Consultations on Physician-Assisted Dying - Summary of Results and Key Findings

Part II - Relevant Legal Context

Although the Panel's revised mandate no longer requires that it set out legislative options in response to the Supreme Court of Canada's decision in Carter, some legal context is important to tell the reader about the principles that informed the Panel's investigation of physician-assisted dying. This part of the report begins with brief summaries of the relevant constitutional principles that guided the Panel's discussions, and ends with a summary of the Carter decision.

Chapter 2. Division of Federal and Provincial/Territorial Powers

There are few policy areas in which the respective roles of the federal and provincial/territorial governments are as complexly intertwined as in health. Part of this complexity stems from the division of federal and provincial powers as established in the Constitution Act, 1867. Sections 91 and 92 outline the areas of legislative authority of Parliament and the provincial legislatures, respectively. Because healthcare as it operates today was not contemplated at the time of Confederation, health is not an enumerated area of legislative authority and instead must be inferred from other sections.

A. The Federal Role in Health

The primary areas of federal responsibility under section 91 as they relate to physician-assisted death are the criminal law power, which is set out at section 91(27) and the federal spending power, which, although contested by some, is inferred by others from section 91(1A), which assigns to Parliament legislative authority over "The Public Debt and Property," as well as section 91(3), "The raising of Money by any Mode or System of Taxation."

The criminal law power as it relates to health has been interpreted as regulating or prohibiting practices that could be harmful to the health of Canadians. The Supreme Court has held that

Parliament has power to legislate with respect to federal matters, notably criminal law, that touch on health. For instance, it has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as "socially undesirable" behaviour.Footnote 2

The Supreme Court has also noted the following:

The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil.Footnote 3

One of the most notable examples of the federal spending power as it relates to health is the Canada Health Transfer,Footnote 4 addressed in the Canada Health ActFootnote 5. The federal government and the province of Québec have in the past referred to "asymmetrical federalism" to express respect for Québec's jurisdiction and a recognition of its "desire to exercise its own responsibilities with respect to planning, organizing and managing health services within its territory" when implementing a ten-year health care plan.Footnote 6

B. The Provincial Role in Health

The relevant areas of provincial responsibility as they relate to physician-assisted dying stem from section 92(7), "The Establishment, Maintenance and Management of Hospitals ... in and for the Province;" section 92(13), "Property and Civil Rights in the Province;" and section 92(16), "Generally all Matters of a merely local or private Nature in the Province." These sections are collectively interpreted as assigning to the provinces jurisdiction over health care delivery, health insurance and the regulation of health care professionals, which cover a broad range of issues in the Canadian healthcare system. The Supreme Court has made the following observation about the provinces' power over health: "The provincial health power is broad and extensive. It extends to thousands of activities and to a host of different venues."Footnote 7

C. Concurrent Jurisdiction

The Supreme Court in Carter made the following finding on federal and provincial jurisdiction as it relates to physician-assisted dying:

Health is an area of concurrent jurisdiction; both Parliament and the provinces may validly legislate on the topic ... This suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and focus of the legislation.

In making this finding, the Court was rejecting the arguments of the claimants and the provincial Attorneys General that intervened in Carter that there is a "protected core" of provincial responsibility over health. These groups argued that the enumerated areas of legislative authority under sections 91 and 92 of the Constitution Act, 1867 are "'exclusive,' and therefore each have a 'minimum and unassailable' core of content that is immune from the application of legislation enacted by the other level of government."Footnote 8 This argument is based on the legal principle of "interjurisdictional immunity," which prevents one level of government from enacting legislation in a "core" area of the other level of government's jurisdiction.

The Supreme Court rejected this argument. As it had in Canada (Attorney General) v. PHS Community Services Society (PHS), another recent decision at the intersection of health and criminal law, the Court set aside interjurisdictional immunity arguments proposing a core provincial power over health, favouring instead the principle of "concurrent" or shared jurisdiction. In PHS, the Court noted that rather than relying on interjurisdictional immunity as a guiding principle in the area of health, a more appropriate approach is that of "cooperative federalism:"

In the spirit of cooperative federalism, courts "should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest."... Where possible, courts should allow both levels of government to jointly regulate areas that fall within their jurisdiction.Footnote 9

The Court noted in PHS that the task of "drawing a bright line" distinguishing federal from provincial responsibilities in the area of health would be a "daunting" one.Footnote 10 This suggests that significant cooperation between the federal and provincial/territorial governments may be needed to ensure safe and equitable access to physician-assisted dying in Canada.

Chapter 3. Relevant Sections of the Charter

The Canadian Charter of Rights and Freedoms,Footnote 11 part of Canada's Constitution, sets out the rights and freedoms that Canada recognises as fundamental to any interaction between an individual and the state in this country. The most relevant sections of the Charter for the purposes of this report are the following:

  • Section 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;
  • Section 2(a): Everyone has the ... freedom of conscience and religion;
  • Section 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;
  • Section 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; and
  • Section 33: Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Section 7 was the primary focus of the Supreme Court's decision in Carter, and therefore is explored in the greatest depth of all the sections discussed above. Section 1 is discussed in the context of section 7. Although section 15 is not explicitly addressed in the Supreme Court's decision in Carter, it informed much of the Carter litigation and is therefore briefly explored. Section 33 arose in discussions with and submissions from many groups and individuals, and is therefore also addressed below.

The Supreme Court in Carter opted not to delve into the substance of the right encompassed in section 2(a) in the context of its discussion of physicians' right to conscientiously object to physician-assisted death. Furthermore, the Panel did not hear submissions that discussed conscientious objection explicitly within section 2(a). For these reasons, this section of the Charter will not be addressed in detail below.

A. Section 7: The Right to Life, Liberty and Security of the Person

Section 7 of the Canadian Charter of Rights and Freedoms guarantees "the right to life, liberty and security of the person." This part first explores the content of the rights protected by section 7 of the Charter. It then explains the test to determine whether there is a violation of section 7. Finally, it briefly sets out the justification of a section 7 breach under section 1 of the Charter.

1. Rights Protected under Section 7

Section 7 of the Charter states the following:

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.

