Rodriguez v. British Columbia (Attorney General)

Rodriguez v. British Columbia (Attorney General)
Collection
Supreme Court Judgments
Date
1993-09-30
Report
[1993] 3 SCR 519
Case number
23476
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 23476
Decision Content
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519
Sue Rodriguez Appellant
v.
The Attorney General of Canada and
the Attorney General of British Columbia Respondents
and
British Columbia Coalition of People
with Disabilities, Dying with Dignity,
Right to Die Society of Canada, Coalition
of Provincial Organizations of the Handicapped,
Pro‑Life Society of British Columbia,
Pacific Physicians for Life Society,
Canadian Conference of Catholic Bishops,
Evangelical Fellowship of Canada, and People
in Equal Participation Inc. Interveners
Indexed as: Rodriguez v. British Columbia (Attorney General)
File No.: 23476.
1993: May 20; 1993: September 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Life, liberty and security of the person ‑‑ Fundamental justice ‑‑ Terminally ill patient seeking assistance to commit suicide ‑‑ Whether Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Remedies available if Charter infringed ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 241 (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Discrimination on basis of physical disability ‑‑ Terminally ill patient seeking assistance to commit suicide ‑‑ Whether Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 15(1) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Remedies available if Charter infringed ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 241 (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment ‑‑ Terminally ill patient seeking assistance to commit suicide ‑‑ Whether Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 12 of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Remedies available if Charter infringed ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 241 (b).
The appellant, a 42‑year‑old mother, suffers from amyotrophic lateral sclerosis. Her condition is rapidly deteriorating and she will soon lose the ability to swallow, speak, walk and move her body without assistance. Thereafter she will lose the capacity to breathe without a respirator, to eat without a gastrotomy and will eventually become confined to a bed. Her life expectancy is between 2 and 14 months. The appellant does not wish to die so long as she still has the capacity to enjoy life, but wishes that a qualified physician be allowed to set up technological means by which she might, when she is no longer able to enjoy life, by her own hand, at the time of her choosing, end her life. The appellant applied to the Supreme Court of British Columbia for an order that s. 241 (b) of the Criminal Code , which prohibits the giving of assistance to commit suicide, be declared invalid on the ground that it violates her rights under ss. 7 , 12 and 15(1) of the Charter , and is therefore, to the extent it precludes a terminally ill person from committing "physician‑assisted" suicide, of no force and effect by virtue of s. 52(1) of the Constitution Act, 1982 . The court dismissed the appellant's application and the majority of the Court of Appeal affirmed the judgment.
Held (Lamer C.J. and L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting): The appeal should be dismissed. Section 241(b) of the Code is constitutional.
Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7 . Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7 .
Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241 (b), which is a sufficient interaction with the justice system to engage the provisions of s. 7 , deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.
The expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to review the common law and the legislative history of the offence in question and, in particular, the rationale behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie it. It is also appropriate to consider the state interest. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7 .
Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code . The long‑standing blanket prohibition in s. 241 (b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This state policy is part of our fundamental conception of the sanctity of life. A blanket prohibition on assisted suicide similar to that in s. 241 (b) also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. These societies, including Canada, recognize and generally apply the principle of the sanctity of life subject to narrow exceptions where notions of personal autonomy and dignity must prevail. Distinctions between passive and active forms of intervention in the dying process continue to be drawn and assisted suicide in situations such as the appellant's is prohibited with few exceptions. No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241 (b) therefore does not infringe s. 7 of the Charter .
As well, s. 241(b) of the Code does not infringe s. 12 of the Charter . The appellant is not subjected by the state to any form of cruel and unusual treatment or punishment. Even assuming that "treatment" within the meaning of s. 12 may include that imposed by the state in contexts other than penal or quasi‑penal, a mere prohibition by the state on certain action cannot constitute "treatment" under s. 12 . There must be some more active state process in operation, involving an exercise of state control over the individual, whether it be positive action, inaction or prohibition. To hold that the criminal prohibition in s. 241 (b), without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of being "subjected to . . . treatment" by the state.
