Wednesday, July 18, 2012
On June 15, 2012, the British Columbia Supreme Court handed down a much-anticipated judgment in Carter v. Canada, B.C.J.No. 1196; 2012 BCSC 886, 2012 BC.C. LEXIS 2467. The case challenged Canada's prohibition on assisted suicide, to the extent that it restricted physician-assisted dying sought voluntarily by competent, grievously and irremediably ill adults. The constitutional argument was that the prohibition violated the Canadian Charter of Rights and Freedoms s. 15 equality rights and s. 7 rights to liberty and security of the person. The nearly 200-page (in LEXIS) opinion is an extraordinary review of the current state of the law and practice of aid-in-dying, including extensive and careful discussion of medical ethics and end-of-life practices, the law in various jurisdictions where aid-in-dying is permissible, and the feasibility of effective safeguards.
The plaintiffs in the case were Gloria Taylor, a patient with ALS who wanted to know that she could arrange for physician assistance should her condition become unbearable to her; Lee Carter and Hollis Johnson, the son and son-in-law of a patient with spinal stenosis who arranged for her to go to DIGNITAS in Switzerland for an arranged death; and Dr. William Schiochet, a family practice physician in Victoria willing to participate in aid-in-dying in appropriate circumstances.
The argument that prohibiting aid-in-dying violates s.15 equality rights depends on the differing circumstances between patients who are able to take their own lives and patients who, because of physical disabilities, require assistance of others. Section 15 of the Charter provides that every individual has "the right to equal protection and equal benefit" of law "in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." This provision does not preclude law with the object of ameliorating conditions of disadvantaged individuals. Reasoning that the "animating norm" of this provision is substantive equality based on the enumerated ground of physical disability, the Court concluded that the absolute prohibition of assisted suicide imposed a disproportionate burden on people with physical disabilities. The Court applied the norm of substantive equality both to cases in which the allegation was that the plaintiff had not received equal benefit of the law and to cases such as this one in which the plaintiff contended that the law had the effect of unduly burdening individuals in the protected class. Finally, the court reasoned, the prohibition did not function to protect disadvantaged individuals, but to deprive them of the dignity of choice.
S. 7 of the Charter provides that everyone has "the right to life, liberty and security of the person" and may not be deprived of these rights "except in accordance with the principles of fundamental justice." Here, the defense argument was that this was a limit on liberty in accord with fundamental justice. The Court, in rejecting this argument, found that the absolute prohibition was overbroad and grossly disproportionate to any anticipated harms. Instead, the Court invited the government to design safeguards to ensure that aid-in-dying was permissible only in appropriate cases.
In issuing the decision, Justice Smith placed a one-year stay on the ruling to give the Canadian government time to consider its options. The stay included a "constitutional exemption" for Taylor, allowing her to get help to end her life if she so wished. On July 13, the Canadian federal government announced that it is appealing and sought a stay on the decision, including the exemption for Taylor. Stay tuned.
The case was litigated with great care and included a remarkable set of affadavits and testimony in favor of and opposed to aid-in-dying, from experts in bioethics, end of life treatment, and disability discrimination. The discussion of the evidence about the efficacy of safeguards, especially those aimed to insure voluntariness of the patient's decision such as assessments of competence or structures to avoid physician influence or forms of social coercion, are especially enlightening. For opponents, the decision has become a focus of resistance. Whatever happens as the case is appealed, the opinion is worth reading (and assigning to students, at least in part) as analysis of the justification for legalization of aid-in-dying with appropriate safeguards.