A Turn in Tide: Carter versus Rodriguez
Some months ago, the Supreme Court of Canada’s (“SCC”) ruling in Carter v Canada (Attorney General),  1 SCR 331 [Carter] made national headlines. Although all decisions of the SCC are important, this one seemed to strike a nerve or two on both sides of the playing field. In this case, as described in more detail here and here, the Court struck down a twenty-one-year-old law declaring physician-assisted dying an indictable offence. With the old law, once a person was convicted he or she could face up to 14 years of imprisonment. Although the ruling in R v Rodriguez,  3 SCR 519 [Rodriguez] was a 5:4 decision in favour of the prohibition against physician-assisted dying, the SCC in February reached a unanimous decision to the contrary.
Now, after the dust has settled and the Court’s decision has sunk deep within our legal minds, it’s important to consider why the SCC made this decision in the first place. Why was there a sudden shift after so many years of having an opposing law? Was the decision too dramatic? Was there a “happy medium” option that was overlooked? What factors might have influenced a unanimous decision after many years of not being able to successfully challenge an old law?
Let’s set one thing straight: to the public eye, the facts in both Rodriguez and Carter were quite similar. Both Sue Rodriguez and Gloria Taylor had been suffering from ALS (also known as Lou Gehrig’s Disease), which is a motor neuron disease that naturally degrades one’s ability to move. Both had expressed concerns that they would not be able to commit suicide when the disease progressed, if they chose to end their lives and not live with the illness. Notwithstanding the similar fact patterns, Carter did not follow the precedent set out in Rodriguez.
So what caused this turn in the tide? Simply put: it was an evolution of the law. These two cases exemplify how society influences the law and how the law, in turn, can influence social change. According to this news piece, before the SCC ruled on Carter, Dying with Dignity – an organization that is an avid supporter of doctor-assisted dying – did a survey among 2500 people, which showed that 84% were okay with the idea of striking the law down. The results of the case sparked a lot of media attention – various articles were written and the story was reported on for many weeks after the judgment was released.
Surveys and news articles such as the one mentioned above demonstrate the potential for societal views to influence the way we view the world and the equality we seek to achieve within our justice system. My claim here is not that this survey or ones like it were what the SCC judges relied upon to make a groundbreaking judgment. It could be that, since Rodriguez, our views about life and equality have changed in the last 20 years or so. Maybe it’s time to realize that law, justice, and policy makers don’t live in a box bound by ideals that don’t include a person having to consider killing themselves at all, legally or illegally.
Cases like Carter allow one to question what the role of the courts really is: should the court push against public opinion and maintain consistent rulings among all similar cases or should it be able to adjust over time and break precedent when need be? To what extent is its legitimacy affected when either approach is taken? It’s not surprising that the court ruled to lift the ban on physician-assisted suicide when looked at from the public’s viewpoint. The SCC gave the people what it wanted – isn’t this the entire premise upon which both our democratic and justice systems are based in the first place?
If we conclude that society’s opinion matters, even within the highest court in the nation, then we should also be able to affirm the importance of the general public being informed about the law and basic notions regarding justice and equality. Consequently, this relates to the idea of access to justice and information – one of the reoccurring themes discussed within the legal profession, whether it’s regarding a constitutional case such as this one, or within securities regulation laws that require full disclosure to shareholders prior to a company going public. Legal development is the platform on which we can take on the world’s imperfections and it is increased honesty and transparency within the system that will inevitably influence how our legal system will evolve.