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LexView 78.0 - Revisiting Rodriguez

From the Archived "LexView" Series

December 21, 2012

In mid-2012, a court in B.C. ruled that Canadians have a right to assisted suicide, despite the Supreme Court of Canada's long-standing judgement that no such right exists and despite numerous votes in Parliament upholding existing laws against assisted suicide. The B.C. court went even further: it granted Gloria Taylor, one of the principals in the case, a personal exemption to have someone assist her in committing suicide at a time and place of her choosing. LexView writer and B.C. constitutional lawyer Kevin Boonstra reviews the logic of the case, and concludes in "Revisting Rodriguez" that the court erroneously assumes the right to live contains the right to die. "The right to life is the right to insist that your life not be taken from you. A right to die is something entirely different," he writes.

Carter v. Canada (Attorney General)
2012 BCSC 886, Supreme Court of British Columbia

Date of Decision: June 15, 2012
Date of Issue: December 17, 2012

In this issue:

  1. Key Terms
  2. Introduction
  3. Summary of Facts
  4. Significant Issues
  5. Decision and the Court's Reasons
  6. LexView Commentary:
    1. Another Case of Circumventing Prior Supreme Court of Canada Decisions
    2. Should Parliament's Decision to Protect the Sanctity of Human Life be Subject to a Risk Assessment?
    3. Creating Rights in the Vacuum

Key Terms:

Euthanasia; physician assisted suicide; life; liberty; security of the person; principles of fundamental justice; section 7; ambiguity; overbroad; section 15; equality; discrimination; disability; Criminal Code; section 1; Charter of Rights and Freedoms

Introduction:

Section 241(b) of the Criminal Code prohibits anyone from aiding or abetting another person in committing suicide. A person convicted under this section is guilty of an indictable offence and liable to imprisonment for a period of up to 14 years.

Sue Rodriguez previously challenged this provision under section 7 (life, liberty and security of the person) and section 15 (equality rights) of the Charter of Rights and Freedoms. In 1993, the majority of the Supreme Court of Canada found that her right to security of the person was not arbitrarily deprived and that if her right to equality was infringed, that infringement was justified under section 1 of the Charter. In short, the Court upheld the criminal prohibition on assisted suicide.

These Plaintiffs challenged the same law under the same Charter protections. The Attorneys General of Canada and British Columbia both opposed the challenge and supported the continuation of s.241(b).

Summary of Facts:

The Plaintiffs in this case were:

(a) Gloria Taylor: Ms. Taylor suffered from ALS, also known as Lou Gehrig's disease. It is a progressive, incurable degenerative disorder that causes progressive muscle weakness to near total paralysis. The average time from diagnosis to death is three years. She wished to have a physician-assisted suicide so that death could come at a time of her choosing, after her disease had progressed to the point that she was no longer able to kill herself.

(Subsequent to the decision, Ms. Taylor died suddenly and unexpectedly, due to a severe infection following a perforated colon.)

(b) Lee Carter and Hollis Johnson: They are a married couple. Ms. Carter's mother, Kay Carter, had spinal stenosis, a condition involving the progressive compression of the spinal cord. At Kay's request, Lee made the arrangements for Kay to travel to Switzerland and to obtain a physician assisted suicide there. This occurred in January of 2010. The financial cost of these arrangements was approximately $32,000.

(c) Dr. William Shoichet: Dr. Schoichet is a family physician in Victoria, BC. He considers "end-of-life care to be an important part of his compassionate, moral, ethical and professional duty as a physician treating grievously and irremediably ill patients." He wants to be able to help such patients die where "he is satisfied that it constitute[s] appropriate medical care".

(d) BC Civil Liberties Association.

They all sought to strike out s.241(b) as unconstitutional, even in the face of the Rodriguez decision.

The common law in England and Canada considered suicide to be a form of homicide. Prosecutions centred on attempted suicides, given the impossibility of prosecuting successful suicides. When Canada enacted its first comprehensive criminal code in 1892, the offence of assisting suicide was included.