The rights to life, liberty and security of the person are three distinct interests: a law that negatively impacts any one of the three engages section 7. The rights protected under section 7 are generally understood as "negative" rights-that is, while a law cannot limit the right to life, liberty and security of the person, section 7 does not impose a positive duty on government to ensure that all individuals have life, liberty and security of the person.Footnote 12

The right to life is engaged where there is a threat or heightened risk of death, and is generally not concerned with quality of life. Although the application of a law rarely causes death, an increased risk of death that results from a law can be a limit on the right to life. For example, in the case of Chaoulli v. Québec, the Supreme Court held that excessive wait times for certain procedures in Québec's public healthcare system affected the right to life since they increased the risk of death for patients.Footnote 13

The right to liberty, and in particular to physical liberty, is often engaged in the sphere of criminal law. A penalty of imprisonment is an obvious example of a restriction on physical liberty.Footnote 14 The right to liberty also takes shape in contexts outside of criminal law: a law interferes with liberty if it prevents an individual from making "fundamental personal choices."Footnote 15 The right to liberty protected by section 7 is understood to give individuals "a degree of autonomy in making decisions of fundamental personal importance,"Footnote 16 as well as protecting a "right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference."Footnote 17

The right to security of the person is concerned with health and safety. For instance, in R. v. Morgentaler, delays in treatment that increased the health risks for women seeking abortions were found to be a deprivation of security of the person.Footnote 18 These delays were caused by the requirement that, before a woman could lawfully obtain an abortion, a "therapeutic abortion committee" had to attest in writing that continuing the pregnancy would endanger her life or health.

Further, in Rodriguez v. British Columbia,Footnote 19 the physician-assisted dying case that preceded Carter v. Canada, the majority of the Supreme Court concluded that security of the person encompasses "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, and basic human dignity."Footnote 20 In this respect, the constitutional right to security of the person is coextensive with the longstanding common law requirement that individuals consent to medical care.Footnote 21

2. Determining whether there is a Violation of Section 7

The wording of section 7 prohibits deprivation of the right to life, liberty or security of the person, except if it is done in accordance with the principles of fundamental justice. Therefore, a law will not violate section 7 if the limits it imposes on life, liberty or security of the person are in accordance with the principles of fundamental justice. The result is a two-step inquiry: first, whether the law limits the right to life, liberty or security of the person; and second, whether that limitation respects principles of fundamental justice.Footnote 22 If it does, there is no violation of section 7. If it does not, however, the law will be found to violate section 7 of the Charter.

a) First Step: Does the Law Impact the Right to Life, Liberty or Security of the Person?

This first step of the test asks whether the law negatively impacts the right to life, liberty or security of the person. In A.C. v. Manitoba, the Supreme Court considered the case of a 14-year-old girl whose religious beliefs as a Jehovah's Witness included the refusal of blood transfusions. The law at issue allowed a court to authorize medical treatment for persons under 16, even without the person's consent. At this first step of the test, the Court found that "[t]he inability of an adolescent to determine her own medical treatment ... constitutes a deprivation of liberty and security of the person."Footnote 23

In Bedford, the Supreme Court found that prostitution-related offences (keeping a bawdy house, living off the avails of prostitution and communicating in public) limited the right to security of the person because they imposed dangerous conditions for sex workers and limited measures they could undertake to protect themselves.Footnote 24

In PHS, the Supreme Court examined the Minister of Health's decision not to exempt Insite, the supervised-injection site in Vancouver's Downtown Eastside, from a law that created an offence with a penalty of imprisonment for possessing prohibited drugs. The Court found that the prohibition on possessing prohibited drugs engaged the liberty rights of the staff working at Insite, which in turn deprived its clients of lifesaving medical care, "thus engaging their rights to life and security of the person."Footnote 25

b) Second Step: Is the Deprivation of Section 7 Rights in Accordance With Principles of Fundamental Justice?

In the recent case of Bedford, the Supreme Court described the principles of fundamental justice in the following manner:

The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values. Over the years, the jurisprudence has given shape to the content of these basic values.Footnote 26

Three principles of fundamental justice have been central to recent Supreme Court jurisprudence dealing with section 7, including the Carter decision: the requirements that a law not be arbitrary, overbroad or have effects that are grossly disproportionate to its object.Footnote 27

All three principles are concerned with the objective of the law, albeit in different ways. The Court described the common feature of these three principles against arbitrariness, overbreadth and gross disproportionality as a "failure of instrumental rationality," meaning that the objective of the law is acceptable, but the means used to achieve it are not.Footnote 28 Despite this common feature, the concepts of arbitrariness, overbreadth and gross disproportionality are distinct from one another, and each "can be infringed by the effect of a law on the life, liberty or security of a single person."Footnote 29

i. Arbitrariness

The principle of arbitrariness examines whether or not the law actually targets its objective, and "whether there is a direct connection between the purpose of the law and the impugned effect on the individual .... There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person."Footnote 30 An arbitrary law affects an individual's section 7 rights for no reason.Footnote 31

For example, in Morgentaler, the Supreme Court struck down the restrictions that required abortions to be performed only in accredited hospitals after a therapeutic abortion committee had certified in writing that continuing the pregnancy would endanger the woman's life or health. The effect of the law, which was to create unreasonable delays attributed to requirements of the committee, actually contradicted the objective of the law, which was to enhance women's health.Footnote 32

The case of PHS is a recent example of arbitrariness. The Minister's decision not to renew the exemption for the supervised-injection site in Vancouver's Downtown Eastside was found to be arbitrary. The object of the prohibition on possession of drugs is to protect health and public safety. The evidence showed that the operation of the supervised-injection site actually contributed to the objectives of health and public safety. There was therefore no rational connection between the objective of the law and the decision not to renew the exemption for the supervised-injection site.

ii. Overbreadth

An overbroad law is one that reaches too far in the individuals or the conduct it captures. In other words, "the section 7 interests of some (though not all) people it applies to are affected for no reason."Footnote 33 It is so broad that it includes some conduct that is not related to its objective.Footnote 34

For example, the prohibition on living off the avails of prostitution in the Bedford case was found to be overbroad because it made no distinction between those who exploit sex workers-such as pimps living off sex workers' earnings-and those who could be hired by the sex worker to increase safety, such as drivers, managers or bodyguards. Because the prohibition on living off the avails captured some conduct that was not in line with the law's purpose of criminalizing the pimp, it was overbroad.

