In Canada it has historically been a criminal offence to assist another person in ending his or her own life. This includes the inability of a person to seek a physician-assisted death. This law was recently overturned with the Supreme Court of Canada decision in Carter v. Canada (Attorney General)[1]. The main issue was whether the prohibition on physician-assisted dying found in the Criminal Code[2] violated the claimants' rights under sections 7 and 15[3] of the Charter of Rights and Freedoms[4]. The claimants defined physician-assisted death and physician-assisted dying as a "situation where a physician provides or administers medication that intentionally brings about the patient's death, at the request of the patient."[5]
The Court held that provisions in the Criminal Code infringes s.7 of the Charter, depriving adults of their right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The Court specifically considered the application of the law in the case of "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."[6]
The issue of physician-assisted suicide or physician-assisted death had been previously reviewed by the Court twenty years ago in Rodriguez v. British Columbia (Attorney General)[7]. In Rodriguez, the Court upheld a "blanket prohibition on assisted suicide",[8] however the debate over physician-assisted suicide since that period has continued. For example, in the House of Commons between 1991 and 2010, there were six private member's bills which sought to decriminalize assisted suicide. The Senate also issued a report on assisted suicide and euthanasia in 1995 and more recently, in 2011 the Royal Society of Canada published a report that recommended the Criminal Code be revised to permit assistance in dying. Furthermore, at present "[t]he Quebec National Assembly's Select Committee on Dying with Dignity issued a report in 2012, recommending amendments to legislation to recognize aid in dying as appropriate end-of-life care (now codified in An Act respecting end-of-life care, not yet in force)."[9] In Carter v. Canada, the Court distinguished Rodriguez and ultimately, found that the question fundamentally came to balancing on the one hand the autonomy and dignity of a competent adult seeking death as a response to a grievous and irremediable medical condition and on the other, the sanctity of life and the need to protect the most vulnerable in society.[10] The following is an overview of the decision.
Facts
The following claimants challenged the constitutionality of the provisions of the Criminal Code that together prohibit the provision for assistance in dying in Canada: T who was diagnosed with a fatal neurogenerative disease (ALS) in 2009; C and J who had traveled to Switzerland in order to use the services of an assisted suicide clinic for C's mother; a physician willing to participate in physician-assisted dying if it were legal; and the British Columbia Civil Liberties Association.
Procedural History
The British Columbia trial judge ruled that the prohibition against physician-assisted dying violates s.7 of the Charter and that the rights of competent adults, suffering intolerably, as a result of irremediable medial conditions is not justified under s.1 of the Charter[11]. The Attorney General of British Columbia appealed the decision to the British Columbia Court of Appeal. The British Columbia Court of Appeal allowed the appeal on the basis that the trial judge was bound to follow the Court's decision in Rodriguez[12]. The parties challenged the decision to the Supreme Court of Canada.
Analysis
In its s.7 Charter analysis the Court made specific findings on life, liberty or security of the person. The following is a summary of their reasoning:
(i) Life
In particular, the Court held that a prohibition on physician-assisted dying deprives some individuals of life and that an individual's choice about the end of life is entitled to respect.[13]It reasoned that although s.7 is rooted in the value of human life, it is also engaged during the passage to death. They distinguished Rodriguez and concluded that the sanctity of life "is no longer seen to require that all human life be preserved at all costs".[14]
(ii) Liberty or Security of the Person
With respect to security of the person, the Court stressed that these rights include a protection of individual autonomy and dignity, including "control over one's bodily integrity free from state interference".[15] The core of the reasoning was stated as follows:
An 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 like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.[16]
(iii) Principles of Fundamental Justice
When a court finds that a violation of s.7 of the Charter has occurred, it must then decide whether the interference with a person's life, liberty or security of the person is in a way that also violates the principles of fundamental justice. In particular, the Court will consider whether the interference is arbitrary, overbroad, and grossly disproportionate. Essentially this means that the state cannot deprive a person of constitutional rights arbitrarily or in a way that is overbroad or grossly and disproportionately diminishes their worth and dignity.[17]
The Court held that provisions of the Criminal Code do not arbitrarily limit an individuals' rights because the object of the prohibition on physician-assisted death is to protect vulnerable individuals from ending their life.[18]However, the Court did find that a blanket prohibition on physician-assisted death is overbroad because not every person that wishes to commit suicide is vulnerable, there may in fact be individuals who have a considered, rational decisions for ending their own lives.[19]Finally, the Court found that the impact of the prohibition was very severe and grossly disproportionate to its objective as it "impos[ed] unnecessary suffering on affected individuals, depriv[ing] them of the ability to determine what to do with their bodies and how those bodies will be treated, and may cause those affected to take their own lives sooner than they would were they able to obtain a physician's assisted in dying".[20]
(iv) Section 1
As with all Charter decisions, in order to justify infringement of a right, the government must demonstrate that: (i) there is a rational connection between the infringement and the benefit sought; (ii) the limit on the right is reasonable and that there are no less harmful means of achieving the goal (minimal impairment); and (iii) the beneficial effect of the law is in the greater public good.