In 1972, attempted suicide was removed, based on the philosophy that a legal deterrent was unnecessary and that the root of the problem was based more on science than law. The prohibition on assisting suicide remained and survived the challenge in Rodriguez.

Since 1991, there have been nine private members' bills in the House of Commons seeking to decriminalize assisted suicide or euthanasia. All of them failed. The most recent attempt at legislation allowing physician-assisted suicide was defeated by a vote of 228-59 on April 21, 2010.

The defending governments conceded that palliative care is not a panacea and that not all end of life pain and suffering can be alleviated. In the context of palliative care, it is widely accepted in the medical community that when a patient is close to the end of life, and is "experiencing symptoms that are severe and refractory . . . it is ethical practice for her physician to sedate her and maintain her in a state of deep, continuous unconsciousness to the time of death."

The law in Canada is that competent, informed patients have the right to consent to treatment and the right to withhold consent to life-saving or life-sustaining medical care. Most Canadian provinces have legislation permitting advance directives in this regard to deal with the possibility of future mental incompetence. When a patient is incompetent and her treatment preferences are unknown, medical decisions are to be made in her best interests, which may include the withdrawal of life-sustaining treatments.

The court heard expert evidence from other jurisdictions that permit assisted suicide and/or euthanasia regarding a variety of issues, including the incidence of life terminating acts without explicit request ("LAWER"), regulatory safeguards to protect vulnerable persons, the impact of those practices on palliative care, and the impact on the doctor-patient relationship. The court concluded that abuse and disproportionate impacts on vulnerable populations has not materialized.

With respect to whether permitting assisted suicide would reduce research and development of palliative care and practices, the court found that "the evidence establishes that the effects would not necessarily be negative." Similarly, the court found that it is likely that the doctor-patient relationship would change, but that "the net effect could prove to be neutral or for the good."

On the assumption that LAWER is to be avoided, the court found that, in Belgium at least, "the number of patients over the age of 80 whose deaths resulted from LAWER . . . was not disproportionate" (emphasis added).

On the issue of possible safeguards against abuse, the parties and the court acknowledged five significant risks if assisted suicide were permitted:

  • Whether patients would always be competent to request assisted suicide. In this regard, issues include whether physicians can adequately assess such competence and the role of depression.
  • Undue influence and whether patients' decision to ask for assistance in dying is truly voluntary.
  • Whether patients make the decision based on proper informed consent (which can never be adequately tested or confirmed after the fact).
  • Whether patients are ambivalent and should be given the opportunity to change their minds (rather than have their lives ended before having that chance).
  • The protection of socially vulnerable persons, including the elderly and the disabled.

In Rodriguez, the majority of the Supreme Court of Canada considered that no system of safeguards would suffice. Justice Smith, after reviewing the evidence, concluded "that the risks in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced."

Significant Issues:

(a) The decision circumvented a prior, binding, decision of the Supreme Court of Canada.

(b) The question of protecting the sanctity of human life should not be the subject of a risk assessment.

(c) There is no right to an assisted death because suicide is not illegal.

Decision and the Court's Reasons:

In Rodriguez, the majority of Supreme Court of Canada did not engage in a full analysis of section 15 of the Charter, which prevents discrimination on a number of grounds, including disability. In that case, only Chief Justice Lamer addressed the issue in any detail. The majority assumed that section 15 would be infringed, but determined that any infringement would be saved by section 1 of the Charter as a reasonable and justifiable limit on equality rights.

Despite the conclusion in Rodriguez, Justice Smith embarked on a full s.15 analysis to determine if Ms. Taylor is discriminated against because of the criminal prohibition on assisted suicide. She held that there is clearly a distinction between physically abled persons, who have many more options for ending their lives, and the physically disabled who may be prevented from doing so because of their disability.