It is preferable in this case not to decide the difficult and important issues raised by the application of s. 15 of the Charter , but rather to assume that the prohibition on assisted suicide in s. 241(b) of the Code infringes s. 15 , since any infringement of s. 15 by s. 241 (b) is clearly justified under s. 1 of the Charter . Section 241 (b) has a pressing and substantial legislative objective and meets the proportionality test. A prohibition on giving assistance to commit suicide is rationally connected to the purpose of s. 241 (b), which is to protect and maintain respect for human life. This protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to protect life and those who are vulnerable in society effectively, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to modify this approach by creating exceptions or formulating safeguards to prevent excesses have been unsatisfactory. Section 241 (b) is thus not overbroad since there is no halfway measure that could be relied upon to achieve the legislation's purpose fully. In dealing with this contentious, complex and morally laden issue, Parliament must be accorded some flexibility. In light of the significant support for s. 241 (b) or for this type of legislation, the government had a reasonable basis for concluding that it had complied with the requirement of minimum impairment. Finally, the balance between the restriction and the government objective is also met.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): Section 241(b) of the Code infringes the right to security of the person included in s. 7 of the Charter . This right has an element of personal autonomy, which protects the dignity and privacy of individuals with respect to decisions concerning their own body. A legislative scheme which limits the right of a person to deal with her body as she chooses may violate the principles of fundamental justice under s. 7 if the limit is arbitrary. A particular limit will be arbitrary if it bears no relation to, or is inconsistent with, the objective that lies behind the legislation. When one is considering whether a law breaches the principles of fundamental justice under s. 7 by reason of arbitrariness, the focus is on whether a legislative scheme infringes a particular person's protected interests in a way that cannot be justified having regard to the objective of this scheme. The principles of fundamental justice require that each person, considered individually, be treated fairly by the law. The fear that abuse may arise if an individual is permitted that which she is wrongly denied plays no part at the s. 7 stage. Any balancing of societal interests against the interests of the individual should take place within the confines of s. 1 of the Charter . Here, Parliament has put into force a legislative scheme which makes suicide lawful but assisted suicide unlawful. The effect of this distinction is to deny to some people the choice of ending their lives solely because they are physically unable to do so, preventing them from exercising the autonomy over their bodies available to other people. The denial of the ability to end their life is arbitrary and hence amounts to a limit on the right to security of the person which does not comport with the principles of fundamental justice.
Section 241(b) of the Code is not justified under s. 1 of the Charter . The practical objective of s. 241 (b) is to eliminate the fear of lawful assisted suicide's being abused and resulting in the killing of persons not truly and willingly consenting to death. However, neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor the fear that consent to death may not in fact be given voluntarily, is sufficient to override appellant's entitlement under s. 7 to end her life in the manner and at the time of her choosing. The safeguards in the existing provisions of the Criminal Code largely meet the concerns about consent. The Code provisions, supplemented, by way of remedy, by a stipulation requiring a court order to permit the assistance of suicide in a particular case only when the judge is satisfied that the consent is freely given, will ensure that only those who truly desire to bring their lives to an end obtain assistance.
Section 15 of the Charter has no application in this case. This is not a case about discrimination and to treat it as such may deflect the equality jurisprudence from the true focus of s. 15 .
Although some of the conditions stated by Lamer C.J. seem unnecessary in this case, the remedy proposed is generally agreed with. What is required will vary from case to case. The essential in all cases is that the judge be satisfied that if and when the assisted suicide takes place, it will be with the full and free consent of the applicant.
