Jocelyn Downie provides a brief summary of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) to help explain why prohibiting physician-assisted death is unconstitutional.
In a momentous decision released February 6, 2015, the Supreme Court of Canada ruled that the Canadian Criminal Code prohibitions on voluntary euthanasia (section 14) and assisted suicide (section 241(b)) violate the Canadian Charter of Rights and Freedoms. Physician-assisted death will be legal in Canada within 12 months.
The Supreme Court’s decision was based on the following factual conclusions drawn by the Trial Judge at the BC Supreme Court, following an exhaustive review of empirical and expert evidence. Justice Lynn Smith found (and the Supreme Court accepted) that: “it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process.”
Further, with respect to slippery slopes and abuse of the vulnerable, Justice Smith found (and the Supreme court accepted) that there was: “no evidence from permissive regimes that people with disabilities are at heightened risk of accessing physician-assisted dying;” “no evidence of inordinate impact on socially vulnerable populations in permissive jurisdictions;” and “no compelling evidence that a permissive regime in Canada would result in a ‘practical slippery slope.’”
The Supreme Court’s decision turned on the legal analysis of the application of sections 7 and 1 of the Charter to the Criminal Code’s absolute ban on physician-assisted death in light of these (and other) facts.
Section 7 of the Charter guarantees 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.” In relation to section 7, the Supreme Court found that the prohibition of physician-assisted death limits the right to life, liberty and security of the person as it: “deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely”; “denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty”; and “by leaving them to endure intolerable suffering it impinges on their security of the person.”
In addition, the Supreme Court characterized the objective of the prohibition as protecting “vulnerable persons from being induced to commit suicide at a time of weakness.” It concluded that a total ban on physician-assisted death “catches people outside this class [vulnerable persons]” and “sweeps conduct into its ambit that is unrelated to the law’s objective”. The current ban is therefore overbroad and not in accordance with the principles of fundamental justice.
Having found a violation of section 7, the Supreme Court turned to section 1 of the Charter. Section 1 establishes that the “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that limits on rights must be prescribed by law, they must serve a pressing and substantial objective, and the means used must be proportionate to the ends. For the means used to be proportionate to the ends, there must be a rational connection between the means and ends, the means chosen must minimally impair the rights being limited, and there must be proportionality as between the deleterious and salutary effects of the rights limitation.
The Supreme Court found that a total ban on physician-assisted death does not minimally impair the right to life, liberty and security of the person since a less restrictive regime could achieve the objective of the prohibition. Specifically, vulnerable Canadians could be protected while allowing a subset of Canadians to access physician-assisted death. Therefore, the prohibition of physician-assisted death limited section 7 rights, was not saved by section 1, and so violated the Charter.
In the end, the Supreme Court declared sections 14 and 241(b) of the Criminal Code invalid insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous medical condition (including an illness, disease, or disability) that is irremediable (cannot be alleviated by means acceptable to the individual) and causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The Supreme Court then suspended the declaration of invalidity for 12 months to allow Parliament time to introduce legislation that reflects the decision.
With this decision, the Supreme Court has sent a clear and strong message to federal/provincial/territorial legislatures that voluntary euthanasia and assisted suicide must be permitted for a carefully circumscribed subset of Canadians. The members of the Supreme Court of Canada have done their job (admirably). Now, it is time for Parliamentarians to step up and do theirs.
Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. She was a member of the Royal Society of Canada Expert Panel on End of Life Decision-making and a member of the legal team for the plaintiffs in Carter v. Canada (Attorney General) @jgdownie
Until there is a provision that a person has the legal right to provide advance notice of what they want for example if dementia should occur, the law is not inclusive and could be viewed as discriminatory.