Justice Smith found that the distinction is discriminatory because, while it is paternalistic in preventing people from killing themselves, that paternalism does not affect all people in the same way, with "very significant consequences" for those suffering from disabilities. She considered this in the context that personal autonomy is "among the values that are fundamentally important and central to personhood." The autonomy in question was, for Ms. Taylor, necessary "to relieve herself from suffering". In the result, Justice Smith held that section 15 was infringed as s.214(b) "perpetuates and worsens a disadvantage experienced by persons with disabilities."

As noted, the Supreme Court of Canada found that any such infringement of s.15 would be saved under s.1. Justice Smith reached a different conclusion, holding that she was free to do so because the Supreme Court of Canada articulated the s.1 test in a different way in the Hutterian Brethren case (LexView 67.0). Specifically, she held that:

(a) The objective of the legislation is to protect vulnerable persons from being induced to commit suicide at a time of weakness. Agreeing with the conclusion in Rodriguez, she found that this is a pressing and substantial objective.

(b) Section 241(b) is rationally connected with this objective (as held in Rodriguez).

(c) The prohibition does not impair Ms. Taylor's Charter rights as little as possible. This conclusion is contrary to that reached in Rodriguez, based on Justice Smith's determination that the Court in Hutterian Brethren altered the applicable test for minimal impairment. She concluded that there are "less drastic means to achieving the objective of preventing vulnerable persons from being induced to commit suicide at times of weakness . . . [through] . . . a stringently limited, carefully monitored system of exceptions".

(d) The salutary effects of the law are "generalized and, in some instances, ambivalent" and, as such, are outweighed by its negative effects. She again held that the benefits of the law can be "preserved by leaving an almost absolute prohibition in effect, and permitting only stringently-limited exceptions". (Again, Justice Smith felt free to draw make this finding, contrary to the conclusion in Rodriguez, based on the court's analysis in Hutterian Brethren.)

With respect to the protection of life, liberty and the security of the person in section 7 of the Charter, Justice Smith again came to a different conclusion than did the Supreme Court of Canada in Rodriguez. See did so on the basis that Sue Rodriguez did not argue that her right to "life" was engaged by s.241(b). Ms. Taylor argued this point on the basis that she might be compelled to commit suicide earlier than if a physician could assist her when her disease was more advanced.

Additionally, Justice Smith noted that at the time Rodriguez was decided, analysis under section 7 of the Charter did not explicitly consider whether a law was overbroad which, if so, would lead to a finding that rights were not restricted in accordance with principles of fundamental justice. She held that the absolute prohibition on assisted suicide in s.241(b) is not the least restrictive of the plaintiffs' interests in life, liberty and security of the person. Justice Smith found the provision overbroad and the harm grossly disproportionate to the benefits of the legislation.

Justice Smith carefully articulated the circumstances giving rise to her declaration that s.241(b) is unconstitutional. Specifically, she found that the problem arises from the prohibition's application to "competent, fully informed, non-ambivalent adult persons who personally . . . request physician-assisted death, are free from coercion and undue influence and are not clinically depressed." She held that the prohibition should, under the guarantees of the Charter, not apply to such persons provided that the assistance to die comes only from a physician and that they are grievously and irremediably ill (not including "psychosocial suffering"), with no chance of improvement.

Justice Smith suspended her declaratory relief for one year, but granted Ms. Taylor an immediate constitutional exemption to allow her to seek physician assisted suicide at such time and subject to such terms and conditions that the Court may allow on further application. As noted, Ms. Taylor died before attempting to take advantage of this exemption.

LexView Commentary:

(a) Another Case of Circumventing Prior Supreme Court of Canada Decisions

LexView 71.0 addressed the growing practice of re-litigating constitutional challenges in the face of Supreme Court of Canada decisions upholding a law. That case involved prohibitions on practices associated with prostitution, including the criminal code provisions proscribing keeping of common bawdy houses and communicating for the purposes of prostitution. Despite a decision of the Supreme Court of Canada upholding these laws, the Ontario Superior Court of Justice struck them out. We noted in LexView that the Ontario court's reasoning was inconsistent with the doctrine of legal precedents and ignores the hierarchy of Canadian courts. In a future LexView, we will review the Court of Appeal decision, which corrected the lower court by acknowledging that at least the challenge to the communicating provision had been definitively determined by the Supreme Court of Canada.

