In a landmark ruling, The Supreme Court of Canada overturned its decision from 22 years earlier and found in favour of a dying person's right to die with dignity.
The issue of physician-assisted suicide first came before
the Supreme Court of Canada in 1993. At that time, Sue Rodriguez, a 42 year
old woman suffering from amyotrophic lateral sclerosis (ALS) applied to the
Supreme Court of British Columbia for the right to “die with dignity” and to
permit a physician to help her end her life. The matter was eventually
appealed to the Supreme Court of Canada which held in a close 5 – 4 decision
that the section of the Criminal Code of Canada (“Criminal Code”)
which prohibited giving assistance to commit suicide was constitutional.
At that time, the Supreme Court held that the principles of “fundamental
justice” in section 7 of the Charter of Rights and Freedoms (“Charter”),
requires that a fair balance be struck between the interests of the state and
those of the individual.
The majority of the court held that the respect for human dignity, while one of the
underlying principles upon which our society is based is not a principle of
fundamental justice within the meaning of section 7. The long-standing
blanket prohibition in the Criminal Code against assisted suicide fulfils the
government’s objective of protecting the vulnerable, is grounded in the state
interest in protecting life and reflects the policy of the state that human
life should not be depreciated by allowing life to be taken. Such a
blanket prohibition also seems to be the norm among Western democracies and
such a prohibition has never been adjudged to be unconstitutional or contrary
to fundamental human rights.
The court held that Parliament's repeal of the offence of attempted suicide from
the Criminal Code was not a recognition that suicide was to be accepted within
Canadian society. Rather, it merely reflected the recognition
that the criminal law was an ineffectual and inappropriate tool for dealing
with suicide attempts.
The court found that it was preferable not to
decide the difficult and important issues raised under section 15
of the Charter (prohibition of discrimination) but rather to assume that the prohibition on assisted suicide in
the Criminal Code infringes section 15 since any infringement is clearly
justified under section 1 of the Charter. The impugned section of the
Criminal Code has a pressing and substantial legislative objective and meets
the proportionality test. A prohibition on giving assistance to commit
suicide is rationally connected to the purpose of the section which is to
protect and maintain respect for human life.
The dissenting judges wrote various opinions but
essentially held that the particular section of the Criminal Code infringed the right to
security of the person. They ruled that the legislation has an element of personal autonomy which protects
the dignity and privacy of individuals with respect to decisions concerning
their own body. A legislative scheme which limits the rights of a person to
deal with her body as she chooses may violate the principles of fundamental
justice under section 7 if the limit is arbitrary. A limit will be
arbitrary if it bears no relation to or is inconsistent with the objective that
lies behind the legislation. Here, it made no sense to have a legislative
scheme which makes suicide lawful but assisted suicide unlawful. The
effect of this distinction was to deny to some people the choice of ending
their lives solely because they were physically unable to do so, preventing
them from exercising the autonomy over their bodies available to other people.
Such denial amounts to a limit on the right to security of the person which
does not comport with the principles of fundamental justice.
The dissenting judges held that section 15 of the Charter
had no application in this case because the case was not about
discrimination. What was required was that in all cases that the judge be
satisfied that, if and when the assisted suicide takes place, it would be with
the full and free consent of the applicant. Further, the dissenting
judges held that section 7 of the Charter which grants Canadians a
constitutional right to life, liberty and security of the person, is a
provision which emphasises the innate dignity of human existence. Dying
is an integral part of living and, as a part of life, is entitled to the
protection of section 7. It follows that the right to die with dignity
should be as well protected as in any other aspect of the right to life.
State prohibitions that would force a dreadful, painful death on a rational but
incapacitated terminally ill patient were an affront to human dignity.
In 2014, the matter was back before the Supreme Court of
Canada in the case of Carter v. Canada (Attorney General) 2015 SCC 5,. This time, the Supreme Court unanimously found in favour of the right to die
with dignity. The matter again was on appeal from the courts of British Columbia
where the majority of the British Columbia Court of Appeal concluded that they
were bound by the conclusion in Rodriguez as a matter of stare decisis.
However, the Supreme Court invalidated the applicable
sections of the Criminal Code to the extent that they prohibited
physician-assisted suicide for a competent adult person who (1) clearly
consents to the termination of life; and (2) 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. The court
suspended the invalidity of the provisions of the Code for a period of 12
months in order for Parliament to enact legislation to address the court’s
ruling.
In reaching its unanimous decision this time around, the
Supreme Court held that the trial judge was entitled to revisit its decision in
Rodriguez. 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 shift the parameters of the debate. Here both conditions
were met. The argument before the trial judge involved a different legal
concept of section 7 of the Charter, in particular, the law relating to the
principles of over-breadth and gross disproportionality had materially advanced
since Rodriguez. The matrix of legislative and social facts in this case
also differed from the evidence before the court in Rodriguez.
The court held 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. Here the prohibition deprives some
individuals of life as it had the effect of forcing some individuals to take
their own lives prematurely for fear that they would be incapable of doing so
when they reached the point where suffering was intolerable.
The rights to liberty and security of the person which deal
with concerns about autonomy and quality of life were also engaged. An
individual’s response to a grievous and irremediable medical condition is a
matter critical to their dignity and autonomy. Their prohibition denies
people in this situation the right to make decisions concerning their bodily
integrity and medical care and thus trenches on their liberty. By leaving
them to endear intolerable suffering, it impinges on their security of the
person.
The prohibition on physician-assisted dying infringes the
right to life, liberty and security of the person in a manner that is not in
accordance with the principles of fundamental justice. The object of the
prohibition was not to preserve life whatever the circumstances but more
specifically to protect to protect vulnerable persons from being induced to
commit suicide at a time of weakness.
Having concluded that the prohibition on physician-assisted
dying violated section 7 it was unnecessary to consider whether deprived adults
who are physically disabled of the right to equal treatment under section 15 of
the Charter.
Regards,
Blair
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