The Court Has Allowed Physician-assisted Death – What Next?

24 February 2015

Reflections on the Supreme Court of Canada judgment in Carter v. Canada

By Geoffrey Trotter, lawyer for the EFC in Carter v. Canada. Posted Feb. 24, 2015. 

Canada has taken the decisive first step of legalizing consensual killings in certain situations. Let’s consider two critical undercurrents which drove the Supreme Court of Canada decision before we turn to the question of Parliament’s response.

But first we’ll need a quick summary of the Supreme Court decision released Feb. 6 in the Carter v. Canada appeal.

The bad: Canadian law and medicine will no longer speak with one voice in the affirmation of all human life and the condemnation of all intentional killing (except where permitted to preserve other life as in self-defense and police action). The moral imagination of those experiencing serious illness, disability and dying, and of those around them, as well as the medical and legal systems, will be re-shaped by killing becoming an acceptable “solution” to certain “problems.” No one knows exactly how this fundamental change will percolate throughout Canadian law and society, but its impact will be far-reaching.

Other jurisdictions that have allowed assisted death have seen eligibility criteria broaden over time.

Newborn babies, blind and deaf twins with other non-terminal health conditions, and someone sentenced to life in prison have all been legally euthanized in Europe in recent years. Further, legislated safeguards have not been consistently implemented and enforced, leading to wrongful deaths (at least some of which are likely intentional murders).

So we should not be surprised ten or twenty-five years from now if, for example, a significant percentage of Canadian dementia patients are being euthanized.

Silver lining: The court did make a number of comments in its decision which mitigate some of the fundamental harm:

  • It affirmed “The sanctity of life is one of our most fundamental societal values” (Supreme Court judgment paragraph 63). However, the practical force of this affirmation is eroded by the overall thrust of the decision which weakens our society’s commitment to the sanctity of life.
  • It confirmed that every Canadian’s right to life (in section 7 of the Charter of Rights and Freedoms) means a right not to have one’s life taken. The court resisted the invitation to introduce notions of quality of life here which would have eroded the law’s protections for all of us who will inevitably, whether by accident, disease or age, reach a stage where our capacities are slipping away (para. 62). However, the practical force of this holding is eroded by the fact that the court elevated “intolerable suffering” to a level where it can mandate a right to death.
  • It confirmed doctors have Charter protections against being compelled to participate in physician-assisted death, although it left open the issue whether they can be compelled to refer (para. 132).
  • It confirmed Parliament’s federal criminal law jurisdiction over physician-assisted death is not ousted by the provincial jurisdiction over health care (para. 53). There are no doubt still jurisdictional fights ahead (most immediately regarding Quebec’s new law), but this is a helpful statement of principle from our highest court.
  • It invited Parliament to legislate stringent safeguards, noting that “Complex regulatory regimes are better created by Parliament than by the courts” and that for the court to create its own regulatory regime as an exception to the existing Criminal Code provisions would be to “usurp Parliament’s role” (para. 125).

With that introduction, let’s turn to the two fundamental drivers that shaped the result in this case.

Result driver #1: Narrow articulation of legislative objective

The objective of the previous blanket prohibition on physician-assisted death, the Supreme Court concluded, was merely to protect vulnerable persons from being induced to commit suicide at a time of weakness (paras. 74-75). This tilted the Charter analysis heavily against the government on the basis that the law offended the Charter by catching “non-vulnerable” persons – those who are said to “truly want to die” and who are said to be free of overt and subtle pressures, capacity issues, etc.

In accepting this narrow legislative objective, the Supreme Court rejected the government’s position that the objective of the prohibition was the “preservation of life.” I argued on behalf of the EFC that even if the court rejected the “preservation of life” objective, it should at least accept that the legislative objective was the “prohibition of all consensual killings” (EFC factum, para. 27). The court chose not to address this.

If the Supreme Court had accepted either the objective put forward by the government or by the EFC, the entire complexion of the case would have changed, and the court may have reached a different conclusion and upheld the ban on consensual killing.

The determination of the purpose of the law was similarly crucial in the Bedford prostitution case in 2013. The court found that the objective of that law was narrowly about preventing the side-effects of (otherwise legal) prostitution such as preventing public nuisances. This resulted in a similar conclusion that the law was overbroad because the nuisances could be prohibited without forcing prostitutes to undergo the greater risks of street prostitution versus the “safer” alternative of working indoors.

Parliament’s assertive response to the Bedford judgment is instructive: it moved from merely regulating the side-effects of prostitution to directly criminalizing the purchase of sex. This put the scope of the prohibition back in sync with its (broader) objective and cured the law of the overbreadth complaint. Could Parliament do the same with physician-assisted death? We’ll return to that question shortly.

Result driver #2: Deference to the Trial Judge’s Findings of Fact

Since the Rodriguez decision which narrowly upheld the prohibition of physician-assisted death in 1993, the issue has been the subject of a Senate report and nine failed private members’ bills. Meanwhile, suicide prevention and palliative care have been the subject of three Senate reports, a Parliamentary committee, and the 2012 Federal Framework for Suicide Prevention Act.

The trial judge spent the majority of her 1400 paragraph judgment weighing the evidence about whether or not safeguards in jurisdictions where physician-assisted death is permitted were effective in ensuring that only those legally eligible for physician-assisted death were killed. Common safeguards include capacity assessments, screening for depression, coercion and undue influence, and informed consent. Needless to say, the evidence was voluminous and hotly contested. The Supreme Court had 15,000 pages to consider, including trial exhibits, expert reports and affidavits, and about 500 pages of cross-examination of expert witnesses before the trial judge.

