Carter v Canada (Attorney General)

Background

In 1972, the Canadian government repealed the Criminal Code provision prohibiting suicide. However, 241(b) of the Criminal Code provided that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 stated that no person may consent to death being inflicted on them. The Supreme Court denied a right to assisted suicide in their 1993 ruling Rodriguez v British Columbia (AG), upholding the constitutionality of the prohibitions based upon a thin evidentiary record.

In April 2011, the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit challenging both s. 14 and section 241(b) of Criminal Code (law that prohibits aiding a person to commit suicide), claiming they violated sections 7 (the right to "life, liberty, and security of the person) and 15(1) of the Canadian Charter of Rights and Freedoms (equality).

The case was heard at the Supreme Court of British Columbia, who ruled in favour of the BCCLA in June 2012. The federal government appealed the ruling to the Court of Appeal for British Columbia, who overturned the ruling in a two-to-one decision in October 2013. The BCCLA then filed a leave to appeal to the Supreme Court of Canada.

Reasons of the Court

The Court framed the issue at bar thus:

The Court found that section 241(b) and section 14 of the Criminal Code unjustifiably infringe section 7 of the Charter, and that this violation is not saved under section 1.

Stare decisis

The Court found that the trial judge was not bound by the Supreme Court's 1993 decision in Rodriguez v British Columbia (AG), instead holding that stare decisis is "not a straitjacket that condemns the law to stasis". The Court expanded on their discussion of the issue in Canada (AG) v Bedford by ruling that trial judges may reconsider the decisions of higher courts if there is a new legal issue at bar, and if circumstances or evidence have "fundamentally shift[ed] the parameters of the debate". The Court found that the section 7 legal issues raised in the case at bar differed from those in Rodriguez, noting in particular the development of the overbreadth and gross disproportionality principles since 1993. The court also determined that the trial judge was entitled to consider the different "matrix of legislative and social facts" that had arisen since Rodriguez.

Division of powers

The Court affirmed that section 241(b) of the Criminal Code fell within the federal government's section 91(27) criminal law power. Echoing their decision in Canada (AG) v PHS Community Services Society, the Court dismissed the appellants' argument that s 241(b) lay within the core of the provincial section 92 powers. Interjurisdictional immunity could not prevent the federal government from enacting the legislation, since the proposed core of the provincial health powers was overly vague. The Court reaffirmed that health is an area of concurrent jurisdiction, allowing both the federal and provincial legislatures to legislate in the area.

Public reaction and planned implementation

The decision was well received by many, but characterized as judicial activism by others. The British Columbia Civil Liberties Association, appellants at the Supreme Court, were "overjoyed" by the ruling, holding that "physician-assisted dying will now be recognized for what it is—a medical service". The day of the decision, Andrew Coyne wrote in his National Post column that the Court was being eerily complacent about ramifications of its decision. He also argued that the decision signaled the death of judicial restraint in Canada. Former politician Stockwell Day was particularly critical of the Court, saying "[I]f you want to write laws, you should run for office". In an op-ed published on CBC's website, he called for a nationwide debate concerning assisted-suicide legislation. In response to Carter, Conrad Black argued that politicians should invoke the notwithstanding clause to send a message to the court that Parliament is supreme.

The February 2015 Supreme Court decision in Carter v Canada (AG) limits physician-assisted suicides to “a competent adult person who clearly consents to the termination of life and 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 ruling was suspended for 12 months to allow the Canadian parliament to draft a new, constitutional law to replace the existing one.

The Canadian Medical Association (CMA) reported that not all doctors were willing to help a patient die. However, the belief in late 2015 was that no physician would be forced to do so but the CMA was offering educational sessions to members as to the process that would be used.

Specifically the Supreme Court held that the current legislation was overbroad in that it prohibits "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 government subsequently requested a six-month extension for implementation; the arguments for this request were scheduled to be heard by the Supreme Court in January 2016.

The court decision includes a requirement that there must be stringent limits that are “scrupulously monitored.” This will require the death certificate to be completed by an independent medical examiner, not the treating physician, to ensure the accuracy of reporting the cause of death.

Subsequent legislative history

After a lengthy delay, the House of Commons passed a Bill (C-14) in mid-June 2016 that would allow for doctor-assisted suicide in the case of a terminal illness. The bill was then debated in the Senate. Initially, the Senate amended the bill, expanding the right to die. However, when it became apparent that the elected House of Commons would not accept the amendment, a final vote was held on 17 June 2016. At that time, a majority agreed with the restrictive wording provided by the House of Commons indicating that "only patients suffering from incurable illness whose natural death is 'reasonably foreseeable' are eligible for a medically assisted death," as summarized by the Toronto Star. Critics of the Bill indicate that the Carter decision was broader, including desperately ill individuals and not only those who are terminally ill or near death. The House of Commons did accept a few Senate amendments, such as requiring that patients be counselled about alternatives, including palliative care and barring beneficiaries from acting in the euthanasia. The bill was given Royal assent the same day.

Senators such as Serge Joyal who disagree with the restrictive wording believe that one of the provinces should refer the issue to its Court of Appeal for an opinion; this tactic would help to move the process along and would preclude the need for individuals to proceed with a very expensive appeal process.