Thank you to now retired Honourable Justice
L. Smith of the British Columbia Supreme Court for laying the groundwork which has
lead the Supreme Court of Canada (the "SCC") to strike out the
Criminal Code's prohibition on physician assisted suicide (now referred to as
death) reversing the British Columbia Court of Appeal ("BC CA") which
reversed the well reasoned and thorough decision of Justice Smith. I originally reviewed the decision of Justice Smith on this blog at: http://bridgeland-law.blogspot.ca/2013/05/physician-assisted-suicide-carter-v.html. In paragraph 3 of the decision, the SCC
acknowledges Justice Smith's efforts:
"The trial judge’s findings were based on an exhaustive review of the extensive
record before her."
The SCC unanimously started its judgment in Carter v. Canada (Attorney General), 2015SCC 5 ("Carter") clearly elucidating the
issue of the chronically ill:
"[1] It is a crime in Canada to assist
another person in ending her own life. As a result, 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."
This paragraph succinctly and profoundly
identifies why the SCC distinguished Rodriguez v. British Columbia
(Attorney General), [1993] 3 S.C.R. 519 ("Rodriguez") which had
earlier upheld the same Criminal Code sections.
In this blog I will highlight some of the comments and conclusions of
the SCC. However prior to doing so I
want to recognize a core criticism which will be levied by parliamentary
supremacists. Some argue that the act of
amending the Criminal Code, as will now be required by the SCC in the Carter
decision, should be left to Parliament and concomitantly to the Legislatures. By the SCC deciding as it has and making this
decision those persons would argue that the SCC has overstepped its
jurisdiction and has taken on a legislative function. This may implicitly be the result of Carter
but curiously such amendment to the Criminal Code was supported by 68% of
Canadians recently polled. Of course
constitutionalists will counter that the SCC has not made law but simply
directed that, after an interim period of one year, the offending provisions of
the Criminal Code will be struck out and of no force and effect. The SCC has left to Parliament and the
Legislatures to create law which does not offend the s.7 rights of individuals
to life, liberty and security of the person pursuant to the Charter of Rights
and Freedoms. In this regard the SCC was
careful to frame the issue subject of the appeal as follows:
"[2] The question on this appeal is whether
the criminal prohibition that puts a person to this choice violates her Charter
rights to life, liberty and security of the person (s.7) and to equal treatment
by and under the law (s.15). This is a question that asks us to balance
competing values of great importance. On the one hand stands the autonomy and
dignity of a competent 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."
I will leave it to those more jurisprudentially
oriented to explore and argue whether the articulation of the issue subject of
the appeal offends the supremacy of Parliament.
Notwithstanding this issue, many parliamentary supremacists, including
the writer, are ironically not unhappy with the SCC's decision in Carter v.
Canada. There is in the writer's opinion
situations where one ought to be entitled to chose when and how they die. Gloria Taylor, the other Applicant/Appellant
who suffered from ALS, stated eloquently her perspective on when the right time
to die was; this was quoted by the SCC at paragraph 12:
"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. There will come a point when I will know that enough is
enough. I cannot say precisely when that time will be. It is not a question of “when I can’t walk” or “when I can’t talk.” There
is no pre-set trigger moment. I just know that, globally, there will be some
point in time when I will be able to say – “this
is it, this is the point where life is just not worthwhile.” When that time comes, I want to be able to call my family together,
tell them of my decision, say a dignified good-bye and obtain final closure -
for me and for them."
