How should we refer to this case?
I imagine that people will simply call it the “Carter case”. The full name of the legal proceeding takes a full page of text, so the Carter Case is a great refinement. An elderly woman with an incurable disease named Gloria Carter, deceased 2012, started this court action 2 years earlier by challenging the government of Canada. Canada has two laws on the books that prohibit anyone from helping a person to end her own life.
What are those 2 laws?
Both may be found in the Criminal Code of Canada. One provision says that any person who helps another to commit suicide is guilty of a serious crime. Another provision says that no person may consent to death being inflicted upon them. This last component effectively takes away a legal defence that might otherwise be available to the assistant to a charge of assisting someone to commit suicide.
What’s the big deal at this time?
On Feb. 6, 2015 seven Supreme Court of Canada judges unanimously ruled on the case. Before the case got to the Supreme Court of Canada, it had gone through two previous rounds. At the first round Carter won. A single judge from British Columbia decided that the two laws were contrary to the Canadian Charter of Rights and Freedoms. Next the Court of Appeal for B.C. heard the case and decided that the trial judge got it wrong. This appeal court said that the laws did not contravene the Charter, following the logic of 1993 decision in the Susan Rodriguez case. The recent decision of the SCC settles the question by saying that the 2 laws are indeed unconstitutional, under certain circumstances, and with a twist.
What’s the twist?
The Supreme Court of Canada decision suspends the declaration of invalidity of those 2 laws for a 12 month period. So nothing changes for a one year period. However, come Feb. 6 2016, the two challenged laws will no longer be good law – assuming the federal government doesn’t change the laws before then themselves.
Why the delay?
The one year delay reflects the idea that different institutions have different roles in our society when it comes to legal rules. Legislative bodies (federal Parliament and the provincial legislatures) have the role of creating the laws. Regulatory bodies like the College of Physicians and Surgeons also have a role in rule making. Courts are not supposed to create laws. Rather Courts interpret the laws. By allowing a one year delay, the Supreme Court of Canada gives the legislatures and the regulatory bodies a chance to change the laws, if they see fit, so that such laws will be consistent with the super law, the constitution, which includes the Charter of Rights and Freedoms.
What are the ‘certain circumstances’ where the 2 laws are invalid?
This is the nub of the case. Absent special circumstances it will still be illegal to help another commit suicide, and no person may consent to death being inflicted upon them.
However, in the words of the Court, the 2 laws are of no effect to prohibit:
physician assisted death
for a competent adult, who
clearly consents to the termination of life
and has a medical condition
that cause enduring suffering
that is intolerable to the individual in the circumstances of their condition.
With the Court decision in place, the focus will now be on the law makers and the regulatory agencies. These rule makers will most certainly feel pressure from various interest groups to make new rules. Of course different groups will seek different rules. Some groups, like physicians, will have internal debates among themselves as to how the laws should be revised. Some provinces may wish to make laws independent of what the federal government thinks on the subject. Each group will most surely try to get support from the public for their particular vision.
All of this will take place with a big clock ticking down the one year time deadline.
And all the players will be alert to the fact that any new law must be consistent with the Charter of Rights and Freedoms as interpreted by the Supreme Court of Canada in the Carter decision. In short that means that any new regime will have to allow for doctor assisted death in those circumstances carved out by this case.
Can a doctor be compelled to assist with a death?
A large concern for medical professionals, and specifically doctors, was to be satisfied that the law would not be interpreted in such a fashion as to force an unwilling doctor to help terminate a life. These concerns were brought to the attention of the Supreme Court and indeed the decision of the Court addresses the issue. The Court says that nothing in their ruling would compel doctors to provide assistance in dying. The Court also acknowledges that for doctors, their decisions may be based on their religious beliefs, and their consciences, and that such decisions may well be protected by the same Charter of Rights and Freedoms that was applied to the patient.
How then to resolve a possible conflict between a patient’s rights and a physician’s rights? This, the Court said, is a matter for the rule makers, rather than the Courts. Generally though, the Court acknowledged that there would have to be some reconciliation of the respective Charter rights.
Where can I learn more about this case?
The internet/web will have an inexhaustible supply of material for the curious to explore. I recommend reading the full text of the Supreme Court of Canada decision. This runs about 85 pages in length. It might be a grind, with some references in secret code, but generally it is understandable for those with decent reading skills. To access the decision simply use a search engine with the key words: Carter v Canada Supreme Court Canada full text decision. Happy studies.