an old law school friend that the Courts should defer to the supremacy of parliament.  That is that Judicial Activism is not appropriate in a democracy.  I did locate the following excellent paper on this issue: Platonic Guardians? Judicial Activism in Pursuit of Social Justice.  In delightful prose Justice Smith herself even alluded to this concern and interaction between ethics, the law, and the constitution at page 57:

[173] Actions may be ethical but not legal, and, conversely, may be legal but not ethical. The question in this case, in any event, is not what is ethical or legal, but whether specific provisions of the Criminal Code are constitutional. However, because the three realms (ethical, legal and constitutional) tend to converge even though they do not wholly coincide, my view is that the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case.

Justice Smith more directly addressed this issue of judicial activism at page 346 and made it clear that in her view the Court has a responsibility to ensure that laws are found to be unconstitutional if an alternative means exists which is less drastic:

“[1226] I do not accept Canada’s submission that the only question in this case is whether Parliament’s choice in enacting a blanket prohibition falls within a range of reasonable alternatives. The cases upon which Canada relies (JTI-MacDonald and Edwards Books) both preceded Hutterian Brethren. I accept the plaintiffs’ submissions that in the Hutterian Brethren case the Supreme Court laid down the general approach to be followed in s. 1 proportionality analysis, including in this case. The question is whether there is “an alternative, less drastic, means of achieving the objective in a real and substantial manner” (Hutterian Brethren at para. 55).  [1227] I do accept the defendants’ submission that considerable deference is due to Parliament. The choice whether to permit any form of physician-assisted death implicates fundamental social values. Further, complex and difficult predictions about human behaviour are inherent in weighing the possible means of preventing the inducement of vulnerable people, including grievously ill people, to commit suicide. [1228] However, recognizing the need for deference does not allow a court to down tools and end the analysis. This Court must fulfill its constitutional duty to decide whether Parliament’s choice of an absolute prohibition, which infringes constitutional rights, is justified in comparison with other possible measures which would avoid infringement.”
For those interested in a thorough section 1 analysis I recommend you read the decision of Justice Smith.  It brought back many memories of running through the old Oakes test while in law school.  While reading the decision of Justice Smith I was also surprised to learn that physicians may prescribe doses to un-well persons/patients even if they know such prescription will hasten death so long as the intention is to provide palliative care.  Following from this Justice Smith concluded at page 105 that there is no meaningful distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death.  This and other currently permissible actions were summarized by Justice Smith at page 70:

“[231] To summarize, the law in Canada is that:
(a) Patients are not required to submit to medical interventions (including artificial provision of nutrition and hydration), even where their refusal of or withdrawal from treatment will hasten their deaths, and physicians must respect their patients’ wishes about refusal of or withdrawal from treatment.
(b) Decisions about refusal or withdrawal of treatment may be made by competent patients either in the moment or by way of advance directives, and may be made by substitute decision-makers in the case of incompetent patients.
(c) Physicians may legally administer medications even though they know that the doses of medication in question may hasten death, so long as the intention is to provide palliative care by easing the patient’s pain.
(d) It is unclear whether a patient’s substituted decision-maker can require the maintenance of life-sustaining treatment against medical advice.”

In this blog I simply wanted to summarize a few of the many excellent points made by Justice Smith in her decision and share the words of Justice Smith at page 249 regarding her conclusion that alternative means which are less drastic do exist (my emphasis):

[883] My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.

Justice Smith’s decision has been appealed and I understand the appeal was recently heard by the British Columbia Court of Appeal.  Regardless of the outcome I am confident that the Supreme Court of Canada will hear a further appeal of the issue of the right to Physician-Assisted Suicide.  It will be interesting to see, as is the case in many other jurisdictions, if our Courts conclude that a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced is a less drastic alternative to outright prohibition of Physician-Assisted Suicide.