JURIST Guest Columnist Laura Crestohl, McGill University Faculty of Law Class of 2014, explains Carter v. Canada and its impact of physician-assisted suicide…

The case Carter v. Canada is bringing the issue of physician-assisted suicide back to the Canadian courts. In 2011, Lee Carter, Hollis Johnson and the late Gloria Taylor launched a challenge to the provision in the Criminal Code of Canada that bans physician-assisted suicide.

Taylor, the lead plaintiff in the case, suffered from amyotrophic lateral sclerosis (ALS), a fatal neurodegenerative disease. ALS causes individuals to become paralyzed, and most individuals who suffer from this disease die within two to five years of diagnosis. Taylor was concerned that her illness would leave her in a state where she would not be able to take her own life. Taylor died from a severe infection in October 2012, before her case was heard on appeal.

Carter and Johnson traveled [PDF] with Kathleen “Kay” Carter, Lee’s mother, to the Dignitas Clinic in Forch, Switzerland, in order to have a physician assist her to die with dignity. Kay had suffered from spinal stenosis, which caused her chronic pain and limited movement in her limbs. She required help to eat, sit up in bed and go to the bathroom. Upon their return to Canada, Lee and Hollis were concerned that they could be held to be criminally liable for aiding with Kay’s death.

The plaintiffs challenges 241(b) of the Criminal Code of Canada, which states: “Every one who … aids or abets a person to commit suicide … is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” The plaintiffs argue that this provision prevents them the freedom to choose to end their lives, once they do not have the physical capacity to do so themselves, or to help others who want to end their lives. Grace Pastine, Litigation Director at the British Columbia Civil Liberties Association (BCCLA), has said: “the government has no place at the bedside of seriously ill Canadians, denying the right to decide to those who have made firm decisions about the amount of suffering they will endure at the end of life.”

The British Columbia Supreme Court found that the laws were unconstitutional, as they violated the plaintiffs’ rights to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice, as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. The court found that the provisions violated Taylor’s right to life, as she would have to end her own life while she was still able to do so, thus shortening her lifespan. Taylor also claimed that the laws violated her right to equality, as found in section 15 of the charter which protects individuals from discrimination based on, among other grounds, disability. The court agreed with her, claiming the provision had a disproportionate burden on those with physical disabilities.

The issue of physician-assisted suicide came before Canada’s courts in 1993 when Sue Rodriguez challenged the provisions of the Criminal Code based on her charter rights. In a complex decision, Canada’s highest court refused to strike down the provisions, finding that although they might infringe on Rodriguez’s rights to liberty and security of the person, this infringement was in accordance with the principles of fundamental justice. As well, the court found that although the provisions might infringe on Rodriguez’s equality rights, this infringement was justified, as per section 1 of the charter, which allows reasonable limitations that could be demonstrably justified in a free and democratic society.

The court was divided on the issue, however, in 1993. Justice McLaughlin (as she then was) wrote a dissenting opinion on the case, claiming that the provisions banning physician-assisted suicide violated the plaintiff’s right to security and that this infringement could not just be justified under section 1 of the charter.

The plaintiffs decided to bring the issue back to the court, despite the ruling in Rodriguez. They argued that (1) the social acceptance of physician-assisted suicide has increased since the 1993 decision, (2) the constitutional doctrines of overbreadth and proportionality has not been developed at the time of the decision in 1993, but would be applicable to the case today, and (3) that the court can now rely on evidence from jurisdictions that have legalized physician-assisted suicide.

The British Columbia Supreme Court found that both public opinion, and the professional opinion of doctors were divided on the ethics of the issue. The court also looked at evidence coming from jurisdictions that have legalized physician-assisted suicide, such as Washington, Oregon and Switzerland. The court noted that these jurisdictions have safeguards to protect vulnerable parties, and the practice of physician-assisted suicide has not had either a negative or a positive impact on the availability of palliative care or on the physician-patient relationship. The court found that although there were risks, specifically those associated with patients’ ability to make well-informed decisions, ensuring patients’ freedom from coercion or undue influence, and with physicians’ ability to assess patients’ capacity and voluntariness, the evidence showed that the risks could mostly be avoided through carefully-designed, well-monitored safeguards. This meant that the prohibition in the Criminal Code was overbroad, as it prohibits activity that falls outside its aim, and that the effects of an absolute ban were grossly disproportionate to the legislative objective.

The British Columbia Supreme Court also held that the law was discriminatory against Taylor, as it perpetuates the disadvantage of physically-disabled people. The court found that this infringement could not be justified, since the government could achieve its purpose of protecting vulnerable parties, while allowing competent individuals who are grievously and irremediably ill to consent to a physician-assisted death. Safeguards could be put into place to protect the vulnerable, and thus achieving the government’s purpose. The court also found that the detriments placed on Ms. Taylor were very severe, and were not outweighed by the benefits of the legislation.

The court declared section 241(b) to be unconstitutional, but suspended the declaration for one year to allow the legislature to “permit Parliament to take whatever steps it sees fit to draft and consider legislation”. The court did, however, give Taylor a constitutional exemption, allowing her to seek out a physician-assisted suicide under specific conditions. Taylor, however, passed away before being able to use her exemption.

The Attorney General of British Columbia appealed the trial court’s decision, bringing the case to the British Columbia Court of Appeal, which allowed the appeal and reversed the decision of the British Columbia Supreme Court. Two of three judges on the court based their decision on the doctrine of stare decisis, or binding precedent. The court declared they were bound by Rodriguez and could not declare the provision unconstitutional due to the precedent.

Because of the Court of Appeal did not decide on the merits of the case, they are leaving it open for the Supreme Court of Canada to decide whether it should overrule its previous decision. The BCCLA has already announced its plan to request leave to appeal to Canada’s highest court.

Laura Crestohl is a Senior Online Editor at the McGill Journal of Law and Health at McGill University in Montreal, Canada. She is in her third year of studies in the Faculty of Law at McGill. Her experience includes working for the Canadian Internet Policy and Public Interest Clinic as well as the British Columbia Civil Liberties Association.

Suggested citation: Laura Crestohl, Physician-Assisted Suicide Goes Back to Court in Canada JURIST – Dateline, Nov. 1, 2013, http://jurist.org/dateline/2013/11/laura-crestohl-health-law.php.