Carter v. Canada (Attorney General)

Carter v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2015-02-06
Neutral citation
2015 SCC 5
Report
[2015] 1 SCR 331
Case number
35591
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
British Columbia
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 35591
Decision Content
SUPREME COURT OF CANADA
Citation: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331
Date: 20150206 Docket: 35591
Between:
Lee Carter, Hollis Johnson, William Shoichet,
British Columbia Civil Liberties Association and Gloria Taylor
Appellants
and
Attorney General of Canada
Respondent
And Between:
Lee Carter, Hollis Johnson, William Shoichet,
British Columbia Civil Liberties Association and Gloria Taylor
Appellants
and
Attorney General of Canada and Attorney General of British Columbia
Respondents
- and -
Attorney General of Ontario, Attorney General of Quebec,
Council of Canadians with Disabilities, Canadian Association for Community Living, Christian Legal Fellowship, Canadian HIV/AIDS Legal Network,
HIV & AIDS Legal Clinic Ontario, Association for Reformed Political Action Canada, Physicians’ Alliance against Euthanasia, Evangelical Fellowship of Canada,
Christian Medical and Dental Society of Canada, Canadian Federation of Catholic Physicians’ Societies, Dying With Dignity, Canadian Medical Association,
Catholic Health Alliance of Canada, Criminal Lawyers’ Association (Ontario),
Farewell Foundation for the Right to Die, Association québécoise pour le droit de mourir dans la dignité, Canadian Civil Liberties Association, Catholic Civil Rights League,
Faith and Freedom Alliance, Protection of Conscience Project, Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society,
Canadian Unitarian Council, Euthanasia Prevention Coalition and
Euthanasia Prevention Coalition — British Columbia
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment: (paras. 1 to 148)
The Court
carter v. canada (attorney general), 2015 SCC 5, [2015] 1 S.C.R. 331
Lee Carter, Hollis Johnson, William Shoichet,
British Columbia Civil Liberties Association and Gloria Taylor Appellants
v.
Attorney General of Canada Respondent
- and -
Lee Carter, Hollis Johnson, William Shoichet,
British Columbia Civil Liberties Association and Gloria Taylor Appellants
v.
Attorney General of Canada and
Attorney General of British Columbia Respondents
and
Attorney General of Ontario,
Attorney General of Quebec,
Council of Canadians with Disabilities,
Canadian Association for Community Living,
Christian Legal Fellowship,
Canadian HIV/AIDS Legal Network,
HIV & AIDS Legal Clinic Ontario,
Association for Reformed Political Action Canada,
Physicians’ Alliance against Euthanasia,
Evangelical Fellowship of Canada,
Christian Medical and Dental Society of Canada,
Canadian Federation of Catholic Physicians’ Societies,
Dying With Dignity,
Canadian Medical Association,
Catholic Health Alliance of Canada,
Criminal Lawyers’ Association (Ontario),
Farewell Foundation for the Right to Die,
Association québécoise pour le droit de mourir dans la dignité,
Canadian Civil Liberties Association,
Catholic Civil Rights League,
Faith and Freedom Alliance,
Protection of Conscience Project,
Alliance of People With Disabilities Who are Supportive of
Legal Assisted Dying Society,
Canadian Unitarian Council,
Euthanasia Prevention Coalition and
Euthanasia Prevention Coalition — British Columbia Interveners
Indexed as: Carter v. Canada (Attorney General)
2015 SCC 5
File No.: 35591.
2014: October 15; 2015: February 6.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
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) , (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 s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of 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 s. 24(1) of Canadian Charter of Rights and Freedoms should be granted.
Courts — 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 award against Attorney General justified.
Section 241 (b) of the Criminal Code says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit 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 violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1 of the Charter . 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 percent 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 this Court’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 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 s. 7 or the corresponding analysis under s. 1. However, he concluded that the trial judge was bound by the conclusion in Rodriguez that any s. 15 infringement was saved by s. 1.
Held: The appeal should be allowed. Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or 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 (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity is suspended for 12 months. 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.
The trial judge was entitled to revisit this Court’s decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations: (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. Here, both conditions were met. The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth 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 is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 , and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician-assisted dying may 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 cannot succeed.
Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241 (b) and 14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under s. 7 of the Charter . The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has 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 deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.
The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is 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 helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principle against gross disproportionality.
Having concluded that the prohibition on physician-assisted dying violates s. 7, it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter .
Sections 241 (b) and 14 of the Criminal Code are not saved by s. 1 of the Charter . While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition on physician-assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is 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 are 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 can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is 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 is 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 will need to be reconciled in any legislative and regulatory response to this judgment.
The appellants are 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 may depart from the usual rule on costs and award special costs where two criteria are met. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not been previously resolved or that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. Finally, only those costs that are shown to be reasonable and prudent will be covered by the award of special costs. Here, 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 percent of the costs against the Attorney General of British Columbia 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 Attorney General and the extent to which it shared carriage of the case.
Cases Cited
Distinguished: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; applied: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; disapproved: Victoria (City) v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28; referred to: Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); Pretty v. United Kingdom, No. 2346/02, ECHR 2002-III; Fleming v. Ireland, [2013] IESC 19; R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Schneider v. The Queen, [1982] 2 S.C.R. 112; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Morgentaler, [1988] 1 S.C.R. 30; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; R. v. Parker (2000), 49 O.R. (3d) 481; Fleming v. Reid (1991), 4 O.R. (3d) 74; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Malette v. Shulman (1990), 72 O.R. (2d) 417; Nancy B. v. Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th) 385; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Swain, [1991] 1 S.C.R. 933; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Hegeman v. Carter, 2008 NWTSC 48, 74 C.P.C. (6th) 112; Polglase v. Polglase (1979), 18 B.C.L.R. 294.
Statutes and Regulations Cited
Act respecting end-of-life care, CQLR, c. S-32.0001 [not yet in force].
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 15 .
Constitution Act, 1867 , ss. 91 , 92 .
Constitution Act, 1982 , s. 52 .
Criminal Code , R.S.C. 1985, c. C-46, ss. 14 , 21 , 22 , 212(1) (j), 222 , 241 .
Authors Cited
Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter ” (1995), 74 Can. Bar Rev. 446.
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Newbury and Saunders JJ.A.), 2013 BCCA 435, 51 B.C.L.R. (5th) 213, 302 C.C.C. (3d) 26, 365 D.L.R. (4th) 351, 293 C.R.R. (2d) 109, 345 B.C.A.C. 232, 589 W.A.C. 232, [2014] 1 W.W.R. 211, [2013] B.C.J. No. 2227 (QL), 2013 CarswellBC 3051 (WL Can.), setting aside decisions of Smith J., 2012 BCSC 886, 287 C.C.C. (3d) 1, 261 C.R.R. (2d) 1, [2012] B.C.J. No. 1196 (QL), 2012 CarswellBC 1752 (WL Can.); and 2012 BCSC 1587, 271 C.R.R. (2d) 224, [2012] B.C.J. No. 2259 (QL), 2012 CarswellBC 3388 (WL Can.). Appeal allowed.
Joseph J. Arvay, Q.C., Sheila M. Tucker and Alison M. Latimer, for the appellants.
Robert J. Frater and Donnaree Nygard, for the respondent the Attorney General of Canada.
Bryant Mackey, for the respondent the Attorney General of British Columbia.
S. Zachary Green, for the intervener the Attorney General of Ontario.
Jean-Yves Bernard and Sylvain Leboeuf, for the intervener the Attorney General of Quebec.
David Baker and Emily Shepard, for the interveners the Council of Canadians with Disabilities and the Canadian Association for Community Living.
Gerald D. Chipeur, Q.C., for the intervener the Christian Legal Fellowship.
Written submissions only by Gordon Capern, Michael Fenrick, Richard Elliott and Ryan Peck, for the interveners the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario.
André Schutten, for the intervener the Association for Reformed Political Action Canada.
Pierre Bienvenu, Andres C. Garin and Vincent Rochette, for the intervener the Physicians’ Alliance against Euthanasia.
Geoffrey Trotter, for the intervener the Evangelical Fellowship of Canada.
Albertos Polizogopoulos, for the interveners the Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies.
