Saturday, February 7, 2015

Carter v. Canada - The right to physician assisted death; The Supreme Court of Canada reverses the British Columbia Court of Appeal and restore the decision of the Honourable Justice Smith then of the British Columbia Supreme Court

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:  In paragraph 3 of the decision, the SCC acknowledges Justice Smith's efforts:

"The trial judges 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 physicians 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 cant walkor when I cant 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 prognosisand 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 systemthat 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 assumeda 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 changeto 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 Canadas appeal on the ground that the trial judge was bound to follow this Courts 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-inclusivewhen 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 states 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 laws objectives (Bedford, at para. 101). This different question may lead to a different answer. The majoritys 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 waivetheir 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 individuals 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 physicians 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 practicalmay 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 individuals 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 laws 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 laws 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 appellantss. 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 claimantss. 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 judges 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 governments 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 governments assertion of risk (RJR-MacDonald, at para. 128)."

"[121] We find no error in the trial judges 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 systemthat "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.