Commercial Litigation and Dispute Resolution Blog

In the recent case of Carter v. Canada, the Supreme Court of Canada declared invalid the Criminal Code prohibitions against physician-assisted suicide.  Those provisions made it a crime for a person to “consent to have death inflicted on him” (s. 14) and to “aid or abet a person to commit suicide” (s.241(b)).  The SCC found this blanket prohibition was a breach of the Charter right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (s.7) which could not be justified under section 1.  This decision is a reversal of the SCC’s 1993 decision in Rodriguez.

The decision has already been and will continue to be the source of considerable editorial comment and debate.  The press, politicians, the medical profession, religious and other interest groups will all provide competing views of the pros and cons of the decision and its impact.  Parliament will need to address the fallout and, should it chose, create a legislative and regulatory framework to achieve the objective originally served by the impugned sections of the Criminal Code: the protection of the vulnerable from taking their lives in times of weakness.

What was the Court’s reasoning (in a nutshell) and what additional points arise besides the immediate result of effectively legalizing physician-assisted suicide in Canada in appropriate cases.

First, the SCC agreed with the trial judge that changes and elaborations to the legal analysis of Charter cases, along with changes in medical practice and societal views on euthanasia, in the 23 years since the Rodriguez case meant it was appropriate to reconsider the constitutionality of prohibiting physician-assisted suicide.  Since Rodriguez, physician-assisted suicide became lawful in eight other jurisdictions.  Based on the experience in those places, it was shown that safeguards could be put in place that would detect coercion, undue influence, and ambivalence in patients who sought assistance to bring about their own deaths.  It was accepted that physicians were capable of reliably assessing patient competence, including in the context of life and death decisions.

The SCC then conducted an analysis of whether the current prohibition was a violation of s.7 of the Charter.  This Charter right was engaged for a number of reasons.  The current law increased the risk of death because it may compel patients to take their lives earlier (by their own hands) than they otherwise would have if assistance was allowed.  It also denied seriously and irremediably ill patients the opportunity to make a choice (to die) that may be very important to their sense of dignity and personal integrity.  As a result, the current law violated the right to life and the right to liberty and security of the person.

The next issue was whether, as a result, the law violated the principles of fundamental justice.  Was it arbitrary or overbroad?  The current law was found not to be arbitrary because a prohibition on physician-assisted suicide is rationally connected to the object of protecting the vulnerable from ending their lives in a time of weakness.  However, the law was held to be overbroad because it captured everyone, not just the vulnerable.  Entirely competent and willing patients were deprived of the ability to end their lives at the time of their choosing.

Having found a Charter violation, the SCC then needed to decide whether the infringement was nonetheless justified on a societal level (the “section 1 analysis”, the Charter’s “saving provision”).  To be saved, an impugned law that otherwise infringes a Charter right must be shown to be “rationally connected” to the object it seeks to achieve, it must result in “minimal impairment” of individual rights and it must be proportional between its deleterious and salutary effects.  While the current law is “logically connected” to its object, it is not the least harmful means of achieving that goal: the impairment of a Charter right was not minimal.  This finding was made because of the evidence that:

“the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing limits that are scrupulously monitored and enforced.”

Given all this, the current law could not be saved.  The SCC thus granted a declaration that the law was invalid.  Specifically, the Criminal Code provisions:

“are void insofar as 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. “Irremediable” . . . does not require the patient to undertake treatments that are not acceptable to the individual.”

You can be certain the precise meaning and scope of these words will be closely dissected in the coming months and years, particularly by parliamentarians and the medical profession as they wrestle to come up with the “appropriate remedy”.  It will not be an easy task.  That is likely why the SCC suspended the effect of this declaration for one year in order to give Parliament “the opportunity to craft an appropriate remedy.”

For anyone interested in understanding how Canadian courts deal with complicated issues such as this, and about the courts’ interplay with legislatures, the Carter decision is a worthwhile read.  Among other things, it provides a good illustration of how the law is developed incrementally over time and, further, how the courts are willing to revisit and change established law if there are circumstances or evidence that “fundamentally shift the parameters of the debate.”  The Carter decision demonstrates the ability of a single citizen to raise for debate serious questions and issues that affect all Canadians, even when the politicians refuse to do so.  This ability makes for a stronger society and a healthy democracy.  The case is also a good illustration of the ability of the courts to oversee and moderate legislation in order to make sure that all our fundamental rights and freedoms, embodied in the Charter, remain paramount.

Lastly, the reasoning in Carter suggests that the upcoming case of Cambie Surgeries Corporation v. Medical Services Commission of British Columbia will likely result in a finding that the current prohibition on direct billing for medical services is also a Charter violation.  Section 7 of the Charter protects the right to make fundamental personal choices and to control