Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.



Areas of Law: Constitutional Law; Criminal Law; Health Care Law; Validity of Criminal Code Provisions Prohibiting Physician-Assisted Suicide- Stare Decisis

~ B.C. Supreme Court not entitled to declare provisions of Criminal Code unconstitutional and contrary to Charter in light of 1993 decision of Supreme Court of Canada holding impugned provisions to be constitutionally valid ~

Background: This case involved the constitutionality of certain provisions in the Canadian Criminal Code, in particular s. 241(b) which prohibits a person from assisting another person to commit suicide. The plaintiff, Taylor, suffered from ALS, an incurable and progressively debilitating neurological disorder. The mother of the plaintiff, Johnson, had also suffered from an incapacitating disease. Johnson, at her mother’s request, had helped her mother in arranging for physician-assisted suicide in Switzerland, where the practice is legal. The plaintiffs considered that such a process should be available in Canada and argued that to the extent s. 241(b) and related provisions criminalized physician-assisted suicide, they infringed ss. 7 (right to life, liberty and security of the person) and 15 (equality rights) of the Charter. One of the principal arguments raised by the Attorney General (Canada) was that the plaintiffs’ challenge was foreclosed by Rodriguez v. British Columbia (Attorney General), [1993] S.C.R. 519, a case involving similar facts and legal argument in which the Supreme Court of Canada upheld the validity of the impugned provisions. The trial judge considered at length the history of the provisions, practices in other jurisdictions and the increasing body of medical and ethical literature relating to end-of life issues. She held that safeguards could be put into place and that the risks and potential misuse associated with physician-assisted suicide could be “very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced”. She found that the law had evolved since the Rodriguez case and it was no longer binding. In her view, Rodriguez had not addressed the right to life component of s. 7, nor the principles of overbreadth or disproportionality, which she considered were not fully formed principles of fundamental justice in 1993. She concluded that by prohibiting disabled, mentally competent adult persons suffering from grievous and irremediable disease who voluntarily seek medical assistance in ending their lives from obtaining such assistance, the impugned provisions amounted to a deprivation of the right to life, liberty and security of the person in a manner contrary to the principles of fundamental justice. The judge also found that the provisions violated s. 15 of the Charter by imposing a disproportionate impact on disabled, mentally competent persons who are grievously and terminally ill from obtaining a medically assisted death. The provisions were not salvageable under s. 1 of the Charter because they failed the minimal impairment/proportionality test. In the result, the judge declared the impugned provisions to be unconstitutional and of no force and effect to the extent they prohibited physician-assisted suicide in the case of a “fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed, and who personally (not through a substitute decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability…is in a state of advanced weakening capacities with no chance of improvement, has an illness as determined by reference treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person”. The declarations were suspended for one year but the plaintiff, Taylor, was granted a constitutional exemption to enable her to obtain physician-assisted death during that period. The Attorney General of Canada appealed and various groups, some supporting the trial judgment and some opposing it, joined as intervenors. By the time of the appeal, Taylor had died from other medical complications.

Appellate Decision: Appeal allowed (Finch C.J.C. dissenting). The majority (Newbury and Saunders JJ.A.) held that the principles of arbitrariness, overbreadth and disproportionality were “fluid” concepts and disagreed that they did not form components of fundamental justice when Rodriguez was decided or that the law had evolved to an extent that Rodriguez was no longer binding. In the majority’s view, the doctrine of stare decisis prevailed. The threshold question in this regard is what the earlier case decided, not how it was decided. The court in Rodriguez did consider the right to life as a counterweight to liberty and security of the person and in any event, decided that the prohibition against physician-assisted suicide accorded with the principles of fundamental justice. Further, Rodriguez found that the impugned provisions had a pressing legislative objective grounded in respect for human life and its protection , were rationally connected to this purpose and were not overly broad; rather they struck an appropriate balance between the prohibition and the legislative objective. If the constitutional validity of the impugned provisions were to be revisited, it was for the Supreme Court of Canada to undertake this task, not the courts of B.C. In the event the SCC were to review the issue, the majority suggested that the court consider the remedy of a “constitutional exemption” in favour of persons on whom an otherwise sound law has an extraordinary, even cruel, effect. The remedy of a constitutional exemption had been favoured by a minority of the court in Rodriguez. Accepting that s. 241 is directed to the interests of the vulnerable, a constitutional exemption for those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, might not undermine the intention of the legislation. The majority also suggested that if the constitutional exemption were approved, it should not be on the terms suggested by the trial judge. At the least, court approval of some kind should be sought in addition to the bare requirement of two medical opinions and a request from the patient.

Chief Justice Finch (dissenting) held that the trial judge made no error with respect to her application of s. 7 and corresponding analysis under s. 1, agreeing that Rodriguez considered the right to liberty and security of the person, but not the right to life or the principles of overbreadth and gross disproportionality. It was therefore open to the trial judge to consider these principles and she did so correctly. However, with respect to her analysis under s. 15, the trial judge was bound by Rodriguez.


Why this case might NOT be headed to the Supreme Court of Canada

While some have characterized the majority decision in Carter as a narrow application of stare decisis to avoid dealing with the merits, a closer look reveals an important contemporary appellate endorsement of the underlying rationale for the prohibition on assisted suicide as articulated by the Supreme Court of Canada in Rodriguez.

First, the Carter majority confirmed a robust application of the s. 7 right to life which is not diminished in those who have lost some or many of the capacities of the able-bodied. Recognizing that autonomy and liberty are already protected under other heads of s. 7, the majority invoked the Rodriguez court’s language of life having a “deep intrinsic value of its own” and the “sanctity of life” which “must be respected and we must be careful not to undermine the institutions that protect it.” (Carter para. 279; 252). The majority explained: “Those who have only limited ability to enjoy those blessings are no less “alive”, and have no less a right to “life”, than persons who are able-bodied and fully competent. If “life” were regarded as incorporating various qualities which some persons enjoy and others do not … a slippery slope would open up…” (Carter para. 280).

The majority’s rejection of the Chief Justice’s dissenting proposal to include notions of quality of life in the right to life under s. 7 is important, for while attractive (we all treasure the things invoked by the Chief Justice – cultural and spiritual experiences, memories, and forming friendships, for example) it would limit the application of the right to life and devalue all of us who will, sooner or later, whether by accident, disease, or age, reach a stage where our capacities are slipping away. The Carter majority confirmed that, as in Rodriguez, the sanctity of life principle still excludes “freedom of choice in the self-infliction of death” (para. 275).

In dealing with the principles of fundamental justice, the majority pointed out that, contrary to the aura of inevitability apparent in many media reports, “enshrining [assisted suicide] as a constitutional right” is “a matter of serious concern to many Canadians … [and] no consensus on the subject is apparent, even among ethicists or medical practitioners” – and cited how most national medical bodies including in Canada, the US, UK, New Zealand, Australia, and the and World Medical Associations, are opposed (Carter paras. 243, 249). The majority then cited the Rodriguez court’s holding that the distinctions between “withdrawal of treatment and palliative care, on the one hand, and assisted suicide … are maintained and can be persuasively defended” (para. 252).

The Carter majority thus concluded at para. 315 that the Rodriguez court’s articulation of the legislative objective of the existing law was not restricted to the narrow purpose of only protecting the ‘vulnerable’, but also with the “societal concern with preserving life” in general, and therefore that concerns over the fundamental shift in societal values that would arise if the state permits some citizens to kill others in certain circumstances, cannot be simply brushed aside. This is apparent also from the majority’s candid statement that it was “not confident that a fully rounded, well balanced alternative policy, with comprehensive public support, would or could be developed in the time-frame of any of the suspensions of declaration of invalidity”, and even from its obiter which urges the Supreme Court, should it revisit the merits of Rodriguez, to require each applicant for an assisted suicide to go through a court process to ensure the stringent application of safeguards (Carter paras. 334-335).

Is it inevitable that the Supreme Court of Canada will grant leave to appeal? The media has declared it so, and ever since the trial judgment was released, I assumed the same. In light of the majority judgment in Carter, however, I am no longer so sure. The majority’s judgment is not a hold-your-nose-and-follow-precedent decision; rather, it re-articulates the fundamental values which the law exists to further and protect. With the Supreme Court of Canada able to address the stare decisis issues in the Bedford appeal, it has a genuine opportunity to decline leave in Carter if it so wishes.


The majority decision of the BC Court of Appeal in Carter aims at restricting innovation by trial judges even where there are changes in the factual foundations of previous decisions or development (as opposed to reversals) of jurisprudence by courts of appeal. This approach goes too far. While trial courts should never be seen to be swaying in the breeze of popular opinion, trial courts should respond to changes to our understanding of detrimental effects of legislation that are demonstrated in evidence by sound empirical study.

The trial judge in Carter found that an absolute prohibition on assisted suicide promotes a small number of wrongful deaths of vulnerable persons by compelling people to end their lives sooner than necessary to do if they were able to receive assistance and found that an exception to the prohibition would likely to reduce the number of wrongful deaths. This findings contradicts the finding in Rodriguez that “societal concern with preserving life and protecting the vulnerable [against abuse] rendered the blanket prohibition preferable to a law that might not adequately prevent abuse”.

In other words, the evidence at trial in Carter revealed that Rodriguez was decided on a mistaken presumption about the effect of legislation. At the time of Rodriguez, an absolute prohibition was presumed to be the most efficacious legislative option for preventing premature wrongful deaths. We now know that Rodriguez was wrongly decided; and that the majority decision sustains unnecessary suffering and promoted hastened death. It’s not quite a flat earth scenario, but it is a factual error with significant deleterious effects on life and security of the person.

Although Newbury, JA, agrees that the prohibition is “cruel”, and supports the creation of an exception to the law (para.333), she also discourages future challenges to obsolete laws by reversing the costs order (para.342), taking an eisegetical view of what was decided (paras.281 and 315) and when overbreadth and disproportionality were developed (para.312), directs that analyses of whether s.7 cases are binding should not look too closely at normative standards but “evaluate broadly the rationality and normative balance” (para.289), and expresses concern over potential reconsideration of cases prior to 2003 that did not address disproportionality (para.316).

The judiciary, no less than other public institutions, would lose respect if all of its failings were catalogued and publicized. It serves the administration of justice well to provide trial judges with a path to a different and just result that does not call out the errors of a higher court unless it is somehow necessary to do so; obsequious tracking adjudicative facts in Charter cases is unnecessary.

At the same time, it serves the administration of justice poorly for trial judges or divisions of Courts of Appeal to perpetuate errors and injustice. Challenges to outdated cases that rest on false presumptions of fact should be welcomed by the judiciary. A doctrine of stare decisis that renders moot the trial and first level of appeal is likely to discourage meritorious cases and is likely to project a merciless and inflexible institutional persona. Inflexibility at the trial level will become an institutional eyesore and irritant especially in fast-developing areas of technology with constitutional implications for privacy, liberty and expressive freedom.

It is important to differentiate between changes in empirically validated legislative facts and ephemeral changes in social attitudes or popular opinion; the law should not sail on the winds of change. As the Ontario Court of Appeal said in Bedford, constitutional law does not want to be a garden of annuals; but pruning the living tree every twenty years is not asking for much. The law needs to adapt, as here, when the accretion of empirical understanding displaces theosophical presumptions. Once the earth is known to be round, trial judges should not be bound by flat-earth laws.

The restrictive approach to stare decisis adopted by the BC Court of Appeal embraces a counterproductive level of stability. A solution is for the Supreme Court of Canada to define the judicial hierarchy to allow for innovation at the trial level without overt or destabilizing confrontation of the decisions of higher courts while preserving appeal courts’ corrective powers and power to stay orders pending appeal.

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