In a 2-1 decision, British Columbia's highest court recently upheld the federal ban on physician-assisted suicide. The ruling overturned the June, 2012 B.C. Supreme Court decision in Taylor and Carter et al. v. A.G. of Canada which struck down 241(b) of the Criminal Code prohibiting assisting another person to commit suicide.
To summarize the lower court's decision, the Plaintiffs, both of whom suffered from intractable and progressive diseases, brought a civil claim challenging the constitutionality of a series of Criminal Code provisions dealing with assisted suicide and euthanasia. This was in spite of the fact that in 1993 the Supreme Court of Canada had ruled 5-4 to uphold s. 241(b) in R.v.Rodriguez. The trial judge in the Taylor case was of the view that a change in the applicable legal principles had occurred since 1993, and therefore she was no longer bound by the Rodriguez decision. In addition, much of the Plaintiff's case was based on arguments surrounding the s. 15 equality rights provisions of the Charter of Rights and Freedoms, which were not canvassed to any extent in the Rodriguez decision1 Finally, she was also prepared to find that the s. 7 right to life was engaged, because the prohibition had the effect of causing some people to end their lives sooner than they otherwise would if physician-assisted dying were available.
The Trial Judge ultimately granted two declaratory orders (one pursuant so s. 15, and one pursuant to s. 7) declaring that the impugned provisions of the Criminal Code infringed on the Charter and were of no force and effect to the extent that they prohibited physician-assisted suicide
"...by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully informed, non-ambivalent competent adult patient" who has otherwise free from coercion or undue influence, was not depressed, and suffered from "...a serious illness, disease or disability...is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy...and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person."
The declarations were then suspended for one year (to allow for legislative change) but an exemption from the suspension was granted to Ms. Taylor2.
Prior to the release of the B.C. Court of Appeal's decision, the debate regarding physician-assisted suicide was further sparked by a video featuring Dr. Donald Low, a well-known Ontario physician, containing an impassioned plea to allow physician-assisted suicide for people who were in severe pain and terminally ill. In addition, the Province of Quebec has joined the debate by threatening to pass legislation specifically allowing physicians to provide assistance as part of the medical treatment provided in accordance with the provincial medical plan.
So, what did the B.C. Court of Appeal have to add to the debate? Well, two members of the Court of Appeal's 3 judge panel based their decision to overrule the Trial Judge's ruling on the fact that, while the law had seen some evolution since the 1993 decision in Rodriguez, it had not changed sufficiently to justify diverting from the precedent set in that case, and that "...no change sufficient to undermine Rodriguez as a binding authority has occurred." This represents an acknowledgment by the court of the principle of stare decisis (or "binding precedent") which guides common law jurisdictions in Canada such as British Columbia.
The majority did say, however, that in the event that the Supreme Court ultimately chose to review Rodriguez and provide a fresh analysis, it would favour the remedy of "constitutional exemption" rather than a declaratory order. This exemption is essentially a "special dispensation" given in favor of persons on whom an otherwise sound law has an extraordinary or extreme effect.
The dissenting judge would have dismissed the appeal relating to the s. 7 (right to life) challenge. Reviewing the principles of fundamental justice, as they apply to a s. 7 analysis, the Chief Justice of the Court wrote that the Supreme Court, in Rodriguez, did not give full weight to the two principles of overbreadth and gross disproportionality, and therefore it was open to the Trial Judge to consider these in her decision. (These principles essentially say that a law which is on its face contrary to the right to life might be acceptable if it is a proportional, and reasonable response to a perceived social issue).
There was a glimmer of hope, however, in the Chief Justice's dissenting opinion. He commented on how, in Rodriguez, the Supreme Court focused more on the s. 7 rights to liberty and security of the person, rather than on the right to life3. He wrote,
"The value a person ascribes to his or her life may include physical, intellectual, emotional, cultural and spiritual experiences, the engagement of one's senses, intellect and feelings, meeting challenges, enjoying successes, and accepting or overcoming defeats, forming friendships and other relationships, cooperating, helping others, being part of a team, enjoying a moment, and anticipating the future and remembering the past. Life's meaning, and by extension the life interest in s. 7, is intimately connected to the way a person values his or her lived. Experience. The point at which the meaning of life is lost, when life's positive attributes are so diminished as to render life valueless, when suffering overwhelms all else, is an intensely personal decision which "everyone" has the right to make for himself or herself."
All of this is intriguing for legal scholars, but for the person on the street, what does this mean? Unfortunately, it does not bode well for those interested in the passionate and human side of the right to physician-assisted suicide debate. Where the Trial Justice based her decision on facts, and evidence given by two individuals intensely and directly impacted by the restrictions imposed by s. 241(b) of the Criminal Code, the B.C. Court of Appeal chose to retreat behind the rubric of precedent and binding higher court decisions and not enter the arena.
The next step in the process will be (and likely already is) an application by the Plaintiffs for leave to appeal this newest decision of the B.C. Court of Appeal to the Supreme Court of Canada. It will be fascinating to see if the Supreme Court accepts the challenge.. It does have the ability to review its own decisions and current thought is there is a distinct possibility that the Court will, indeed, agree to revisit Rodriguez. In passing, it is worthy of note that the current Chief Justice of our Supreme Court was one of 4 judges who dissented in 1993 when the issue was last decided and is the only member of the current court who heard argument and participated in that decision. While any decision ultimately made will be too late for either Gloria Taylor or Lee Carter, there are many, many similarly affected Canadians who will be anxiously hoping for, and awaiting the re-visitation.
Footnotes
1 The argument was essentially that the ban on assisted suicide discriminated against individuals with severe medical conditions that prevented them from taking their own lives.
2 Gloria Taylor subsequently passed away from an unrelated medical problem before the case was argued in the Court of Appeal. Lee Carter subsequently travelled to Switzerland and took her own life with the assistance of a physician, as sanctioned under Swiss law. However, given the importance of the issues, the Courts have allowed the matter to proceed on behalf of the estates or personal representatives of the two former Plaintiffs as well as other named Plaintiffs, including the B.C. Civil Liberties Association.
3 S. 7 of the Charter guarantees "...the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the provisions of fundamental justice."
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