Per Lamer C.J. (dissenting): Section 241(b) of the Code infringes the right to equality contained in s. 15(1) of the Charter . While, at first sight, s. 241 (b) is apparently neutral in its application, its effect creates an inequality since it prevents persons physically unable to end their lives unassisted from choosing suicide when that option is in principle available to other members of the public without contravening the law. This inequality ‑‑ the deprivation of the right to choose suicide ‑‑ may be characterized as a burden or disadvantage, since it limits the ability of those who are subject to this inequality to take and act upon fundamental decisions regarding their lives and persons. For them, the principles of self‑determination and individual autonomy, which are of fundamental importance in our legal system, have been limited. This inequality is imposed on persons unable to end their lives unassisted solely because of a physical disability, a personal characteristic which is among the grounds of discrimination listed in s. 15(1) .
Section 241(b) of the Code is not justifiable under s. 1 of the Charter . While the objective of protecting vulnerable persons from being pressured or coerced into committing suicide is sufficiently important to warrant overriding a constitutional right, s. 241 (b) fails to meet the proportionality test. The prohibition of assisted suicide is rationally connected to the legislative objective, but the means chosen to carry out the objective do not impair the appellant's equality rights as little as reasonably possible. The vulnerable are effectively protected under s. 241 (b) but the section is over‑inclusive. Those who are not vulnerable or do not wish the state's protection are also brought within the operation of s. 241 (b) solely as a result of a physical disability. An absolute prohibition that is indifferent to the individual or the circumstances cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible. The fear that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others does not justify the over‑inclusive reach of s. 241 (b).
In view of the findings under s. 15(1) , there is no need to address the constitutionality of the legislation under ss. 7 or 12 of the Charter .
Pursuant to s. 52(1) of the Constitution Act, 1982 , s. 241 (b) is declared to be of no force or effect, on the condition that the effect of this declaration be suspended for one year from the date of this judgment to give Parliament adequate time to decide what, if any, legislation should replace s. 241 (b). While a personal remedy under s. 24(1) of the Charter is rarely available in conjuncture with action under s. 52(1) , it is appropriate in this case to grant the appellant, subject to compliance with certain stated conditions, a constitutional exemption from the operation of s. 241 (b) during the period of suspension. A constitutional exemption may only be granted during the period of a suspended declaration of invalidity. During that one‑year suspension period, this exemption will also be available to all persons who are or will become physically unable to commit unassisted suicide and whose equality rights are infringed by s. 241 (b), and it may be granted by a superior court upon application if the stated conditions, or similar conditions tailored to meet the circumstances of particular cases, are met.
Per Cory J. (dissenting): Substantially for the reasons given by Lamer C.J. and McLachlin J., s. 241(b) of the Code infringes ss. 7 and 15(1) of the Charter and is not justifiable under s. 1 of the Charter .
Section 7 of the Charter , which grants Canadians a constitutional right to life, liberty and the security of the person, is a provision which emphasizes the innate dignity of human existence. Dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7 . It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity.
There is no difference between permitting a patient of sound mind to choose death with dignity by refusing treatment and permitting a patient of sound mind who is terminally ill to choose death with dignity by terminating life preserving treatment, even if, because of incapacity, that step has to be physically taken by another on her instructions. Nor is there any reason for failing to extend that same permission so that a terminally ill patient facing death may put an end to her life through the intermediary of another. Since the right to choose death is open to patients who are not physically handicapped, there is no reason for denying that choice to those that are. This choice for a terminally ill patient would be subject to conditions. With those conditions in place, s. 7 of the Charter can be applied to enable a court to grant the relief proposed by Lamer C.J.
Section 15(1) of the Charter can also be applied to grant the same relief at least to handicapped terminally ill patients.
Cases Cited
By Sopinka J.
