Supreme Court of Canada Strikes Down Prohibition against Physician-Assisted Dying in Carter v Canada: Part I

This is the first part of a three-part series discussing the Supreme Court of Canada’s paramount decision in Carter v Canada (Attorney General). Part I will address stare decisis. Part II will address the changes that the Carter decision will have on our understanding and interpretation of s. 7 of the Charter. 

Part I

On February 6, 2015, the Supreme Court of Canada (“SCC”) in Carter v Canada (Attorney General), 2015 SCC 5 [Carter], unanimously allowed the appeal from the British Columbia Court of Appeal (“BCCA”), thereby abolishing the prohibition against physician-assisted dying in Canada. Written by “The Court,” the decision ruled that ss. 14 and 241(b) (“the prohibition”) of the Criminal Code, RSC 1985, c C-46, unjustifiably infringes s. 7 of the Charter and are void insofar as they deprive 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 that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition (Carter, para 4). (For highlights from the SCC hearing of the appeal, see here.)

This decision is of vital importance and marks a turning point for our constitutional right to life, liberty and security of the person as it sufficiently balances competing values of great importance: the value of autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition and the value of the sanctity of life and the need to protect the vulnerable.

For the SCC, both values are of absolute importance, however the right to physician-assisted dying did not have to pit one value against the other. The prohibition forces a grievously and irremediably ill person to choose between 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” (para 1). The choices available are both cruel and unconstitutional. However, the abolishment of the prohibition and the implementation of a properly administered regulatory regime would prevent such cruelty and preserve a person’s constitutional rights, while at the same time protecting the vulnerable from abuse or error.

The Issue of Vertical Stare Decisis in Carter

One of the most significant issues addressed by the Court in this decision was a preliminary one: Was the trial judge (Smith J) bound by the SCC’s ruling in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [Rodriguez]? As a preliminary issue, the determination of whether or not Smith J was in fact bound by Rodriguez would govern how the Court would proceed with this appeal. (For a discussion on stare decisis in the BCCA decision, see here.)

Based on the principle of stare decisis, the judgment of the Court in Rodriguez should, in theory, have bound any future decision of a lower court regarding the constitutionality of physician-assisted dying. However, as was demonstrated by the SCC in Canada (Attorney General) v Bedford, [2013] 3 SCR 1101 [Bedford], “stare decisis is not a straitjacket that condemns the law to stasis” (Carter, para 44).

The decision in Bedford played an integral role in the ability of Smith J in Carter v Canada (Attorney General), 2012 BCSC 886 [Carter, BCSC], to revisit the constitutionality of the prohibition against physician-assisted dying, since it outlined the circumstances in which a lower court can reconsider settled rulings of higher courts. According to McLachlin CJ in Bedford, a “matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (Bedford, para 42).

In the present case, both conditions were met. As such, the SCC rejected the Attorney General of Ontario’s argument that “‘vertical stare decisis’ is a constitutional principle that requires all lower courts to rigidly follow [the SCC’s] Charter precedent unless and until [the SCC] sets them aside” (Carter, para 43) [emphasis in original].

Different Matrix of Legislative and Social Facts

The majority in Rodriguez relied on evidence of: (1) widespread acceptance of a moral or ethical distinction between passive and active euthanasia (Rodriguez, 605-607); (2) the lack of any “halfway measure” that could protect the vulnerable (613-614); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippy slope (601-606 and 613).

However, the record before Smith J “contained evidence that, if accepted, was capable of undermining each of these conclusions” (Carter, para 47, citing Ontario (Attorney General) v Fraser, [2011] 2 SCR 3, para 136). When Rodriguez was decided in 1993, Sopinka J stated, “[u]nlike the situation with the partial decriminalization of abortion, the decriminalization of attempted suicide cannot be said to represent a consensus by Parliament or by Canadians in general that the autonomy interest of those wishing to kill themselves is paramount to the state interest in protecting the life of its citizens” (Rodriguez, 597).

However, more recently, public opinion has shifted to one that favours the ability of terminally ill patients to request physician-assisted dying. An Ipsos Reid survey, conducted on behalf of Dying with Dignity Canada, found that more than eight in ten (84%) Canadians support physician-assisted dying (51% “strongly agree” and 33% “somewhat agree”) as long as safeguards are in place. Additionally, nine in ten Canadians believe that a patient should have the right to choose physician-assisted dying if they have a terminal illness causing unbearable suffering (88%) or they have a serious an incurable illness or condition (87%). Two in three (67%) agree that a patient should have this right if the patient has a permanent or severe physical disability that impedes their quality of life.

Additionally, there now exists a plethora of evidence regarding the impact of abolishing the prohibition in other jurisdictions that was not available to the Court in 1993. In Rodriguez, one of Sopinka J’s underlying fears was that physicians would euthanize patients who had not voluntarily agreed to the end their lives. Sopinka J’s fears could not be quieted since there existed no Western country where the prohibition against physician-assisted dying had been abolished, and no evidence to suggest that abolishing the prohibition would result in anything other than the murder of vulnerable people.

However, as predicted in McLachlin J’s (as she then was) dissenting opinion in Rodriguez, the existing provisions on culpable homicide have adequately addressed the majority’s concern. Now in 2015, the Netherlands, Belgium, Luxembourg, Switzerland, Columbia, Oregon, Washington, and Montana have either decriminalized physician-assisted dying or are unwilling to prosecute physician-assisted dying under certain provisions (Carter, BCSC, para 363).

With respect to physically disabled persons, the Oregon Death With Dignity Act annual report, in the year following the legal acceptance of physician-assisted dying in Oregon, found that 79% of the patients were not completely physically disabled when they took the lethal medication. This finding demonstrates that only a minority of disabled people in Oregon in 1999 chose to take their own lives and suggests that vulnerability is not necessarily an intrinsic characteristic of the disabled which others could exploit.

As stated above, Bedford influenced and guided every decision that was made by the Court in Carter. The most significant similarities between Bedford and Carter were the strength of both evidentiary records and the care with which both Smith and Himel JJ reached their factual findings based on those records. As a result, in Carter, the SCC had little to do but affirm those factual finding repeatedly, much like in Bedford, where they repeatedly affirmed the factual findings of Himel J. As such, it can be said without reservation that all of the hard work was completed at the BCSC.

Conclusion on Stare Decisis

Although the doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system, there have been a remarkable series of recent rulings by the SCC that have reached different results from the Court’s previous rulings: Bedford and Carter by distinguishing Reference re ss. 193 and 195(1)(c) of the Criminal Code (Man), [1990] 1 SCR 1123, and Rodriguez, respectively; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, by overruling the 1987 ruling of the Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, on the right to strike; and Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 by overruling Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989, regarding the right of RCMP members to form a union and engage in collective bargaining.

Many legal scholars attribute these series of rulings to the fact that the Court sees the Charter as a living tree, evolving over time, responding no doubt to new levels of disdain for constitutional values by the government. Additionally, these rulings acknowledge the fact that, in law, a constant balancing act exists between the need for finality in the law and the recognition that, occasionally, precedent ought to be revisited. By following the recent trends in stare decisis, the SCC has situated Carter in a new era, one that recognizes the utmost importance of the preservation of Charter rights.