By Sara Glassman
On 6 February 2015, the Supreme Court of Canada unanimously held that an absolute prohibition against physician-assisted death infringed the Apellants’ right to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice. Accordingly, the Court struck down the law, issuing a declaration that the relevant provisions of the Canadian Criminal Code are invalid (the declaration to be suspended for one year). In doing so, it reversed its earlier decision Rodriguez v British Columbia (Attorney General) which had 21 years earlier upheld the prohibition on physician-assisted suicide by a slim majority of 5 to 4. This momentous and controversial decision will no doubt fuel end-of-life commentary and debate within Canada and abroad.
Background—Rodriguez v British Columbia
In Canada, as in New Zealand, it is a crime to assist another person in ending her own life. Section 241(b) of the Canadian Criminal Code provides that everyone who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. Section 14 further provides that no person is entitled to consent to have death inflicted on her, and such consent does not affect the criminal responsibility of any person to whom such consent is given. The New Zealand Crimes Act 1961 similarly provides in s 179 for a prison sentence of up to 14 years or aiding or abetting any person in the commission of suicide. The New Zealand Act also broadly defines homicide to include “the killing of a human being by another, directly or indirectly, by any means whatsoever”, thus prohibiting all acts constituting euthanasia.
The first major Canadian challenge to the Criminal Code’s prohibition on assisted suicide dates back more than 20 years and was brought by Sue Rodriguez, a 42-year-old mother suffering from a fatal neurodegenerative disease, amyotrophic lateral sclerosis (ALS). ALS causes progressive muscle weakness; patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe. Sue Rodriguez did not wish to die so long as she still had the capacity to enjoy life. But when she was no longer able to do, she wished to have assistance from a physician to set up a means by which she would, by her own hand, and at the time of her choosing, end her life.
Sue Rodriguez brought a constitutional challenge to s 241(b) of the Canadian Criminal Code on the basis that it violated her rights to life, liberty and security of the person, her right not be subjected to cruel and unusual punishment, and her right to equal treatment. Her legal battle to end her life on her own terms was decided by the Supreme Court of Canada in their 1993 decision, Rodriguez v British Columbia (Attorney General). A slim majority of 5 to 4 justices upheld the law, holding that while Ms Rodriguez’s rights were potentially engaged, there was no violation as any infringement was in accordance of the principles of fundamental justice or justified as a reasonable limit.
Carter v Canada
In 2009, Gloria Taylor was, like Sue Rodriguez, diagnosed with ALS. By 2010, she had deteriorated significantly and desired above all to die on her own terms. However, her quickly deteriorating condition meant that she would not be able to do so. This left her with what she described as a “cruel choice” between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death (at [13]).
Faced with this stark choice, in 2011 Ms Taylor brought a claim in the British Columbia Supreme Court challenging the constitutionality of the Canadian Criminal Code provisions prohibiting assistance in dying (Carter v Canada (Attorney General)). She was joined in her claim by three other individuals: Lee Carter and Hollis Johnson, who had assisted Ms Carter’s mother to achieve her goal of dying with dignity by taking her to Switzerland to use the services of assisted suicide clinic DIGNITAS; and Dr William Shoichet, a physician from British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited. Ms Taylor was also joined by the British Columbia Civil Liberties Association (BCCLA), an organization with a long‑standing interest in patients’ rights and health policy that has conducted advocacy and education with respect to end-of-life choices.
Despite being successful at first instance in the BC Supreme Court, the government (including the Attorneys-General of both British Columbia and Canada) appealed the decision to the BC Court of Appeal (Carter v. Canada (Attorney General)), which overturned the trial decision on the basis that it was bound by the Supreme Court’s earlier decision in Rodriguez. The Appellants pursued a further appeal to the Supreme Court, joined by no less than two dozen interveners comprising the Attorneys-General of Ontario and Quebec and special interest groups on both sides of the debate.
Issues
In the opening paragraphs of its 85-page decision, the Supreme Court succinctly explained that the key question at issue in the case was the constitutional validity of the Criminal Code provision, which put individuals such as Gloria Taylor to the cruel choice of taking their own life prematurely, often by violent or dangerous means, or suffering until they died from natural causes. It elaborated (at [2]):
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.
More specifically, the question to be decided by the Court was whether ss 241(b) and 14 of the Canadian Criminal Code violated the guarantees set out in ss 7 (life, liberty and security of the person) and 15 (equal treatment) of the Canadian Charter of Rights and Freedoms. As it happens, the Court’s analysis focused entirely on whether there was a violation of the Appellants’ rights under s 7 of the Charter, and if so whether this could be “justified” under s 1. Sections 1 and 7 of the Charter provide:
7. Everyone has the 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.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
New Zealand readers will of course note the similarities between the above provisions and ss 8 and 5 the New Zealand Bill of Rights Act 1990, which respectively guarantee the right to life (though not to liberty or security of the person), and provide for protected rights not to be infringed except subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Analysis
Section 7
The Supreme Court concluded that each of the three rights enshrined by s 7 of the Charter were engaged and infringed by the criminal prohibition on assisted suicide.
The prohibition infringed life, as it had the effect of forcing some individuals to take their lives prematurely for fear that they would be incapable of doing so when they reached the point where suffering was intolerable, a decision which Ms Gloria Taylor was cruelly subjected to (at [57]). It infringed the right to liberty by interfering with individuals’ ability to make decisions concerning their bodily integrity and medicine intake, and thus infringed the right to liberty (at [66]). Finally, by leaving people to endure intolerable suffering, the prohibition impinged on security of the person (at [66]).
