Legislative Background: Medical Assistance in Dying (Bill C-14, as Assented to on June 17, 2016)

Annex B: Relevant Excerpts from Carter v Canada (Attorney General), [2015] 1 SCR 331

In Carter, the Supreme Court held that the absolute prohibition on assisted dying unjustifiably infringes section 7 of the Charter, issuing the following declaration of invalidity:

The appropriate remedy is therefore a declaration that section 241(b) and section 14 of the Criminal Code are void insofar as 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. (para. 127)

A Contextual Interpretation of Carter

Read in isolation, the declaration appears to describe a right that is broad. The Court does not expressly limit the right to dying individuals; the term “grievous and irremediable medical condition” is not defined, and if given a dictionary definition, it could include conditions that are not life-threatening or terminal; and the declaration is framed largely in terms of subjective criteria (i.e., suffering that is intolerable to that person).

Read in its entirety, however, the judgment points to a more limited right and more limited understanding of the meaning of “grievous and irremediable medical condition”. Aspects of the ruling that support a narrower interpretation include the following:

  • The factual circumstances that that formed the basis of the case were those of Ms. Taylor, who suffered from the fatal disease of ALS and who was nearing a natural death. The Court made this clear throughout the judgment and in its declaration of invalidity
    • “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought” (para 127);
    • In at least 4 passages, the Court limits its holding to Ms. Taylor and people like her (“the prohibition on physician-assisted dying infringes the right to life, liberty and security of Ms. Taylor and of persons in her position” (para 56, see also paras 65, 66, 70 and 126));
      • Other witnesses referred to by the Court suggest what “people like Ms. Taylor” could mean:
      • “Other witnesses also described the […] suffering from a grievous and irremediable illness [...] 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” (para 14).
  • Medical assistance in dying is compared to forms of “end-of-life” care that are only available to dying individuals:
    • “Based on the evidence regarding assessment processes in comparable end-of-life medical decision-making in Canada, the trial judge concluded that vulnerability can be assessed on an individual basis… Concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making. Logically speaking, there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying” (para 115);
    • “An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying” (para 66);
    • Describing the findings of fact of the trial judge, which the Supreme Court did not disturb: “After considering the evidence of physicians and ethicists, she found that the ‘preponderance of the evidence from ethicists is that there is no ethical distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death’” (para 335 from trial judgment; para 23 from the SCC ruling).
  • The Court suggested that certain categories of people who might seek assistance in dying were excluded from the scope of its ruling:
    • “Professor Montero’s affidavit reviews a number of recent, controversial and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.…”. (para 111).

SCC recognized Parliament’s Policy Role including Need to Balance Diverse Interests

Jurisprudence before Carter has recognized that in complex matters of social policy, involving competing interests and conflicting social science evidence, Parliament is better placed than courts to determine how the various interests should be balanced and how the evidence should be weighed. Provided that Parliament’s response falls within a range of reasonable alternatives, deference will be given. In Carter the Court recognized that assisted dying is such an issue and suggested that a high degree of deference would be given to the solution developed by Parliament:

  • “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” (para. 2);
  • “The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But section 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life ‘is no longer seen to require that all human life be preserved at all costs’” (para 63);
  • “…in some situations the state may be able to show that the public good — a matter not considered under section 7, which looks only at the impact on the rights claimants — justifies depriving an individual of life, liberty or security of the person under section 1 of the Charter. More particularly, in cases such as this where the competing societal interests are themselves protected under the Charter, a restriction on section 7 rights may in the end be found to be proportionate to its objective” (para 95);
  • There may be “a number of possible solutions to a particular social problem” (para 97);
  • That “physician-assisted death involves complex issues of social policy and a number of competing societal values. Parliament faces a difficult task in addressing this issue; it must weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying” (para 98);
  • “Complex regulatory regimes are better created by Parliament than by the Courts” (para 125);
  • The choices made by Parliament in a complex regulatory regime would garner a higher degree deference than did the prohibitions (para 98).

The Court has also acknowledged in a number of cases that a law passed by Parliament may differ from a regime envisaged by the Court without necessarily being unconstitutional:

  • “Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy” (R. v. Mills, [1999] 3 S.C.R. 668 at para. 55).
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