If you live in Canada, you have heard of the Supreme Court of Canada’s decision in Carter v. Canada, released February 6, 2015. That decision declared void two sections of the Canadian Criminal Code to the extent that those sections prohibit “physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering”. So how did this come about?
Section 14 of the Criminal Code provides that “no person is entitled to consent to have death inflicted on him”. Any such consent does not absolve a person from criminal responsibility if they cause the death of that person. Section 241(b) makes it an offence to aid or abet a person to commit suicide. The combination of these two sections constitutes a ban on any person, including a physician, assisting another person in ending her life, regardless of the circumstances.
In Carter, the Supreme Court concluded that these sections, to the extent that they prohibit physician-assisted dying for competent persons suffering from grievous and irremediable medical conditions, are invalid because they deprive those persons of the right to life, liberty and security of the person guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). The prohibition was found to be “overbroad” and not in accordance with the principles of fundamental justice. The Court found further that the Criminal Code provisions were not “saved” under section 1 of the Charter.
The argument before the Court was limited to “physician-assisted death”, which was defined as “the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient”. The decision therefore does not extend beyond physician-assisted death.
One obstacle before the Court in dealing with this case was the fact that it had already heard an appeal dealing with physician-assisted death and these same provisions of the Criminal Code in the 1993 Rodriquez case. At that time, the Court upheld the prohibition against physician-assisted death. What changed in the last two decades? It turns out quite a bit.
While one of the tenets of our legal system is the principle of stare decisis (lower courts being bound by decisions of higher courts), trial courts can reconsider rulings of higher courts in two situations (1) “where a new legal issue is raised” and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. The Supreme Court found that both conditions were met in this case. While for lawyers the new legal issue is of interest, for most people (lawyers included) the real meat of the decision is in the fundamental shift in the physician-assisted death debate in the years since Rodriguez. In particular the Court noted that:
- Notwithstanding Rodriguez, between 1991 and 2010 no less than six private members bills dealing with physician-assisted dying were debated by the House of Commons and its committees;
- Recent reports have come down in favour of reform of the prohibition;
- When Rodriguez was decided, there were no other jurisdictions that permitted assistance in dying. By 2010, eight jurisdictions permitted some form of assisted dying.
In other words, the Court found that Rodriguez was a product of its time. Times have changed.
In coming to its conclusion, the Supreme Court agreed with the trial judge’s assessment of most of the evidence. Of particular interest, the Court found that:
- Section 7 rights encompass life, liberty and security of the person during the passage to death, recognizing that the sanctity of life is no longer seen to require that all human life be preserved “at all costs”;
- The prohibition deprives some individuals of life by, in effect, forcing them to take their own lives prematurely, for fear that they will be incapable of doing so when they reach the point where suffering is intolerable;
- An individual’s response to a grievous and irremediable medical condition is a matter critical to the person’s dignity and autonomy. While a competent person is entitled to give informed consent to the refusal of life sustaining treatment, the prohibition does not allow them use informed consent to request a physician’s assistance in dying. This interferes with the person’s ability to make decisions concerning their bodily integrity and medical care and exposes them to intolerable suffering, impinging the liberty and security of the person.
However, as the Court noted, the right to life, liberty and security of the person is not absolute. Those rights can be restricted provided the restriction does not violate the principals of fundamental justice. Here, the Court found that the prohibition did violate the principals of fundamental justice because it was overly broad. The Court found that the object of the law, to “protect vulnerable persons from being induced to commit suicide at a time of weakness”, impacted persons other that vulnerable persons. It also affects competent, informed people who have shown a persistent wish to end their own lives.
Having found a Charter right infringement, the Court had to determine whether the “saving provision” of section 1 of the Charter would allow the prohibition to stand. Section 1 will uphold a law that breaches section 7 of the Charter provided the law is (1) rationally connected to the law’s objective (2) minimally impairs the right in question and (3) there is proportionality between the deleterious and salutary effects of the law. The argument here came down to whether the law prohibiting physician-assisted death was a minimal impairment to the right to life, liberty and security of the person. Canada argued that the impairment was minimal because it was not always possible to determine which individuals are vulnerable and therefore the general prohibition was necessary to protect from error. It also put forward the “slippery slope” argument that allowing physician-assisted dying will lead to assisted dying in other circumstances.
The Court rejected these arguments and looked primarily to the standard of informed consent in Canada. With informed consent, individuals make decisions about their lives and potential death all the time. The Court found that physicians are able to determine whether a person is competent to assess alternatives and to make decisions regarding life and death. They are likewise able to determine whether such decisions are made voluntarily, free from coercion, undue influence and ambivalence. The Court agreed with the trial judge that a permissive regime of physician-assisted dying, with properly designed safeguards, is capable of protecting vulnerable people from abuse and error. The Court recognized that there are risks but stated that a “carefully designed and managed system is capable of adequately addressing them”. The Court also found that such a system addresses any concern of a “slippery slope”. The Court’s finding was bolstered by a lack of evidence of a heightened risk to people with disabilities in jurisdictions that allow for physician-assisted dying.
So what happens now? The Court suspended its declaration of invalidity of sections 14 and 241(b) for 12 months to permit Parliament to enact provisions so as to comply with this ruling. The decision itself does not set out circumstances whereby physician-assisted dying can be carried out. It will be up to lawmakers to implement a regime that allows for physician-assisted dying but protects the vulnerable. Already this has become a matter of great debate as the Supreme Court has provided no definition beyond a “grievous and irremediable medical condition that causes enduring and intolerable suffering”. Perhaps tellingly, the Court did not restrict itself to terminal conditions (although query what “irremediable” means in this context). It also left a great degree of subjectivity to the analysis as only the individual can determine what is “intolerable” to her or him. But how should intolerability be assessed by physicians? It will certainly be an interesting debate to follow over the next year.