In a unanimous decision of 9-0 in Carter v. Canada (Attorney General) the Supreme Court Friday struck down as unconstitutional the nation’s contentious century-old law against assisted suicide.
The issue in had was that of section 241 (b) of the Criminal Code which says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. This was brought to the court to challenge the constitutionality of the Criminal Code provisions prohibiting assistance in dying.
The trial judge found that the prohibition against physician‑assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1 of the Charter . She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.
The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge’s assessment of stare decisis, her application of s. 7 or the corresponding analysis under s. 1 . However, he concluded that the trial judge was bound by the conclusion in Rodriguezthat any s. 15 infringement was saved by s. 1 .
It was held by the Supreme Court that the appeal should be allowed. Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
It was made clear by the Supreme Courts decision that the prohibition on physician‑assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principle against gross disproportionality.
The high court suspended Friday’s declaration for 12 months in order to give the federal and provincial governments time to respond and, should they choose, to launch legislative efforts to craft a regulatory framework for physician-assisted suicide. The court did not set practical parameters for doctor-assisted dying beyond the criteria for who is eligible to access physician-assisted suicide. As the Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.