It is relevant to note that the legal notion of overbreadth has evolved over the years. Importantly, it has evolved since the Supreme Court decided the previous case on physician-assisted dying in 1993, Rodriguez v. Canada. The concept of overbreadth is now explicitly recognized as a principle of fundamental justice, which was not the case in Rodriguez, and the question that courts ask when they examine if a law is overbroad has changed. The overbreadth analysis now requires that a court ask "whether the law interferes with some conduct that has no connection to the law's objective."Footnote 35

iii. Gross Disproportionality

The principle of gross disproportionality describes laws that, while aiming to respond to a problem, do so in a way that is "so extreme as to be disproportionate to any legitimate government interest"Footnote 36 and at too high a cost to the life, liberty and security of individuals.Footnote 37 Gross disproportionality is determined by weighing the effect of the limit of the law with any benefit that is derived from it. Where a law has a connection to its objective, but where the resulting deprivation of section 7 rights is so severe that it is out of proportion with the objective the law is trying to achieve, the deprivation of section 7 rights will be deemed grossly disproportionate.Footnote 38

For example, the BedfordFootnote 39 case found two prohibitions to have grossly disproportionate effects: the prohibition on communicating in public, whose objective was to prevent street nuisance, and the prohibition on keeping a bawdy house, whose objective was to prevent neighbourhood disorder. Both these prohibitions increased the risk to sex workers' security by criminalizing attempts to screen potential clients in public and sex work in a fixed indoor location. The resulting increased risk to sex workers' security was found to be grossly disproportionate to the objectives of the prohibitions.

In sum, interfering with the right to life, liberty and security of the person will be a violation of section 7 if it is done in a way that is arbitrary, grossly disproportionate, or overly broad (or not in accordance with other principles of fundamental justice not discussed here). If a violation of a section 7 right is found, the government that enacted the law could try to justify it under section 1 of the Charter.

3. Justifying Section 7 Violations under Section 1 of the Charter

Section 1 of the Charter provides that rights and freedoms are guaranteed "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." As such, rights and freedoms are not absolute, and a government can attempt to justify a violation using section 1.

Violations of the section 7 rights to life, liberty and security of the person may be difficult to justify under section 1 of the Charter. In fact, the Supreme Court has not yet recognized a justified limit on a section 7 right. In the Bedford case, the Supreme Court nonetheless commented as follows:

It has been said that a law that violates s. 7 is unlikely to be justified under s. 1 of the Charter. The significance of the fundamental rights protected by s. 7 supports this observation. Nevertheless, the jurisprudence has also recognized that there may be some cases where s. 1 has a role to play ... Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted.Footnote 40

At this stage of the analysis, the government must show that the infringement of section 7 (or any Charter right) was justified under section 1. To successfully do so, a government must show that the law meets the criteria set out in the Oakes test:Footnote 41 the law must have a pressing and substantial object, and the means chosen to achieve this object must be proportional. The proportional requirement will be met if "(1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law."Footnote 42

The analysis of whether the limitations are in accordance with principles of fundamental justice under the second step of the section 7 test and the analysis under section 1, call upon similar concepts. However, the Supreme Court has indicated that they are different: while the section 7 analysis is concerned with the narrow question of whether the law infringes individual rights, the section 1 analysis comprises a "justification on the basis of an overarching public goal."Footnote 43

B. Section 15: Equality Rights

Section 15 of the Canadian Charter of Rights and Freedoms sets out equality protections for members of Canadian society. Section 15(1) prohibits discrimination on several listed grounds-known as "enumerated" grounds-including physical disability. Other prohibited grounds of discrimination, such as sexual orientation, have been added to this list through Supreme Court of Canada case law. These added grounds are known as "analogous" grounds.

Gloria Taylor, the lead plaintiff in Carter v. Canada, argued that sections 241(b) and 14 of the Criminal Code violate section 15 of the Charter. She argued that although non-disabled people may choose to commit suicide, people with certain physical disabilities may be unable to do so without assistance, and the Criminal Code prohibition on assisting an individual to die therefore has a disparate effect on such people.

Over the 30 years that section 15 has been in force, the Supreme Court has adopted a variety of approaches in its evaluation of section 15 claims.Footnote 44 The Court's first section 15 decision in 1989 remains one of its touchstones, however, and the Court often returns to this decision for its basic tenets of equality. In Andrews v. Law Society of British Columbia, the Court rejected a "formal equality" understanding of section 15 in favour of one based on a concept that would eventually be named "substantive equality."Footnote 45

Formal equality is a conceptualization of equality based on the idea that people in similar situations should be treated in a similar fashion. Although this may seem fair, the approach can result in serious inequality. The Court in Andrews referred to its pre-Charter decision in Bliss v. Attorney General of CanadaFootnote 46 to demonstrate this point. In Bliss, a pregnant woman was denied unemployment benefits because of her pregnancy. She argued that the law in place at the time discriminated against her on the basis of sex. Applying the legal test it used at the time, the Court held that because all pregnant people were treated alike, there was no discrimination, ignoring the fact that only women may become pregnant and that the law therefore had a disproportionately negative impact on them.

The Supreme Court in Andrews held that formal equality is a "seriously deficient" understanding of equality that could result in "separate but equal" treatment of disadvantaged groups, citing for example racial segregation. A formal equality approach to Gloria Taylor's argument might have resulted in a rejection of her section 15 claim; no one could access assisted dying, so no one was discriminated against.

The Court in Andrews adopted a different approach that would come to be known as substantive equality.Footnote 47 It held that

the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component.

This "large remedial component" is a significant element of substantive equality. A commitment to substantive equality means affirming that certain individuals may need distinct treatment or assistance to achieve true equality.

The Supreme Court in Andrews also defined discrimination. It held that discrimination is

a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

Discussing substantive equality, the Supreme Court made the following comments in Withler v. Canada (Attorney General):

Equality is not about sameness and s. 15(1) does not protect a right to identical treatment. Rather, it protects every person's equal right to be free from discrimination. ...

Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.Footnote 48

The current formulation of the legal test for section 15 claims, which Justice Lynn Smith of the British Columbia Supreme Court applied in Carter, is set out below:

  1. Does the law create a distinction based on an enumerated or analogous ground?
  2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?Footnote 49

In her application of this test, Justice Smith held that the Criminal Code prohibition violated Ms. Carter's equality rights.

