“In our respectful view, any review of the substantive Charter challenges, and the granting of comprehensive or limited relief from the effects of the law, are beyond the proper role of the court below and of this court. If the constitutional validity of s. 241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so,” wrote Justice Mary Newbury in the majority decision, with Justice Mary Saunders concurring, in Carter v. Canada (Attorney General).
In doing so, the judges allowed the federal government’s appeal of a 2012 British Columbia Supreme Court ruling that found Canada’s law against assisted suicide in s. 241 of the Criminal Code violated the Charter of Rights and Freedoms. Their ruling focused on the notion of stare decisis given that the Supreme Court of Canada’s ruling in Rodriguez v. British Columbia 20 years ago that upheld the law.
“Notwithstanding the staunch submissions of the respondents, and those speaking in their support, for a fresh consideration of the issues unencumbered by Rodriguez, in our view Rodriguez must determine this appeal. On the jurisprudence as it now stands, only Parliament may relieve against s. 241,” wrote Newbury in reference to the famous case involving Sue Rodriguez.
"The Court of Appeal decided that their hands were tied by the 20-year-old Rodriguez decision," said Joseph Arvay, a lawyer for the plaintiffs. "We are prepared to go to the highest court in land to resolve this issue because it is so critically important."
Arvay added that a person's choice to live or die, and an individual's ability to control when and how they die, are an personal right that should not be interfered with by the state.
Gloria Taylor was one of several plaintiffs who argued in court that the criminal law was unconstitutional and that people with serious illnesses should be able to take their lives with the help of a physician. While Taylor, who suffered from the degenerative illness ALS, or Lou Gehrig's disease, passed away in October 2012 at 64, her fight goes on.
The family of second woman, Kay Carter, who traveled to Switzerland more than three years ago to end her life, were also plaintiffs. Assisted suicide is legal in Switzerland, along with a handful of other European jurisdictions and a few U.S. states.
In her 395-page ruling striking down the ban, B.C. Supreme Court Justice Lynne Smith found that the law was overly broad and the absolute prohibition on assisted suicide was “grossly disproportionate” to the objectives it aimed to accomplish. She suspended her decision for a year to give Parliament a chance to change the laws and bring them in line with the Constitution. In the meantime, the federal government appealed.
For the British Columbia Civil Liberties Association, one of the respondents on the appeal, the decision is a big disappointment. Counsel Alison Latimer says the appeal court took a “very cautious approach to stare decisis” and notes the plaintiffs will be seeking leave to appeal from the Supreme Court of Canada.
“If we obtain leave to appeal to the Supreme Court of Canada, they aren’t bound by their earlier decision,” she tells Legal Feeds, adding she and her colleagues didn’t believe stare decisis should determine the outcome since they raised different arguments from those in Rodriguez.
She suggests there have been many material changes to the facts since then, including other jurisdictions’ moves towards regulation and decriminalization in the area of assisted suicide that provide new evidence on the risks and concerns about protecting vulnerable people.
“Those risks can be very greatly minimized,” says Latimer. “That was something that wasn’t before the court in Rodriguez.”
Among other things, the B.C. appeal court considered the implications of the s. 7 Charter right to life, liberty, and security of the person as well as the Supreme Court of Canada’s findings on that issue in the past. In doing so, the majority remarked on former B.C. Court of Appeal chief justice Lance Finch’s views in his dissenting reasons that life “in the context of s. 7 includes a full range of experiences” and that “the point at which the meaning of life is lost . . . is an intensely personal decision which ‘everyone’ has the right to make for him or herself.”
“It seems to us, then, that considerations involving personal autonomy, decision-making, and dignity — the very values asserted by both Ms. Rodriguez and the plaintiffs in the case at bar — have consistently been regarded as engaging security of the person and to a lesser extent, liberty,” wrote Newbury. “Life, on the other hand, has been regarded in the existential sense with, in [justice John] Sopinka’s phrase, ‘deep intrinsic value of its own’; and indeed the majority in Rodriguez referred to the ‘sanctity of life’ in a non-religious sense. This value is reflected not only in the rejection of capital punishment in this country, but in the laws of every country that regards murder as one of the most serious crimes.
“In our view, this differentiation between ‘life’ as an existential value and the values of individual autonomy and liberty, including the ability to enjoy the kinds of experiences described by Chief Justice Finch at para. 86 of his reasons, is as it should be. Those who have only limited ability to enjoy those blessings are no less ‘alive,’ and have no less a right to ‘life,’ than persons who are able-bodied and fully competent. If ‘life’ were regarded as incorporating various qualities which some persons enjoy and others do not, the protection of the Charter would be expanded far beyond what the law can ‘guarantee,’ while conversely, a slippery slope would open up for those who are unable to enjoy the blessings described by the chief justice.”
With files from Reuters.