Fundamental Rights, Physician-Assisted Death and the Court’s Institutional Role: A Comment on Carter v. Canada (Attorney General)

—Robert Leckey, McGill University, author of the forthcoming Bills of Rights in the Common Law (Cambridge University Press, May 2015)

On 6 February 2015, the Supreme Court of Canada reversed its ruling on assisted suicide. In 1993, in a five-four decision, the Court had ruled that the federal government’s blanket ban on assisted suicide complied with the Canadian Charter of Rights and Freedoms.

In Carter v. Canada (Attorney General), the Court, now ruling 9–0, held that the ban limits some individuals’ right to life, to liberty, and to security of the person, and in a way incompatible with the principles of fundamental justice. The limit on rights, held the Court, is overbroad and unjustifiable. Specifically, the law wrongly constrains competent adults, suffering unendurably from a grievous and irremediable medical condition, who consent to the termination of life. Allowing Parliament time to respond, the Court suspended its declaration of invalidity for 12 months.

Commentators reading the case from various perspectives will find much to chew on. Legal philosophers may meditate on the Court’s rejection of a suggested “qualitative” approach to the life interest. Federalism scholars will study the implications for federal and provincial regulation of end-of-life care and health more broadly, the federal government’s power arising from its jurisdiction over the criminal law. Socio-legal researchers may investigate medical practice in the suspended remedy’s grey zone: the unconstitutional law remains in effect, but will any prosecutor lay charges under it? Scholars of judicial politics may mull over the fact that Canada’s Conservative prime minister had named six of the nine judges who overruled legislation that his attorney general defended. Junkies of judicial biography may explore the role of Chief Justice Beverley McLachlin, a dissenter in the 1993 appeal. The only judge still sitting from that time, she has seen her position elevated into law.

For their part, comparative constitutional scholars may take Carter as occasioning reflection on two relationships that an apex court navigates and shapes as it applies a bill of rights. Heavy reliance on evidence runs across both.

The first relationship is that between the Supreme Court of Canada and the other branches of government.

Like other rights cases in Canada and elsewhere, the heart of Carter concerned proportionality reasoning. It wasn’t terribly controversial that the blanket ban on assisted suicide limited liberty and security of the person. The Court also accepted that the law limited the life interest, effectively forcing some to end their life while able to do so unaided, earlier than they would otherwise wish. But were those limits constitutionally acceptable? That question turned on what comparative scholars would recognize as instances of the judicial assessment of proportionality.

To find the challenged law disproportionate, would the Court point to a satisfactory alternative? Last June, this dilemma regarding the judicial role had divided the UK Supreme Court in Nicklinson, also on assisted suicide. Lord Neuberger held that the Court owed Parliament a duty “not to grant a declaration [of incompatibility with Convention rights] without having reached and expressed some idea of how the incompatibility … could be remedied” (para 127). Lord Wilson said a court was “of maximum assistance to Parliament” if not only identifying factors precipitating the infringement, but articulating “options for its elimination” (para 204). Dissenting, Lord Kerr denied that demonstrating the challenged provision’s disproportionality required the Court to establish “a fully-formed, guaranteed-to-function, less intrusive means of achieving the objective” (para 354). Such a requirement would “herald a significant circumscription” on proportionality analysis (para 354).

The UK judges’ disagreement unfolded against a backdrop in which scholars increasingly note that proportionality reasoning, especially the requirement that a law use the least infringing means or satisfy what Canadian judges call minimal impairment, threatens the distinction between the respective roles of judges and of public officials.

In Carter, the Canadian judges confronted this choice less directly than had their UK counterparts. Rather than comparing the challenged law directly with a hypothetical, less rights-infringing law, the Court framed the issue as one of deferring to the trial judge’s review of the evidence. She had “concluded that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error” (para 105). This finding allowed the Supreme Court of Canada to declare the law unconstitutional without delimiting a precise regulatory model.

Undoubtedly, some will think that the Court puts a lot of weight on the trial judge’s “findings on social and legislative facts” (para 109). Indeed, arguably, a technocratic focus on deference to the trial judge’s findings throughout the proportionality analysis permits the Court to minimize its moral engagement.

The second kind of relationship is that between the Supreme Court of Canada today and its past. On the binding character of its precedents, the Court in Carter drew on its prostitution decision from 2013. It’s not only the Supreme Court of Canada that can depart from its rulings, confirmed the Court in Carter. Trial courts, too, “may reconsider settled rulings of higher courts … (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’” (para 44).

For the Court, Carter met both conditions. The “new legal issue” arose in the Court’s having developed its understanding of the principles of overbreadth and gross disproportionality since 1993. As for the evidence, the record undermined facts central to the earlier appeal, such as Western countries’ consensus on the necessity of a blanket prohibition and the lack of measures to protect the vulnerable. The Court doesn’t mention opinion polls showing public support for a policy change, but the judges must have known of them.

Whatever one thinks of the outcome in Carter, the Court’s willingness to jettison a past decision spurs reflection on its conception of authority. The judges appear to prefer the view of their institution as responsive to shifting policy impulses and public opinion over the view of it as settling issues definitively. Political scientists may tell us which, over the long term, produces the deepest authority or sociological legitimacy.

Scholars of comparative constitutionalism have sensibly attended to the advent and operation of relatively new bills of rights in countries such as Canada, New Zealand, the United Kingdom, and South Africa. Canada’s Carter judgment underscores the importance of evidence in an age of proportionality. As these rights instruments pass the milestones of one, two, and three decades, and as the cases decided under them multiply, it will be worth watching carefully how courts manage their relationships with other branches of government and with the past.

Suggested Citation: Robert Leckey, Fundamental Rights, Physician-Assisted Death and the Court’s Institutional Role: A Comment on Carter v. Canada (Attorney General), Int’l J. Const. L. Blog, Feb. 9, 2015, at: http://www.iconnectblog.com/2015/02/fundamental-rights-physician-assisted-death-and-the-courts-institutional-role-a-comment-on-carter-v-canada-attorney-general