Supreme Court of Canada Strikes Down Prohibition against Physician-Assisted Dying in Carter v Canada: Part II

This is the second part of a three-part series discussing the Supreme Court of Canada’s paramount decision in Carter v Canada (Attorney General). Part I has addressed the notion that stare decisis is not a straitjacket that condemns the law to stasis. Part II will address the changes that the Carter decision will have on our understanding and interpretation of s. 7 of the Charter. 

Part II

With respect to s. 7 of the Charter, a great deal of the Carter decision simply tracks the moves the Supreme Court of Canada (“SCC”) had already made in Canada (Attorney General) v Bedford, [2013] 3 SCR 1101 [Bedford] and Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134. As previously stated, Bedford, along with other recent SCC decisions, laid the ground work that was required in order for the SCC to abolish the prohibition against physician-assisted dying. As such, it was highly predictable, every step of the way, that the Court would reach the result it did.

That being said, what is most notable about the decision is the journey travelled by the Court from Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [Rodriguez] to Carter v Canada (Attorney General), 2015 SCC 5 [Carter], particularly with respect to the evolution of s. 7 jurisprudence and the confidence of the Court in employing the principles of fundamental justice.

Right to Life

At trial, Smith J found that the “right to life [was] engaged by the effect of the legislation in forcing an earlier decision and possibly an earlier death on persons…” suffering from grievous and irremediable medical conditions, for fear that they would be incapable of doing so when they reach the point where suffering was intolerable (Carter v Canada (Attorney General), 2012 BCSC 886 [Carter, BCSC], para 1322; Carter, para 57). In agreement with Smith J, the SCC saw no basis for interfering with such a conclusion. Therefore, the prohibition infringes the right to life.

In spite of making this quick and rather predictable determination, the Court went on to shine light on the true essence of the right to life.

The Court saw no reason to alter the approach taken by various sources of case law: “the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly” (Carter, para 62). However, the Court went on to state that they did not agree that the “existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot ‘waive’ their right to life” (para 63) [emphasis in original].

For the nine justices of the SCC, the notion that the right to life required an absolute prohibition would create a “‘duty to live,’ rather than a ‘right to life,’ and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment” (para 63). The essence of s. 7 is rooted in a profound respect for the value of human life, and it encompasses the right to life, liberty and security of the person during the passage of death (para 63). It is for this reason that “the sanctity of life ‘is no longer seen to require that all human life be preserved at all costs’…” (Carter, para 63, citing Rodriguez, 595, per Sopinka J) and that “the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect” (Carter, para 63).

It is with their judgment on the right to life that the SCC has set new precedent and fundamentally altered the way in which courts will view and interpret the right to life. The right to life under s. 7 of the Charter will now be recognized as ensuring both protection against the threat of death as a result of government action or law, as well as protection of an individual’s ability to make choices regarding the end of their life.

Right to Liberty and Security of the Person 

In addressing liberty and security of the person, the Court emphasized two fatal flaws with the prohibition against physician-assisted dying. First, there exists a malignant hypocrisy in the current law. The prohibition permits people to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies persons suffering from grievous and irremediable illnesses the right to request physician-assisted dying (para 66).

Both avenues result in the termination of life, either directly or indirectly. The former is understood by law as upholding the moral code required by the Hippocratic Oath to do no harm, while the latter is seen as being synonymous with homicide. As such, this hypocrisy interferes with the ability of a person who is suffering from grievous and irremediable illnesses to make fundamental decisions concerning their bodily integrity and medical care, and forces such persons to endure intolerable suffering and pain.

Second, by disallowing persons to make medical decisions free from state interference, the prohibition undermines the very concept of informed consent. This concept is founded on the entitlement of adults to direct the course of their own medical treatment and “decide one’s own fate” (Carter, para 67, citing AC v Manitoba (Director of Child and Family Services), [2009] 2 SCR 181, para 100), and is guaranteed by s. 7 of the Charter. 

As noted by the Ontario Court of Appeal, “[t]he fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment – any treatment – is to be administered (Fleming v Reid (1991), 4 OR (3d) 74 (CA)).

Based on these two flaws, the Court concluded that the prohibition against physician-assisted dying infringed a competent, and grievously and irremediably ill adult’s rights to liberty and security of the person.

Principles of Fundamental Justice

When Rodriguez was decided in 1993, s. 7 was still in the “infancy” stage of development. The Court had not yet become comfortable with pronouncing new principles of fundamental justice, and therefore, the second stage of the s. 7 analysis was dramatically different from what exists today (Rodriguez, 590). Over the course of the two decades that succeeded Rodriguez, the principles of fundamental justice evolved organically as courts encountered novel Charter claims.

In line with its decision in Rodriguez, the Court in Carter very quickly found that the prohibition was not arbitrary. Arbitrariness was one of the only current principles of fundamental justice that existed when Rodriguez was decided, and therefore the Court in Carter affirmed that conclusion from Rodriguez. Additionally, the Court found it unnecessary to determine whether or not the prohibition was grossly disproportionate since the principle of overbreadth was the most applicable in this instance. As a result, the Court’s opinion in Carter turned exclusively on the infringement of overbreadth, and for similar reasons, a lack of minimal impairment at s. 1 of the Charter.

The Court rejected the argument put forward by the Attorney General of Canada that the difficulty in conclusively identifying “vulnerable” persons demonstrates that the prohibition cannot be overbroad. The Court asserted,

there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying (Carter, para 115).

A similar argument was made and rejected in Bedford regarding the “living off the avails” provision. For the Court in both cases, the difficulty in drawing the line between exploitive and non-exploitive relationships does not justify allowing a provision to be drawn more broadly than necessary in order to effectively capture its target (para 88). However, neither the government nor Parliament have been willing to open this debate and pro-actively explore how to create an exception that can operate with reliable safeguards. As a result, the Court took the initiative to compel the government to review the debate.