Stare Decisis and Assisted Suicide: Carter v. Canada at the B.C. Court of Appeal
This past Thursday, the British Columbia Court of Appeal released its decision in Carter v. Canada 2013 BCCA 435, a Charter sections 7 and 15 challenge to the Criminal Code’s prohibition on physician-assisted suicide. In the majority’s view, stare decisis required the court to follow Rodriguez v. Canada, the Supreme Court of Canada’s 1993 decision upholding the impugned provision. In doing so, the Court of Appeal reversed the 2012 decision from Madam Justice Lynn Smith of the B.C. Supreme Court.
Background: Rodriguez v. Canada  3 SCR 519
In 1993, the SCC upheld section 241 of the Criminal Code, which prohibits physician-assisted suicide. Sue Rodriguez, a British Columbian woman suffering from ALS, challenged the provision as contrary to Charter sections 7, 12, and 15.
Writing for the majority, Justice Sopinka determined that Ms. Rodriguez’s security of the person interests were engaged. However, he ruled that section 241 did not contravene any principles of fundamental justice. Ergo, there was no section 7 violation. He also found that there was no violation of section 12, for a prohibition does not fall within the meaning of treatment or punishment. Regarding the section 15 challenge, Justice Sopinka argued that the issue of physician-assisted suicide is not best resolved as an equality rights issue, but determined that if there was any section 15 violation, it would pass section 1 scrutiny.
There were three dissenting opinions. Chief Justice Lamer held that section 241 violated section 15 and could not be saved under section 1. Justice Cory was sympathetic to the section 15 argument, and also found a section 7 violation on the basis that a right to die with dignity is protected under section 7’s guarantee of a right to life. Justices McLachlin and L’Heureux‑Dubé did not find a section 15 violation, but determined that the impugned provision violated section 7’s right to security of the person and could not be saved under section 1.
Carter Procedural History
In 2011, nearly two decades after Rodriguez, Lee Carter and Gloria Taylor brought a further challenge to section 241, arguing that the provision was inconsistent with their section 7 and section 15 rights.
Madam Justice Lynn Smith determined that at the time of the hearing “a different set of legislative and social facts” existed from 1993. Though this alone was not enough to prevent her from being bound by Rodriguez, she also held that there had occurred a sufficient change in the applicable legal principles to free her from having to follow the SCC’s precedent. In her view, the Rodriguez majority had not considered the section 7 right to life, nor had it considered two principles of fundamental justice that have been significantly developed since 1993: overbreadth and gross disproportionality. Justice Smith also determined that the SCC had not fully considered whether the impugned provision violated section 15, having instead merely assumed a violation in order to illustrate why the prohibition would survive under section 1.
According to Justice Smith, the section 7 right to life was engaged because the prohibition on physician-assisted death had the effect of causing some individuals to end their lives—by their own hands—earlier than they would otherwise choose. She held that this deprivation of the right to life did not accord with principles of fundamental justice for the prohibition was overbroad and grossly disproportionate to the interest the government sought to achieve through section 241. Justice Smith also ruled that section 15 was violated, for section 241 created a distinction based on the analogous ground of physical disability by depriving disabled individuals of the assistance they need in order to commit suicide, suicide being legal for able-bodied individuals.
Justice Smith granted two declaratory orders, which were suspended for one year. However, Ms. Taylor received a constitutional exemption that would have allowed her to obtain the assistance of a physician in ending her life during that year. Ms. Taylor died from a severe infection on October 4, 2012. (Lee Carter challenged section 241 on behalf of her mother Kay Carter, who Lee had helped obtain a legal assisted suicide in Switzerland in January 2010.)
The Majority Decision
Justice Newbury wrote the B.C. Court of Appeal’s majority decision, with Justice Saunders concurring. The majority adopted the Ontario Court of Appeal’s observation in Bedford that a “robust” approach to stare decisis should be taken in Charter cases. Accordingly, the majority held that Justice Smith had erred in determining that she was not bound by Rodriguez with respect to section 15 and the section 7 right to life. In the majority’s view, the Rodriguez court had indeed considered the section 7 right to life. The majority noted that post-Rodriguez decisions have continued to regard the making of personal decisions about one’s body as related to the rights to liberty and security of person, rather than the right to life. The majority also rejected Justice Smith’s determination that the principles of fundamental justice in 1993 were not developed in a way that required her to follow the Rodriguez precedent. The majority held that arbitrariness, overbreadth, and disproportionality are fluid concepts, and that, contra Justice Smith, disproportionality was not a new principle of fundamental justice established in the 2003 SCC case Malmo-Levine.
The majority also held that Justice Smith was bound by the Rodriguez majority’s determination that the impugned provision was saved by section 1. According to the majority, Justice Smith’s determination that section 1 had been dealt with “only very summarily” in Rodriguez was not a sufficient reason to not follow the decision: “the focus for purposes of stare decisis should be on what was decided, not how it was decided or how the result was described.” In the majority’s view, the same section 1 analysis that was carried out for the purposes of a section 15 violation could have been made under the rubrics of overbreadth and disproportionality under section 7. The majority thus held that, just as a violation of section 15 would survive under section 1, so would a violation of section 7
The majority went on to state that, should the SCC revisit its holding in Rodriguez, it should consider using the constitutional exemption remedy for individuals upon whom an otherwise sound law “has an extraordinary, even cruel, effect.” After carefully considering the history of constitutional exemptions in Canadian law, the majority deemed this remedy preferable to striking down section 241 largely because they were “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 that have been issued hitherto.” The court was wary of the harm that could result if an alternative policy was not in place by the time section 241 became invalid. In contrast, “[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.”
Chief Justice Finch would have allowed the government’s appeal against Justice Smith’s section 15 order for the same reasons as the majority. However, he would have dismissed the appeal of the section 7 order, holding that Justice Smith had made no error with respect to her section 7 analysis nor with her corresponding section 1 analysis. In the Chief Justice’s view, Rodriguez had considered section 7’s liberty and security of the person rights, but not its right to life. Further, he held that the principles of gross disproportionality and overbreadth were not considered in Rodriguez. As a result, Chief Justice Finch determined that section 241 of the Criminal Code is an infringement of the Charter section 7 right to life that cannot be saved under section 1.
The Path Forward
Though the B.C. Court of Appeal’s decision is receiving widespread attention, it may ultimately be of little consequence. Both Gloria Taylor and Kay Carter are deceased, so the decision has no direct bearing on them. Further, if the Court of Appeal had upheld Justice Smith’s decision, any declaration of invalidity would likely have been suspended until the seemingly inevitable SCC judgment. Perhaps, then, the B.C. Court of Appeal’s decision is most notable for being one more step on the path to the SCC reevaluating one of its most noteworthy decisions from the first decade of the Charter era.
To my mind, allowing individuals to refuse lifesaving medical treatment (as Canadian law does) while outlawing physician-assisted suicide is an arbitrary distinction. Further, allowing the able-bodied to choose when they die (as, again, Canadian law does) while effectively denying severely disabled individuals the same right seems deeply misguided. However, these are complex issues, and it does not surprise me that reasonable people disagree. Just as it would not surprise me if a reappraisal of these issues leads the current SCC to disagree with its earlier iteration.