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The Right to Life and the Right to Death: Carter v. Canada

On February 6, 2015, the Supreme Court of Canada made a monumental decision regarding the right to die with dignity in Carter v. Canada (Attorney General). Whilst participating in a Brock University Women in House program, I had the opportunity to shadow a female member of parliament in Ottawa for a day, which was coincidentally the day the decision in Carter v. Canada (Attorney General) was released. Instead of a tour of the Supreme Court of Canada, I was admitted as a civilian waiting for the decision. Conservative MP Stephen Fletcher, and Plaintiffs Hollis Johnson and Lee Carter were among those waiting for the announcement. Amidst a sea of media personnel, Grace Pastine delivered the decision which allowed the appeal and permits physician-assisted death in Canada for competent adult persons in certain circumstances.

Under the Criminal Code, physician assisted suicide, or euthanasia was prohibited by sections 241 and 14. In 2009, Ms. Tayler, who was diagnosed with a fatal neurodegenerative disease, challenged the constitutionality of those provisions in light of section 7 of the Charter of Rights and Freedoms (“Charter”), which guarantees the right to life, liberty, and security of the person. She was joined in her claim by Hollis Johnson and Lee Carter, who had assisted Ms. Carter’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic, and by other interested parties.

In hearing the case, the trial judge found that sections 241 and 14 of the Criminal Code violated section 7 of the Charter for competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition. Moreover the infringement upon such rights could not be justified under section 1 of the Charter.

The trial judge’s decision was appealed to the British Columbia Court of Appeal, which allowed the appeal on the ground that the Court was bound by Rodriguez v. British Columbia (Attorney General), a previous decision of the Supreme Court of Canada on the topic.

The decision of the British Columbia Court of Appeal was then appealed to the Supreme Court of Canada, which held that the trial judge was permitted to revisit the Rodriguez decision as trial courts may reconsider settled ruling of higher courts (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

The Supreme Court held that both conditions had been met, as (1) the law relating to the principles of over breadth and gross disproportionality, which were key to the section 7 analysis, had material advanced since Rodriguez; and (2) the international legislative landscape and social facts had also changed in the twenty-two years since the Rodriquez decision. For example, at the time of the Rodriguez decision, no other Western democracy expressly permitted assistance in dying. By 2010, eight jurisdictions permitted some form of assisted dying.

In a unanimous decision, the Supreme Court of Canada held that sections 241 and 14 of the Criminal Code unjustifiably infringe section 7 of the Charter and are of no force and 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 that causes ensuring suffering and is intolerable to the individual.

The Supreme Court suspended the declaration of invalidity for twelve months to allow sufficient time for the regulatory framework to be drafted. Beyond the parameters for who is eligible, specifics were not decided upon. The Supreme Court of Canada was clear, however, that this decision does not compel physicians to assist in euthanasia; rather it only permits those who wish to do so.

It was truly an honour to witness the unanimous, landmark decision which now comprises a part of Canadian history. In studying the case through constitutional law courses, this seemingly perfect timing embodied a rare opportunity that sees the educational experience coincide with the practical application. It also acts by way of motivation to continually work towards justice afforded through the law, as it is seen in theory.

Blog Post by Jemma Le Sauvage, Brock University Student Intern

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