JURIST Guest Columnist Jason Huang, University of Windsor Faculty of Law Class of 2016, discusses recent British Columbia Court of Appeals decision, Carter v. Canada, upholding the ban on assisted suicide…

In the recent British Columbia Court of Appeal (BCCA) case Carter v. Canada (Attorney General), the trial judge, justice Smith, had found that s.241(b) of the Criminal Code violated the right to life guaranteed by section 7 (s.7) of the Canadian Charter of Rights and Freedoms, among other things. Justice Smith outlined a specific, controlled system that she believed would allow for physician-assisted suicide and minimize abuse. At the BCCA, the majority, written by justices Newbury and Saunders, found that justice Smith was bound by stare decisis to the 1993 Rodriguez case. In their final comment, the justices wrote, “In our respectful view, any review of the substantive Charter challenges . . . are beyond the proper role of the court below and of this court. If the constitutional validity of s.241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so.”

While I agree that it would be the proper place for the Supreme Court to decide on this matter since this court would not be bound by its previous decision, I respectfully disagree, and am unconvinced, with how the majority reached this conclusion. There are several pitfalls in the majority’s decision, specifically regarding s.7 right to life.

Two major contentions arose between justices Smith and Finch, the dissenting justice in the BCCA opinion, on one side and the majority decision on the other: 1) what exactly does the right to life entail? 2) and did Rodriguez leave it open for justice Smith to decide on the right to life? Justices Smith and Finch both agreed that the right to life should encompass one’s quality of life rather than bare life. The majority, however, concluded that the right to life protects bare life when they said “those who have only limited ability to enjoy those blessings [of life] are no less ‘alive’, and have no less a right to ‘life’, than persons who are able-bodied and fully competent.” While I agree that the quality of life ought to be the standard since there are drastic differences between the lives of people who are “able-bodied and fully competent” and those who suffer from mental or physical disability, I must concede with the majority that adopting a constitutional right to quality of life is far beyond the scope of what the law can guarantee.

Nevertheless, even under this narrow definition of the life interest under s.7, I am of the opinion that the majority has insufficiently answered the respondent’s argument for how the right to life of people seeking physician-assisted suicide is engaged. The respondent posited that because of the blanket prohibition against physician-assisted suicide coupled with the knowledge that one will be incapable of ending their lives later, they end their lives preemptively. In this way, the Parliament’s prohibition draws a causal connection to the premature death of citizens, thus infringing their right to life. This argument persuaded both justices Smith and Finch. The case law determined that the s.7 interests of life, liberty and security are related but independent interests. As such, both determined that Rodriguez left it open for justice Smith to decide on the right to life since Rodriguez only decided on the liberty and security interests.

The majority disagreed with this. They wrote “in Rodriguez although the majority did not in so many words reject the notion that s.241 constitutes a breach of the right to ‘life’ under s.7, we infer that the court dismissed such a notion out of hand.” The majority provided no reasons for this inference. They immediately continued to state that justice Sopinka (majority in Rodriguez) acknowledged a societal consensus that human life is sacred and must be protected. It seems a far leap to infer from a statement that the sanctity of life must be protected to a statement that a provision of the Criminal Code does not violate the right to life. The majority in this case is further called into question by their own words when they said “even if we were wrong in this conclusion, and justice Sopinka did not consider the right to ‘life.'” This statement implies anything short of full confidence in their reasoning.

Justices Newbury and Saunders simply relied upon stare decisis to find that justice Smith was bound by Rodriguez and could not decide on the life interest. This was their opinion even after recounting Bedford v. Canada which makes a similar legal argument. In that case, the motions judge was bound by the decision in the Prostitution Reference in regards to the “liberty” interest but the “security” interest was left open. The majority in this case paraphrased the Court of Appeal hearing Bedford who found that the motions judge “erred in equating her position with the position of a court that is asked to consider one of its own prior decisions.”

I cannot see how this statement applies in this case. Justice Smith acknowledged the parameters of what was decided in Rodriguez and only decided on what he thought was left open for him. In no way did justice Smith attempt to decide something to which he was already bound. Admittedly, the majority made this statement before moving on to demonstrate, unconvincingly, how justice Smith was bound by Rodriguez and could not decide on the right to life.

By simply inferring that justice Sopinka considered the right to life in Rodriguez, the majority in this case failed to expressly address the respondent’s actual argument. Justice Smith wrote, “The plaintiffs urge that the legislation has the effect of shortening the lives of persons who fear that they will become unable to commit suicide later, and therefore take their own lives at an earlier date than would otherwise be necessary.” The silence of the majority, and their resort to an outright stare decisis argument based on “what was actually decided, as opposed to how it was decided” demonstrated that they had no answer to the respondent’s argument. In my opinion, the respondents made a good argument for how the right to life is violated by s.241 of the Criminal Code. For the right to life to be engaged, there must be a direct causal connection between state action and citizen death. In this case, the respondents argued that “but for the impugned provisions, [the people wishing to die] would be able to have the assistance of a physician to end their life at some time in the future . . . It is because of that impediment that the choice is made to end their lives prematurely.” Justice Smith cites Dr. Bentz, a physician in Oregon where physician-assisted suicide is legalized, who stated that most patients no longer wished to die after the doctor addressed their concerns.

It must be reiterated that the majority made the correct decision to allow the appeal so that the case may reach the Supreme Court. A series of new public opinion evidence has come forth as a result of this decision. CBC began a four part documentary on Assisted Suicide where former Supreme Court justice, Jack Major, who sided with the majority in Rodriguez, stated that Parliament needs to act on this matter. Furthermore, theEnvironics Institute [PDF] published that seven percent of the Canadian public believe terminally ill or severely disabled persons should have a right to assisted suicide. If the Supreme Court is convinced that there is societal consensus for assisted suicide, then they may reverse their decision in Rodriguez and legalize, or at least decriminalize, physician-assisted suicide.

Jason Huang holds a Bachelor’s degree in Criminology and Philosophy and a Master’s in Socio-Legal Studies from York University. Huang is an associate editor for the Windsor Review of Legal and Social Issues and a copy editor for the Canadian Graduate Journal of Sociology and Criminology.

Suggested citation: Jason Huang, Carter v. Canada, Stare Decisis and the Right to Life in Physician-Assisted Suicide Cases, JURIST – Dateline, Nov. 25, 2013, http://jurist.org/dateline/2013/09/jason-huang-assisted-suicide.php.