The SCC first reviewed the judicial history of
the action. In reviewing the trial
decision of then Justice Smith the SCC highlighted the conclusions of Justice
Smith in respect of the fear of permissive regimes and in this regard echoed
Justice Smith's conclusions that physicians are capable of reliably assessing
patient competence. The SCC echoed that
a carefully designed system would obviate these fears (it worth noting that
this commentary ultimately becomes the basis for the SCC deciding that the
Criminal Code provisions do not minimally impair the s.7 rights):
"[27] The trial judge then considered the
risks of a permissive regime and the feasibility of implementing safeguards to
address those risks. After reviewing the evidence tendered by physicians and
experts in patient assessment, she concluded that physicians were capable of
reliably assessing patient competence, including in the context of
life-and-death decisions (para. 798). She found that it was possible to detect
coercion, undue influence, and ambivalence as part of this assessment process
(paras. 815, 843). She also found that the informed consent standard could be
applied in the context of physician-assisted death, so long as care was taken
to “ensure a patient is properly informed of her diagnosis and prognosis” and the treatment options described included all reasonable
palliative care interventions (para. 831). Ultimately, she concluded that the
risks of physician-assisted death “can be identified and
very substantially minimized through a carefully-designed system” that imposes strict limits that are scrupulously monitored and
enforced (para. 883)."
The SCC took efforts to summarize the basis upon
which Justice Smith had concluded that the decision in Rodriguez could be
reheard by the lower Courts:
"[28] Having reviewed the copious evidence
before her, the trial judge concluded that the decision in Rodriguez did not
prevent her from reviewing the constitutionality of the impugned provisions,
because (1) the majority in Rodriguez did not address the right to life; (2)
the principles of overbreadth and gross disproportionality had not been
identified at the time of the decision in Rodriguez and thus were not addressed
in that decision; (3) the majority only “assumed” a violation of s. 15; and (4) the decision in Alberta v. Hutterian
Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, represented a “substantive change” to
the s. 1 analysis (para. 995). The trial judge concluded that these changes in
the law, combined with the changes in the social and factual landscape over the
past 20 years, permitted her to reconsider the constitutionality on the
prohibition on physician-assisted dying."
The position of the SCC stands in contrast with
the conclusion of the BC Court of Appeal:
"[34] The majority of the Court of Appeal,
per Newbury and Saunders JJ.A., allowed Canada’s appeal on the ground that the trial judge was bound to follow this
Court’s decision in Rodriguez. The
majority concluded that neither the change in legislative and social facts nor
the new legal issues relied on by the trial judge permitted a departure from
Rodriguez."
The SCC clearly rejected the position taken by
the Government of Canada and the Ontario Government that the principal of stare
decisis (precedent) must be slavishly followed by lower Court Judges and
concluded that both of the required conditions were met in the Carter case:
"[44] 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 SCC applied these two principles to the
facts as they were determined in Rodriguez but deviated somewhat from the
conclusion of Justice Smith with respect to her interpretation of the impact of
the Hutterian Brethren case on the facts in Rodriguez:
"[46] 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."
"[48] 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."
The SCC with great efficiency dismissed the
argument of interjurisdictional immunity stating in paragraph 53 that:
"We are not satisfied on the record before
us that the provincial power over health excludes the power of the federal
Parliament to legislate on physician-assisted dying. It follows that the interjurisdictional
immunity claim cannot succeed.
Peripateticly speaking, the SCC appeared to be
briefly motivated to wax philosophically about an existential formulation of
the section 7 right to life:
"[63] This said, we do not agree 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."
The SCC concurred with Justice Smith that the
denial of the "right to request a physician's assistance in dying"
breaches the s.7 right to life:
"[66] We agree with the trial judge. An
individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity and
autonomy. The law 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 obiter the SCC made an interesting comment
about the increasing importance of and emphasis on laws not offending s.7 which
has developed over the 32 years since the repatriation of the Canadian
Constitution and the creation of the Charter of Rights and Freedoms
("CRF")
"[72] Section 7 does not catalogue the
principles of fundamental justice to which it refers. Over the course of 32
years of Charter adjudication, this Court has worked to define the minimum
constitutional requirements that a law that trenches on life, liberty, or
security of the person must meet (Bedford, at para. 94). While the Court has
recognized a number of principles of fundamental justice, three have emerged as
central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or
security of the person must not be arbitrary, overbroad, or have consequences
that are grossly disproportionate to their object."
