Dying with Dignity: Carter v Canada (AG)

Three-Lawyers-You-must-credit-Photo-by-Alistair-Eagle-Courtesy-of-Lawyers-Weekly

Carter v Canada legal team. Image credit: Alistair Eagle, courtesy of Lawyers Weekly.

To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them…

In Carter v Canada (2015), the Supreme Court of Canada in an unanimous decision overturned the famous RodriguezBritish Columbia (Attorney General) decision from 1993. The Rodriguez decision upheld the criminal provisions that outright banned assisted dying. I suspect that underlying the Majority’s decision in Rodriguez was the Judeo-Christain belief that God alone has the right to give and take life.

The Court stated in Carter:

[42]                          The adjudicative facts in Rodriguez were very similar to the facts before the trial judge.  Ms. Rodriguez, like Ms. Taylor, was dying of ALS.  She, like Ms. Taylor, wanted the right to seek a physician’s assistance in dying when her suffering became intolerable.  The majority of the Court, per Sopinka J., held that the prohibition deprived Ms. Rodriguez of her security of the person, but found that it did so in a manner that was in accordance with the principles of fundamental justice.  The majority also assumed that the provision violated the claimant’s s. 15  rights [equality rights], but held that the limit was justified under s. 1  of the Charter .

[44]                          The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  Trial courts may reconsider settled rulings of higher courts in two situations:  (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” (Canada (Attorney General) v.Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

[127]                      The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14  of the Criminal Code  are void insofar as they prohibit 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.  “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.  The scope of this declaration is intended to respond to the factual circumstances in this case.  We make no pronouncement on other situations where physician‑assisted dying may be sought.

I applaud the decision in Carter. Individuals with incurable and insufferable diseases (like ALS) should not be forced by the State to endure the “the slings and arrows of outrageous fortune”. Church must be separated from State.

Although I commend the decision in Carter, I find the test for a departure from stare decisis (precedent): “where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate'” troubling. The ambiguity makes the test almost unduly flexible. When does something become fundamentally different? Who defines the parameters of the debate? Judges? If so, is that democratic?

I worry that the test of a “fundamental shift” is too abstract and malleable to protect vulnerable groups. It may lay the path for progressive decisions today. But, it may also unwittingly sanction oppressive decisions tomorrow.

 

For in that sleep of death what dreams may come
When we have shuffled off this mortal coil…
For who would bear the whips and scorns of time,
the law’s delay
To grunt and sweat under a weary life,
But that the dread of something after death,
The undiscover’d country from whose bourn
No traveller returns, puzzles the will
And makes us rather bear those ills we have
Than fly to others that we know not of?
Thus conscience does make cowards of us all…

Hamlet, Shakespeare

 

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