By Faye Sonier
Last week, the British Columbia Court of Appeal (BCCA) released its decision in the Carter v. Canada case. The BCCA upheld Canada’s ban on assisted suicide.
The Carter case was launched in 2011 by a few individuals and groups who wanted to see assisted suicide legalized in Canada. At the trial level, the B.C. Supreme Court, Justice Lynn Smith ruled in their favour and found that assisted suicide should be legalized in certain circumstances.
Her ruling overturned a decision by Canada’s highest court, the Supreme Court of Canada (SCC). In Rodriguez v. British Columbia, the SCC ruled in 1993 that Canada’s prohibition of assisted suicide was constitutional and acceptable. Justice Smith’s ruling was shocking because, as lawyers and most Canadians know, it’s no small thing for a lower court judge to overturn a binding decision from Canada’s highest court. In fact, it’s mostly unprecedented, for the reasons I’ll explain below.
Justice Smith justified her reversal in law by arguing that some technical points in some legal tests had changed since 1993 and that new expert evidence on the practice of physician-assisted suicide was now available; and, therefore she could revisit the SCC’s decision which upheld the ban on assisted suicide.
She held that the Criminal Code’s prohibition on assisted suicide violated the Canadian Charter of Rights and Freedom’s right to life because some people with disabilities might kill themselves earlier than they would if they had access to assisted suicide. Justice Smith also found that the prohibition violated equality rights because it discriminated against persons with physical disabilities who might be unable to commit suicide without assistance, unlike persons without disabilities who could arguably kill themselves if they want to, as suicide itself is not illegal in Canada. Accordingly, she concluded the government should be required to provide a means to assist those who want to commit suicide but are physically unable to do so.
Justice Smith’s decision was appealed to the BCCA. In a split 2-1 majority decision, the BCCA overturned Justice Smith’s decision and upheld the legal principles the SCC set out in the 1993 Rodriguez decision. In short, the BCCA found themselves and Justice Smith to be bound by the legal precedent set out in Rodriguez; that the ‘right to life’ principle is the same today as it was 20 years ago; that there is no right to be killed in Canada; and, that we can’t easily dismiss the concerns of those who believe that the legalization of assisted suicide would be damaging to our society.
The following are the four main takeaways from the BCCA’s decision in Carter.
1. Higher court decisions are binding
There is a legal principle in law called stare decisis. Our entire court system is built on this principle. It means that lower courts must be bound by the decisions and legal principles issued by higher courts. The reason for this is consistency and fairness in the application of the law – it is to ensure that consistent decisions are rendered across jurisdictions, so citizens can know what consequences to expect if a law is broken or be able to anticipate how a legal dispute will be resolved. As noted by Chief Justice Finch in the decision, the principle of stare decisis exists to ensure that “similar cases are decided similarly.” Decisions that ignore higher court precedent create confusion and muddy the legal waters on settled points of law.
Justice Smith gave her reasons, as explained above, for revisiting Rodriguez and overturning the law. The BCCA rejected these reasons and found that she was bound by the SCC’s decision, and that the Criminal Code prohibitions against assisted suicide remain constitutional. The BCCA found, contrary to what Justice Smith ruled, that either some legal tests had not changed sufficiently to justify revisiting Rodriguez, or those that had been varied over the years did not change the fundamental requirement of broadly evaluating “the rationality... [of] the law in question.”
To further drive this point home, the BCCA stated that “the focus for purposes of stare decisis should be on what was decided, not how it was decided or how the result was described.”
2. The 'right to life' is the same today as it was 20 years ago
While Justice Smith sought to broaden the definition of the Charter ‘right to life’ to essentially include a right to dictate the manner of one’s death, the BCCA determined that the SCC’s statement in Rodriguez on the matter was clear. The “sanctity of life” principle excludes “freedom of choice in the self-infliction of death.”