The Supreme Court opted not to conduct an analysis of the section 15 claim. This is not inconsistent with many of its recent decisions in which a section 15 claim was advanced along with a claim based on a different section of the Charter. If arguments based on other sections of the Charter are retained, the Court has, of late, generally chosen not to conduct a section 15 analysis.Footnote 50

C. Section 33: The Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms, often referred to as the "notwithstanding clause," provides Parliament and the legislatures with a mechanism to work around the fact that courts may invalidate legislation found to be inconsistent with sections 2 and 7 to 15 of the Charter. It states that Parliament or a legislature may declare that an Act-or a provision in an Act-shall operate notwithstanding any or all of section 2 or sections 7 to 15 of the Charter. Section 33 operates for a maximum period of five years, after which Parliament or legislatures must re-enact the declaration if they wish to continue to use the notwithstanding clause.

Essentially, section 33 may be relied upon in legislation to "override" the rights set out under sections 2 and 7 to 15 of the Charter. This would allow Parliament or a provincial or territorial legislature to enact legislation that could violate Charter rights set out in sections 2 and 7 to 15, but be immune to court challenges for a period of five years. The Charter rights that could be overridden are important; sections 2 and 7 to 15 of the Charter set out the fundamental freedoms, legal rights and equality rights of individuals in Canada.

Constitutional scholar Peter Hogg has made the following observations on the use of section 33:

Only rights set out under sections 2 and 7 to 15 of the Charter may be limited by section 33; other sections of the Charter are immune.

The declaration must be explicit and must specify both to which statute (or provisions) section 33 will apply, and which Charter rights are intended to be overridden.

The declaration must be contained in the statute to which section 33 will apply, although an existing statute could be amended to include such a declaration.

Section 33 may not be applied retroactively.Footnote 51

Section 33 imposes only formal requirements: namely, that Parliament or a legislature enact a declaration, and that it do so every five years. It is not concerned with the substance of, nor the reason for, the override. Political pressure is meant to be the control mechanism for the use of section 33: the public is generally not agreeable to the negation of fundamental rights and freedoms, and the use of section 33 can come at an "enormous political cost."Footnote 52

The mechanism is to some extent more theoretical than practical because it has been used so infrequently. It has never been used by Parliament. Professor Hogg has argued that the inclusion of section 33 was essential to the provinces' agreement to the entrenchment of the Charter. However, the provinces have also been quite reluctant to use section 33, Québec being the only exception. As indicated by Professor Billingsley, "it appears that use of the notwithstanding clause is largely accepted by the public in Québec, likely because Québec has never ratified the Charter in the first place."Footnote 53

Indeed, Québec did not agree to the adoption of the Charter. In 1982, when the Charter came into force, the Québec government passed a law applying the notwithstanding clause to all its current legislation. At the time, the Parti Québécois was in power. The purpose of this omnibus law was to demonstrate the province's disagreement: "this move was political and was not motivated by a substantive legal concern that Québec legislation did not comply or should not comply with the values set out in the Charter."Footnote 54 The government continued to insert notwithstanding clauses in almost all of its new legislation until a Liberal government was elected in 1985. The new government used the clause much less frequently, although a high-profile use of the clause was made in response to the Supreme Court decision in Ford v. Québec (Attorney General),Footnote 55 where the Court held that provisions requiring unilingual French commercial signs violated the right to freedom of expression guaranteed under section 2(b) of the Charter.

There have been three instances of provinces relying on section 33 outside of Québec:

  • Legislation in the Yukon that was never brought into force
  • Back-to-work legislation in Saskatchewan
  • Legislation opposing same-sex marriage in Alberta.Footnote 56

Many groups opposed to physician-assisted death raised the possibility of using the notwithstanding clause in their submissions to the Panel. Certain groups indicated that using the notwithstanding clause would give Canadian society more time to consider an accessible and safe implementation of a physician-assisted death framework. The mandate of this Panel was to engage in consultations fundamental to a federal legislative response respecting the Carter ruling. Accordingly, our attention was not focused on the possible application of section 33 and this report therefore does not feature any extensive discussion of this avenue.

Chapter 4. International Law

The Panel acknowledges the depth of insights that international law could yield. It recognizes that the government of Canada is mindful of its international obligations, by way of the international treaties and covenants of which it is signatory and has ratified. However, as indicated by Yude Henteleff, a lawyer and academic from the University of Manitoba, unless international covenants are incorporated as part of domestic Canadian legislation, they are not binding.

In its submission to the Panel, the Canadian Association for Community Living (CACL) proposed a plan guided by the United Nations Convention on the Rights of Persons with Disabilities (the Convention),Footnote 57 which was ratified by Canada in 2010. Specifically, the CACL advocated advance independent review of requests for physician-assisted death based on Canada's obligations under the Convention on the Rights of Persons with Disabilities. In particular, it based this proposal on Article 10 of the Convention, the "Right to life" and Article 16, the "Freedom from exploitation, violence and abuse."

Some experts with whom the Panel met also discussed the Convention. Anna MacQuarrie, Director of Global Initiatives, Policy and Human Rights at Inclusion International, noted article 12 from the Convention, which stands for equal recognition before the law and states that all measures relating to the exercise of legal capacity must provide proportional safeguards to prevent abuse. She noted that many countries are not in compliance with article 12. Mr. Steven Estey, who was a member of Canada's official government delegation to the UN, indicated to the Panel that Canadians with disabilities were very much involved in the drafting process of the Convention.

The Canadian Association for Community Living also raised the International Covenant on Economics, Social and Cultural Rights (ICESCR),Footnote 58 ratified by Canada in 1976, which includes in Article 12 a recognition of the "right of everyone to the enjoyment of the highest attainable standard of physical and mental health." In its submission to the Panel, Human Rights Watch argued that the right to health found in Article 12 of the ICESCR includes a right of access to palliative care, since it is an essential part of health care. According to Human Rights Watch, countries that are parties to the ICESCR should therefore take steps to ensure that palliative care is available.

States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. Where domestic law fails to provide a remedy for human rights abuses, parties may be able to resort to international mechanisms for enforcing human rights.

Chapter 5. Carter v. Canada

On 6 February 2015, the Supreme Court of Canada released its decision in Carter v. Canada (Attorney General). This landmark decision will allow certain individuals with serious medical conditions to end their lives with the assistance of a physician. The case involved a claim, brought by Gloria Taylor and others, that the prohibition on assisted dying violates the Charter rights to life, liberty and security of the person and equality rights of certain individuals who seek the assistance of a physician to die. This chapter explores the legal of the claim, along with the issues raised and the outcome of the Carter litigation.