Written submissions only by Cynthia Petersen and Kelly Doctor, for the intervener Dying With Dignity.
Harry Underwood and Jessica Prince, for the intervener the Canadian Medical Association.
Albertos Polizogopoulos and Russell G. Gibson, for the intervener the Catholic Health Alliance of Canada.
Marlys A. Edwardh and Daniel Sheppard, for the intervener the Criminal Lawyers’ Association (Ontario).
Jason B. Gratl, for the interveners the Farewell Foundation for the Right to Die and Association québécoise pour le droit de mourir dans la dignité.
Christopher D. Bredt and Margot Finley, for the intervener the Canadian Civil Liberties Association.
Robert W. Staley, Ranjan K. Agarwal, Jack R. Maslen and Philip H. Horgan, for the interveners the Catholic Civil Rights League, the Faith and Freedom Alliance and the Protection of Conscience Project.
Angus M. Gunn, Q.C., and Duncan A. W. Ault, for the intervener the Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society.
Tim Dickson and Ryan J. M. Androsoff, for the intervener the Canadian Unitarian Council.
Hugh R. Scher, for the interveners the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition — British Columbia.
Table of Contents
Paragraph
I. Introduction. 4 II. Background. 5 III. Statutory Provisions. 14 IV. Judicial History. 16 A. British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1. 16 B. British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 213. 22 V. Issues on Appeal 25 VI. Was the Trial Judge Bound by Rodriguez?. 25 VII. Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction Over Health?. 28 VIII. Section 7. 31 A. Does the Law Infringe the Right to Life, Liberty and Security of the Person?. 32 (1) Life. 32 (2) Liberty and Security of the Person. 35 (3) Summary on Section 7: Life, Liberty and Security of the Person. 38 B. The Principles of Fundamental Justice. 39 (1) Arbitrariness. 44 (2) Overbreadth. 44 (3) Gross Disproportionality. 46 (4) Parity. 47 IX. Does the Prohibition on Assisted Suicide Violate Section 15 of the Charter ?. 48 X. Section 1. 48 (1) Rational Connection. 50 (2) Minimal Impairment 51 (a).. Canada’s Challenge to the Facts. 54 (b).. The Fresh Evidence. 55 (c).. The Feasibility of Safeguards and the Possibility of a “Slippery Slope”. 57 (3) Deleterious Effects and Salutary Benefits. 61 XI. Remedy. 61 A. The Court of Appeal’s Proposed Constitutional Exemption. 61 B. Declaration of Invalidity. 62 XII. Costs. 65 XIII. Conclusion. 70
1 5 19 22 22
34 40 42
49 54
57 57 64 70 71 83 85 89 91
93 94 99 102 108 110
114 122 124 124 126 133 147
The following is the judgment delivered by
The Court —
I. Introduction
[1] It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
[2] The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person (s. 7) and to equal treatment by and under the law (s. 15). This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.
[3] The trial judge found that the prohibition violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition. She concluded that this infringement is not justified under s. 1 of the Charter . We agree. The trial judge’s findings were based on an exhaustive review of the extensive record before her. The evidence supports her conclusion that the violation of the right to life, liberty and security of the person guaranteed by s. 7 of the Charter is severe. It also supports her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.
[4] We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person 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. We therefore allow the appeal.
II. Background
[5] In Canada, aiding or abetting a person to commit suicide is a criminal offence: see s. 241 (b) of the Criminal Code , R.S.C. 1985, c. C-46 . This means that a person cannot seek a physician-assisted death. Twenty-one years ago, this Court upheld this blanket prohibition on assisted suicide by a slim majority: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. Sopinka J., writing for five justices, held that the prohibition did not violate s. 7 of the Canadian Charter of Rights and Freedoms , and that if it violated s. 15, this was justified under s. 1, as there was “no halfway measure that could be relied upon with assurance” to protect the vulnerable (p. 614). Four justices disagreed. McLachlin J. (as she then was), with L’Heureux-Dubé J. concurring, concluded that the prohibition violated s. 7 of the Charter and was not justified under s. 1. Lamer C.J. held that the prohibition violated s. 15 of the Charter and was not saved under s. 1. Cory J. agreed that the prohibition violated both ss. 7 and 15 and could not be justified.
