Today, the Supreme Court of Canada granted leave to appeal in
Carter v Canada (AG), which deals with the
constitutionality of the assisted suicide provision of the Criminal
Code. In 1993, in Rodriguez v British Columbia (AG), the Supreme
Court of Canada upheld the very same provision as constitutional.
The B.C. Supreme Court, distinguishing Rodriguez, allowed
Carter's application, striking down the provision. The B.C.
Court of Appeal allowed the government's appeal, holding
that the provision was constitutional. Now, the Supreme Court will
have the final word.
The issue capturing headlines has been whether or not
physician-assisted suicide should be made available to the
terminally ill as an "alternative to the difficult passage
projected by their doctors." Indeed, it was this issue that
the trial judge explored in considerable depth before concluding
that the criminal prohibition violated sections 7 (life, liberty
and security of the person) and 15 (equality) of the Canadian Charter of Rights and Freedoms and
could not be saved under section 1 (reasonable limits). The Court
of Appeal's decision, however, turned on the answer to a
somewhat less stimulating question regarding stare
decisis: were the trial judge's findings precluded by the
precedential effect of Rodriguez?
Though she acknowledged the authority of Justice Sopinka's
majority reasons in Rodriguez, the trial judge determined
that there were issues before her that the Supreme Court had left
open. On section 7, for instance, she found that Rodriguez
had considered the right to "liberty" and to
"security of the person," but not to "life." On
section 15, she pointed out, Rodriguez did not actually
decide the issue; instead, it had assumed an equality violation and
then justified it under section 1. Finally, on section 1, she
determined that a "different set of legislative and social
facts," combined with an evolution in the applicable legal
test, warranted a "fresh s. 1 inquiry."
In rejecting the trial judge's application of stare
decisis, the majority decision of Justice Newbury embraced the
observation made by the Ontario Court of Appeal in Canada (AG) v Bedford that a "robust
approach to stare decisis should be taken in
Charter cases." On this basis, the majority found
that while Rodriguez had not "in so many words"
rejected the notion that section 241(b) violated the "right to
life," such a rejection could be inferred.
"Inherent" in Justice Sopinka's reasons, wrote
Justice Newbury, is a finding that "life" under section 7
has a "narrow compass and does not include a right to die in
the manner and at the time of one's choosing." She went on
to explain that despite "applying the Oakes test in a
fairly unstructured way," the Rodriguez majority
still found that "any infringement of section 15 is clearly
justified under s. 1 of the Charter." Accordingly,
"[i]f 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." Now it may, especially given its decision to revisit and,
ultimately, overturn the Prostitution Reference in December's
decision in Bedford v Canada.
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