Applied: R. v. Morgentaler, [1988] 1 S.C.R. 30; referred to: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Cunningham v. Canada, [1993] 2 S.C.R. 143; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Nancy B. v. Hôtel‑Dieu de Québec (1992), 86 D.L.R. (4th) 385; Malette v. Shulman (1990), 72 O.R. (2d) 417; Cruzan v. Director, Missouri Health Department (1990), 111 L. Ed. 2d 224; Airedale N.H.S. Trust v. Bland, [1993] 2 W.L.R. 316; Application No. 10083/82, R. v. United Kingdom, July 4, 1983, D.R. 33, p. 270; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Smith, [1987] 1 S.C.R. 1045; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Soenen v. Director of Edmonton Remand Centre (1983), 6 C.R.R. 368; R. v. Blakeman (1988), 48 C.R.R. 222; Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369 (T.D.), rev'd on other grounds, [1989] 1 F.C. 18 (C.A.); Howlett v. Karunaratne (1988), 64 O.R. (2d) 418; Re McTavish and Director, Child Welfare Act (1986), 32 D.L.R. (4th) 394; Carlston v. New Brunswick (Solicitor General) (1989), 43 C.R.R. 105; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.
By McLachlin J. (dissenting)
R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Swain, [1991] 1 S.C.R. 933; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Beare, [1988] 2 S.C.R. 387; Cunningham v. Canada, [1993] 2 S.C.R. 143.
By Lamer C.J. (dissenting)
R. v. Morgentaler, [1988] 1 S.C.R. 30; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Burke v. Prince Edward Island (1991), 93 Nfld. & P.E.I.R. 356; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Schachter v. Canada, [1992] 2 S.C.R. 679; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Swain, [1991] 1 S.C.R. 933; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, [1985] 3 W.W.R. 717; Tremblay v. Daigle, [1989] 2 S.C.R 530; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Egan and Nesbit v. Canada (1993), 153 N.R. 161; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; R. v. Oakes, [1986] 1 S.C.R. 103; Malette v. Shulman (1990), 72 O.R. (2d) 417; Nancy B. v. Hôtel‑Dieu de Québec (1992), 86 D.L.R. (4th) 385; R. v. Jobidon, [1991] 2 S.C.R. 714; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Chaulk, [1990] 3 S.C.R. 1303; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Nelles v. Ontario, [1989] 2 S.C.R. 170; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Seaboyer, [1991] 2 S.C.R. 577, aff'g (1987), 35 C.R.R. 300 (Ont. C.A.); Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Cory J. (dissenting)
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Morgentaler, [1988] 1 S.C.R. 30; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Statutes and Regulations Cited
Austrian Penal Act 1945, s. 139b.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 , 15(1) , 24(1) .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C., 1985, ch. C‑46, ss. 14 , 215 [am. 1991, c. 43, s. 9 (Sch., item 2)], 241(a) [am. c. 27 (1st Supp.), s. 7(3)], (b).
Criminal Code, 1892, S.C. 1892, c. 29, ss. 237, 238.
Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 16.
Penal Code (Denmark), art. 240.
Penal Code (France), arts. 63, 318‑1, 318‑2, 319.
Penal Code (Italy), art. 580.
Penal Code (Spain), art. 409.
Penal Code (Switzerland), art. 115.
Suicide Act, 1961 (U.K.), 9 & 10 Eliz. 2, c. 60, s. 2.
Authors Cited
Blackstone, William. Commentaries on the Laws of England, vol. 4, Oxford: Clarendon Press, 1769.
Burbidge, George Wheelock. A Digest of the Criminal Law of Canada. Toronto: Carswell, 1890.
Canada. Law Reform Commission. Report 20. Euthanasia, Aiding Suicide and Cessation of Treatment. Ottawa: Minister of Supply and Services Canada, 1983.
Canada. Law Reform Commission. Working Paper 28. Euthanasia, Aiding Suicide and Cessation of Treatment. Ottawa: Minister of Supply and Services Canada, 1982.
Colvin, Eric. "Section Seven of the Canadian Charter of Rights and Freedoms " (1989), 68 Can. Bar Rev. 560.
Depaule, Léon. "Le droit à la mort: rapport juridique" (1974), 7 Human Rights Journal 464.
Dworkin, Ronald. Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Knopf, 1993.
Guillon, Claude, et Yves Le Bonniec. Suicide, mode d'emploi: histoire, technique, actualité. Paris: A. Moreau, 1982.
