The Supremes “Charter” a new course in the waters of physician-assisted death in Canada

Today, in its fifth decision of the year, the Supreme Court overturned yet another decades old precedent and found the Criminal Code provisions prohibiting physician-assisted death in end-of-life situations unconstitutional and contrary to s. 7 of the Charter. This is the third time this year that the Court has overturned one of its previous decisions on constitutional matters. In Carter v. Canada (Attorney General), 2015 SCC 5, the Court spoke with one voice and in its own name (the headnote states that the precedent was “distinguished” but make no mistake, it no longer applies to these same statutory provisions against assisted death). No one justice was accredited with the authorship of the reasons.

The Court of Appeal had previously ruled by a 2 to 1 majority that the learned trial judge, the Honourable Madam Justice Lynn Smith, had erred in determining that she was not bound by the previous ruling of the Supreme Court of Canada, Rodriguez v. British Columbia (Attorney General), [1993] 1 SCR 513. The Supreme Court of Canada disagreed with the Court of Appeal. The Court made the following statement:

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).

45. Both conditions were met in this case. The trial judge explained her decision to revisit Rodriguez by noting the changes in both the legal framework for s. 7 and the evidence on controlling the risk of abuse associated with assisted suicide.

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-inclusive” when 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 state’s 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 law’s objectives (Bedford, at para. 101). This different question may lead to a different answer. The majority’s 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.

47. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez. The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613). The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 136, per Rothstein J.).

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 Court reviewed Justice Smith’s analysis of s. 7. They found that she had correctly determined on the evidence before her and on the law that each of the interests protected by s. 7 were engaged by ss. 14 and 241(1)(b) of the Criminal Code. The right to “life” was affected by the prohibition against physician-assisted death. First, the evidence that this prohibition drove some individuals to end their own lives earlier and in less dignified and often more painful ways was uncontested: paras. 57-58. Second, the Court agreed with the trial judge’s determination that the right to life was engaged if the legislation caused there to be a “threat of death”; issues of self-determination and individual autonomy were to be left to the rights of “liberty” and “security of the person”:

62. This Court has most recently invoked the right to life in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, where evidence showed that the lack of timely health care could result in death (paras. 38 and 50, per Deschamps J.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.), and in PHS, where the clients of Insite were deprived of potentially lifesaving medical care (para. 91). In each case, the right was only engaged by the threat of death. In short, the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Conversely, concerns about autonomy and quality of life have traditionally been treated as liberty and security rights. We see no reason to alter that approach in this case.

The Court found that both liberty and security of the person were involved in this case: the ability to self-determine was clearly affected by the legislation:

64. Underlying both of these rights is a concern for the protection of individual autonomy and dignity. Liberty protects “the right to make fundamental personal choices free from state interference”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54. Security of the person encompasses “a notion of personal autonomy involving . . . control over one’s bodily integrity free from state interference” (Rodriguez, at pp. 587-88 per Sopinka J., referring to R. v. Morgentaler, [1988] 1 S.C.R. 30) and it is engaged by state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 58; Blencoe, at paras. 55-57; Chaoulli, at para. 43, per Deschamps J.; para. 119, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.). While liberty and security of the person are distinct interests, for the purpose of this appeal they may be considered together.

65. The trial judge concluded that the prohibition on assisted dying limited Ms. Taylor’s s. 7 right to liberty and security of the person, by interfering with “fundamentally important and personal medical decision-making” (para. 1302), imposing pain and psychological stress and depriving her of control over her bodily integrity (paras. 1293-94). She found that the prohibition left people like Ms. Taylor to suffer physical or psychological pain and imposed stress due to the unavailability of physician-assisted dying, impinging on her security of the person. She further noted that seriously and irremediably ill persons were “denied the opportunity to make a choice that may be very important to their sense of dignity and personal integrity” and that is “consistent with their lifelong values and that reflects their life’s experience” (para. 1326).

66. We agree with the trial judge. An individual’s 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 physician’s 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 determining whether the individual’s rights to life, liberty an security of the person were being deprived in a “manner not in accordance with the principles of fundamental justice”, the Court held that the law in question was “overbroad” and that was sufficient to meet the test:

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 practical” may 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.

86. Applying this approach, we conclude that the prohibition on assisted dying is overbroad. The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness. Canada conceded at trial that the law catches people outside this class: “It is recognized that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives” (trial reasons, at para. 1136). The trial judge accepted that Ms. Taylor was such a person — competent, fully-informed, and free from coercion or duress (para. 16). It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.

The Court found that the sections in question could not be justified under s. 1 of the Charter, the impairment of the rights not being minimal. The Court suspended its declaration of invalidity for one year to give Parliament time to amend the legislation if it so chooses.

A couple of comments before I close. I am sitting on a lanai in Maui pecking away on my iPad with my index finger. I was so confident that the Court would overturn Rodriguez that I set up the title and photo for this post on February 3rd. I knew I would be here with an iPad instead of a computer so hence the preliminary work. So I apologize in advance if there are errors in this post. It is much harder to post to one’s blog with one finger and an iPad than with a computer and ten digits.

But the rate of overturning and the activism of this Court is astonishing. Whether one looks at association rights for unions or aboriginal title for First Nations, this Court has shown that it is prepared to go to the wall if it feels the Constitution mandates it.

Finally, as a Canadian who has witnessed the end of life for a loved one suffering from cancer, I am grateful for this decision and for the tenacity of those who brought the challenge yet again and for the courage of the Court to make the difficult decision it has made. Thank you.

I remain

Constitutionally yours

Arthur Grant

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