September 15, 2015
Some months ago, the Supreme Court of Canada’s (“SCC”) ruling in Carter v Canada (Attorney General), [2015] 1 SCR 331 [Carter] made national headlines. Although all decisions of the SCC are important, this one seemed to strike a nerve or two on both sides of the playing field. In this case, as described in more detail here and here, the Court struck down a twenty-one-year-old law declaring physician-assisted dying an indictable offence. With the old law, once a person was convicted he or she could face up to 14 years of imprisonment. Although the ruling in R v Rodriguez, [1993] 3 SCR 519 [Rodriguez] was a 5:4 decision in favour of the prohibition against physician-assisted dying, the SCC in February reached a unanimous decision to the contrary.
Now, after the dust has settled and the Court’s decision has sunk deep within our legal minds, it’s important to consider why the SCC made this decision in the first place. Why was there a sudden shift after so many years of having an opposing law? Was the decision too dramatic? Was there a “happy medium” option that was overlooked? What factors might have influenced a unanimous decision after many years of not being able to successfully challenge an old law?
Let’s set one thing straight: to the public eye, the facts in both Rodriguez and Carter were quite similar. Both Sue Rodriguez and Gloria Taylor had been suffering from ALS (also known as Lou Gehrig’s Disease), which is a motor neuron disease that naturally degrades one’s ability to move. Both had expressed concerns that they would not be able to commit suicide when the disease progressed, if they chose to end their lives and not live with the illness. Notwithstanding the similar fact patterns, Carter did not follow the precedent set out in Rodriguez.
So what caused this turn in the tide? Simply put: it was an evolution of the law. These two cases exemplify how society influences the law and how the law, in turn, can influence social change. According to this news piece, before the SCC ruled on Carter, Dying with Dignity – an organization that is an avid supporter of doctor-assisted dying – did a survey among 2500 people, which showed that 84% were okay with the idea of striking the law down. The results of the case sparked a lot of media attention - various articles were written and the story was reported on for many weeks after the judgment was released.
Surveys and news articles such as the one mentioned above demonstrate the potential for societal views to influence the way we view the world and the equality we seek to achieve within our justice system. My claim here is not that this survey or ones like it were what the SCC judges relied upon to make a groundbreaking judgment. It could be that, since Rodriguez, our views about life and equality have changed in the last 20 years or so. Maybe it’s time to realize that law, justice, and policy makers don’t live in a box bound by ideals that don’t include a person having to consider killing themselves at all, legally or illegally.
Cases like Carter allow one to question what the role of the courts really is: should the court push against public opinion and maintain consistent rulings among all similar cases or should it be able to adjust over time and break precedent when need be? To what extent is its legitimacy affected when either approach is taken? It’s not surprising that the court ruled to lift the ban on physician-assisted suicide when looked at from the public’s viewpoint. The SCC gave the people what it wanted – isn’t this the entire premise upon which both our democratic and justice systems are based in the first place?
If we conclude that society’s opinion matters, even within the highest court in the nation, then we should also be able to affirm the importance of the general public being informed about the law and basic notions regarding justice and equality. Consequently, this relates to the idea of access to justice and information – one of the reoccurring themes discussed within the legal profession, whether it’s regarding a constitutional case such as this one, or within securities regulation laws that require full disclosure to shareholders prior to a company going public. Legal development is the platform on which we can take on the world’s imperfections and it is increased honesty and transparency within the system that will inevitably influence how our legal system will evolve.
1 Comment
Reading this piece months after it was published, and as the government's proposal for a law on assisted death to comply with the SCC has been put forth, one thing strikes me (a Norwegian physician engaged in the debate on assisted dying): The apparent lack of attention, in the Canadian public debate (as reflected in the news coverage) towards the role of the lower level judge, Lynn Smith of the BC-SC.
I've read both the Carter judgement of the SCC, as well as the very long and detailed judgement by Lynn Smith of the BCSC (here: http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc886/2012bcsc886.html#_Toc327438937 ).
It struck me, as a non-jurist, that the SCC judgement to a very large extent relies on the preceding judgement by Lynn Smith. That's natural, perhaps, as the nature of the SCC process was to consider an appeal of the BCSC judgement (right?). But still, I was surprised by the apparent lack of own-work done by the SCC in evaluating the facts of the case, in assembling facts on assisted dying, before rendering their judgement.
In her judgement, Lynn Smith interviewed a lot of experts on assisted dying. However, a general impression is that she leaned heavily towards those pro-assisted dying, while dismissing the fears and input of those against it. However, besides letting her personal views on the issue color her verdict, it seems that judge Smith exercised poor judgement in this. Afterwards, and even at the time of that judgement, there were several indications that the pro-euthanasia spokesmen were wrong in their predictions.
At any rate - when the SCC evaluated the case in 2014-2015, it was already becoming crystal clear that there IS a clear "slippery slope"-effect in the Netherlands and Belgium - euthanasia numbers are rising steadily by about >10 % each year, and now constitute about 5 % of deaths. There is no evidence of societal control increasing, on the contrary, physicians are widening the limits for euthanasia without any sanctions from the government. New groups are included - and euthanasia to incapacitated patients is becoming more frequent.
Even in Oregon, there are clear indications of both a rise in numbers, but also clear examples of errors being made in prognostication, leading to patients who don't qualify getting physician-assisted suicide. Anyway - it's obvious that the SCC envisioned a much broader access to assisted dying than what Oregon allows for - so the comparison with Oregon was irrelevant.
As I said - it seems so strange that the Canadian public aren't more aware of, or concerned about, the huge impact the personal views and weighting of evidence by this sole BC judge has had on the national development regarding assisted dying. To me, it seems like one woman has been given disproportionally big influence on development of national policy - and noone seems to care?
Not until now - now Canadians seem to start to worry about the vulnerable, about physicians right to abstain, about how to limit assisted suicide, about how to retain societal control and ensure reporting, about the lack of palliative care as a viable alternative, etc. It's all fine - but Canada has already decided to introduce assisted dying - before debating whether it's really what they want.