The trial judge acknowledged that no permissive jurisdiction achieved 100 per cent compliance (see footnotes to para. 40 of EFC’s Court of Appeal factum on this issue). However, she expressed the view that Canadian safeguards could be drafted in a way to avoid some of the problems in other countries, and that Canadian doctors would follow the rules more fastidiously than doctors elsewhere. Her ultimate conclusion was that “the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced” (para. 883).

Paired with her finding that the objective of the prohibition was narrowly to protect vulnerable persons from being induced to commit suicide at a time of weakness, it was this finding of fact which resulted in the law being struck down as overbroad and not minimally impairing (meaning that the trial judge concluded that a general prohibition paired with an exception for certain people could still protect the vulnerable, without breaching the Charter rights of people who wanted physician-assisted death).  
Needless to say, another trial judge could have come to the opposite conclusion, which would have led to the opposite result in this case.

The Supreme Court affirmed its own precedent in Bedford in that “a trial judge’s findings on social and legislative facts are entitled to the same degree of deference as any other factual findings.” Thus, even the trial judge’s prediction that Canada could become the first jurisdiction in the world to solve the compliance problems seen elsewhere without experiencing any new ones, was accorded the same high degree of deference given to a trial judge’s finding of fact on whether a traffic light was red or green when a vehicle entered an intersection.

This high level of deference means that the trial judge who hears a factually disputed constitutional challenge will often be the most important judge who will ever hear the case – more important than the Court of Appeal, and even more important than multiple Supreme Court justices. While the headlines this month are “Supreme Court of Canada overturns prohibition on physician assisted suicide,” the critical factual decision was made by one British Columbia judge in 2012.

Why only the “grievously, irremediably suffering?”

The Supreme Court found that the blanket prohibition against assisted suicide offended each of the Charter’s section 7 interests: life, liberty, and security of the person. The liberty interest was engaged because the law “interferes with [the patient’s] ability to make decisions concerning their bodily integrity and medical care” (para. 66). Yet the court concluded that physician-assisted death is a constitutional right only for those who have “a grievous and irremediable medical condition … that causes enduring suffering that is intolerable.” (para. 147).

I raised this question in my oral argument, but the judges do not explain why, given this reasoning, physician-assisted death can be denied to those whose condition is not grievous, but who are simply tired of life, or hopeless from having received a sentence to life in prison.

The fact that these others are not afforded physician-assisted death is an implicit acknowledgement of the centrality of the sanctity of life in our legal system and our moral intuitions – that law should not sanction killing. However it is likely that in future cases this appeal to the liberty interest will be made to expand the restrictions and logically it will be difficult to maintain restrictions given the court’s interpretation of liberty.

Parliament’s options

In the most insightful question asked at the Supreme Court hearing on October 14, Justice Moldaver asked plaintiffs’ counsel how many deaths were acceptable, in light of the trial judge’s conclusion that there are “risks inherent in permitting physician-assisted death” which could only be “very substantially minimized” through safeguards. This is the question that Parliament has considered for 22 years since the Rodriguez decision, each time concluding that the risk is too high, and that the value of human life must be unambiguously affirmed by our law.

Parliament need not merely regulate the side-effects of physician-assisted death. Parliament could respond to the Carter decision with a new law which, like its response to the Bedford judgment on prostitution, directly criminalizes the thing which it judges to be inherently wrong: in this case, killing. A democratic response whose clear objective is not merely to protect the vulnerable, but is rather unmistakably to criminalize all consensual killings as inherently wrong and contrary to the Charter value of the sanctity of life, would cure the law of the overbreadth issue. The Supreme Court Carter judgment does not indicate that such a response from Parliament would be unconstitutional.

If there is not sufficient political will to directly criminalize all consensual killings, then it is not only Parliament’s right, but also Parliament’s duty, to enact rigorous safeguards. Indeed, the court decision is premised on the vulnerable being protected through “a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.”

Such a system will not save everyone from being killed against their will (as noted above, the court acknowledges that the risks are inherent in a permissive system), but the combination of robust, clear and specific statutory criteria and procedures, combined with a well-designed system of independent and rigorous oversight, can help reduce wrongful deaths. The court has signaled that Parliament will be afforded a “high degree of deference” as it weighs the competing interests (para. 98).

It will be important to consult with those with firsthand knowledge of acute and palliative medicine and criminal law to draft the appropriate safeguards. One option to consider might be an opt-in “do not kill me” list maintained by the government, from which people could be removed only after an extended waiting period.

Such an opt-in system should give some degree of comfort to the disabled and others who are afraid of being pressured, even subtly, into “consenting” to physician-assisted death, whether by greedy heirs or doctors who may not rate the quality of the patient’s life as high as the patient themselves would do. Those who have not opted in would still need to meet all the safeguards for physician-assisted death before being killed, but such a list could provide additional protection against abuses.

So although the Supreme Court of Canada has spoken, Parliament now has a crucial opportunity to respond. Whether and how it responds will determine whether physician-assisted death in Canada becomes commonplace and acceptable, or remains rare and exceptional.

The stakes are high. The democratic process must now do its work, and there is much for people of faith to contribute at this critical juncture. Stay tuned about how you can help.

Geoffrey Trotter was lead counsel for The Evangelical Fellowship of Canada in Carter at both the BC Court of Appeal and at the Supreme Court of Canada.