This decision is important as it revisits the debate concerning the legality of assisted suicide in Canada, and appears destined for the Supreme Court of Canada (SCC).
In this case the Plaintiffs, Carter and Taylor, suffered from terminal and progressive diseases. Gloria Taylor was a resident of West Kelowna, They brought a civil claim challenging the constitutionality of Criminal Code provisions prohibiting assisted suicide (in particular s.241). Notwithstanding the S.C.C. decision of Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 upholding the validity of s.241(b), the plaintiffs were successful at the trial level. The trial judge ruled the provisions infringed Taylor’s s.7 and s.15 Charter rights and “were not demonstrably justified under s.1”, and upheld the concept of assisted suicide in certain situations.
The trial judge (Madame Justice Smith) declared the provisions of the Criminal Code prohibiting assisted suicide invalid under s.52 of the Constitution Act, and concluded that safeguards can be put in place to protect against the risks associated with physician-assisted dying. These safeguards include having properly qualified and experienced physicians assess the competence of patients seeking physician-assisted dying; identifying inappropriate influences on a person’s decision through a capacity assessment; and by assessing informed consent in a manner similar to how such assessments are made in the context of patients refusing medical treatment.
She concluded that any risks to disabled individuals connected to prejudice and stereotyping about the reduced value of their lives can be effectively addressed through the above safeguards.
Justice Smith summarized her findings on the effectiveness of the safeguards as follows:
My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.
The Attorney General of Canada appealed the trial judgement to the BC Court of Appeal.
The appeal at the BC Court of Appeal (BCCA) was allowed. The majority of the BCCA found the trial judge was bound by the SCC decision in Rodriguez, under the rule of stare decisis (ie, that courts are bound by decisions of a higher court). The BCCA concluded that the trial judge was bound by the conclusion in Rodriguez, that s.241 of the Code had a “pressing and substantial legislative objective”, and was “rationally connected to its purpose”.
The majority in the BCCA case suggested that in the event the SCC does decide to review Rodgriguez, consideration should be given to the remedy of a constitutional exemption in favour of persons on whom an otherwise sound law has an extraordinary and even cruel effect. As Newbury and Saunders JJ.A. wrote (at paras. 326 and 352):
As the law now stands, there does not appear to be an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals. Such individual relief is often referred to as a constitutional exemption. … In our respectful view, any review of the substantive Charter challenges, and the granting of comprehensive or limited relief from the effects of the law, are beyond the proper role of the court below and of this court. If the constitutional validity of s. 241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so.
The reasons for judgement of the BCCA are an interesting read.
See the Full BCCA decision/reasons for judgement, (Carter v. Canada (Attorney General), 2013 BCCA 435) here: www.canlii.org/en/bc/bcca/doc/2013/2013bcca435/2013bcca435.html
The SCC must now decide whether to hear the appeal at the SCC level, which is called “granting leave to appeal”.
The SCC can decide not to hear the appeal ( ie by “refusing to grant a leave to appeal”), which would mean the BCCA case, and Rodriguez, will stand, and remain the law of Canada on assisted suicide for many years, before someone else tries to challenge the law again in the future.
If the SCC decides to grant the leave to appeal, all the parties involved, (and likely many others, as” intervenors”), would then make their arguments in front of the SCC.
The SCC could then either uphold the BCCA decision, and leave the law as it now stands (Rodriguez), or they could overturn their prior decision in Rodriguez, and change the landscape for assisted suicide in Canada.
Their eventual decision will impact us all.
Paul Mitchell, Q.C. has extensive experience with serious injury claims, including brain injury, spinal injury, product liability, and medical malpractice claims.
Paul can be contacted at 250-869-1115 (direct line), or by email at [email protected]