Keyserlingk, Edward W. Sanctity of Life or Quality of Life in the Context of Ethics, Medicine and Law. A study written for the Law Reform Commission of Canada. Ottawa: Minister of Supply and Services Canada, 1979.
Note. "Physician‑Assisted Suicide and the Right to Die with Assistance" (1992), 105 Harv. L. Rev. 2021.
Otlowski, Margaret. "Mercy Killing Cases in the Australian Criminal Justice System" (1993), 17 Crim. L.J. 10.
Penrose, Mary Margaret. "Assisted Suicide: A Tough Pill to Swallow" (1993), 20 Pepp. L. Rev. 689.
Shaffer, Catherine D. "Criminal Liability for Assisting Suicide" (1986), 86 Colum. L. Rev. 348.
Somerville, Margaret A. "Pain and Suffering at Interfaces of Medicine and Law" (1986), 36 U.T.L.J. 286.
Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, N.Y.: Foundation Press, 1988.
Velasquez, Manuel G. "Defining Suicide" (1987), 3 Issues in Law & Medicine 37.
Williams, Glanville. The Sanctity of Life and the Criminal Law. New York: Knopf, 1957.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 76 B.C.L.R. (2d) 145, 22 B.C.A.C. 266, 38 W.A.C. 266, 14 C.R.R. (2d) 34, 79 C.C.C. (3d) 1, [1993] 3 W.W.R. 553, dismissing the appellant's appeal from a judgment of Melvin J. (1992), 18 W.C.B. (2d) 279, [1993] B.C.W.L.D. 347, dismissing the appellant's application for an order declaring s. 241 of the Criminal Code invalid. Appeal dismissed, Lamer C.J. and L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting.
Christopher M. Considine and Philip N. Williams, for the appellant.
James D. Bissell, Q.C., and Johannes A. Van Iperen, Q.C., for the respondent the Attorney General of Canada.
George H. Copley, for the respondent the Attorney General of British Columbia.
James F. Sayre and James W. Pozer, for the intervener British Columbia Coalition of People with Disabilities.
Martin H. Campbell and Nancy E. Mills, for the intervener Dying with Dignity.
Robyn M. Bell, for the intervener Right to Die Society of Canada.
Anne M. Molloy and Janet L. Budgell, for the intervener COPOH.
A. G. Henderson, Q.C., and Neil Milton, for the interveners Pro-Life Society of British Columbia and Pacific Physicians for Life Society.
Robert M. Nelson and Todd J. Burke, for the interveners Canadian Conference of Catholic Bishops and Evangelical Fellowship of Canada.
G. Patrick S. Riley and John A. Myers, for the intervener People in Equal Participation Inc.
The following are the reasons delivered by
Lamer C.J. (dissenting) --
I.Facts
The facts of this case are straightforward and well known. Sue Rodriguez is a 42-year-old woman living in British Columbia. She is married and the mother of an 8½-year-old son. Ms. Rodriguez suffers from amyotrophic lateral sclerosis (ALS), which is widely known as Lou Gehrig's disease; her life expectancy is between 2 and 14 months but her condition is rapidly deteriorating. Very soon she will lose the ability to swallow, speak, walk and move her body without assistance. Thereafter she will lose the capacity to breathe without a respirator, to eat without a gastrotomy and will eventually become confined to a bed.
Ms. Rodriguez knows of her condition, the trajectory of her illness and the inevitability of how her life will end; her wish is to control the circumstances, timing and manner of her death. She does not wish to die so long as she still has the capacity to enjoy life. However, by the time she no longer is able to enjoy life, she will be physically unable to terminate her life without assistance. Ms. Rodriguez seeks an order which will allow a qualified medical practitioner to set up technological means by which she might, by her own hand, at the time of her choosing, end her life.
