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More litigation seen on horizon following assisted suicide ruling

Thursday, February 19, 2015 @ 7:00 PM | By Cristin Schmitz

The Supreme Court’s dramatic judgment striking down the blanket ban on assisted suicide leaves thorny issues for legislatures and courts, lawyers say.

In Carter v. Canada (Attorney General) [2015] S.C.J. No. 5, the top court unanimously ruled that sections 14 and 241(b) of the Criminal Code unjustifiably infringe the Charter’s section 7 protection of life, liberty and security of the person, to the extent that they prohibit physician-assisted death (PAD) for a competent adult 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 court did not require the medical condition to be terminal, or exclude psychological conditions from its declaration. It suspended its declaration of invalidity of ss. 14 and 241 (b) of the Criminal Code for 12 months to give Parliament time to legislate, if it opts to do so.

Toronto’s Hugh Scher, who represented the Euthanasia Prevention Coalition, one of more than two dozen interveners, foresees post-Carter litigation.

For example, the court expressly limits PAD to “competent adult persons.” Yet the Charter’s section 15 bans age discrimination, and the Supreme Court ruled in A.C. v. Manitoba (Director of Child and Family Services) [2009] S.C.J. No. 30 that “mature minors” can make life and death decisions about their medical treatment.

“I think that ultimately there will be litigation around age so that these mechanisms are available and open to youths, as they are to adults,” Scher said. “There will also be questions as to the nature of safeguards that are imposed, and whether or not they themselves discriminate on the basis of disability.”

Scher also anticipates litigation regarding how a physician’s right not to participate in PAD can be implemented in the context of a regime that legalizes euthanasia or assisted suicide. He predicts issues around whether access to PAD is “universal across the country, and whether or not that derogates from the ruling or the Constitution in any way, if it’s not universally accessible.”

“I think there will also be questions around any limitations that the Parliament imposes as too restrictive — for example, a requirement that advance directives not be permitted to apply to people with Alzheimer’s or dementia.”

Harry Underwood, who with Jessica Prince represented the intervener Canadian Medical Association, said the CMA was pleased the court accepted its position that participation in PAD is a matter of conscience for doctors, and thus doctors should not be compelled to provide such assistance. The CMA’s membership remains divided on PAD.

In its ruling, the court distinguished Rodriguez v. British Columbia (Attorney General) [1993] S.C.J. No. 94, a 5-4 decision which upheld the constitutionality of the assisted-suicide prohibition.

“It seems to me that Carter raises no new constitutional principle, a fact which is notable for such an important case,” Underwood said. “The court reached its conclusion by a very straightforward process of reasoning. Rodriguez was distinguished on the basis that the overbreadth test had not, at the time it was decided, been part of the relevant test, and also on the basis of new evidence that showed that the vulnerable can be identified by their doctors.”

For lawyers, the court’s “extremely liberal approach” to the stare decisis rule in Charter cases is salient, he added. “A change in the underlying ‘social facts’ may justify a trial judge in re-visiting Charter decisions made at the highest levels. Moreover, the court affirmed that a trial judge’s findings as to social facts are to be accorded the same respect on appeal as any findings of fact.”

In an unusual move, the court ordered the federal government to pay the B.C. Civil Liberties Association and the other successful appellants their “full indemnity” legal costs. The B.C. government was ordered to pick up 10 per cent of the full-indemnity tab at trial, as well as to pay “the costs associated with its presence at the appellate levels” on a party-and-party basis.

“The court’s decision awarding special costs, and clarifying the circumstances in which such awards may be made in the public interest, is an important development ensuring public interest organizations, and Canadians of ordinary means, can access the courts,” said Vancouver’s Alison Latimer, who represented the BCCLA with Joseph Arvay of Farris Vaughan and Sheila Tucker of Davis LLP.

Latimer noted the costs of the trial alone exceeded $1 million. There were thousands of hours of pro bono legal assistance, she said.

“This case would not have been possible without the participation of numerous leading experts around the world, all of whom gave their time freely and generously with only a possibility that they may recover their fees years down the road from a costs award.”

Regarding the blanket ban on assisted suicide and the Charter’s s. 7 guarantees, the court reasoned that “the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.” Moreover, by denying people in that situation the right to make decisions concerning their bodily integrity and medical care, the ban trenches on their liberty. It also impinges on their personal security by leaving them to endure intolerable suffering.

The court went on to conclude that the blanket ban is much broader than necessary to achieve its aim of protecting vulnerable people from abuse, and thus could not be upheld as reasonable and demonstrably justified under s. 1 of the Charter.

The judges observed that the prohibition against PAD condemns some people to a life of severe and intolerable suffering.

“A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes,” they said. “The choice is cruel.”