''Carter v Canada (AG)'', 2015 SCC 5 is a landmark
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
decision where the prohibition of
assisted suicide
Assisted suicide is suicide undertaken with the aid of another person. The term usually refers to physician-assisted suicide (PAS), which is suicide that is assisted by a physician or other healthcare provider. Once it is determined that the p ...
was challenged as contrary to the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
'' ("''Charter''") by several parties, including the family of Kay Carter, a woman suffering from degenerative
spinal stenosis
Spinal stenosis is an abnormal narrowing of the spinal canal or neural foramen that results in pressure on the spinal cord or nerve roots. Symptoms may include pain, numbness, or weakness in the arms or legs. Symptoms are typically gradual in on ...
, and
Gloria Taylor, a woman suffering from
amyotrophic lateral sclerosis
Amyotrophic lateral sclerosis (ALS), also known as motor neuron disease (MND) or Lou Gehrig's disease, is a neurodegenerative disease that results in the progressive loss of motor neurons that control voluntary muscles. ALS is the most comm ...
("ALS").
[Carter v. Canada: The Death with Dignity Case]
British Columbia Civil Liberties Association In a unanimous decision on February 6, 2015, the Court struck down the provision in the ''
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
'', thereby giving Canadian adults who are mentally competent and suffering intolerably and enduringly the right to a doctor's assistance in dying. This ruling overturned the Supreme Court's 1993 ruling in ''
Rodriguez v British Columbia (AG)
''Rodriguez v British Columbia (AG)'', 9933 SCR 519 is a landmark Supreme Court of Canada decision where the prohibition of assisted suicide was challenged as contrary to the ''Canadian Charter of Rights and Freedoms'' ("''Charter''") by a terminal ...
,'' which had denied a right to assisted suicide.
The court suspended its ruling for 12 months, with the decision taking effect in 2016, to give the federal government enough time to amend its laws.
In January 2016, the court granted an additional four-month extension to its ruling suspension to allow time for the newly elected federal Liberal government to consult with Canadians on drafting a law to comply with the ruling. As an interim measure, it also ruled that provincial courts could approve applications for euthanasia until the new law passed.
Background
In 1972, the Canadian government repealed the ''Criminal Code'' provision prohibiting suicide. However, 241(b) of the ''Criminal Code'' provided that everyone who aids or abets a person in committing suicide commits an indictable offence, and section 14 stated that no person may consent to death being inflicted on them. The Supreme Court denied a right to assisted suicide in their 1993 ruling ''
Rodriguez v British Columbia (AG)
''Rodriguez v British Columbia (AG)'', 9933 SCR 519 is a landmark Supreme Court of Canada decision where the prohibition of assisted suicide was challenged as contrary to the ''Canadian Charter of Rights and Freedoms'' ("''Charter''") by a terminal ...
'', upholding the constitutionality of the prohibitions based upon a thin evidentiary record.
In April 2011, the
British Columbia Civil Liberties Association
The British Columbia Civil Liberties Association (BCCLA) is an autonomous, non-partisan charitable society that seeks to "promote, defend, sustain, and extend civil liberties and human rights." It works towards achieving this purpose through li ...
("BCCLA") filed a lawsuit challenging both section 14 and section 241(b) of ''Criminal Code'' (law that prohibits aiding a person to commit suicide), claiming they violated
sections 7 (the right to "life, liberty, and security of the person) and
15(1) of the ''Charter'' (equality).
The case was heard at the
Supreme Court of British Columbia
Supreme may refer to:
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* Supreme (producer), hip-hop record producer
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* The Supremes, Motown-e ...
, which ruled in favour of the BCCLA in June 2012. The federal government appealed the ruling to the
Court of Appeal for British Columbia
The British Columbia Court of Appeal (BCCA) is the highest appellate court in the province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act.
The BCCA hears appeals from the Supreme Court of British ...
, which overturned the ruling in a 2–1 decision in October 2013. The BCCLA then filed a leave to appeal to the Supreme Court of Canada.
Reasons of the Court
The Court framed the issue at bar thus:
The Court found that section 241(b) and section 14 of the ''Criminal Code'' had a permissible object, identified as "not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness." According to the Court, however, the relevant sections were overbroad in catching cases that fell outside of the object. Thus, the sections unjustifiably infringed
section 7 of the ''Charter''; furthermore, this violation was not saved by operation of
section 1.