The SCC provided some guidance to those wanting
to assert competing social interests or public benefits in respect of a breach
of s.7 of the CRF, indicating that such concerns are raised under s.1, the
saving provision, and not s.7 which establishes the rights:
"[79] Before turning to the principles of
fundamental justice at play, a general comment is in order. In determining
whether the deprivation of life, liberty and security of the person is in
accordance with the principles of fundamental justice under s. 7, courts are
not concerned with competing social interests or public benefits conferred by
the impugned law. These competing moral claims and broad societal benefits are
more appropriately considered at the stage of justification under s. 1 of the
Charter (Bedford, at paras. 123 and 125)."
The SCC quickly summarized the application of
the principals of "overbreadth" and "gross
disproportionality" in concluding that section 7 of the Charter of Rights
and Freedoms had been breached. Repeated
below are two paragraphs which highlight how these principals are to be
applied:
"[85] 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: Bedford, at paras. 101 and 112-13. Like the other
principles of fundamental justice under s. 7, overbreadth is not concerned with
competing social interests or ancillary benefits to the general population. A
law that is drawn broadly to target conduct that bears no relation to its
purpose “in order to make enforcement more practical” may
therefore be overbroad (see Bedford, at para. 113). The question is not whether
Parliament has chosen the least restrictive means, but whether the chosen means
infringe life, liberty or security of the person in a way that has no
connection with the mischief contemplated by the legislature. The focus is not
on broad social impacts, but on the impact of the measure on the individuals
whose life, liberty or security of the person is trammelled."
"[89] This principle is infringed if the
impact of the restriction on the individual’s life, liberty or security of the person is grossly
disproportionate to the object of the measure. As with overbreadth, the focus
is not on the impact of the measure on society or the public, which are matters
for s. 1, but on its impact on the rights of the claimant. The inquiry into
gross disproportionality compares the law’s
purpose, “taken at face value”, with its negative effects on the rights of the claimant, and asks
if this impact is completely out of sync with the object of the law (Bedford,
at para. 125). The standard is high: the law’s object and its impact may be incommensurate without reaching the
standard for gross disproportionality (Bedford, at para. 120; Suresh v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at
para. 47)."
Having established that the Criminal Code
sections breached s.7 the SCC then turned to section 1 of the CRF to ascertain
if the breach of s. 7 could be saved by s.1; this is the application of the
Oakes test:
"[94] In order to justify the infringement
of the appellants’ s. 7 rights under s. 1 of the
Charter, Canada must show that the law has a pressing and substantial object
and that the means chosen are proportional to that object. A law is
proportionate if (1) the means adopted are rationally connected to that
objective; (2) it is minimally impairing of the right in question; and (3)
there is proportionality between the deleterious and salutary effects of the
law: R. v. Oakes, [1986] 1 S.C.R. 103."
After determining that the Criminal Code
provisions were rationally connected to their objective the SCC turned to the
core assessment in the decision; do the Criminal Code provisions minimally
impair the right to life, liberty and security of the person:
"[103] The question in this case comes down
to whether the absolute prohibition on physician-assisted dying, with its heavy
impact on the claimants’ s. 7 rights to life, liberty
and security of the person, is the least drastic means of achieving the
legislative objective. It was the task of the trial judge to determine whether
a regime less restrictive of life, liberty and security of the person could
address the risks associated with physician-assisted dying, or whether Canada
was right to say that the risks could not adequately be addressed through the
use of safeguards.
[104] This question lies at the heart of this
case and was the focus of much of the evidence at trial. In assessing minimal
impairment, the trial judge heard evidence from scientists, medical
practitioners, and others who were familiar with end-of-life decision-making in
Canada and abroad. She also heard extensive evidence from each of the
jurisdictions where physician-assisted dying is legal or regulated. In the
trial judge’s view, an absolute prohibition
would have been necessary if the evidence showed that physicians were unable to
reliably assess competence, voluntariness, and non-ambivalence in patients;
that physicians fail to understand or apply the informed consent requirement
for medical treatment; or if the evidence from permissive jurisdictions showed
abuse of patients, carelessness, callousness, or a slippery slope, leading to
the casual termination of life (paras. 1365-66)."