Firstly, the Court found that the government's "absolute prohibition on physician-assisted dying is rationally connected to the goal of protecting the vulnerable from being induced to take their own lives in times of weakness".[21]
On the other hand, the Court held that with respect to minimal impairment, the risks could be adequately addressed by using proper safeguards.[22]As a result, the absolute prohibition is not minimally impairing. The Court reasoned that this particular aspect of the test was the crux of the case and included most of the evidence reviewed at trial. The trial judge upon reviewing all of the evidence concluded that, "a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them."[23]The Court did not re-examine the trial judge's factual findings on social and legislative facts because the standard of review for trial judge's findings of fact cannot be reversed unless the trial judge has made a 'palpable and overriding error'. Although the government introduced evidence which it argued demonstrated that the host of problems Belgium experiences with physician-assisted suicide continues, the Court agreed with the trial judge's position that "it was problematic to draw inferences about the level of physician compliance with legislated safeguards based on Belgian evidence".[24]
Furthermore, the Court rejected Canada's position on the necessity of a blanket prohibition (in the government's view there are too many sources of error and factors that could give rise to a patient dying by mistake or on purpose). Ultimately, the Court concluded that because "there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying,"[25]an assessment at the individual level is already part of the medical system. As a result, the blanket prohibition should not apply.
Lastly, the Court held that because the law is not minimally impairing there was no need to review the impact of the law on protected rights against the beneficial effect in terms of the greater public good.[26]
Future
(i) Federal and Provincial Impact
Carter v. Canada has potential to truly impact the administration of healthcare at the federal and provincial level. Even though the Court issued a declaration of invalidity and suspended the current laws (ss. 241 and 14 of the Criminal Code) for twelve months, the length of time it will take Parliament and legislators to draft new legislation, regulations and amendments to current legislative regimes may take longer than one year. It is also clear based on the Court's ruling that because health is an area of concurrent jurisdiction (Parliament and the provinces can legislate on the issue), "aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and focus of the legislation."[27]Due to the federal-provincial relationship, the province's position and role will need to be factored into the policy and legislative documents to be considered.
(ii) Interpretation of the law
Furthermore, it can be postulated that the various provincial medical associations, colleges, insurance bodies, hospitals, hospital associations, relevant agencies of the provincial ministries of health, and any other healthcare institutions where physicians have privileges to perform these types of procedures will need to develop strict guidelines, codes of ethics, and policies and procedures to be in compliance with the legislative and regulatory regimes created.
Particularly noteworthy for physicians is the Court's statement that, "[n]othing in this declaration would compel physicians to provide assistance in dying." [28]As a result, the Court was unequivocal in stating that a physician's decision to participate in assisted death is a matter of conscience and sometimes, religious belief.[29] The Charter rights of patients and physicians will need to be reconciled in any future legislative and regulatory response to this judgment.
Most interestingly will be the application of the test in the context of mental health. The test as stated by the Court is, "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."[30] The court does not limit the illness or disease to that of a physical nature and thus the medical condition could arguably include mental illness or mental disease, albeit as experienced by a capable adult person making a decision to end his or her life. Mental health is a complex area of health law and thus, the application of Carter v. Canada will need to be rigorously explored and defined.
(iii) Societal System of Values
Lastly, it should also be pointed out that society's views vis-à-vis the decision in Carter v. Canada will undoubtedly affect Parliament and provincial legislatures' approach when making policy-making decisions. Understandably so, health care is patient-centred and whether or not patients accept physician-assisted death as standard medical practice will ultimately be based on society's overall system of values.
[1] Carter v. Canada (Attorney General) 2015 SCC 5
[2] Sections 241 and 14, Criminal Code, R.S.C. 1985, C.C-46
[3] Since the Court concluded that the prohibition on physician-assisted suicide violates s.7 of the Charter it decided not to consider s.15 of the Charter.
[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[5] Supra note 1 at para 40. Note: although the claimants did not define 'physician-assisted suicide', for the purposes of this paper, it has the same meaning.
[6] Supra note 1 at para 147.
[7] Supra note 1 at para 35. Note: in Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 ("Rodriguez") the majority of the Court "rejected the proposition that the prohibition infringes the right to life under s.7 of the Charter (namely that the) principles of fundamental justice…overbreadth and gross disproportionality did not impose a new legal framework under s.7."
[8] Supra note 1 at para 5.
[9] Supra note 1 at para 7. See: An Act respecting end-of-life care, CQLR, c. S-32.0001.
[10] Supra note 1 at para 2.
[11] British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1
[12] British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 213
[13] Supra note 1 at para 63.
[14] Ibid. See. Rodriguez at p. 595.
[15] Supra note 1 at para 64. See: Rodriguez at p. 587-88.
[16] Supra note 1 para 66.
[17] Supra note 1 para 81.
[18] Supra note 1 para 84.
[19] Supra note 1 para 86.
[20] Supra note 1 para 90.
[21] Supra note 1 at para 99. Note: the government only needs to demonstrate a causal connection between the infringement and benefit: see RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199 at para. 153.
[22] Supra note 1 at para 104.
[23] Supra note 1 at para 105.
[24] Supra note 1 at para 112.
[25] Supra note 1 at para 115.
[26] Supra note 1 at para 122.
[27] Supra note 1 at para 52.
[28] Supra note 1 at para 132.
[29] Ibid.
[30] Supra note 1 at para 127.