A. The Context

In 1993, the Supreme Court heard the claim of a woman named Sue Rodriguez.Footnote 59 Ms. Rodriguez was living with amyotrophic lateral sclerosis, commonly known as ALS. This disease is fatal. It causes progressive muscle paralysis. At the time of the hearing, Ms. Rodriguez was a relatively young woman; she was 42 years old and had a young son. Her condition was deteriorating rapidly, however, and she knew that she would soon be unable to swallow, speak, walk or move without assistance. Eventually, she would be unable to breathe without a respirator or eat except through a feeding tube inserted into her stomach. She was told that she had between two and 14 months to live.

Ms. Rodriguez did not want to wait until her condition claimed her life. Neither did she want to commit suicide and end her life prematurely while she was still physically able to do so on her own. She therefore sought a court order that would allow her to obtain a physician's assistance to set up some technological means by which she could end her life at the time of her choosing.

Ms. Rodriguez argued that section 241(b) of the Criminal Code violated her rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.Footnote 60 Section 241(b) prohibits "aid[ing] or abet[ting] a person to commit suicide, whether suicide ensues or not." Specifically, Ms. Rodriguez asked the court to declare that section 241(b) is invalid to the extent that it "prohibits a terminally ill person from committing 'physician-assisted' suicide."Footnote 61

The Supreme Court's decision in Rodriguez was complex and deeply divided. Five of the nine judges held that the law did not violate Ms. Rodriguez's rights under section 7 of the Charter, and that while it could be assumed that the law violated her equality rights under section 15, that this violation was a reasonable limit on her rights justifiable under section 1 of the Charter. Two judges, among them the current Chief Justice of the Supreme Court, Beverley McLachlin, held that the law violated Ms. Rodriguez's right to security of the person, guaranteed under section 7 of the Charter. Another judge held that the law violated Ms. Rodriguez's section 15 right to equality. Finally, yet another judge held that the law violated both sections 7 and 15 of the Charter.

The result of the Rodriguez decision was that Ms. Rodriguez could not legally seek a physician's assistance to end her life and that physician-assisted dying remained illegal in Canada. Media reports indicated that, despite the prohibition, Ms. Rodriguez died with the assistance of an anonymous physician on 12 February 1994.Footnote 62

Many years after the Rodriguez decision, former Supreme Court Justice John Major publicly discussed his experience and that of his Supreme Court colleagues during the hearing and associated deliberations. Justice Major had formed part of the five-judge majority that dismissed the claim. In 2011, he called the case "haunting."Footnote 63 In 2013, he stated that "some of [his] former colleagues may have thought one way one day and a different way the next day."Footnote 64 He called on Parliament to update assisted dying laws.Footnote 65

Sue Rodriguez's highly publicized efforts to seek the right to obtain a physician's assistance to die thrust the issue of assisted dying into the national consciousness, sparking discussion and debate. In the same month that she died, the House of Commons debated Bill C-215, An Act to Amend the Criminal Code (Aiding Suicide), and a Special Senate Committee was appointed to study assisted dying.Footnote 66 Over the next several years, two additional bills were tabled in Parliament dealing with protecting health care workers from criminal responsibility when withdrawing life-sustaining treatment, and several bills were tabled seeking to legalize assisted dying, although none were passed. In 2009, the National Assembly of Québec struck the Select Committee on Dying with Dignity,Footnote 67 and in 2011, the Royal Society of Canada published its report entitled End-of-Life Decision Making.Footnote 68

It was in this political and legal context that the claimants in Carter brought their claim.

B. The Claimants

1. Gloria Taylor

Gloria Taylor was diagnosed with ALS in 2009. Her efforts to secure a physician's assistance to die formed the basis of much of the Carter litigation. She, like Sue Rodriguez, faced a terminal diagnosis with increasingly debilitating physical symptoms. As the Supreme Court noted, Ms. Taylor would lose the ability to use her "hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe."Footnote 69 Her cognitive functions would remain intact. Ms. Taylor had been told in 2010 that she had a year to live. Her condition progressed more slowly than anticipated, however.

In 2012, Ms. Taylor, along with several other claimants, challenged the Criminal Code prohibition on assisted dying. As part of her application to the British Columbia Supreme Court, she said "I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends... I do not want to die slowly, piece by piece."Footnote 70

2. Lee Carter and Hollis Johnson

Lee Carter and her husband Hollis Johnson were also claimants in the Carter litigation. Lee Carter is the daughter of Kay Carter, a woman who had been living with spinal stenosis. Although not fatal, spinal stenosis is a condition that causes progressive compression of the spinal cord, eventually leading to paralysis. Kay Carter reported feeling trapped in her own body.Footnote 71

Kay Carter asked her daughter Lee and her son-in-law Hollis to help her travel to Switzerland to obtain assistance in dying. Switzerland is currently the only country in which it is legal to assist a non-resident to die, as long as this assistance is not provided for "selfish motives."Footnote 72 Lee Carter and Hollis Johnson were aware that to assist Kay Carter in this manner posed risks.Footnote 73 They could have been charged under section 241(b) of the Criminal Code for assisting Kay Carter's death and, if convicted, would have faced up to 14 years in prison. No such charges were ever laid, however. Lee Carter asserts that "her mother died exactly as she wanted and that, as a result, she [Lee Carter] was happy for her and at peace."Footnote 74

3. The Remaining Claimants

Dr. William Shoichet is a physician practicing family medicine in British Columbia. He claimed that were physician-assisted dying legal, he would be willing to provide this assistance to eligible individuals. He therefore challenged the prohibition against assisted dying on the basis that it is a service that should be provided in appropriate circumstances.

The British Columbia Civil Liberties Association, which has adopted the mandate "to preserve, defend, maintain and extend civil liberties and human rights in Canada,"Footnote 75 argued that it is "unreasonable to expect grievously and irremediably, and often terminally, ill persons to bring on and carry through to completion a lengthy and involved constitutional challenge." The Association sought and won the right to make arguments before the British Columbia Supreme Court on behalf of such persons, challenging the Criminal Code prohibition on assisted dying.Footnote 76

C. The Criminal Code

The claimants in Carter challenged several sections of the Criminal Code on the basis that they prohibit physician-assisted dying for certain individuals with serious medical conditions.Footnote 77 These included sections 21 and 22, which deal with being a party to an offence and counselling an offence, and section 222, which deals with homicide.

