S 241(b) of the Canadian Criminal Codedeclares that to aid or abet a person to commit suicide is an indictable offence, while s 14states that no-one can consent to being killed: taken together, those provisions prohibit physician-assisted dying. On 6 February the Supreme Court of Canada handed down judgment in Carter v Canada (Attorney General) 2015 SCC 5 and, in brief, declared the blanket ban on physician-assisted death unconstitutional .
In 2009 Gloria Taylor was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (ALS), which causes progressive muscle weakness. ALS sufferers first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe. Ms Taylor did “not want to die slowly, piece by piece”  and challenged the constitutionality of the provisions in the Criminal Code. She was joined in her claim by various others: Lee Carter and her husband Hollis Johnson, who had assisted Ms Carter’s mother to commit suicide by taking her to the Dignitas clinic in Switzerland, William Shoichet, a doctor who was willing to participate in physician‑assisted dying if it were legalised, and the British Columbia Civil Liberties Association.
S 7 (Life, liberty and security of person) of Canada’s Charter of Rights and Freedoms annexed to the Constitution Act 1982 declares that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; and at first instance in the British Columbia Supreme Court Smith J held that the prohibition against physician‑assisted dying violated the s 7 rights of competent adults suffering intolerably as a result of grievous and irremediable medical conditions and that the infringement of s 7 rights was not justified under s 1of the Charter. She declared the prohibition unconstitutional, granting a one‑year suspension of invalidity and providing Ms Taylor with a constitutional exemption. By a majority, however, the British Columbia Court of Appeal reversed the trial judge, on the ground that she had been bound to follow the Supreme Court of Canada’s decision in Rodriguez v British Columbia (Attorney General)  3 SCR 519, in which a 5-4 majority had upheld the blanket prohibition on assisted suicide. On further appeal, however, the Supreme Court reversed the BC Court of Appeal.
Before the Supreme Court the appellants advanced two claims:
- that the prohibition on physician-assisted dying deprived competent adults with a grievous and irremediable medical condition that caused intolerable physical or psychological suffering of their right to life, liberty and security of the person under s 7 of the Charter; and
- that the prohibition deprived adults who were physically disabled of their right to equal treatment under s 15 (Equality before and under law and equal protection and benefit of law) .
For the purposes of the case, the appellants used “physician-assisted death” and “physician-assisted dying” to describe the situation in which a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient .
The Supreme Court agreed with Smith J that the prohibition on physician-assisted dying 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 had become intolerable. Her decision to distinguish Rodriguez had been correct:
“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. Here, both conditions were met” .
The evidence of premature death was not challenged before the Court, which concluded that it was therefore established that the prohibition deprived some individuals of life [57 & 58]. Quoting its earlier judgments in Chaoulli v Quebec (Attorney General) 2005 SCC 35, where evidence showed that the lack of timely health care could result in death and Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, about deprivation of potentially-lifesaving medical care, the Court concluded that:
“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” .
“This said, we do not agree that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot ‘waive’ their right to life. This would create a ‘duty to live’, rather than a ‘right to life’, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment” [52: emphasis in original].
Therefore, the prohibition on physician‑assisted dying deprived those suffering from grievous and irremediable medical conditions of the right to life, liberty and security of the person. The remaining question under s 7whether or not that deprivation was in accordance with the principles of fundamental justice .
The Court concluded that it was not. While s 7 did not promise that the state would never interfere with a person’s life, liberty or security of the person it did promise that the state would not do so in violation of the principles of fundamental justice . S 7did not enumerate those fundamental principles: but over the years the Supreme Court had itself recognised a number of principles of fundamental justice of which three were now central: “laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object” . Moreover:
“In determining whether the deprivation of life, liberty and security of the person is in accordance with the principles of fundamental justice under s 7, courts are not concerned with competing social interests or public benefits conferred by the impugned law. These competing moral claims and broad societal benefits are more appropriately considered at the stage of justification under s 1” .
A total ban on assisted suicide was not an arbitrary limitation on individuals’ rights ; but it did not meet the test of proportionality to the object pursued [85 & 86]:
“The object of the law … 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’ … 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” [86: emphasis in original].
The Court held that it was unnecessary to consider the issues of gross disproportionality  and the appellants’ contention that there was a need for a new “principle of parity” [91 & 92]. Similarly, it was unnecessary to consider whether or not the prohibition on assisted suicide violated s 15 of the Charter . The Court also rejected the “slippery slope” argument: that without an absolute prohibition on assisted dying, Canada would descend into a situation in which euthanasia was permitted and murder condoned .
The case was not one in which a constitutional exemption would be proper:
“We have found that the prohibition infringes the claimants’ s 7rights. Parliament must be given the opportunity to craft an appropriate remedy..: issuing such an exemption would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts” .
In conclusion, the Court issued the following declaration, suspended for 12 months:
“Section 241(b) and s 14 of the Criminal Code unjustifiably infringe s 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” .
The Court also awarded the appellants full indemnity costs to cover the entire expense of bringing the case.
Unsurprisingly, the Minister of Justice and Attorney General, Peter MacKay QC, issued an immediate holding response:
“This is a sensitive issue for many Canadians, with deeply held beliefs on both sides. We will study the decision and ensure all perspectives on this difficult issue are heard.”
“… it is somewhat surprising that the UK, a secular jurisdiction, has remained opposed to change, despite the very effective campaigns via the courts and media conducted by Pretty, Purvey, Nicklinson et al. In Nicklinson the Supreme Court came closest to meeting this challenge, but backed off at the last minute by deciding that the evidence on safeguards against potential abuse of vulnerable people was insufficient; the buck was handed back to Parliament. If the UK courts applied the proportionality test the way the Canadian Supreme Court does here, then they may find it easier to overcome the apparently insurmountable obstacles to reform.”
Neil Foster at Law and Religion Australia comments that the way the Canadian decision was made illustrates the legitimate concerns of many Australians about a Bill of Rights that would allow the courts to substitute their own judgments on significant policy issues for those of elected Parliamentarians. He argues that any future Australian Bill of Rights should follow the “advisory” model, under which the courts would flag an issue but there would be no legal consequences until Parliament had chosen to respond – in short, the UK “declaration of incompatibility” rather than the Canadian model of immediate override.
He attributes the Supreme Court’s one-year suspension of its ruling to a recognition of the realities of the situation, arguing that
“… it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is ‘unendurable’? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things?”
He further suggests that the Supreme Court might be not be the most appropriate forum in which to settle such matters and, in any case, has serious reservations about the substance of the decision: most tellingly, that “the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life”.
To which my own response is somewhat equivocal. I would certainly agree that the issue is massively too complex to be resolved simply by a general declaration of principle without any detail – as the various debates on Lord Falconer’s Assisted Dying Bill and the recent judgment by our own Supreme Court in Nicklinson have amply demonstrated.
The Canadian Supreme Court itself conceded that “Complex regulatory regimes are better created by Parliament than by the courts”. That does not strike me as unreasonable: devising a regime for physician-assisted dying that establishes a workable definition of capacity and intent, provides a robust regulatory framework and strikes the right balance between the interests of those who wish to seek assistance to die and the interests of health professionals who wish to take no part in any such procedure requires detailed work by parliamentary counsel and, almost certainly, a considerable amount of prior consultation with interested parties. (Alternatively, the Parliament in Ottawa could invoke the override provisions of s 33 of the Charter and not do anything to change the law for up to five years while it gave the matter detailed and unhurried consideration.)
But, that said, I am not entirely convinced that elected representatives invariably know best. While I certainly wouldn’t go all the way with Lord Denning’s famous plea, “Someone must be trusted. Let it be the judges”, when hearing a case judges do at least try to put aside their personal prejudices, even if their attempts to do so are not always completely beyond question. Personal prejudice, however, is a considerable part of what makes a professional politician tick.