Supreme Court of Canada Holds Absolute Prohibition of Physician-assisted Dying Unconsitituional

In a unanimous decision released yesterday, in Carter v.Canada (Attorney General), 2015 SCC 5, the Supreme Court of Canada held “that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person 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 Supreme Court of Canada suspended the declaration of invalidity for 12 months in order to give the federal and provincial governments time to regulate physician-assisted deaths.

The case was brought be several plaintiffs, including Gloria Taylor who “was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness.  ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe.” She did not want to die a slow, painful, death, nor did she want to take her own life violently, while she was still physically capable of doing so, but before she wanted to die. She set out her wishes as follows: 

I do not want my life to end violently.  I do not want my mode of death to be traumatic for my family members.  I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.

I know that I am dying, but I am far from depressed.  I have some down time - that is part and parcel of the experience of knowing that you are terminal.  But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy.  I will not waste any of my remaining time being depressed.  I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality.  There will come a point when I will know that enough is enough.  I cannot say precisely when that time will be.  It is not a question of “when I can’t walk” or “when I can’t talk.”  There is no pre‑set trigger moment.  I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile.”  When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good‑bye and obtain final closure - for me and for them.

My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives.  I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. . . .

[. . .]

 . . .  What I fear is a death that negates, as opposed to concludes, my life.  I do not want to die slowly, piece by piece.  I do not want to waste away unconscious in a hospital bed.  I do not want to die wracked with pain.

The Criminal Code of Canada prohibits a physician, or anyone else, from assisting a person to commit suicide. The key provisions are section 14 and section 241, which read as follows:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

241. Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Ms. Taylor, and the other plaintiffs, Lee Carter, Hollis Johnson, Dr. William Shoichet, and The British Columbia Civil Liberties Association brought a claim in the Supreme Court of British Columbia, challenging the prohibition on physician-assisted dying.

One of the difficulties the plaintiffs faced was that in 1993, the Supreme Court of Canada in a majority decision rejected a constitutional challenge to section 241(b) of the Criminal Code brought by a lady who also suffered from ALS. The decision is Rodriguezv. British Columbia (Attorney General), [1993] 3 S.C.R. 519. A decision of the Supreme Court of Canada is binding on all other Canadian courts.

Madam Justice Lynn Smith, in the Supreme Court of British Columbia held that it was open to her to reach a different conclusion than in Rodriguez for two reasons. First, in subsequent decisions, the Supreme Court of Canada modified the approach to be taken in determining whether a law offends a key provision, section 7, of the Canadian Charter of Rights and Freedoms. Secondly, there was a great deal more evidence about physician-assisted dying before her than had been available in Rodriguez, including evidence about regulations and safeguards from abuse in other jurisdictions that do permit physician-assisted dying, notably Washington and Oregon, Netherlands, Belgium, Switzerland, Luxembourg and Columbia.

After considering a great deal of evidence on physician-assisted dying, Madam Justice Smith held that the prohibitions were unconstitutional. Her reasons for judgment are at 2012 BCSC 886.

The majority of the British Columbia Court of Appeal (Chief Justice Finch dissenting) allowed the appeal, holding that Rodriguez was binding authority. The Court of Appeal decision is at 2013 BCCA 435.

The Supreme Court of Canada disagreed with the majority in the British Columbia Court of Appeal and held that it was open to Madam Justice Smith to reconsider Rodriguez because of the change in the Supreme Court of Canada’s conception of section 7 of the Charter, and also the difference in the evidence of the social and legislative facts before the Court in Carter.

The Supreme Court of Canada held that the prohibition violates section 7 of the Charter, which reads as follows:

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 analyzing section 7, the Court first considered whether the prohibition impinges “life, liberty and security of the person.” The second question is whether the impingement is “in accordance with the principles of fundamental judgment.”

The Supreme Court of Canada agreed with Madam Justice Smith that the prohibition impinges on life because it had the effect of forcing some people to take their own lives prematurely while they were still physically capable.

The Supreme Court of Canada also agreed that the prohibition on physician-assisted dying also limited liberty and security of the person:

[66]                          We agree with the trial judge.  An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy.  The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying.  This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty.  And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.

Having found that the prohibition impinges life, liberty and security of the person, the Supreme Court of Canada then looked at whether it did so in accordance with the principles of fundamental justice. There are of course limitations on life, liberty and security of the person that are constitutional, as long as those limits are in accordance with the principles of fundamental justice.

The principles of fundamental justice require that “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.” The Supreme Court of Canada again agreed with Madam Justice Smith that the object of the prohibition on assisted dying was “to protect vulnerable persons from being induced to commit suicide at a time of weakness….”

In this case, the Supreme Court of Canada held that the prohibition, while not arbitrary, is overbroad. The question is whether the law “goes too far by denying the rights of some individuals in a way that bears no relation to the object….” The prohibition is overbroad in infringing on the rights of people who are not vulnerable.

[86]                          Applying this approach, we conclude that the prohibition on assisted dying is overbroad.  The object of the law, as discussed, 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” (trial reasons, at para. 1136).  The trial judge accepted that Ms. Taylor was such a person — competent, fully-informed, and free from coercion or duress (para. 16).  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.

After the Court found that the prohibition infringed on section 7 of the Charter, the Supreme Court of Canada considered whether the prohibition was saved by section 1 of the Charter which reads:

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.

The Court set out the tests as follows:

[94]                          In order to justify the infringement of the appellants’ s. 7  rights under s. 1  of the Charter , Canada must show that the law has a pressing and substantial object and that the means chosen are proportional to that object.  A law is proportionate if  (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law:  R. v. Oakes, [1986] 1 S.C.R. 103.

Although the prohibition is rationally connected to the object of protecting vulnerable persons from being induced to commit suicide at a time of weakness, the Supreme Court of Canada held that it failed the test of minimally impairing the rights to life, liberty and security of the person. The decision is based on Madam Justice Smith’s findings of facts that vulnerable persons could be protected without the need of an absolute prohibition on physician-assisted dying. I quote again from the Supreme Court of Canada decision:

[104]                      This question lies at the heart of this case and was the focus of much of the evidence at trial.  In assessing minimal impairment, the trial judge heard evidence from scientists, medical practitioners, and others who were familiar with end-of-life decision-making in Canada and abroad.  She also heard extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated.  In the trial judge’s view, an absolute prohibition would have been necessary if the evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients; that physicians fail to understand or apply the informed consent requirement for medical treatment; or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life (paras. 1365-66).

[105]                      The trial judge, however, expressly rejected these possibilities.  After reviewing the evidence, she concluded that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.  While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them:

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. [para. 883]

[106]                      The trial judge found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process (paras. 795-98, 815, 837 and 843).  In reaching this conclusion, she particularly relied on the evidence on the application of the informed consent standard in other medical decision-making in Canada, including end-of-life decision-making (para. 1368).  She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity (para. 831).

Twelve months from now, physician-assisted dying will be permitted in Canada for competent adults, who clearly consent, and “who have a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” 

Gloria Taylor passed away before the Supreme Court of Canada’s decision.