Ms. Rodriguez applied to the Supreme Court of British Columbia for an order that s. 241 (b) of the Criminal Code, R.S.C., 1985, c. C-46 , be declared invalid, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , on the ground that it violates her rights under ss. 7 , 12 and 15(1) of the Charter , and was therefore, to the extent it prohibits a terminally ill person from committing "physician-assisted" suicide, of no force and effect by virtue of s. 52(1) of the Constitution Act, 1982 . Melvin J. of the Supreme Court of British Columbia dismissed the appellant's application: (1992), 18 W.C.B. (2d) 279, [1993] B.C.W.L.D. 347. The British Columbia Court of Appeal dismissed the appellant's appeal, McEachern C.J.B.C. dissenting: (1993), 76 B.C.L.R. (2d) 145, 22 B.C.A.C. 266, 38 W.A.C. 266, 14 C.R.R. (2d) 34, 79 C.C.C. (3d) 1, [1993] 3 W.W.R. 553.
II.Relevant Statutory Provisions
The relevant provision of the Criminal Code is as follows:
241.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.
The relevant sections of the Charter are as follows:
1. 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.
7. 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.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
15. (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.
III.Judgments Below
Supreme Court of British Columbia
In order to determine whether a right or freedom had been infringed, Melvin J. considered the nature of the right claimed by the appellant, i.e., her right to enjoy her remaining life with the inherent dignity of a human person, the right to control what happens to her body while she is living and the right to have control over the timing, method and circumstances of her death. In the context of s. 7 , Melvin J. noted that the appellant based her argument not on a "right to suicide", but on a right to "die with dignity".
Melvin J. observed that in R. v. Morgentaler, [1988] 1 S.C.R. 30, the majority of the Court struck down s. 251 of the Code as violating a woman's s. 7 right to security of the person on the basis that the effect of the law was to limit a woman's ability to obtain effective and timely "medical treatment". Applying this finding to the case before him, Melvin J. reached the following conclusion:
As to the submission that the right to life, liberty and security of the person of the petitioner and her fundamental choices are affected by s. 241 , in my opinion, s. 241 does not impact on her choices. Her choice can be made; the difficulty that she faces is the impact of this disease with reference to the timing of the event she wishes to occur. At best, all the petitioner would have, absent s. 241 , would be an opportunity to request a medical professional to assist her in achieving her goal.
Thus, as no physician has a duty to perform the act that the appellant seeks a right to obtain, the right cannot, by definition, be enforced. If anything, the trial judge argued, s. 241 (b) interferes with the right of a doctor to assist the appellant if he or she wished to do so. To grant Ms. Rodriguez a remedy under the Charter , would, in Melvin J.'s view, be tantamount to imposing a duty on physicians to assist patients who choose to terminate their own lives, which would be "diametrically opposed to the underlying hypothesis upon which a Charter of Rights and Freedoms is based, namely, the sanctity of human life".
Melvin J. proceeded to review the purpose of s. 7 and the "Legal Rights" as entrenched under the Charter . Based on this analysis, he found that s. 7 will generally come into play when a person is placed in the justice system, and specifically, under the threat of penal sanction or detention. According to the trial judge, Ms. Rodriguez would not come into contact with the criminal justice system regardless of what action she takes; rather, it is the party who assists her in committing suicide who may be placed in jeopardy. In light of this, Melvin J. stated the following:
Her fundamental decisions concerning her life are not restricted by the state. Her illness may restrict her ability to implement her decisions but, in my opinion, that does not amount to an infringement of a right to life, liberty or security of the person by the state. The interests she seeks to protect pursuant to s. 7 are not those which determine the means by which she may be brought before or within the justice system.
According to the trial judge, the appellant was asking the court to go beyond the judicial domain and into the realm of general public policy, which, as this Court cautioned in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, courts should refrain from doing. Melvin J. concluded that it was the illness from which Ms. Rodriguez suffers, not the state or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death. Also for this reason, the trial judge found no application of the protection afforded by s. 12 to be free from cruel or unusual treatment.