''Stare decisis''
The Court found that the trial judge was not bound by the Supreme Court's 1993 decision in ''
Rodriguez v British Columbia (AG)
''Rodriguez v British Columbia (AG)'', 9933 SCR 519 is a landmark Supreme Court of Canada decision where the prohibition of assisted suicide was challenged as contrary to the ''Canadian Charter of Rights and Freedoms'' ("''Charter''") by a terminal ...
'', instead holding that ''
stare decisis
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
'' is "not a straitjacket that condemns the law to stasis".
[SCC, par. 44] The Court expanded on their discussion of the issue in ''
Canada (AG) v Bedford
is a decision of the Supreme Court of Canada on the Canadian law of sex work. The applicants, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that Canada's prostitution laws were unconstitutional. The ''Criminal Code'' included a numb ...
'' by ruling trial judges may reconsider the decisions of higher courts if there is a new legal issue at bar, and if circumstances or evidence have "fundamentally shift
dthe parameters of the debate".
[ The Court found that the section 7 legal issues raised in the case at bar differed from those in ''Rodriguez'', noting in particular the development of the overbreadth and gross disproportionality principles since 1993. The court also determined that the trial judge was entitled to consider the different "matrix of legislative and social facts" that had arisen since ''Rodriguez''.
]
Division of powers
The Court affirmed that section 241(b) of the ''Criminal Code'' fell within the federal government's section 91(27) criminal law power. Echoing their decision in ''Canada (AG) v PHS Community Services Society
is a leading Supreme Court of Canada case dealing with the application of the criminal law and healthcare heads of power found in section 91 and section 92 of the ''Constitution Act, 1867'' and the principles of fundamental justice in section ...
'', the Court dismissed the appellants' argument that section 241(b) lay within the core of the provincial section 92 powers. Interjurisdictional immunity
In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that determines which legislation arising from one level of jurisdiction may be applicable to matters covered at another level. Interjurisdictional immunity is an ex ...
could not prevent the federal government from enacting the legislation, since the proposed core of the provincial health powers was overly vague. The Court reaffirmed that health is an area of concurrent jurisdiction, allowing both the federal and provincial legislatures to legislate in the area.
Public reaction and planned implementation
The decision was well received by many, but characterized as judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
by others. The BCCLA, appellants at the Supreme Court, were "overjoyed" by the ruling, holding that "physician-assisted dying will now be recognized for what it is—a medical service". The day of the decision, Andrew Coyne
James Andrew Coyne (born December 23, 1960) is a Canadian columnist with ''The Globe and Mail'' and a member of the ''At Issue'' panel on CBC's '' The National''. Previously, he has been national editor for ''Maclean's'' and a columnist with ''Na ...
wrote in his ''National Post
The ''National Post'' is a Canadian English-language broadsheet newspaper available in several cities in central and western Canada. The paper is the flagship publication of Postmedia Network and is published Mondays through Saturdays, with ...
'' column that the Court was being eerily complacent about ramifications of its decision. He also argued that the decision signaled the death of judicial restraint
Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities; it is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis (that new decisions s ...
in Canada. Former politician Stockwell Day
Stockwell Burt Day Jr. (born August 16, 1950) is a Canadian former politician who led the Canadian Alliance from 2000 to 2001, and a member of the Conservative Party of Canada.
A provincial cabinet minister from Alberta, Day served as minister ...
was particularly critical of the Court, saying, " you want to write laws, you should run for office." In an op-ed published on Canadian Broadcasting Corporation
The Canadian Broadcasting Corporation (french: Société Radio-Canada), branded as CBC/Radio-Canada, is a Canadian public broadcaster for both radio and television. It is a federal Crown corporation that receives funding from the government. ...
's website, he called for a nationwide debate concerning assisted-suicide
Assisted suicide is suicide undertaken with the aid of another person. The term usually refers to physician-assisted suicide (PAS), which is suicide that is assisted by a physician or other healthcare provider. Once it is determined that the p ...
legislation. In response to ''Carter'', Conrad Black
Conrad Moffat Black, Baron Black of Crossharbour (born 25 August 1944), is a Canadian-born British former newspaper publisher, businessman, and writer.
