Jocelyn Downie explains how recent events in British Columbia and in Quebec mean that the Supreme Court of Canada will soon be making decisions on the legality of assisted dying.

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On October 10, 2013, thousands of miles apart, two separate branches of government (a court and a legislature) wrestled very publicly with the issue of assisted dying.

In British Columbia, the Court of Appeal released its decision on a Charter challenge to the Criminal Code prohibitions on euthanasia and assisted suicide.  By a 2-1 majority, the Court of Appeal held that the trial judge in Carter v. Attorney General (Canada) was mistaken when she concluded that her hands were not tied by the Supreme Court of Canada’s 1993 decision in Rodriguez v. Attorney General (Canada). In Rodriguez, the Supreme Court of Canada upheld the prohibitions on assisted suicide and euthanasia. So, the Court of Appeal ruled, the trial judge in Carter erred in not simply following that decision.

It is important to note here that the B.C. Court of Appeal majority did not say that the trial judge erred in her reasoning or on her findings of fact when she concluded that the prohibitions on assisted suicide and euthanasia violated sections 7 and 15 of the Charter and were not saved by Section1. Section 7 establishes the “right not to be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice”.  Section 15 establishes the right to equality.  These rights can only be limited if, in accordance with Section 1, the limits are “demonstrably justified in a free and democratic society”.

Rather, the majority in the B.C. Court of Appeal held that it was for the Supreme Court of Canada, not a trial judge, to decide whether to overturn Rodriguez.  Both sides of this case have made it very clear that they intend to vigorously fight this to the very end. With the decision in the B.C. Court of Appeal this week, the case moves on to the Supreme Court of Canada.  The Supreme Court of Canada will need to do what the Court of Appeal majority refused to do – decide whether the trial judge in Carter was wrong when she concluded that the Criminal Code prohibitions on assisted suicide and euthanasia violated Gloria Taylor and Kay Carter’s Charter rights, could not be saved by s.1, and therefore had to be struck down.

Meanwhile, on the same day that the B.C. Court of Appeal rendered its decision, in Quebec, the Committee on Health and Human Services of the National Assembly concluded hearings on Bill 52 – An Act respecting end of life care.   Following a unanimous report from an all-party Committee of the National Assembly, the government introduced a bill that would, among other things, make it clear that Quebeckers have a right to medical aid-in-dying.  This right is to be available in very carefully circumscribed circumstances and under the watchful gaze of a robust oversight system.  The Bill, originally introduced to a standing ovation in the National Assembly, has now been the subject of Committee hearings, and is expected back in the National Assembly later this fall.

If the Act respecting end of life care passes, Quebec will be the first jurisdiction in Canada to allow medical aid-in-dying.  However, the federal government has intimated that it may challenge the Quebec legislation. According to the federal Minister of Health, Rona Ambrose, “Quebec is going through the motions of debate in their legislature, and should that pass, then obviously we would look to see what to do with that, and if it does end up in court, then the courts would decide about the jurisdiction.” (here)

For the matter to end up in court, the federal government would need to challenge the jurisdiction of Quebec to legislate on assisted dying.  It would need to argue that euthanasia and assisted suicide are criminal law matters (which rest with the federal government) and not health matters (which rest with the provincial government).  The Quebec government would no doubt vigorously argue that Bill 52 is a health matter and well within its jurisdiction.  And, again, it would be up to the Supreme Court of Canada to resolve the dispute.

And so, from far-flung parts of the country, the issue of assisted dying seems headed right for the doorstep of the Supreme Court of Canada. What they will decide is anyone’s guess – and most certainly everyone’s business.

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Jocelyn Downie is a Professor of Law and Medicine at Dalhousie University, Halifax, Canada

To read more about this case, see Arthur Schafer “Assisted suicide has had its day in court – but this is not the end” in our previous blog, Physician Assisted Suicide will eventually be legal in Canada.

Further information on assisted dying and useful links can be found at http://eol.law.dal.ca. (here)