The Supreme Court held that only section 241(b), which prohibits aiding and abetting suicide, and section 14, which prohibits individuals from consenting to having death inflicted upon them, needed to be considered. This, the Court explained, is because the other three sections "are only engaged so long as the provision of assistance in dying is itself an 'unlawful act' or offence."Footnote 78

Operating together, the two remaining sections, 241(b) and 14, make it an offence for any individual to assist any other individual to die. The prohibition currently applies to everyone, including physicians. When the Supreme Court's suspension of invalidity expires, however, the Carter decision will create an exemption for physicians who provide assistance in dying to certain eligible individuals.

D. The Lower Court Decisions

1. The Trial Decision

The claimants in Carter applied to the Supreme Court of British Columbia for a declaration that the Criminal Code prohibition on physician-assisted dying violates rights set out in the Canadian Charter of Rights and Freedoms. Justice Lynn Smith heard the claim. One of the first issues Justice Smith had to address was whether the legal precedent that the Supreme Court of Canada had established in Rodriguez 19 years earlier prevented her from making the declaration that the claimants sought.

Outside of Québec, Canada relies entirely on a common law legal system, inherited from England. Within Québec, the common law system applies only to public law, criminal law and other federal law; private matters in Québec fall under the civil law system. The common law system is based on the principle that lower courts must follow legal decisions or precedents established by higher courts. In practice, this means that trial courts are bound by decisions of courts of appeal, all courts are bound by decisions of the Supreme Court of Canada, and generally only the Supreme Court of Canada may depart from its own decisions. The Supreme Court has called the rule of precedent a "foundational principle upon which the common law relies."Footnote 79 Justice Smith's interpretation of the leading case on when courts may reconsider set by the Supreme Court of Canada led her to conclude that she could consider the claim despite the Rodriguez precedent.Footnote 80

Justice Smith considered a vast amount of evidence on palliative care, various end-of-life practices, assisted dying in other jurisdictions, and the ethical implications that these practices might raise. She heard from practitioners and academics from the fields of medicine, nursing, law, ethics, psychology, disability rights, sociology and philosophy. She concluded that the prohibition on assisted dying violates the Charter rights of certain individuals with serious medical conditions. Justice Smith held that the appropriate remedy was a declaration that the relevant provisions of the Criminal Code were inoperative, but she suspended her declaration for one year to allow Parliament to amend the legislation.

Ms. Taylor sought an additional remedy. She did not want to have to wait until a new law on assisted dying came into force, so Ms. Taylor sought a constitutional exemption that would allow her to seek a physician's assistance to die while the Criminal Code prohibition was still in effect. Justice Smith granted this exemption, with the following conditions:

  1. Ms. Taylor provides a written request.
  2. Her attending physician attests that Ms. Taylor is terminally ill and near death, and there is no hope of her recovering.
  3. Her attending physician attests that Ms. Taylor has been:
    1. informed of her medical diagnosis and prognosis;
    2. informed of the feasible alternative treatments, including palliative care options;
    3. informed of the risks associated with physician-assisted dying and the probable result of the medication proposed for use in her physician-assisted death;
    4. referred to a physician with palliative care expertise for a palliative care consultation;
    5. advised that she has a continuing right to change her mind about terminating her life.
  4. Her attending physician and a consulting psychiatrist each attest that Ms. Taylor is competent and that her request for physician-assisted death is voluntary and non-ambivalent. If a physician or consulting psychiatrist has declined to make that attestation, that fact will be made known to subsequent physicians or consulting psychiatrists and to the court.
  5. Her attending physician attests to the kind and amount of medication proposed for use in any physician-assisted death that may occur.
  6. Unless Ms. Taylor has become physically incapable, the mechanism for the physician-assisted death shall be one that involves her own unassisted act and not that of any other person.Footnote 81

Although Ms. Taylor became the first person in Canada to receive a constitutional exemption that would allow her to seek a physician's assistance to die, she never availed herself of that option. She died of an infection on 4 October 2012.Footnote 82 Her death rendered the question of the legal merits of her constitutional exemption moot; neither the British Columbia Court of Appeal nor the Supreme Court explicitly ruled on the exemption.

2. The Court of Appeal Decision

The province of British Columbia and the federal government appealed Justice Smith's decision. The majority of the British Columbia Court of Appeal allowed the appeal, holding that Justice Smith was bound by the Rodriguez precedent and therefore could not grant the remedies the claimants sought.Footnote 83 The Chief Justice of the Court of Appeal wrote a dissenting opinion in which he upheld Justice Smith's reasoning on all matters except her conclusion with respect to section 15 of the Charter.

The claimants appealed this decision to the Supreme Court of Canada.

E. The Supreme Court Decision

By the time that the Supreme Court heard the Carter appeal, only one Supreme Court justice remained who had heard the Rodriguez claim. This was Chief Justice Beverley McLachlin, who had written one of the three dissenting opinions in Rodriguez, and concluded at the time that the prohibition violated section 7 of the Charter.

A notable aspect of the Carter decision is its authorship. Typically, one or two judges write decisions of the Supreme Court, and other judges indicate whether they agree with the judgment. If they do not agree, one or more judges might author their own dissenting opinion. In either case, the names of the authors of each decision are usually indicated. In contrast, not only is Carter unanimous, but it was authored by "The Court." This is a practice that the Supreme Court generally saves for decisions of significant constitutional value, in which it is important to underscore the unanimity of a decision.

The Supreme Court had to consider several legal issues as part of its decision in Carter. Among them are the more procedural questions of whether the trial judge was permitted to depart from the precedent the Supreme Court set in Rodriguez and whether physician-assisted dying is a matter that falls under federal or provincial jurisdiction. It also addressed the substantive issue of whether a prohibition against physician-assisted dying violates the Charter rights of certain individuals seeking this assistance.

1. Departing from Rodriguez

In the case of Canada (Attorney General) v. Bedford, the Supreme Court held that lower courts may depart from the precedents of higher courts:

(1) where a new legal issue is raised; or (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.Footnote 84

Justice Lynn Smith had concluded that there had been substantive developments in the case law on section 7 of the Charter. Further, she considered a sizeable body of evidence supporting the view that safeguards can be established to control the risk of abuse.