His father was businessman George Montegu Black II, who had significant holdings in Canadi ...
argued politicians should invoke the notwithstanding clause
Section 33 of the ''Canadian Charter of Rights and Freedoms'' is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (french: clause dérogatoire, links=no or ), sometimes referred to as the override power, and ...
to send a message to the court that Parliament is supreme.
The February 2015 Supreme Court decision in ''Carter v Canada (AG'') limits physician-assisted suicides to "a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition". The ruling was suspended for 12 months to allow the Canadian parliament to draft a new, constitutional law to replace the existing one.
The Canadian Medical Association
The Canadian Medical Association (CMA; french: Association médicale canadienne, AMC) is a national, voluntary association of physicians and medical learners that advocates on national health matters. Its primary mandate is to drive positive ch ...
("CMA") reported that not all doctors were willing to help a patient die. However, the belief in late 2015 was that no physician would be forced to do so but the CMA was offering educational sessions to members as to the process that would be used.
Specifically the Supreme Court held that the current legislation was overbroad in that it prohibits "physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition."
The government subsequently requested a six-month extension for implementation; the arguments for this request were scheduled to be heard by the Supreme Court in January 2016.[
The court decision includes a requirement that there must be stringent limits that are "scrupulously monitored." This will require the death certificate to be completed by an independent medical examiner, not the treating physician, to ensure the accuracy of reporting the cause of death.
]
Subsequent legislative history
After a lengthy delay, the House of Commons passed a Bill (C-14) in mid-June 2016 that would allow for doctor-assisted suicide in the case of a terminal illness. The bill was then debated in the Senate. Initially, the Senate amended the bill, expanding the right to die. However, when it became apparent that the elected House of Commons would not accept the amendment, a final vote was held on 17 June 2016. At that time, a majority agreed with the restrictive wording provided by the House of Commons indicating that "only patients suffering from incurable illness whose natural death is 'reasonably foreseeable' are eligible for a medically assisted death," as summarized by the ''Toronto Star
The ''Toronto Star'' is a Canadian English-language broadsheet daily newspaper. The newspaper is the country's largest daily newspaper by circulation. It is owned by Toronto Star Newspapers Limited, a subsidiary of Torstar Corporation and part ...
''. Critics of the Bill indicate that the ''Carter'' decision was broader, including desperately ill individuals and not only those who are terminally ill or near death. The House of Commons did accept a few Senate amendments, such as requiring that patients be counselled about alternatives, including palliative care and barring beneficiaries from acting in the euthanasia. The bill was given Royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...
the same day.
Senators such as Serge Joyal who disagree with the restrictive wording believe that one of the provinces should refer
Refer or referral may refer to:
*Reference, a relation of designation or linking between objects
**Word-sense disambiguation, when a single term may refer to multiple meanings
*Referral marketing, to personally recommend, endorse, and pass a perso ...
the issue to its Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
for an opinion; this tactic would help to move the process along and would preclude the need for individuals to proceed with a very expensive appeal process.
See also
* List of Supreme Court of Canada cases (McLachlin Court)
This is a chronological list of notable cases decided by the Supreme Court of Canada from the appointment of Beverley McLachlin as Chief Justice of Canada to her retirement in 2017.
2000–2004
2005–2009
2010–2017
See also
* Li ...
* Suicide legislation
Suicide is a crime in some parts of the world. However, while suicide has been decriminalized in many western countries, the act is stigmatized and discouraged. In other contexts, suicide could be utilized as an extreme expression of liberty, a ...
* Euthanasia in Canada
Euthanasia in Canada in its legal voluntary form is called medical assistance in dying (MAID) and it first became legal along with assisted suicide in June 2016 to end the suffering of terminally ill adults. In March 2021, the law was further am ...
* 2015 reasons of the Supreme Court of Canada
The table below lists the decisions (known as reasons) delivered from the bench by the Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of C ...
* Death
Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...
References
External links
* Full text of Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
decision a
LexUM
{{DEFAULTSORT:Carter V. Canada (Attorney General)
Section Seven Charter case law
Supreme Court of Canada cases
2015 in Canadian case law
Assisted suicide
Euthanasia law
Health in British Columbia
Canadian federal government litigation