Supreme Court of Canada Permits Physican-Assisted Suicide

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 

Supreme Court Rules that Iranian Government Cannot be Sued in Canada for Zahra Kazemi's Torture and Death

The Supreme Court of Canada recently released a decision -Kazemi Estate v. Islamic Republic of Iran 2014 SCC62 - that concluded that foreign states and their functionaries cannot be sued in Canada for acts of torture committed abroad.  The Court held that the State Immunity Act (“SIA”) in its present form, does not provide for an exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada.    

 

As the Court commented, the facts of this case are horrific.  Zahra Kazemi, a Canadian citizen, visited Iran in 2003 as a freelance photographer and journalist.  In June of 2003, Ms. Kazemi attempted to take photographs of individuals protesting against the arrest and detention of their family members outside the Evin Prison in Tehran.  Ms. Kazemi was ordered arrested and detained by Saeed Mortazavi, Tehran’s Chief Public Prosecutor. 

 

During her time in custody, Ms. Kazemi was not permitted to contact counsel, the Canadian Embassy, or her family.  She was interrogated by Iranian authorities.  She was beaten.  She was sexually assaulted.  She was tortured. 

 

Sometime prior to July 6, 2003, Ms. Kazemi was taken from the prison and transferred to a hospital in Tehran.  She was unconscious upon her arrival.  She had suffered a brain injury and numerous other injuries including strip-like wounds on her back, the back of her legs, fractured bones, broken nails on her hands and toes and extensive trauma on and around her genital area. 

 

Ms. Kazemi died of the injuries that she had sustained.  

 

Ms. Kazemi’s son, Stephan (Salman) Hashemi, requested that his mother’s remains be sent to Canada for burial.  Despite such request, Ms. Kazemi was buried in Iran.

 

In late July, 2003, the Iranian government commissioned an investigation into Ms. Kazemi’s death.  Despite a report linking members of the judiciary and the Office of the Prosecutor to Ms. Kazemi’s torture and death, only one individual, Reza Ahmadi, was tried.  The trial was marked by a lack of transparency.  Mr. Ahmadi was acquitted. 

 

In commenting on these facts, the Supreme Court, in a decision written by Mr. Justice LeBel, concluded that it was impossible for Ms. Kazemi and her family to obtain justice in Iran.

 

In 2006, Mr. Hashemi instituted civil proceedings in Quebec seeking damages on behalf of himself and his mother’s estate against the Islamic Republic of Iran, its Head of State, the Chief Public Prosecutor of Tehran and the former Deputy Chief of Intelligence of the prison where Ms. Kazemi was detained and tortured.  Mr. Hashemi sought damages on behalf of his mother’s estate for her physical, psychological and emotional pain and suffering as well as on his own behalf for the psychological and emotional prejudice that he sustained as a result of the death of his mother.  Both Mr. Hashemi and the estate sought punitive damages.

 

The Iranian defendants brought a motion in Quebec Superior Court to dismiss the action on the basis of state immunity.  The plaintiffs raised exceptions provided in the SIA and challenged the constitutionality of certain provisions of that act.

 

The Quebec Superior Court dismissed the constitutional challenge to the SIA and dismissed the action with respect to the claim brought by Ms. Kazemi’s estate.  However, it allowed Mr. Hashemi’s action to proceed on the basis that it could potentially fall within a statutory exception to the state immunity applicable to proceedings related to personal injury that occurs in Canada.  The Quebec Court of Appeal allowed the Iranian defendants' appeal with respect to Ms. Hashemi’s claim.  The matter was further appealed to the Supreme Court of Canada. 

 

Justice LeBel held that an over-arching question which permeated all aspects of the appeal was whether international law had created a mandatory universal civil jurisdiction in respect of claims of torture, which would require Canada to open its courts to the claims of victims of acts of torture which were committed abroad.  In addition, the court was asked to determine whether torture could constitute an official act of a state and whether public officials having committed acts of torture can benefit from immunity.

 

The majority of the court (Madam Justice Abella dissented), held that neither Mr. Hashemi nor Ms. Kazemi’s estate could avail themselves of a Canadian court in order to sue Iran or its functionaries for the torture that Ms. Kazemi had endured.  Further, there are challenges based on the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights should be dismissed.

 

In coming to this conclusion, the Supreme Court held that state immunity is not solely a rule of international law, it also reflects domestic choices made for policy reasons, particularly in matters of international relations.  Canada’s commitment to the universal prohibition of torture is strong.  However, Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad.  That policy choice is not a comment about the evils of torture but rather an indication of what principles Parliament has chosen to promote.

 

With respect to Mr. Hashemi’s claim for “personal or bodily injury”, the Court held that the exception to the SIA only applied where the tort causing the personal injury or death had occurred in Canada.  It does not apply where the impugned events or the tort causing the personal injury or death did not take place in Canada.

 

Further, the Court held that the SIA provides that a “foreign state” is immune from the jurisdiction of any court in Canada.  The definition of “foreign state” includes a reference to the term “government”.  Public officials must be included in the meaning of “government” as that term is used in the SIA.  States are abstract entities that can only act through individuals.  However, public officials will only benefit from state immunity when acting in their official capacity.  The heinous nature of the acts and torture did not transform the actions of the individual defendants into private acts undertaken outside of their official capacity.  By definition, torture is necessarily an official act of the state. 

 

The Court reasoned that Parliament has given no indication the Canadian courts are to deem torture an “unofficial act” and creating this kind of jurisdiction would potentially have considerable impact on Canada’s international relations.  This decision is to be made by Parliament and not the courts.

 

The Supreme Court held out one ray of hope in concluding that the fact that a foreign state and its functionaries cannot be sued in Canada for acts of torture committed abroad does not freeze state immunity in time.  It stated that Parliament has the power and the capacity to change the current state of the law on exceptions to state immunity, just as it has done in the past, and to allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts.   

Time will tell as to whether Canada's Parliament will find the courage to take such action

Regards,

Blair