Charter challenges of legislation that deals with social problems and ills can be repeated if new evidence is found that was previously unavailable. However, the lower courts are still constrained by decisions of the Supreme Court of Canada. Their role is to assemble such "new" evidence so that the Supreme Court of Canada will have an appropriate evidentiary record on which to reconsider its previous conclusion.

Justice Smith extensively reviewed such new "evidence" pertaining to practices of assisted suicide and euthanasia in other developed western countries since Rodriguez was decided. That was appropriate in the face of this litigation. However, she went further than that and performed a new, and different, legal analysis. To be fair, since Rodriguez, the Supreme Court of Canada has clarified and expanded aspects of the tests under section 7 and section 1 of the Charter. It is the ratio decidendi, the process of legal reasoning leading to the conclusion of the case, that is binding on lower courts. As noted by Justice Doherty of the Ontario Court of Appeal in R. v. Prokofiew, the right question to ask is "what does the case actually decide".

Justice Smith ignored the final result of Rodriguez, instead focusing on changes in legal analysis since that case was decided. This allowed an opposite result from Rodriguez. It is very peculiar that the ultimate decision reached by the Supreme Court of Canada (that s.241(b) is constitutional) could be circumvented, not by changes to the law, but by modifications to aspects of the underlying legal analysis. The clear conclusion on s.241(b) reached in Rodriguez was that it withstands constitutional challenge and should not be struck out. The Court concluded that, to the extent that the prohibition on assisted suicide impugned Charter guarantees, it was justifiable. Justice Smith's conclusion to the contrary ultimately ignores this reality.

(b) Should Parliament's Decision to Protect the Sanctity of Human Life be Subject to a Risk Assessment?

There is no escaping the fact that there are serious risks associated with permitting physician assisted suicide. As discussed in LexView 68.0, any safeguards put in place are subject to failure. Justice Smith effectively acknowledges this when, after reviewing experiences in other jurisdictions, she indicates that effects on palliative care "would not necessarily be negative", effects on doctor-patient relationships "could prove to be neutral" and that the number of deaths without express consent "was not dispropriationate". This is hardly a strong endorsement of the efficacy of safeguards to prevent abuse where one person is permitted to help kill another.

The sanctity of life is not an absolute principle in our society or in our law. It is subject to exceptions such as self-defence and permitting competent patients to refuse life-saving medical care. Suicide and attempted suicide are also no longer criminal offences.

In cases of assisted suicide, refusing to respect the autonomous choice of a competent patient does risk paternalism by the state. Such paternalism by the state is justifiable in our society and in our law in appropriate circumstances. This is particularly so when there is a need to protect the most vulnerable in society (see A.C. v. ManitobaLexView 66.0). The members of our society that are profoundly ill or disabled certainly fall within the category of those that are vulnerable and deserving of state protection.

Further, as noted by the Supreme Court of Canada in Reference re Assisted Human Reproduction Act (LexView 72.0) moral issues and perspectives remain relevant and constitutionally justifiable in our criminal law. As eloquently stated by Chief Justice McLachlin, each generation faces "unique moral issues" and has "turned to the criminal law to address them". Simply put, Parliament is permitted to enshrine moral principles, including those pertaining to the sanctity of life, into the criminal code.

Justice Smith noted that "while [the sanctity of life] is central to the value system of a number of religions, that does not settle its place in a secular society". That is a peculiar comment since the government was not seeking to justify the prohibition on assisted suicide because it accords with religious doctrine. The fact that moral principles enshrined in the criminal code comport with religious teaching does not militate in favour of their dismissal. In a secular society, the moral perspectives of religious people are just as relevant, and entitled to the same respect, as those arising from ethical principles espoused by those claiming no religion (Chamberlain v. Surrey School District). The fact that our collective resistance to assisted death may be historically rooted in religious belief is now irrelevant to the analysis. It neither is a cause to support the prohibition nor to strike it down. The question is whether Parliament can still pass such a law, without exceptions, on moral grounds.

