The Supreme Court of Canada (“SCC“) released the Carter right to life (physician-assisted death) decision almost a year ago. I predicted that it would not follow Rodriguez and would not uphold existing law prohibiting assisted suicide.
I opined that taking into consideration its recent decisions, the SCC would most likely agree with former BC Court of Appeal Justice Finch’s dissenting opinion in Carter.
Under s. 241(b), anyone that “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to imprisonment for up to fourteen years.
The majority in Rodriguez decided the following:
1. Section 241 (b) of the Criminal code deprived the plaintiff of her rights to liberty and security of the person under s. 7;
2. The objective of the legislation is to preserve life and to protect the vulnerable;
3. The deprivations of liberty and security of the person were in accordance with the principles of fundamental justice because they were not arbitrary or unfair;
4. Any infringement of s. 15(1) would be justified under s. 1 of the Charter because:
a) the legislation had a pressing and substantial objective;
b) the legislation was rationally connected to the objective;
c) the government had a reasonable basis for concluding that the minimal impairment test under s. 1 had been met; and
d) the final proportionality stage of the Oakes test was satisfied.
Because neither the right to “life” in s. 7, nor the principles of fundamental justice of overbreadth and gross disproportionality were considered in Rodriguez, the SCC re-evaluated the constitutionality of s. 241(b).
The SCC has recently confirmed in Bedford that because the principles of fundamental justice of overbreadth and gross disproportionality were not considered in the 1990 Prostitution Reference, it was not bound to follow precedent. I also predicted that for the same reason, the SCC would not follow Rodriguez.
Both overbreadth and gross disproportionality were central in this appeal. My prediction was that the SCC would probably rule that the respondents were deprived of their rights to life, liberty, and security of the person by the provisions of s. 241(b) and would also conclude that the deprivations suffered have been proven on a balance of probability to be overbroad and grossly disproportionate to the state objectives. I appeared to be correct in my predictions.
These were my thoughts with respect to s. 15 analysis:
With respect to SCC’s analysis under s. 15, the Court will probably rule that it is bound by the result of s. 1 in Rodriguez.
It will be particularly interesting to see what the SCC is going to do with s.222 (definition of homicide). Judges need to do something with it if they intend to address euthanasia…They could, of course, just dodge euthanasia entirely.
Or… if they wanted to be “creative”, they could apply section 52(1) of the Charter and “remedy” various Criminal code provisions in question by either providing some kind of constitutional exemption or “reading in” their views into section 222. In Bedford, for example, the court declared that s. 212(1) (j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution should apply only to those who do so “in circumstances of exploitation”.
The SCC could come up with some kind of legal test similar to what former Bloc Quebecois MP Francine Lalonde proposed in her PMB C-407. Her PMB proposed to amend sections 14 (Consent to Death), 222 (Homicide), and 241 (Counselling or aiding suicide) so that, provided that certain criteria are met, a person who assists another person to die would be neither committing a homicide nor counselling or aiding suicide.
The bill would have required that the individual whose death is assisted:
•be at least 18 years old;
•be either experiencing “severe physical or mental pain without any prospect of relief” or terminally ill;
•have, while appearing to be lucid, made two requests more than 10 days apart stating his or her free and informed wish to die; and
•have designated in writing someone to act for him or her “with respect to the person who aids him or her to die, and with respect to any medical practitioner” in the event that the individual appears not be lucid.
The bill would also have required that the person who is assisting the death:
•be a medical practitioner or be assisted by a medical practitioner;
•have received confirmation of the diagnosis from one or two medical practitioners (depending on whether the person assisting the death is a medical practitioner);
•be entitled by law to provide health services or be assisted by a team of people so entitled;
•act as directed by the individual whose death is assisted; and
•provide the coroner with a copy of the diagnosis from one or two medical practitioners (depending on whether the person assisting the death is a medical practitioner).
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The Court ruled that because the law relating to the principles of overbreadth and gross disproportionality had materially advanced, it was entitled to revisit Rodriguez. Although it stated that the current law was overbroad (and thus violated s.7), it declined to confirm whether it was also grossly disproportionate. Also, having concluded that the prohibition on physician-assisted dying violated s.7, the Court opined that it was unnecessary to consider whether it also deprived adults who are physically disabled of their right to equal treatment under s. 15 of the Charter.
Good thing is that the Court decided not to be “creative” but simply issued a declaration of invalidity (sections 241(b) and 14)) and suspended it for 12 months. It stated that the Charter rights of patients and physicians would have to be reconciled in any legislative and regulatory response to this judgment.
Whether or not we agree with this decision, I think it sets a very bad precedent. Even if we were to accept that because neither the right to “life” in s. 7, nor the principles of fundamental justice of overbreadth and gross disproportionality were considered in Rodriguez, the SCC was entitled to re-evaluate the constitutionality of s. 241(b), it was not entitled, in my opinion, to disregard its previous decisions under s. 1 of the Charter. There have been no new developments in the Oakes test for a long time.
In Carter, conducting its analysis under s. 1 of the Charter, the SCC noted that the inquiry into minimal impairment should ask whether there are less harmful means of achieving the legislative goal. The Court then suggested that “a properly administered regulatory regime is capable of protecting the vulnerable”. However, in its previous decisions, the SCC concluded that it is not necessary that the least intrusive measures are used. It is only important that the measures employed are the least intrusive in light of both the legislative objective and the infringed right. While a complete prohibition on assisted suicide is more difficult to justify that a partial prohibition, if the Court properly analyzed various debates in Parliament, it should have concluded that the measures taken by the government to protect the vulnerable from abuse or error by prohibiting assisted suicide satisfied the Oakes minimal impairment requirement. The section 1 inquiry is a normative inquiry, requiring the courts to take into account both the nature of the infringed right and the specific values and principles upon which the government seeks to justify the infringement. Instead, the court took into consideration what most experts and interveners had to say and concluded that the deprivations suffered by terminally ill have been proven on a balance of probability to be overbroad and grossly disproportionate to the state objectives. Yaakov Roth rightfully noted in his article (http://news.nationalpost.com/…/yaakov-roth-how-the…), that if we turn every social policy issue into a disputed ‘fact’ to be resolved by a single judge, it is nothing but a transparent effort to substitute judges’ policy views for those of Parliament.
In RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 SCR 199 (a case tackling the constitutionality of the Tobacco Products Act, which broadly prohibits all advertising and promotion of tobacco products), the majority of the SCC justices, conducting their analysis under s. 1, rightfully noted that “…Although the courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well-placed to subject criminal justice legislation to careful scrutiny– that is not the sphere of policy-making. Policy-making is a role properly assigned to elected parliamentarians who have the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups. In according a greater degree of deference to social legislation that to ordinary criminal justice legislation, the courts recognize these important institutional differences.”
In a recent decision, the majority of the Supreme Court of the United Kingdom also accepted that the absolute prohibition on assisted dying breached the claimants’ rights, but properly concluded that Parliament should be given an opportunity to debate and amend (if needed) the legislation https://www.supremecourt.uk/…/UKSC_2013_0235_Judgment.pdf