In September 2012 we reported on a ruling by Madam Justice Smith of the British Columbia Supreme Court which held that a prohibition on physician-assisted death is unconstitutional and should be permitted in certain circumstances.1 In a unanimous ruling last Friday, our nation's highest court upheld that decision with respect to section 7 of the Charter of Rights and Freedoms and made the following declaration of invalidity, which it suspended for 12 months:
Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 [life, liberty and security of the person] 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.2
In our view, this means that there are several pre-conditions which must be met before a physician-assisted death would not violate the Criminal Code in 12 months' time:
- The request must be made by a competent adult person. Adults who do not have the ability to understand and appreciate the consequences of their actions (such as those with certain cognitive disabilities) and youth cannot legally receive a physician-assisted death. A physician must assess the adult's capacity to consent;
- The competent adult must be clearly consenting to the specific intervention. It must be the individual herself, and not a substitute decision maker, who makes the request. We also note that consent is an ongoing process and there should be no question that this is what the individual wishes to occur at that moment in time;
- An irremediable condition does not require that the patient undertake treatment which is not acceptable to the individual.3 For example, chemotherapy could be theoretically be available to a cancer patient, but a competent adult is able to refuse that treatment, even though that refusal may lead to their death. Physician-assisted death may still be available to this person, even though the chemotherapy is available as a treatment; and
- The medical condition which is causing the competent adult to make the request must be irreversible and one which is causing intolerable and enduring suffering to her. Not all permanent medical conditions will meet this threshold.
Notably, this historic decision closely follows the dissenting reasons for judgment of Madam Justice McLachlin (as she was then), with Madam Justice L'Heureux-Dubé concurring, in the 1993 Supreme Court of Canada ("SCC") case Rodriguez v. British Columbia (Attorney General).4 Now, nearly 22 years later, with Madam Justice McLachlin as the Chief Justice of Canada, the remainder of the Court has finally, and unanimously, agreed with their analysis.
The SCC's majority ruling in Rodriguez would normally have remained the law. The Rodriguez decision was the basis for our Court of Appeal's ruling that reversed the decision of the trial judge.5 The SCC has now held that: (1) when a new legal issue is raised; and (2) where there is a change in circumstances or evidence which fundamentally shift the parameters of the debate, a trial court is permitted to reconsider rulings of higher courts.6 In this case, not only was there a unique legislative and factual matrix which distinguished Carter from Rodriguez, but the evolution of the constitutional case law over the past 20 years justified the action proceeding. The SCC specifically noted that at the time of Rodriguez, there was no Western democracy that permitted physician-assisted death; now, there are eight: the Netherlands, Belgium, Luxembourg, Switzerland, Colombia, Oregon, Washington and Montana. In addition, the trial judge heard evidence of many studies of the efficacy of the safeguards adopted in those jurisdictions to protect the vulnerable.
In terms of the constitutional analysis, section 7 of the Charter protects life, liberty and security of the person. It is rooted in a profound respect for the sanctity of life, one of society's most fundamental values; however, the Court held that section 7 does not impose a duty to live, as this would call into question the legality of any withdrawal or refusal of life saving treatment. The Court reviewed the case law and concluded that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, while concerns about autonomy and quality of life engage liberty and security of person rights. The Court held that:
[a]n individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician's assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people...to endure intolerable suffering, it impinges on their security of the person.7
Since many laws may infringe upon section 7 rights, the analysis must continue in order to determine whether or not the infringement is in accordance with the principles of fundamental justice. While the principles of fundamental justice are not fixed, the three most commonly cited in relation to section 7 are that laws should not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.8 The Court determined that a ban on physician-assisted death was not arbitrary because it helps to achieve the objective that the vulnerable are protected from ending their life in a time of weakness. However, the Court held the prohibition is nevertheless not in accordance with the principles of fundamental justice because it is overbroad – not every individual who wishes to commit suicide is vulnerable. This was not an established principle of fundamental justice at the time of Rodriguez. The Court declined to find whether or not the prohibition was grossly disproportionate in light of its finding that it was overbroad.9
The final part of the constitutional analysis considers whether the law is saved by section 1 of the Charter. That is, the Court undertakes a consideration of whether the absolute prohibition has a pressing and substantial object and the means chosen are proportionate to that object. In completing this analysis, the Court accepted the findings of the trial judge that the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards and held there was no error in her analysis that the absolute prohibition is not minimally impairing and thus not proportionate to its object.10 Accordingly, the Court agreed with the trial judge and found that the prohibition on physician-assisted death is unconstitutional.
There was no discussion by the Court of what safeguards should be in place, nor how to determine if the criteria outlined by the court are met or how to proceed if an individual chooses to seek physician-assisted death. While the trial judge provided some comments in this regard, it will ultimately be left to Parliament, provincial colleges of physicians and surgeons and provincial legislatures to address. The Court specifically noted that aspects of physician-assisted death may be the subject of valid legislation by both levels of government, depending on the circumstances and focus of the legislation.
The SCC also upheld the trial judge's assessment of special costs on a full indemnity basis against the federal government, as well as the trial judge's apportionment of 10% of the trial costs to be paid for by the province of British Columbia. The Court determined that there were extraordinary circumstances present in this matter which warranted the somewhat unusual award. The assessment against the federal government is expected to amount to well over one million dollars once costs at all three levels of court are calculated.
At this time, the federal government has indicated it will not use the notwithstanding provision in the constitution to preserve the invalidated sections of the Criminal Code, and now proposes a series of consultations with federal and provincial stakeholders as to how to legislate and regulate in this area. We expect the dialogue on end-of-life matters to continue, and perhaps additional court actions to arise, as patients, their families, lawyers and physicians navigate these difficult issues.
 Carter v. Canada (Attorney General), 2012 BCSC 886.
 Carter v. Canada (Attorney General), 2015 SCC 5 [Carter] at para. 147.
 Ibid at para. 127.
  3 SCR 519.
 Carter v. Canada (Attorney General), 2013 BCCA 435.
 Carter, supra note 2 at para. 44.
 Ibid at para. 66.
 Ibid at para. 72.
 Ibid at paras. 84, 86 and 90.
 Ibid at paras. 117 and 120.
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