The Supreme Court held that both of the conditions in the Bedford legal test were met. The change in the analysis that courts must perform when considering claims under section 7 of the Charter met the test for a new legal issue. Given that the first condition was met, it was not necessary to meet the second condition of the Bedford test. The Court held, however, that this condition was met as well. At the time that Rodriguez was decided, no jurisdiction in the world had legislation in place regulating assisted dying. Between the Rodriguez decision and the Carter hearing, five jurisdictions enacted legislation. They were Oregon, the Netherlands, Washington, Belgium and Luxemburg. Montana and Colombia had enabled the practice through court decisions, establishing legal requirements in case law rather than through legislation. Justice Smith considered evidence that suggested that there were no significant abuses occurring in these jurisdictions.

The Supreme Court held that this evidence was sufficient to "fundamentally shift the parameters of the debate." Justice Smith was therefore entitled to depart from the Rodriguez precedent.

2. Division of Federal and Provincial Powers

With respect to the division of federal and provincial/territorial powers as they relate to assisted dying, the claimants argued that although the criminal prohibition against assisted suicide falls within federal jurisdiction, physician-assisted dying does not, because it "lies at the core of the provincial jurisdiction over health care."Footnote 85

The claimants were making an argument on what is known as an "interjurisdictional immunity." This means they were arguing that within each area of jurisdiction, there are core policy areas so intrinsic to a given level of government's legislative authority that any attempt by the other level of government to legislate in that area would be constitutionally invalid. The Court held, however, that no such protected core has been defined in the area of health, and further suggested that such a core would be very difficult to identify. Citing one of its recent decisions in the area of health law, the Court noted:

Overlapping federal jurisdiction and the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread.Footnote 86

Rather than identifying with precision which areas within health might fall to the federal government or to the provinces, the Court has, since 1982, held that health is an area of concurrent (or shared) jurisdiction, in which either level of government may enact valid legislation.Footnote 87 The Court therefore concluded that "aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and focus of the legislation."Footnote 88

3. Section 7 of the Charter

The Supreme Court's consideration of the claimants' Charter arguments, particularly those under section 7, is the primary focus of its decision in Carter. As discussed in greater detail elsewhere in this report, section 7 of the Canadian Charter of Rights and Freedoms guarantees 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. This right has been treated as three distinct rights, creating a guarantee that no one may be deprived of the right to life, liberty or security of the person unless such deprivation is in accordance with the principles of fundamental justice.

The Supreme Court considered each of these rights and concluded that, for certain individuals in situations similar to those of Gloria Taylor and Kay Carter, the prohibition against physician-assisted dying violates all three of these rights.

a) The Right to Life

The claimants argued at trial that a prohibition on physician-assisted dying might compel certain individuals facing a serious or terminal illness to take their lives prematurely while they are still physically capable of doing so. Gloria Taylor, for example, faced having her condition worsen to a point at which her capacity for voluntary movement would become so limited that she could not end her own life without assistance. She did not want to end her life while she retained this ability, however, because she said she wanted 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."Footnote 89

The evidence showing that some individuals might feel compelled to take their life prematurely had convinced the trial judge that the right to life under section 7 was engaged. The government did not challenge this evidence, and so the Supreme Court chose not to interfere with the trial judge's finding. Further, the Court observed that "the case law suggests that 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."Footnote 90 Following this reasoning, the prohibition on assisted dying could be seen as indirectly imposing an increased risk of death on certain people facing end-of-life decisions.

The Court noted that while the right to life stems from our understanding that the "sanctity of life is one of our most fundamental societal values," this right should not be seen as a requirement that "all human life be preserved at all costs."Footnote 91

Based on its conclusions with respect to the right to life alone, the Supreme Court was obligated to consider whether the deprivation of a section 7 right was made in accordance with the principles of fundamental justice. The Supreme Court continued its analysis of section 7, however, by considering whether the rights to liberty and security of the person were engaged as well.

b) The Rights to Liberty and Security of the Person

Although the rights to liberty and security of the person are two distinct rights, the Supreme Court dealt with them together in Carter, holding that both rights are informed by "a concern for the protection of individual autonomy and dignity."Footnote 92 While the right to liberty protects "the right to make fundamental personal choices free from state interference," the right to security of the person protects the right to have "control over one's bodily integrity free from state interference."Footnote 93

As it had with the right to life, the Supreme Court relied heavily on the trial judge's analysis in its reasoning with respect to the rights to liberty and security of the person. Justice Smith had concluded that the prohibition on assisted dying limited Gloria Taylor's rights to both liberty and security of the person because it interfered with her ability to make "fundamentally important and personal" medical decisions, imposed pain and psychological stress, and deprived her of control over her bodily integrity. The Supreme Court agreed. Justice Smith also noted that the prohibition meant that seriously and irremediably ill persons were "denied the opportunity to make a choice that may be very important to their sense of dignity and personal integrity" and that is "consistent with their lifelong values and that reflects their life's experience."Footnote 94 Again, the Supreme Court agreed, noting that "an individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy."Footnote 95

The Court held that the prohibition on assisted dying engages the right to liberty because it can, for certain individuals, interfere with the ability to make decisions about one's bodily integrity and medical care. The Court held that the prohibition engages the right to security of the person because it could leave people like Ms. Taylor to endure intolerable suffering.

Having concluded that all three rights under section 7 were engaged, the framework of the section 7 legal test then required the Supreme Court to consider whether the deprivation of these rights was in accordance with the principles of fundamental justice.

c) The Principles of Fundamental Justice

Individuals may not be deprived of the rights to life, liberty and security except in accordance with the principles of fundamental justice. If a court finds that there has been a deprivation of a section 7 right, then, the court must next determine if the deprivation was in accordance with the principles of fundamental justice. The list of principles of fundamental justice that should be considered in the context of section 7 has been developed by the courts over the years. The two principles that the Supreme Court considered in Carter were arbitrariness and overbreadth.

The principle that laws must not be arbitrary requires that there be a "rational connection" between the purpose of a law and limits that it imposes on section 7 rights.Footnote 96 The principle that laws must not be overbroad requires that any effects of a law's limitation of individuals' section 7 rights should be confined as much as possible to the individuals or conduct targeted by the law.

