Comment on Carter v. Canada (Attorney General), 2012 BCSC 886
On June 15, 2012, Madam Justice Lynn Smith of the British Columbia Supreme Court released her much anticipated reasons for judgment in Carter v. Canada (Attorney General) in which she found that certain provisions of the Canadian Criminal Code that prohibit physician-assisted suicide are constitutionally of no force and effect in certain circumstances.
The constitutional challenge was brought by a number of individuals supported by the B.C. Civil Liberties Association. The Plaintiff Gloria Taylor suffers from amyotrophic lateral sclerosis (ALS), a neurodegenerative disorder that causes progressive muscle weakness and eventually progresses to near total paralysis.
As stated in an affidavit filed in the proceeding, Taylor commenced the challenge because she wants "...the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends." The Plaintiffs Lee Carter and her partner Hollis Johnson helped to arrange the physician-assisted suicide of Ms. Carter's mother in Switzerland, where the practice is legal. The Plaintiff Dr. William Shoichet is a family physician in British Columbia who would be willing to participate in physician-assisted dying if it were legal in Canada.
The Governments of Canada and British Columbia opposed the challenge and argued in favour of maintaining the prohibition against physician-assisted suicide. One of their principal arguments was that the Supreme Court of Canada had already definitively decided the issue in the previous case of Rodriguez v. British Columbia (Attorney General) where, in 1993, a slim majority of the court had upheld the prohibition. However, Madam Justice Smith found that Rodriguez had left some relevant issues undecided and that the law had evolved since 1993. Thus while she was bound to follow Rodriguez, it was not a complete answer to the Plaintiffs' challenge.
Much of the evidence and argument in the present case centred around the issue of risk and the concern that if the prohibition against physician-assisted suicide was removed, vulnerable members of society, such as the aged and the disabled, would be at risk. In response, while recognizing the validity of the concerns, the Plaintiffs argued that those concerns could not override the harmful effects of the law that robs severely ill people of their dignity and prevents them from making fundamental life and death decisions.
As the Plaintiffs argued, and as Madam Justice Smith found, the law, and current medical practice, already recognize the validity of various end-of-life practices. For example, physicians may follow a patient's or a substitute decision-maker's instructions to withhold or withdraw life-sustaining treatment from patients or they may administer medications in dosages that hasten death. The Plaintiffs argued that to draw a line at permitting physicians to actually bring about death is arbitrary and unfairly discriminates against persons who wish to terminate their lives but who cannot do so without assistance because of the nature or extent of their illness.
Madam Justice Smith agreed with the Plaintiffs and found that the prohibition against physician-assisted violated the right to equality guaranteed under section 15 of the Canadian Charter of Rights and Freedoms and the right to liberty and security of the person guaranteed under section 7 of the Charter. She further held that the provisions could not be saved under section 1 of the Charter because a complete ban on physician-assisted suicide was a disproportionate response to the concern about protecting vulnerable people.
In her view, a more appropriate, and proportionate, response would be to maintain an almost-absolute prohibition but with a stringently limited and carefully monitored system of exceptions that would allow persons in Ms. Taylor's situation to access physician-assisted death.
In finding for the Plaintiffs, Madam Justice Smith did not strike down the provisions in issue in the sense of ordering them removed from the Criminal Code. Rather, she declared them to be of no force and effect in certain circumstances. Specifically, she held that the provisions cannot operate to prohibit physician-assisted suicide by a medical practitioner where:
(a) There is an existing physician-patient relationship;
(b) The assistance is provided to a fully-informed, non-ambivalent competent adult patient who:
(i) Is free from coercion and undue influence, is not clinically depressed and who personally requests physician-assisted death; and
(ii) Is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having 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 by acceptable treatment options, and has an illness causing enduring physical or psychological suffering that is intolerable and that cannot be alleviated by any acceptable medical treatments.
As is common in cases of this nature where legislation has been found to be constitutionally inoperative, Madam Justice Smith suspended the effect of her declaration for a period of one year to enable Parliament to respond and to perhaps change the legislation to accord with the Court's findings. However, Madam Justice Smith also granted Taylor a constitutional exemption that will enable her to access physician-assisted suicide under certain strict conditions if the need arises while the declaration of unconstitutionality remains suspended.
There is no word yet whether the governments of Canada and British Columbia will appeal the decision. They have 30 days to do so from the date of the decision.