Subject to legitimate constitutional limitations, it is Parliament that establishes what moral principles will be enshrined in the criminal law. Justice Smith's statement that "constitutional principles are derived from and shaped by societal values" is overbroad and wrought with logical reasoning pitfalls. It begs the question as to who determines such "societal values". It also opens the door for constitutional limitations on Parliament to mean almost anything that the majority can agree on. Instead of the constitution protecting the minority, it becomes a tool for the majority to impose their will. This idea turns on its head the idea that Parliament expresses the will of the majority of Canadians subject only to constitutional constraints, allowing judges to put their finger in the wind to assess public sentiments in determining the limits of constitutional protections.

Additionally, it should be noted that constitutionally permissible criminal law can, and often should, exist even when public consensus may be more libertine. This is particularly so when the law seeks to protect the vulnerable, even if the majority sees little benefit in such protection.

In any event, and as acknowledged by Justice Smith, there is no clear consensus on physician assisted suicide. Presumably this is at least a part of the reason that Parliament has, despite repeated private members bills, upheld the prohibition. There is undoubtedly a strong societal consensus that human life has high value and that current end of life practices are ethically acceptable.

Parliament has, in effect, drawn a bright line between allowing competent terminally ill patients to refuse medical care and allowing third parties to participate in, or cause by affirmative act, their death. This line is defensible on a number of fronts, not the least being that many consider it immoral to cause the death of another human being. This is without engaging in a risk assessment about whether the terminally sick and disabled might be abused, mistreated or manipulated if assisted suicide were permitted.

Engaging in the risk assessment of permitting assisted suicide ignores the moral implications of the consequences. Such risks are relevant to the reasons to prohibit assisted suicide since the point of the law is to preserve life and protect the vulnerable. The converse of the analysis is not equally applicable. Most rational people will accept less risk when the potential consequences are severe. Issues of life and death are the most severe that we face as a society. When the termination of human life is at stake, there is no adequate way to measure how much risk of abuse is "tolerable".

(c) Creating Rights in the Vacuum

The impact of Justice Smith's decision is to create a right to suicide. While suicide is no longer a criminal offence, this does not logically drive one to conclude that the ability to kill oneself should be recognized as a right.

This reasoning is akin to the conclusion that since prostitution itself is not illegal, criminal prohibitions that limit its practice should be constitutionally constrained. As noted by Chief Justice Dickson in the Prostitution Reference, "the fact that the sale of sex for money is not a criminal act . . . does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation". In other words, the fact a practice is permitted or tolerated does not mean that it should be further encouraged or that Parliament should be inhibited from using the criminal law to constrain it for moral reasons.

The question of whether the suicidal impulse should be treated differently in terms of state sanction based on whether the person is terminally ill or disabled should be left to Parliament. The lack of a prohibition of self-killing does not create a right to die in any other circumstances, particularly if the law is being asked to countenance another person causing human death.

The right to life does not include within it the right to die. The right to life is the right to insist that your life not be taken from you. A right to die is something entirely different. If such a right exists, even by assisted suicide, it may place obligations on the state or other people to participate in human death. It is not a far road from recognizing such a right to placing limits on a physician's right to refuse to participate. If a terminally ill patient has a constitutional right to a physician assisted suicide, the next question is whether his or her attending doctor has the right to refuse for reasons of mere personal ethics. It is easy to anticipate the human rights complaint against a physician who refused to accommodate a patient's disability by refusing to contribute to their death. That is an intolerable juxtaposition of rights and responsibilities.


This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), J.D., of the British Columbia Bar.

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Copyright © 2012 Cardus & Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.

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Topics: Justice, Death