To analyze whether a law violates the principles that it should not be arbitrary or overbroad, it is necessary to compare the purpose of the law with the deprivation of section 7 rights. The Supreme Court held that the purpose of the prohibition on assisted dying is to "[prevent] vulnerable persons from being induced to commit suicide at a time of weakness."Footnote 97 The Supreme Court held that the prohibition on assisted dying is not arbitrary. It reasoned that given that the purpose of a law is to protect vulnerable persons from committing suicide at a time of weakness, a "total ban on assisted suicide clearly helps achieve this object."Footnote 98 The Court held that the prohibition is overbroad, however, because although the law had the purpose of protecting the vulnerable, it also had the effect of prohibiting individuals such as Gloria Taylor, who was "competent, fully informed, and free from coercion or duress" from accessing a physician's assistance to die.Footnote 99

4. Section 15 of the Charter

At trial, Justice Lynn Smith had found that the Criminal Code prohibition on assisted dying violates the equality rights guaranteed under section 15 of the Charter of persons with physical disabilities. She held that because non-disabled people have the option of committing suicide and some people with physical disabilities do not, a prohibition on assisted suicide imposes a heavier burden on individuals with physical disabilities. She concluded that this distinction amounts to discrimination.

The Supreme Court did not consider section 15 in its analysis of Charter violations. It held that because it had already found that the prohibition on assisted dying violates section 7, it was unnecessary to consider whether it violates section 15 as well.

5. Section 1 of the Charter

Having found that the laws challenged in Carter violate a Charter right, the Supreme Court had to consider whether this violation could be justified under section 1 of the Charter. Section 1 states that the rights and freedoms set out in the Charter are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This means that Charter rights are not absolute; they may be subject to reasonable limitations that the government can justify. In Carter, the Supreme Court held that the prohibition on assisted dying was not a reasonable limit on the section 7 rights of certain individuals with serious medical conditions.

The Supreme Court began its section 1 analysis by noting that it is difficult to justify an infringement of section 7 rights. The rights to life, liberty and security of the person are fundamental. The Court also considered the degree of deference due to Parliament in this situation. It is the role of Parliament and the provincial legislatures to enact laws, and courts must defer to the expertise of Parliament and the legislatures in this area. Where a high degree of deference is appropriate, courts should not be quick to question choices that Parliament has made in enacting laws. The Supreme Court has held that this is particularly true where Parliament has had to make difficult decisions involving competing social interests. This was the case in Carter, as the Supreme Court noted. This level of deference was somewhat tempered by the fact that the prohibition on assisted dying is absolute; if a complex regulatory regime allowing access to assisted dying were in place, it would be due greater deference.

In deciding whether a law's violation of a Charter right may be justified, a court must consider whether the law has a pressing and substantial objective and whether the government has demonstrated that the law is proportionate. In Carter, the claimants conceded that the objective of the prohibition on assisted dying-specifically, preventing vulnerable persons from being induced to commit suicide at a time of weakness-is pressing and substantial. The main question for the Supreme Court to consider, then, was whether the prohibition was proportionate. A law is considered to be proportionate if 1) the means used to achieve the law's objective are rationally connected to that objective, 2) the law impairs rights as minimally as possible and 3) there is proportionality between the "deleterious and salutary" (or harmful and helpful) effects of the law.Footnote 100

The Supreme Court held that it is "rational to conclude that a law that bars all persons from accessing assistance in suicide will protect the vulnerable from being induced to commit suicide at a time of weakness."Footnote 101 The prohibition therefore met the first requirement of the section 1 test. The Court then addressed whether the prohibition impairs rights as little as possible. The Supreme Court noted that this question "lies at the heart of this case." Specifically, the Court asked "whether the absolute prohibition on physician-assisted dying, with its heavy impact on the claimants' rights to life, liberty and security of the person, is the least drastic means of achieving the legislative objective."Footnote 102

The Supreme Court agreed with much of the trial judge's reasoning on whether rights were minimally impaired. Justice Smith had held that:

an absolute prohibition would have been necessary if the evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients; that physicians fail to understand or apply the informed consent requirement for medical treatment; or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life.Footnote 103

The evidence the trial judge considered convinced her to reject all of these possibilities. She concluded that "a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error."Footnote 104 The Supreme Court agreed, noting that "[w]hile there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them."Footnote 105

The trial judge had concluded that evidence from other jurisdictions confirmed that regimes can be established that allow eligible individuals to access assisted dying, while protecting vulnerable persons. The Supreme Court therefore held that the prohibition was not minimally impairing, as safeguards could be implemented to allow individuals in situations like Gloria Taylor's to access assisted death while still preventing vulnerable persons from being induced to commit suicide at a time of weakness. The prohibition therefore could not be considered a reasonable and justified limit on the section 7 rights of eligible individuals who seek a physician's assistance to die.

6. The Declaration

Having found a Charter violation that could not be justified under section 1, the Supreme Court was obligated to find an appropriate remedy for the claimants. It opted against considering constitutional exemptions. The two individuals whose lives formed the context of the litigation, Kay Carter and Gloria Taylor, had both died. The claimants Lee Carter, Hollis Johnson, Dr. Shoichet and the British Columbia Civil Liberties Association had no need for a constitutional exemption. The Court therefore considered only the remedy of a declaration of invalidity.

The Court declared that sections 241(b) and 14 of the Criminal Code are invalid 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."Footnote 106 Further, it noted that the term "irremediable" should not be understood as requiring that people must undertake treatments that are not acceptable to them to be considered eligible.

This declaration did not limit access to persons with terminal conditions, or physical conditions. Moreover, the Court did not rule on the possibility of requesting physician-assisted death in an advance directive, or through a substitute decision maker. In fact, the Court took great care to specify that the scope of this declaration was intended to respond to the factual circumstances in this case and made no pronouncement on other situations where physician-assisted dying may be sought.

The declaration was suspended for 12 months to allow time for Parliament and the legislatures "should they so choose, [to respond] by enacting legislation consistent with the constitutional parameters set out in" the decision.Footnote 107

7. Conscientious Objection

Several interveners addressed the right of physicians and other health care workers to refuse to provide assistance in dying for reasons of conscience or religion. They included the Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project, the Catholic Health Alliance of Canada and the Canadian Medical Association.

The Court held that nothing in its declaration could compel physicians to provide assistance in dying. The Court left any additional issues to be resolved by the physicians' colleges, Parliament and the provincial legislatures. It noted, however, that the "Charter rights of patients and physicians will need to be reconciled."Footnote 108

F. The Effect of the Decision

The Supreme Court suspended its declaration of invalidity until 6 February 2016. Unless the Court decides otherwise, on that date physicians will be permitted to assist eligible individuals to die. The Court left many considerations to be addressed by Parliament and the provincial legislatures. The federal Ministers of Justice and Health struck this Panel to collect input from Canadians on how to address some of these considerations.

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