The BCCA found that the SCC in Rodriguez had sufficiently considered whether the prohibition on assisted suicide violated the right to life. Considerations such as a person’s autonomy, dignity or decision-making are protected by other Charter provisions. The Charter protection to the right to life must remain specific in order to protect the vulnerable.
The right to life must be “regarded in the existential sense” with a “deep intrinsic value of its own.” If the right to life was broadened to include such things as the enjoyment of “cultural and spiritual experiences,” “remembering the past,” or “forming friendships,” as Chief Justice Finch suggests in his dissenting decision, it could serve to limit the application of the right to life of those who cannot engage in those pursuits. As stated in the majority BCCA decision,
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, the protection of the Charter would be expanded far beyond what the law can ‘guarantee’, while conversely, a slippery slope would open up for those who are unable to enjoy the blessings described by the Chief Justice.
What the BCCA did in its decision was confirm that the Charter right to life remains consistent and means the same thing today as it meant 20 years ago, when the Rodriguez decision was rendered. This is good news for those who are concerned that legal protections for the sick and vulnerable could be watered down. The BCCA quoted a powerful portion of another decision in which a court stated that “[i]t is not appropriate for an external decision maker to apply his standards of what constitutes a livable life and exercise the right to impose death if that standard is not met in his estimation.” The right to life applies to all Canadians equally, regardless of their abilities or disabilities.
3. Concerns about the damaging effects of decriminalization cannot be brushed aside
In stark contrast to the opinions issued by many pro-assisted suicide or pro-euthanasia groups, the BCCA found there is not “a clear consensus of public or learned opinion on the wisdom of permitting physician-assisted suicide.” This opinion, in fact, echoes much of Justice Smith’s earlier ruling, though she thought safeguards could be put in place to safely allow physician-assisted suicide.
The BCCA went on to list the bodies that support prohibitions on the practices, including the Canadian Medical Association (CMA), the World Medical Association, and the medical associations of the U.S.A., the U.K., New Zealand and Australia. The BCCA also quoted from a CMA policy paper, which raised serious concerns about decriminalization:
If euthanasia or assisted suicide or both are permitted for competent, suffering, terminally ill patients, there may be legal challenges, based on the Canadian Charter of Rights and Freedoms, to extend these practices to others who are not competent, suffering or terminally ill. Such extension is the “slippery slope” that many fear.
The BCCA did recall strong language from the Rodriguez decision where the SCC stated that whether or not there is consensus on these issues, “human life must be respected and we must be careful not to undermine the institutions that protect it.” Concerns over the consequences of decriminalizing assisted suicide cannot be simply brushed aside.
4. Discussing a possible exemption to the ban on assisted suicide
At the very end of its majority decision, the BCCA discussed what a potentially constitutional exemption to the ban on assisted suicide could include. It noted that the minority in Rodriguez had also discussed the possibility.
The BCCA stated that if its decision was appealed to the SCC and the SCC chose to reconsider Rodriguez that the SCC is encouraged to consider an exemption that would be “an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals,” rather than striking down the ban on assisted suicide altogether.
This was proposed as the BCCA 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.” The BCCA was concerned about the potential negative consequences should the ban be struck down before an alternative policy regulating assisted suicide could be put into place by Parliament.
Given that the purpose of the ban on assisted suicide is to protect the vulnerable, the BCCA suggested that
[l]ifting the prohibition for those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process, might not undermine the legislative intention.
The BCCA suggested that if a constitutional exemption was permitted by the SCC, it should not be on the conditions suggested by Justice Smith, but should include court approval for each assisted suicide request in order to add an extra safeguard to the process.
This part of the decision is what is called obiter dicta, a Latin term which means “said in passing.” It is an explanation or a statement that is not essential to the decision being rendered and does not bind other courts. It is simply a suggestion for the SCC to consider, should the case be heard by that bench.
While the BCCA’s decision covers much more ground, the four takeaways above reflect topics that may be of most interest to those concerned with the efforts currently being made in Canada to decriminalize assisted suicide. For more information on this case, visit www.theEFC.ca/Carter.