This October, the British Columbia Court of Appeal released its reasons in Carter v. Attorney General for British Columbia, 2013 BCCA 435. The Court overturned the previous ruling of Madam Justice Lynn Smith who had cleared the way for physician assisted death. This case will undoubtedly be granted leave to appeal by the Supreme Court of Canada (see Case No. 35591).  The Court of Appeal was divided: Madam Justices Newbury and Saunders constituted the majority. Chief Justice Finch dissented.  Not only does the decision review the law respecting the right to a physician-assisted death but the judges also discussed the age-old principle of stare decisis, an essential element of the Anglo-Canadian constitutional principle of the rule of law.  Based on the Court of Appeal’s rationale, Canadians are not entitled to seek the assistance of a physician when at the end of their lives.  And the reason for that is that the Supreme Court of Canada ruled that the law imposing that restriction was constitutional twenty years ago in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519.

My prejudices

Let me start by clearly stating that my personal beliefs and values are such that I am firmly in support of allowing for physician assisted suicide for persons who are at “end of life” circumstances and who are mentally capable of deciding for themselves whether the time has come to bring a controlled end to their life.

Background to the Carter case

This is not the first time that Canadian courts have wrestled with this difficult moral issue. In the early 1990’s, a courageous woman suffering from amyotrophic lateral sclerosis, Sue Rodriguez, challenged the constitutionality of s. 241(b) of the Criminal Code.  A majority of the Supreme Court of Canada upheld the constitutionality of the provision which forbids anyone to aid or abet another to commit suicide. Justice Sopinka, whose reasons were supported by a majority of the Court, held that, while Ms. Rodriguez’s security of the person was deprived by operation of s. 241(b), the deprivation was in accordance with the fundamental principles of justice.

The plaintiffs in the Carter case both suffered from “intractable and progressive diseases”. They sought, like Sue Rodriguez twenty years before them, to challenge the constitutionality of s. 241(b) and argued, like Ms. Rodriguez, that that provision violated s. 7 of the Charter. They argued that the jurisprudence surrounding s. 7 had evolved and that the Rodriguez decision had not been determinative of all the arguments that they were now going to raise.

Minority’s decision

Chief Justice Finch dissented. For the most part, he agreed with Justice Smith. he found that the right to life had not been considered by Justice Sopinka in Rodriguez. He agreed with her that that right was being deprived by virtue of s. 241(b) of the Criminal Code. And he also agreed with her that Rodriguez did not deal with the principles of fundamental justice of “overbreadth” and “gross disproportionality” and that s. 241(b) was overbroad and grossly disproportionate to the valid state objective. He would have held that, as a result of the fact that the Supreme Court had not dealt with the right to life and the principles of overbreadth and gross disproportionality, it was open to Justice Smith, and to him, to consider the constitutionality of s. 241(b) afresh, notwithstanding the ruling in Rodriguez that the provision was constitutional and did not violate s. 7 of the Charter.

Majority’s decision

Justices Newbury and Saunders reviewed the ruling of Justice Smith in the British Columbia Supreme Court (BCSC decision). They analysed her consideration of Justice Sopinka’s decision in Rodriguez. They held that Justice Smith had erred in determining that Justice Sopinka’s analysis did not deal with the right to life (as opposed to the right to liberty and right to security of the person). They also held that, even if they were incorrect in their analysis of Rodriguez’s dealing with the right to life, Justice Sopinka had dispensed with the argument that the provision (s. 241(b) of the Criminal Code) violated the fundamental principle of justice that militates against arbitrariness. In a learned and detailed analysis of the decisions respecting the concepts of “arbitrariness”, and the more recently discussed concepts of “overbreadth” and “gross disproportionality”, the Justices held that the analysis under each concept was essentially the same or, at least, very similar.  Accordingly, even if the right to life had not been dealt with, it could not say that it was being deprived in a manner that was not in accordance with the principles of fundamental justice.

Stare decisis and rule of law 

The discussions of the three Justices of the British Columbia Court of Appeal respecting the right to life and how it relates to the right of liberty and the right to security of the person as well as their analyses of the evolution of the principles of fundamental justice such as “arbitrariness”, “overbreadth” and “gross disproportionality” are fascinating and provide excellent overviews of the law respecting s. 7 of the Charter. 

But what is also interesting is the review of the law respecting the doctrine of stare decisis – the principle that a lower court must follow and apply the decision of a higher court in the same jurisdiction, to the extent that the higher court has decided the same or a substantially similar issue. Chief Justice Finch stated that “[t]he purpose of this rule, referred to as stare decisis, is to promote consistency in the application of the law, so that similar cases are decided similarly.  In a parallel vein, Justices Newbury and Saunders quoted (para. 263) with approval from the Ontario Court of Appeal in Canada (Attorney General) v. Bedford, 2012 ONCA 186, where it is stated at para. 56 that “[t]he rationale for the rule is self-evident: it promotes consistency, certainty and predictability in the law, sound judicial administration, and enhances the legitimacy and acceptability of the common law:….”  They went on cite, again from Bedford, (paras 83-84 of Bedford) (at para., 268 Carter):

“In our view, the need for a robust application of stare decisis is particularly important in the context of Charter litigation. Given the nature of the s. 1 test, especially in controversial matters, the evidence and legislative facts will continue to evolve, as will values, attitudes, and perspectives. But this evolution alone is not sufficient to trigger a reconsideration in the lower courts.

“If it were otherwise, every time a litigant came upon new evidence or a fresh perspective from which to view the problem, the lower courts would be forced to reconsider the case despite authorative holdings from the Supreme Court on the very points at issues. This would undermine the legitimacy of Charter decisions and the rule of law generally. ….”

[Underlining is that of Justices Newbury and Saunders. Italics is mine]

And this is what I find intriguing about this case. It wrestles with the issue as to how the common law fits into the constitution and the importance of the rule of law within judge-made or judge-decided law. The two justices concluded their analysis of the evolution of s. 7’s principles of fundamental justice by saying (para. 313):

“The point is that if lower courts are to be free to reconsider and depart from established precedent every time the Supreme Court of Canada articulates a new refinement or variant of what are now principles of fairly long standing, the role of such principles as the “shared assumptions upon which our system of justice is founded” will inevitably decline, along with, we suggest, the public’s perception of the role of courts as the legitimate arbiters of legislation under the Charter.”

I think that they have a point. While I desperately hope that Canada will one day allow for the controlled use of physician assisted suicide, it is important that we arrive there maintaining a vigorous respect for the rule of law. What happens in this case will affect what one may do in another.  This Friday, the Supreme Court of Canada will deliver its reasons in Bedford. One can only hope that those reasons will not only elucidate the issue on the constitutionality of the prostitution provisions of the Criminal Code but will also pronounce on the importance of stare decisis and its role in the maintenance of the rule of law in our justice system.

Constitutionally yours

Arthur Grant