The Court went on to consider whether the infringements were in accordance with the principles of fundamental justice. It focused on three key principles central to recent s 7 jurisprudence (the Charter does not enumerate a set list of principles): arbitrariness, overbreadth and gross disproportionality. The Court’s analysis of these principles was guided by its interpretation that the objective of the prohibition was the protection of vulnerable people from being induced to commit suicide at a time of weakness (at [74]). It found that the criminal prohibition against assisted suicide was not arbitrary, as a complete ban on assisted suicide did help to achieve the objective (at [83]). However, the Court found that a complete prohibition was overbroad, stating (at [85]):
… its objective is to protect vulnerable people from being induced to commit suicide at a moment of weakness, but catches people outside of this class (as in the Apellant Ms Taylor, competent, fully-informed and free from duress individual).
Having found the prohibition to be overbroad, the Court declined to rule on whether the prohibition was also grossly disproportionate.
It should be noted that the Appellants also claimed an infringement of the s 15 Charter right to equal treatment. However, having found a violation of s 7, the Court declined to consider s 15 in its analysis.
Section 1
Having found infringements of life, liberty and security of the person which were not in accordance with the principles of fundamental justice, the Court went on to consider whether such infringements could be “justified” under s 1 of the Charter (at [94]). In order to justify the infringement, the respondents needed to show that the law had a pressing and substantial object and that the means chosen were proportional to that object: that is, (1) the means adopted were 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 (see R v Oakes).
The Court found without controversy that the criminal prohibition against assisted suicide was prescribed by law and had a pressing and substantial objective (the protection of vulnerable individuals) to which the chosen means (absolute prohibition) were rationally connected. The real question the Court wrestled with was the second branch of the proportionality analysis: whether or not the chosen means of absolute criminal prohibition on all forms of assisted suicide were “minimally impairing” of the rights in question. That is, whether the government had discharged its burden of showing that there were not available less harmful means of achieving the legislative goal.
Key to the Supreme Court’s minimal impairment analysis was its finding that the “matrix of legislative and social facts” surrounding assisted suicide had significantly evolved since the Rodriguez decision upheld the absolute ban in assisted suicide 1993 (at [47]). The Court was particularly mindful of the changing landscape on the issue of physician-assisted suicide within Canada and abroad.
Within Canada, a vocal minority in the House of Commons (apparent in the introduction of six private members’ bills between 1991 and 2010) favoured reform, highlighting the importance of dignity and autonomy in dying (at [6]–[7]). A 2011, the Royal Society of Canada published a report on end-of-life decision-making and recommended that the Criminal Code be modified to permit assistance in dying in some circumstances (at [7]). With respect to change abroad, in 1993 no Western democracy expressly permitted assistance in dying but by 2010 eight jurisdictions permitted some form of assisted dying (the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia) (at [8]).
With respect to the evidence from abroad, the Court acknowledged that the existence of eight permissive regimes in 2013 was far from indicating that a majority of Western democracies were moving in this directions (indeed, the Court cited recent examples to the contrary in the US, UK and Ireland). However, the existence of permissive regimes created an evidential backdrop of examples (a kind of “testing ground”), showing how such regimes functioned in practice. The fact that these regimes appeared to the Court (based on the trial judge’s finding) to be functioning successfully had the effect of assuaging the crucial concern, central to the case, that no regime permitting doctor-assisted suicide was capable of adequately protecting the vulnerable in society.
Following lengthy analysis, the Court concluded that an absolute ban on assisted-suicide did not minimally impair the Appellants’ rights and was therefore unconstitutional. In so doing, it agreed with the following key social and legislative factual findings of the trial judge:
- The risks of a permissive regime could be identified and substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced;
- It was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence and ambivalence could all be reliably assessed as part of the process; and
- There was no evidence from permissive jurisdictions that people with disabilities are at a heightened risk of accessing physician-assisted dying; nor was there compelling evidence that a permissive regime in Canada would result in a “practical slippery slope”.
Having concluded that the infringement of s 7 was not “saved” under s 1, the Court declined to consider the final step of the proportionality analysis (whether the salutary effects of the prohibition outweighed its deleterious effects).
Remedy
The Court issued a declaration that ss 241(b) and 14 of the Criminal Code were 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” (at [127]). The Court suspended the declaration of invalidity for 12 months, not allowing for any exemptions during the period of suspension.
Commentary
It is vitally important to note two points about the Court’s declaration. First, the Court sought to set clear parameters around it: the declaration only extends to competent adult persons seeking physician-assisted death but is not, however, limited solely to adults suffering from terminal illness (so includes those whose suffering is caused by a disability). Second, there is a range of possible government responses to the suspended declaration. The government of Canada may choose to amend the Criminal Code to comply with the Court’s findings. It may also do nothing, leaving the parameters of assisted suicide in Canada to be developed by local regulatory bodies. A third but unlikely outcome for the government is to invoke the little-used “notwithstanding” clause set out in s 33 of the Charter, to effectively override the decision and maintain an absolute prohibition.
In short, the decision in Carter v Canada (Attorney General) is merely the beginning of what is to be a lengthy and controversial conversation on physician-assisted suicide in Canada, as well as abroad. Here in New Zealand, there is no telling whether the case will reinvigorate the debate over assisted suicide, which relies on the introduction of private members’ bills rather than court cases to be brought forward (the most recent attempt having been dropped from the agenda prior to the 2014 election). That said, the Court’s reliance on comparative law as a “testing ground” for alternative regimes will no doubt be of note, as will the development of right to life jurisprudence (still very much in its naissance in New Zealand).
Sara Glassman is a Canadian lawyer, living in New Zealand, who has also spent time studying and working in the United Kingdom. She specialises in Human Rights law.