The SCC received fresh evidence from a Belgian
Professor but the SCC was not persuaded that this evidence substantiated the
"slippery slope" which was being asserted by the Government of
Canada. The SCC reiterated the decision
of Justice Smith:
"[117] The trial judge, on the basis of her
consideration of various regimes and how they operate, found that it is
possible to establish a regime that addresses the risks associated with
physician-assisted death. We agree with the trial judge that the risks
associated with physician-assisted death can be limited through a carefully
designed and monitored system of safeguards."
In paragraph 118 the SCC stated clearly that it
was the obligation and "burden" of the Government of Canada in "establishing minimal
impairment". The SCC then reiterated
Justice Smith's conclusion and concurred with Justice Smith:
"[119] The trial judge found that Canada
had not discharged this burden. The evidence, she concluded, did not support
the contention that a blanket prohibition was necessary in order to
substantially meet the government’s objectives. We agree. A
theoretical or speculative fear cannot justify an absolute prohibition. As
Deschamps J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of disproving every fear or every threat”, nor can the government meet its burden simply by asserting an
adverse impact on the public. Justification under s. 1 is a process of
demonstration, not intuition or automatic deference to the government’s assertion of risk (RJR-MacDonald, at para.
128)."
"[121] We find no error in the trial judge’s analysis of minimal impairment. We therefore
conclude that the absolute prohibition is not minimally impairing."
The conclusion of the SCC is clearly stated; a
person wishing to be assisted in their death must suffer from an intolerable
"grievous and irremediable medical condition (including an illness,
disease or disability)":
"[4] We conclude that the prohibition on
physician-assisted dying is void insofar as it deprives a competent adult of
such assistance where (1) the person affected clearly consents to the
termination of life; and (2) the person 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."
On a final note the SCC awarded "special
costs" to the Appellants; this is noteworthy as it is unusual and in
Carter v. Canada provides for full indemnity of solicitor and client costs:
"[134] The trial judge awarded the
appellants special costs exceeding $1,000,000, on the ground that this was
justified by the public interest in resolving the legal issues raised by the
case. (Costs awarded on the usual party-and-party basis would not have exceeded
about $150,000.) In doing so, the trial judge relied on Victoria (City) v.
Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28, at para. 188, which set out four
factors for determining whether to award special costs to a successful public
interest litigant: (1) the case concerns matters of public importance that
transcend the immediate interests of the parties, and which have not been
previously resolved; (2) the plaintiffs have no personal, proprietary or
pecuniary interest in the litigation that would justify the proceeding on
economic grounds; (3) the unsuccessful parties have a superior capacity to bear
the cost of the proceedings; and (4) the plaintiffs did not conduct the
litigation in an abusive, vexatious or frivolous manner. The trial judge found
that all four criteria were met in this case."
"[143] Having regard to these criteria, we
are not persuaded the trial judge erred in awarding special costs to the
appellants in the truly exceptional circumstances of this case. We would order
the same with respect to the proceedings in this Court and in the Court of
Appeal."
As I have never appealed a matter to the SCC I can
only imagine that the amount of solicitor and client costs must be in the
millions of dollars all of which will be required to be paid by the Government
of Canada to the Appellants. Perhaps the
Government of Canada should have heeded the poll which reflected 68% of
Canadians were supportive of Physician Assisted Death and simply worked with
the Provinces to create a "carefully-designed system” that "imposes strict limits that are scrupulously monitored and
enforced" to quote Justice Smith.
It will be interesting to see what the Government of Canada and the
Provincial Governments come up with in the next year after they pay the costs
of the Appellants.
