While some have characterized the majority decision in Carter as a narrow application of stare decisis to avoid dealing with the merits, a closer look reveals an important contemporary appellate endorsement of the underlying rationale for the prohibition on assisted suicide as articulated by the Supreme Court of Canada in Rodriguez.
First, the Carter majority confirmed a robust application of the s. 7 right to life which is not diminished in those who have lost some or many of the capacities of the able-bodied. Recognizing that autonomy and liberty are already protected under other heads of s. 7, the majority invoked the Rodriguez court’s language of life having a “deep intrinsic value of its own” and the “sanctity of life” which “must be respected and we must be careful not to undermine the institutions that protect it.” (Carter para. 279; 252). The majority explained: “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 … a slippery slope would open up…” (Carter para. 280).
The majority’s rejection of the Chief Justice’s dissenting proposal to include notions of quality of life in the right to life under s. 7 is important, for while attractive (we all treasure the things invoked by the Chief Justice – cultural and spiritual experiences, memories, and forming friendships, for example) it would limit the application of the right to life and devalue all of us who will, sooner or later, whether by accident, disease, or age, reach a stage where our capacities are slipping away. The Carter majority confirmed that, as in Rodriguez, the sanctity of life principle still excludes “freedom of choice in the self-infliction of death” (para. 275).
In dealing with the principles of fundamental justice, the majority pointed out that, contrary to the aura of inevitability apparent in many media reports, “enshrining [assisted suicide] as a constitutional right” is “a matter of serious concern to many Canadians … [and] no consensus on the subject is apparent, even among ethicists or medical practitioners” – and cited how most national medical bodies including in Canada, the US, UK, New Zealand, Australia, and the and World Medical Associations, are opposed (Carter paras. 243, 249). The majority then cited the Rodriguez court’s holding that the distinctions between “withdrawal of treatment and palliative care, on the one hand, and assisted suicide … are maintained and can be persuasively defended” (para. 252).
The Carter majority thus concluded at para. 315 that the Rodriguez court’s articulation of the legislative objective of the existing law was not restricted to the narrow purpose of only protecting the ‘vulnerable’, but also with the “societal concern with preserving life” in general, and therefore that concerns over the fundamental shift in societal values that would arise if the state permits some citizens to kill others in certain circumstances, cannot be simply brushed aside. This is apparent also from the majority’s candid statement that it 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”, and even from its obiter which urges the Supreme Court, should it revisit the merits of Rodriguez, to require each applicant for an assisted suicide to go through a court process to ensure the stringent application of safeguards (Carter paras. 334-335).
Is it inevitable that the Supreme Court of Canada will grant leave to appeal? The media has declared it so, and ever since the trial judgment was released, I assumed the same. In light of the majority judgment in Carter, however, I am no longer so sure. The majority’s judgment is not a hold-your-nose-and-follow-precedent decision; rather, it re-articulates the fundamental values which the law exists to further and protect. With the Supreme Court of Canada able to address the stare decisis issues in the Bedford appeal, it has a genuine opportunity to decline leave in Carter if it so wishes.
Geoffrey Trotter, formerly of Gudmundseth Mickelson LLP, now runs his own civil litigation practice (www.gtlawcorp.com). He represented the intervenor, The Evangelical Fellowship of Canada, in the Carter appeal. The EFC was also an intervenor 20 years earlier in Rodriguez.