[6] Despite the Court’s decision in Rodriguez, the debate over physician-assisted dying continued. Between 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide. None was passed. While opponents to legalization emphasized the inadequacy of safeguards and the potential to devalue human life, a vocal minority spoke in favour of reform, highlighting the importance of dignity and autonomy and the limits of palliative care in addressing suffering. The Senate considered the matter as well, issuing a report on assisted suicide and euthanasia in 1995. The majority expressed concerns about the risk of abuse under a permissive regime and the need for respect for life. A minority supported an exemption to the prohibition in some circumstances.
[7] More recent reports have come down in favour of reform. In 2011, the Royal Society of Canada published a report on end-of-life decision-making and recommended that the Criminal Code be modified to permit assistance in dying in some circumstances. The Quebec National Assembly’s Select Committee on Dying with Dignity issued a report in 2012, recommending amendments to legislation to recognize medical aid in dying as appropriate end-of-life care (now codified in An Act respecting end-of-life care, CQLR, c. S-32.0001 (not yet in force)).
[8] The legislative landscape on the issue of physician-assisted death has changed in the two decades since Rodriguez. In 1993 Sopinka J. noted that no other Western democracy expressly permitted assistance in dying. By 2010, however, eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana, and Colombia. The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. Colombia followed in 1997, after a decision of the constitutional court. The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009. Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.
[9] Nevertheless, physician-assisted dying remains a criminal offence in most Western countries, and a number of courts have upheld the prohibition on such assistance in the face of constitutional and human rights challenges: see, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); Pretty v. United Kingdom, No. 2346/02, ECHR 2002-III; and Fleming v. Ireland, [2013] IESC 19. In a recent decision, a majority of the Supreme Court of the United Kingdom accepted that the absolute prohibition on assisted dying breached the claimants’ rights, but found the evidence on safeguards insufficient; the court concluded that Parliament should be given an opportunity to debate and amend the legislation based on the court’s provisional views (see R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843).
[10] The debate in the public arena reflects the ongoing debate in the legislative sphere. Some medical practitioners see legal change as a natural extension of the principle of patient autonomy, while others fear derogation from the principles of medical ethics. Some people with disabilities oppose the legalization of assisted dying, arguing that it implicitly devalues their lives and renders them vulnerable to unwanted assistance in dying, as medical professionals assume that a disabled patient “leans towards death at a sharper angle than the acutely ill — but otherwise non-disabled — patient” (2012 BCSC 886, 287 C.C.C. (3d) 1, at para. 811). Other people with disabilities take the opposite view, arguing that a regime which permits control over the manner of one’s death respects, rather than threatens, their autonomy and dignity, and that the legalization of physician-assisted suicide will protect them by establishing stronger safeguards and oversight for end-of-life medical care.
[11] The impetus for this case arose in 2009, when Gloria Taylor was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness. ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe. Like Sue Rodriguez before her, Gloria Taylor did “not want to die slowly, piece by piece” or “wracked with pain,” and brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assistance in dying, specifically ss. 14, 21, 22, 222, and 241. She was joined in her claim by Lee Carter and Hollis Johnson, who had assisted Ms. Carter’s mother, Kathleen (“Kay”) Carter, in achieving her goal of dying with dignity by taking her to Switzerland to use the services of DIGNITAS, an assisted-suicide clinic; Dr. William Shoichet, a physician from British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association, which has a long-standing interest in patients’ rights and health policy and has conducted advocacy and education with respect to end-of-life choices, including assisted suicide.
[12] By 2010, Ms. Taylor’s condition had deteriorated to the point that she required a wheelchair to go more than a short distance and was suffering pain from muscle deterioration. She required home support for assistance with the daily tasks of living, something that she described as an assault on her privacy, dignity, and self-esteem. She continued to pursue an independent life despite her illness, but found that she was steadily losing the ability to participate fully in that life. Ms. Taylor informed her family and friends of a desire to obtain a physician-assisted death. She did not want to “live in a bedridden state, stripped of dignity and independence”, she said; nor did she want an “ugly death”. This is how she explained her desire to seek a physician-assisted death:
I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.