The trial judge referred to Burke v. Prince Edward Island (1991), 93 Nfld. & P.E.I.R. 356 (P.E.I.S.C.), as the only Canadian authority regarding the legal status of suicide. In Burke, the court had asserted that s. 7 protects the right to life not to death. Melvin J. added that "[t]o interpret s. 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person". Having found no constitutional right at issue under s. 7 of the Charter in this case, the trial judge correspondingly found no violation under s. 7 in the operation of s. 241 of the Code.
With respect to the appellant's claim under s. 15(1) , Melvin J. rejected the argument that because it is not unlawful to refuse life-saving or life-prolonging medical treatment, or to commit suicide, or to accelerate death through therapeutic doses of pain relievers, to make physician-assisted suicide unlawful discriminates against physically disabled people in the position of Ms. Rodriguez. The trial judge concluded that "[s]ection 241 does not, in my opinion, single out the physically disabled. It is designed to protect, not discriminate; consequently, in my opinion, there has been no violation of that section of the Charter ".
Finally, in obiter, with respect to whether, should an infringement of the Charter be found by a higher court, such an infringement could be saved under s. 1 , Melvin J. declared that s. 241 would constitute a reasonable limit on the Charter , demonstrably justifiable in a free and democratic society. He reasoned that s. 241 safeguards the welfare of persons making the decision to terminate their life in "a moment of weakness" or those who are especially vulnerable to the influence of others, and prevents the possibilities for abuse which arise in sanctioning those who, regardless of motive, aid and abet in the termination of another's life.
British Columbia Court of Appeal
McEachern C.J.B.C., dissenting
McEachern C.J. commenced his analysis by outlining the history of the assisted suicide provision at common law and in statutory form. McEachern C.J. characterized this evolution as leading towards what he subsequently referred to as "a fairly recent, enlightened medical-jurisprudential trend towards greater humanity and sensitivity towards the awful problems of terminally ill citizens" (p. 163).
McEachern C.J. canvassed the various options open to the terminally ill which are lawful in Canada, including the right to refuse medical treatment and the right to terminate life-supporting devices. He emphasized however, that should a terminally ill patient opt for physician-assisted suicide, this would not only be unlawful for the doctor, but also could subject the patient to charges of conspiracy and, until his or her death, to the charge of being a party to commit the offence by those assisting him or her.
McEachern C.J. rejected the appellant's contention that the reasonable management of terminal illness does not engage the common law, stating that physician-assisted suicide could not be considered palliative care. According to McEachern C.J., the only route open to Ms. Rodriguez was under the Charter . After reviewing the nature of the purposive inquiry into Charter rights and its relation to questions of human dignity, McEachern C.J. held the following (at p. 158):
Considering the nature of the rights protected by the Charter in other cases, I have no doubt that a terminally ill person facing what the Appellant faces qualifies under the value system upon which the Charter is based to protection under the rubric of either liberty or security of her person. This would include at least the lawful right of a terminally ill person to terminate her own life, and, in my view, to assistance under proper circumstances.
It would be wrong, in my view, to judge this case as a contest between life and death. The Charter is not concerned only with the fact of life, but also with the quality and dignity of life. In my view, death and the way we die is a part of life itself.
McEachern C.J. supported this finding principally through reliance on the Morgentaler decision, and specifically passages highlighting the flexibility of the protection afforded by the "liberty" and "security of the person" components of s. 7 . In his view, a prima facie violation of both these components of s. 7 arises when the state imposes prohibitions that have the effect of prolonging the physical and psychological suffering of a person. The question to which McEachern C.J. then turned is whether this deprivation of a terminally ill person's rights under s. 7 may be said to have been done in accordance with the principles of fundamental justice.
McEachern C.J. found in Morgentaler support for the position that a provision which operates unequally or causes manifest unfairness would not conform to the substantive element of the principles of fundamental justice. Further, based on the decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, McEachern C.J. established that the substantive element of fundamental justice is not confined to matters described in ss. 8 to 14 of the Charter . He pointed out at p. 161 that in Motor Vehicle, at p. 512, I had held fundamental justice to include whatever might reasonably be expected in and from a s