Canadian Supreme Court Allows Physician Assisted Suicide Under Exclusive Circumstances
April 15, 2015
Canadian Supreme Court Allows Physician Assisted Suicide Under Exclusive Circumstances
Carter v Canada (Attorney General), 2015 SCC 5
Supreme Court of Canada
McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
February 6, 2015
Reported by Monica Achode
It was a crime in Canada to assist another person in ending their own life. Section 14 and section 241(b) of the Canadian Criminal Code prohibited the provision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. She was joined in her claim by C and J, who had assisted C’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic; a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.
The trial judge found that the prohibition against physician‑assisted dying violated the rights of competent adults who were suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement was not justified under section 1 of the Canadian Charter of Rights and Freedoms. She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10% of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.
The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow the Supreme Court’s decision in Rodriguez v. British Columbia (Attorney General), where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge’s assessment of stare decisis, her application of section 7 of the Charter or the corresponding analysis under section 1. However, he concluded that the trial judge was bound by the conclusion in Rodriguez that any section 15 infringement was saved by section 1.
- whether the criminal prohibition that gave a terminally ill person the choice of violently ending their life or suffering until they died violated their Charter rights to life, liberty and security of the person and to equal treatment by and under the law.
Canadian Charter of Rights and Freedoms
Rights and freedoms in Canada
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Life, liberty and security of person
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Canadian Criminal Code
Consent to death
- No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
Equality before and under law and equal protection and benefit of law
- (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Counseling or aiding suicide
- Every one who
- (a) counsels a person to commit suicide, or
- (b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Constitutional law — division of powers — interjurisdictional immunity — Criminal Code provisions prohibiting physician‑assisted dying — Whether prohibition interferes with protected core of provincial jurisdiction over health — Constitution Act, 1867, ss. 91(27), 92(7), (13) and (16).
Constitutional law — Charter of Rights — right to life, liberty and security of the person — fundamental justice — competent adult with grievous and irremediable medical condition causing enduring suffering consenting to termination of life with physician assistance — whether Criminal Code provisions prohibiting physician‑assisted dying infringe the Canadian Charter of Rights and Freedoms — whether infringement was justifiable under the Charter — Criminal Code, R.S.C. 1985, c. C‑46, ss. 14, 241(b).
Constitutional law — Charter of Rights — remedy — constitutional exemption — availability — constitutional challenge of Criminal Code provisions prohibiting physician‑assisted dying seeking declaration of invalidity of provisions and free‑standing constitutional exemption for claimants — whether constitutional exemption under the Canadian Charter of Rights and Freedoms should be granted.
Civil Practice and Procedure — costs — special costs — principles governing exercise of courts’ discretionary power to grant special costs on full indemnity basis — trial judge awarding special costs to successful plaintiffs on basis that award justified by public interest, and ordering Attorney General intervening as of right to pay amount proportional to participation in proceedings — whether special costs should be awarded to cover entire expense of bringing case before courts — whether the award against Attorney General was justified.
- Section 241(b) and section 14 of the Criminal Code unjustifiably infringed section 7 of the Charter and was of no force or effect to the extent that they prohibited physician‑assisted death for a competent adult person who;
- clearly consented to the termination of life and
- had a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that was intolerable to the individual in the circumstances of his or her condition.
- The trial judge was entitled to revisit the Supreme Court’s decision in Rodriguez. Trial courts could reconsider settled rulings of higher courts in two situations;
- where a new legal issue was raised; and
- where there was a change in the circumstances or evidence that fundamentally shifted the parameters of the debate.
Here, both conditions were met. The argument before the trial judge involved a different legal conception of section 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of over-breadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.
- The prohibition on assisted suicide was, in general, a valid exercise of the federal criminal law power under section 91(27) of the Constitution Act, 1867, and it did not impair the protected core of the provincial jurisdiction over health. Health was an area of concurrent jurisdiction, which suggested that aspects of physician‑assisted dying had to be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claim could not succeed.
- Insofar as they prohibited physician‑assisted dying for competent adults who sought such assistance as a result of a grievous and irremediable medical condition that caused enduring and intolerable suffering, section 241(b) and 14 of the Criminal Code deprived these adults of their right to life, liberty and security of the person under section 7 of the Charter.
- The right to life was engaged where the law or state action imposed death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprived some individuals of life, as it had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.
- The rights to liberty and security of the person, which dealt with concerns about autonomy and quality of life, were also engaged. An individual’s response to a grievous and irremediable medical condition was a matter critical to their dignity and autonomy. The prohibition denied people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenched on their liberty. And by leaving them to endure intolerable suffering, it impinged on their security of the person.
- The prohibition on physician‑assisted dying infringed the right to life, liberty and security of the person in a manner that was not in accordance with the principles of fundamental justice. The object of the prohibition was not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helped achieve this object, individuals’ rights were not deprived arbitrarily. However, the prohibition caught people outside the class of protected persons. It followed that the limitation on their rights was in at least some cases not connected to the objective and that the prohibition was thus over-broad.
- It was unnecessary to decide whether the prohibition also violated the principle against gross disproportionality. Having concluded that the prohibition on physician‑assisted dying violated section 7, it was unnecessary to consider whether it deprived adults who were physically disabled of their right to equal treatment under section 15 of the Charter.
- Sections 241(b) and 14 of the Criminal Code were not saved by section 1 of the Charter. While the limit was prescribed by law and the law had a pressing and substantial objective, the prohibition was not proportionate to the objective. An absolute prohibition on physician‑assisted dying was rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that posed certain risks was a rational method of curtailing the risks.
- However, the evidence did not support the contention that a blanket prohibition was necessary in order to substantially meet the government’s objective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medical practitioners and others who were familiar with end‑of‑life decision‑making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.
- It was also open to her to conclude that vulnerability could be assessed on an individual basis, using the procedures that physicians applied in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally. The absolute prohibition was therefore not minimally impairing. Given this conclusion, it was not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.
- The appropriate remedy was not to grant a free‑standing constitutional exemption, but rather to issue a declaration of invalidity and to suspend it for 12 months. Nothing in this declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians would need to be reconciled in any legislative and regulatory response to this judgment.
- The appellants were entitled to an award of special costs on a full indemnity basis to cover the entire expense of bringing this case before the courts. A court could depart from the usual rule on costs and award special costs where two criteria are met;
- the case had to involve matters of public interest that were truly exceptional. It was not enough that the issues raised had not been previously resolved or that they transcend individual interests of the successful litigant: they also had to have a significant and widespread societal impact.
- in addition to showing that they had no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs had to show that it would not have been possible to effectively pursue the litigation in question with private funding. Only those costs that are shown to be reasonable and prudent would be covered by the award of special costs.
The trial judge did not err in awarding special costs in the truly exceptional circumstances of this case. It was also open to her to award 10% of the costs against the A.G in light of the full and active role it played in the proceedings. The trial judge was in the best position to determine the role taken by that A.G and the extent to which it shared carriage of the case.
Appeal allowed, Special costs on a full indemnity basis are awarded against Canada throughout. The Attorney General of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costs associated with its presence at the appellate levels on a party and party basis.
Relevance to the Kenyan Situation
The Bill of Rights, enshrined in the Constitution of Kenya 2010, is the guiding principles as far as social regulation and human rights is concerned. Article 26(3) of the Constitution states that “A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or any other written Law”. Section 226 of the Kenyan Penal code makes it’s stand clear on suicide stating “Any person who attempts to kill himself is guilty of a misdemeanour”while section 225 of the same on aiding suicide states “Any person who-
- Procures another to kill himself; or
- counsels another to kill himself and thereby induces him to do so; or
- Aids another in killing himself
is guilty of a felony and is liable to imprisonment for life.”
Like Kenya ( Penal Code, Cap 63), Canada has punitive measures on attempted suicide, (as seen above) yet the Supreme Court in this case developed exceptional circumstances, when life is justifiable to be taken away upon the consent of an adult who claims death with dignity rather than pain. The court found that such could be allowed in exceptional circumstances that were in accordance with the principle of fundamental justice.
However unlike Canada, Kenya has not evolved to the point where the courts can justifiy the taking of a Kenyan life through suicide.