I know that I am dying, but I am far from depressed. I have some down time - that is part and parcel of the experience of knowing that you are terminal. But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality. There will come a point when I will know that enough is enough. I cannot say precisely when that time will be. It is not a question of “when I can’t walk” or “when I can’t talk.” There is no pre-set trigger moment. I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile.” When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good-bye and obtain final closure – for me and for them.
My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives. I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. . . .
. . .
. . . What I fear is a death that negates, as opposed to concludes, my life. I do not want to die slowly, piece by piece. I do not want to waste away unconscious in a hospital bed. I do not want to die wracked with pain.
[13] Ms. Taylor, however, knew she would be unable to request a physician-assisted death when the time came, because of the Criminal Code prohibition and the fact that she lacked the financial resources to travel to Switzerland, where assisted suicide is legal and available to non-residents. This left her with what she described as the “cruel choice” between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death.
[14] Other witnesses also described the “horrible” choice faced by a person suffering from a grievous and irremediable illness. The stories in the affidavits vary in their details: some witnesses described the progression of degenerative illnesses like motor neuron diseases or Huntington’s disease, while others described the agony of treatment and the fear of a gruesome death from advanced-stage cancer. Yet running through the evidence of all the witnesses is a constant theme — that they suffer from the knowledge that they lack the ability to bring a peaceful end to their lives at a time and in a manner of their own choosing.
[15] Some describe how they had considered seeking out the traditional modes of suicide but found that choice, too, repugnant:
I was going to blow my head off. I have a gun and I seriously considered doing it. I decided that I could not do that to my family. It would be horrible to put them through something like that. . . . I want a better choice than that.
A number of the witnesses made clear that they — or their loved ones — had considered or in fact committed suicide earlier than they would have chosen to die if physician-assisted death had been available to them. One woman noted that the conventional methods of suicide, such as carbon monoxide asphyxiation, slitting of the wrists or overdosing on street drugs, would require that she end her life “while I am still able bodied and capable of taking my life, well ahead of when I actually need to leave this life”.
[16] Still other witnesses described their situation in terms of a choice between a protracted or painful death and exposing their loved ones to prosecution for assisting them in ending their lives. Speaking of himself and his wife, one man said: “We both face this reality, that we have only two terrible and imperfect options, with a sense of horror and loathing.”
[17] Ms. Carter and Mr. Johnson described Kay Carter’s journey to assisted suicide in Switzerland and their role in facilitating that process. Kay was diagnosed in 2008 with spinal stenosis, a condition that results in the progressive compression of the spinal cord. By mid-2009, her physical condition had deteriorated to the point that she required assistance with virtually all of her daily activities. She had extremely limited mobility and suffered from chronic pain. As her illness progressed, Kay informed her family that she did not wish to live out her life as an “ironing board”, lying flat in bed. She asked her daughter, Lee Carter, and her daughter’s husband, Hollis Johnson, to support and assist her in arranging an assisted suicide in Switzerland, and to travel there with her for that purpose. Although aware that assisting Kay could expose them both to prosecution in Canada, they agreed to assist her. In early 2010, they attended a clinic in Switzerland operated by DIGNITAS, a Swiss “death with dignity” organization. Kay took the prescribed dose of sodium pentobarbital while surrounded by her family, and passed away within 20 minutes.
[18] Ms. Carter and Mr. Johnson found the process of planning and arranging for Kay’s trip to Switzerland difficult, in part because their activities had to be kept secret due to the potential for criminal sanctions. While they have not faced prosecution in Canada following Kay’s death, Ms. Carter and Mr. Johnson are of the view that Kay ought to have been able to obtain a physician-assisted suicide at home, surrounded by her family and friends, rather than undergoing the stressful and expensive process of arranging for the procedure overseas. Accordingly, they joined Ms. Taylor in pressing for the legalization of physician-assisted death.
III. Statutory Provisions
[19] The appellants challenge the constitutionality of the following provisions of the Criminal Code :
14. 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.
21. (1) Every one is a party to an offence who
. . .
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
. . .
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence