Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association v. Gloria Taylor, 2015 SCC 5

SUPREME COURT OF CANADA Citation: Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 Date: 20150206 Docket: 35591 Between: Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor Appellants and Attorney General of Canada Respondent And Between: Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor Appellants and Attorney General of Canada and Attorney General of British Columbia Respondents - and - Attorney General of Ontario, Attorney General of Quebec, Council of Canadians with Disabilities, Canadian Association for Community Living, Christian Legal Fellowship, Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario, Association for Reformed Political Action Canada, Physicians’ Alliance against Euthanasia, Evangelical Fellowship of Canada, Christian Medical and Dental Society of Canada, Canadian Federation of Catholic Physicians’ Societies, Dying With Dignity, Canadian Medical Association, Catholic Health Alliance of Canada, Criminal Lawyers’ Association (Ontario), Farewell Foundation for the Right to Die, Association québécoise pour le droit de mourir dans la dignité, Canadian Civil Liberties Association, Catholic Civil Rights League, Faith and Freedom Alliance, Protection of Conscience Project, Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society, Canadian Unitarian Council, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition — British Columbia Interveners

Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. Reasons for Judgment: (paras. 1 to 148) The Court carter v. canada (attorney general), 2015 SCC 5, [2015] 1 S.C.R. 331 Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor Appellants v. Attorney General of Canada Respondent - and - Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor Appellants v.

Attorney General of Canada and Attorney General of British Columbia Respondents and Attorney General of Ontario, Attorney General of Quebec, Council of Canadians with Disabilities, Canadian Association for Community Living, Christian Legal Fellowship, Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario, Association for Reformed Political Action Canada, Physicians’ Alliance against Euthanasia, Evangelical Fellowship of Canada, Christian Medical and Dental Society of Canada, Canadian Federation of Catholic Physicians’ Societies, Dying With Dignity, Canadian Medical Association, Catholic Health Alliance of Canada, Criminal Lawyers’ Association (Ontario), Farewell Foundation for the Right to Die,

Association québécoise pour le droit de mourir dans la dignité, Canadian Civil Liberties Association, Catholic Civil Rights League, Faith and Freedom Alliance, Protection of Conscience Project, Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society, Canadian Unitarian Council, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition — British Columbia Interveners Indexed as: Carter v. Canada (Attorney General) 2015 SCC 5 File No.: 35591. 2014: October 15; 2015: February 6.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for british columbia Constitutional law — Division of powers — Interjurisdictional immunity — Criminal Code provisions prohibiting physician-assisted dying — Whether prohibition interferes with protected core of provincial jurisdiction over health — Constitution Act, 1867, ss.91(27), 92(7), (13), (16).

Constitutional law — Charter of Rights — Right to life, liberty and security of the person — Fundamental justice —Competent adult with grievous and irremediable medical condition causing enduring suffering consenting to termination of life withphysician assistance — Whether Criminal Code provisions prohibiting physician-assisted dying infringe s. 7 of Canadian Charter ofRights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Criminal Code, R.S.C. 1985, c. C-46, ss. 14,241(b).

Constitutional law — Charter of Rights — Remedy — Constitutional exemption — Availability — Constitutional challengeof Criminal Code provisions prohibiting physician-assisted dying seeking declaration of invalidity of provisions and free-standingconstitutional exemption for claimants — Whether constitutional exemption under s. 24(1) of Canadian Charter of Rights and Freedomsshould be granted.

Courts — Costs — Special costs — Principles governing exercise of courts’ discretionary power to grant special costs onfull indemnity basis — Trial judge awarding special costs to successful plaintiffs on basis that award justified by public interest, andordering Attorney General intervening as of right to pay amount proportional to participation in proceedings — Whether special costsshould be awarded to cover entire expense of bringing case before courts — Whether award against Attorney General justified.

Section 241(

b) of the Criminal Code says that everyone who aids or abets a person in committing suicide commits anindictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit theprovision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged theconstitutionality of the Criminal Code provisions prohibiting assistance in dying.

She was joined in her claim by C and J, who hadassisted C’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicideclinic; a physician who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the BritishColumbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.

The trial judge found that the prohibition against physician-assisted dying violates the s. 7 rights of competent adults whoare suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justifiedunder s. 1 of the Charter. She declared the prohibition unconstitutional, granted a one-year suspension of invalidity and provided T witha constitutional exemption.

She awarded special costs in favour of the plaintiffs on the ground that this was justified by the publicinterest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of BritishColumbia in light of the full and active role it assumed in the proceedings. The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court’sdecision in Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, where a majority of theCourt upheld the blanket prohibition on assisted suicide.

The dissenting judge found no errors in the trial judge’s assessment of staredecisis, her application of s. 7 or the corresponding analysis under s. 1. However, he concluded that the trial judge was bound by theconclusion in Rodriguez that any s. 15 infringement was saved by s. 1. Held: The appeal should be allowed.

Section 241(

b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of theCharter and are of no force or effect to the extent that 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 ordisability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declarationof invalidity is suspended for 12 months. Special costs on a full indemnity basis are awarded against Canada throughout.

The AttorneyGeneral of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costsassociated with its presence at the appellate levels on a party-and-party basis. The trial judge was entitled to revisit this Court’s decision in Rodriguez. Trial courts may reconsider settled rulings of highercourts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence thatfundamentally shifts the parameters of the debate. Here, both conditions were met.

The argument before the trial judge involved adifferent legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles ofoverbreadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this casealso differed from the evidence before the Court in Rodriguez. The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of theConstitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health.

Health is an area of concurrentjurisdiction, which suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government,depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claimcannot succeed. Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous andirremediable medical condition that causes enduring and intolerable suffering, ss. 241(

b) and 14 of the Criminal Code deprive theseadults of their right to life, liberty and security of the person under s. 7 of the Charter. The right to life is engaged where the law or stateaction imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives someindividuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would beincapable of doing so when they reached the point where suffering was intolerable.

The rights to liberty and security of the person, whichdeal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediablemedical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to makedecisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerablesuffering, it impinges on their security of the person.

The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that isnot in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever thecircumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since atotal ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibitioncatches people outside the class of protected persons.

It follows that the limitation on their rights is in at least some cases not connectedto the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principleagainst gross disproportionality. Having concluded that the prohibition on physician-assisted dying violates s. 7, it is unnecessary to consider whether itdeprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter. Sections 241(

b) and 14 of the Criminal Code are not saved by s. 1 of the Charter. While the limit is prescribed by law andthe law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition onphysician-assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness,because prohibiting an activity that poses certain risks is a rational method of curtailing the risks.

However, as the trial judge found, theevidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government’sobjective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medicalpractitioners, and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properlydesigned and administered safeguards was capable of protecting vulnerable people from abuse and error.

It was also open to her toconclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment ofinformed consent and decisional capacity in the context of medical decision-making more generally. The absolute prohibition istherefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights againstthe beneficial effect of the law in terms of the greater public good.

The appropriate remedy is not to grant a free-standing constitutional exemption, but rather to issue a declaration of invalidityand to suspend it for 12 months. Nothing in this declaration would compel physicians to provide assistance in dying. The Charter rightsof patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment. The appellants are entitled to an award of special costs on a full indemnity basis to cover the entire expense of bringing thiscase before the courts.

A court may depart from the usual rule on costs and award special costs where two criteria are met. First, the casemust involve matters of public interest that are truly exceptional.

It is not enough that the issues raised have not been previously resolvedor that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact.Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify theproceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation inquestion with private funding.

Finally, only those costs that are shown to be reasonable and prudent will be covered by the award ofspecial costs. Here, the trial judge did not err in awarding special costs in the truly exceptional circumstances of this case. It was alsoopen to her to award 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it playedin the proceedings. The trial judge was in the best position to determine the role taken by that Attorney General and the extent to whichit shared carriage of the case. Cases Cited Distinguished: Rodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; applied:

Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; disapproved: Victoria (City) v. Adams, 2009 BCCA 563,100 B.C.L.R. (4th) 28; referred to: Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); Pretty v.United Kingdom, No. 2346/02, ECHR 2002-III; Fleming v. Ireland, [2013] IESC 19; R. (on the application of Nicklinson) v. Ministry ofJustice, [2014] UKSC 38, [2014] 3 All E.R. 843; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R.v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Ontario (Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; CanadianWestern Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256;Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; RJR-MacDonald Inc. v. Canada(Attorney General), (SCC), [1995] 3 S.C.R. 199; Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112;Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Blencoe v. British Columbia (Human Rights Commission),2000 SCC 44, [2000] 2 S.C.R. 307; R. v.

Morgentaler, (SCC), [1988] 1 S.C.R. 30; New Brunswick (Minister of Healthand Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46; A.C. v. Manitoba (Director of Child and FamilyServices), 2009 SCC 30, [2009] 2 S.C.R. 181; R. v. Parker (2000), (ON CA), 49 O.R. (3d) 481; Fleming v. Reid(1991), (ON CA), 4 O.R. (3d) 74; Ciarlariello v. Schacter, (SCC), [1993] 2 S.C.R. 119; Malette v.Shulman (1990), (ON CA), 72 O.R. (2d) 417; Nancy B. v. Hôtel-Dieu de Québec (1992), (QC CS),86 D.L.R. (4th) 385; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v.

Swain, (SCC), [1991] 1 S.C.R. 933; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Suresh v. Canada (Minister ofCitizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Saskatchewan(Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Little Sisters Book and Art Emporium v. Canada(Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R.17; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; B. (R.) v.

Children’s AidSociety of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315; Hegeman v. Carter, 2008 NWTSC 48, 74 C.P.C. (6th)112; Polglase v. Polglase (1979), (BC SC), 18 B.C.L.R. 294. Statutes and Regulations Cited Act respecting end-of-life care, CQLR, c. S-32.0001 [not yet in force]. Canadian Charter of Rights and Freedoms, ss. 1, 7, 15. Constitution Act, 1867, ss. 91, 92. Constitution Act, 1982, s. 52. Criminal Code, R.S.C. 1985, c. C-46, ss. 14, 21, 22, 212(1)(j), 222, 241. Authors Cited Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and

Section 1 of the Charter” (1995), 74 Can. Bar Rev.446. APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Newbury and Saunders JJ.A.), 2013BCCA 435, 51 B.C.L.R. (5th) 213, 302 C.C.C. (3d) 26, 365 D.L.R. (4th) 351, 293 C.R.R. (2d) 109, 345 B.C.A.C. 232, 589 W.A.C. 232,[2014] 1 W.W.R. 211, [2013] B.C.J. No. 2227 (QL), 2013 CarswellBC 3051 (WL Can.), setting aside decisions of Smith J., 2012 BCSC886, 287 C.C.C. (3d) 1, 261 C.R.R. (2d) 1, [2012] B.C.J. No. 1196 (QL), 2012 CarswellBC 1752 (WL Can.); and 2012 BCSC 1587, 271C.R.R. (2d) 224, [2012] B.C.J.

No. 2259 (QL), 2012 CarswellBC 3388 (WL Can.). Appeal allowed. Joseph J. Arvay, Q.C., Sheila M. Tucker and Alison M. Latimer, for the appellants. Robert J. Frater and Donnaree Nygard, for the respondent the Attorney General of Canada. Bryant Mackey, for the respondent the Attorney General of British Columbia. S. Zachary Green, for the intervener the Attorney General of Ontario. Jean-Yves Bernard and Sylvain Leboeuf, for the intervener the Attorney General of Quebec. David Baker and Emily Shepard, for the interveners the Council of Canadians with Disabilities and the CanadianAssociation for Community Living.

Gerald D. Chipeur, Q.C., for the intervener the Christian Legal Fellowship. Written submissions only by Gordon Capern, Michael Fenrick, Richard Elliott and Ryan Peck, for the interveners theCanadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario. André Schutten, for the intervener the Association for Reformed Political Action Canada. Pierre Bienvenu, Andres C. Garin and Vincent Rochette, for the intervener the Physicians’ Alliance against Euthanasia. Geoffrey Trotter, for the intervener the Evangelical Fellowship of Canada.

Albertos Polizogopoulos, for the interveners the Christian Medical and Dental Society of Canada and the CanadianFederation of Catholic Physicians’ Societies. Written submissions only by Cynthia Petersen and Kelly Doctor, for the intervener Dying With Dignity.

Harry Underwood and Jessica Prince , for the intervener the Canadian Medical Association. Albertos Polizogopoulos and Russell G. Gibson , for the intervener the Catholic Health Alliance of Canada. Marlys A. Edwardh and Daniel Sheppard , for the intervener the Criminal Lawyers’ Association (Ontario). Jason B. Gratl , for the interveners the Farewell Foundation for the Right to Die and Association québécoise pour le droit de mourir dans la dignité. Christopher D. Bredt and Margot Finley , for the intervener the Canadian Civil Liberties Association. Robert W. Staley , Ranjan K. Agarwal , Jack R. Maslen and Philip H.

Horgan , for the interveners the Catholic Civil Rights League, the Faith and Freedom Alliance and the Protection of Conscience Project. Angus M. Gunn , Q.C. , and Duncan A. W. Ault , for the intervener the Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying Society. Tim Dickson and Ryan J. M. Androsoff , for the intervener the Canadian Unitarian Council. Hugh R. Scher , for the interveners the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition — British Columbia. Table of Contents Paragraph

I. Introduction . 4 II. Background . 5 III. Statutory Provisions . 14 IV. Judicial History . 16 A. British Columbia Supreme Court, 2012 BCSC 886 , 287 C.C.C. (3d) 1 . 16 B. British Columbia Court of Appeal, 2013 BCCA 435 , 51 B.C.L.R. (5th) 213 . 22 V. Issues on Appeal 25 VI. Was the Trial Judge Bound by Rodriguez ? . 25 VII. Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction Over Health? . 28 VIII.

Section 7 . 31 A. Does the Law Infringe the Right to Life, Liberty and Security of the Person? . 32

(1) Life . 32

(2) Liberty and Security of the Person . 35

(3) Summary on

Section 7 : Life, Liberty and Security of the Person . 38 B. The Principles of Fundamental Justice . 39

(1) Arbitrariness . 44

(2) Overbreadth . 44

(3) Gross Disproportionality . 46

(4) Parity . 47 IX. Does the Prohibition on Assisted Suicide Violate

Section 15 of the Charter ? . 48 X.

Section 1 . 48

(1) Rational Connection . 50

(2) Minimal Impairment 51 (a) .. Canada’s Challenge to the Facts . 54 (b) .. The Fresh Evidence . 55 (c) .. The Feasibility of Safeguards and the Possibility of a “Slippery Slope” . 57

(3) Deleterious Effects and Salutary Benefits . 61 XI. Remedy . 61 A. The Court of Appeal’s Proposed Constitutional Exemption . 61 B. Declaration of Invalidity . 62 XII. Costs . 65 XIII. Conclusion . 70 1 5 19 22 22 34 40 42 49 54 57 57 64 70 71 83 85 89 91 93 94 99 102 108 110 114 122 124 124 126 133 147 The following is the judgment delivered by The Court —

I. Introduction [1] It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously andirremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. Aperson facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she cansuffer until she dies from natural causes.

The choice is cruel. [2] The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charterrights to life, liberty and security of the person (s. 7) and to equal treatment by and under the law (s. 15). This is a question that asks us tobalance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks deathas a response to a grievous and irremediable medical condition.

On the other stands the sanctity of life and the need to protect thevulnerable. [3] The trial judge found that the prohibition violates the s. 7 rights of competent adults who are suffering intolerablyas a result of a grievous and irremediable medical condition. She concluded that this infringement is not justified under s. 1 of theCharter. We agree. The trial judge’s findings were based on an exhaustive review of the extensive record before her. The evidencesupports her conclusion that the violation of the right to life, liberty and security of the person guaranteed by s. 7 of the Charter issevere.

It also supports her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse orerror. [4] We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult ofsuch assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous andirremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to theindividual in the circumstances of his or her condition. We therefore allow the appeal. II.

Background [5] In Canada, aiding or abetting a person to commit suicide is a criminal offence: see s. 241(

b) of the Criminal Code,R.S.C. 1985, c. C-46. This means that a person cannot seek a physician-assisted death. Twenty-one years ago, this Court upheld thisblanket prohibition on assisted suicide by a slim majority: Rodriguez v. British Columbia (Attorney General), (SCC),[1993] 3 S.C.R. 519. Sopinka J., writing for five justices, held that the prohibition did not violate s. 7 of the Canadian Charter of Rightsand Freedoms, and that if it violated s. 15, this was justified under s. 1, as there was “no halfway measure that could be relied upon withassurance” to protect the vulnerable (p. 614).

Four justices disagreed. McLachlin J. (as she then was), with L’Heureux-Dubé J.concurring, concluded that the prohibition violated s. 7 of the Charter and was not justified under s. 1. Lamer C.J. held that theprohibition violated s. 15 of the Charter and was not saved under s. 1. Cory J. agreed that the prohibition violated both ss. 7 and 15 andcould not be justified. [6] Despite the Court’s decision in Rodriguez, the debate over physician-assisted dying continued.

Between 1991 and2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assistedsuicide. None was passed. While opponents to legalization emphasized the inadequacy of safeguards and the potential to devaluehuman life, a vocal minority spoke in favour of reform, highlighting the importance of dignity and autonomy and the limits of palliativecare in addressing suffering. The Senate considered the matter as well, issuing a report on assisted suicide and euthanasia in 1995.

Themajority expressed concerns about the risk of abuse under a permissive regime and the need for respect for life. A minority supported anexemption to the prohibition in some circumstances. [7] More recent reports have come down in favour of reform. In 2011, the Royal Society of Canada published a reporton end-of-life decision-making and recommended that the Criminal Code be modified to permit assistance in dying in somecircumstances.

The Quebec National Assembly’s Select Committee on Dying with Dignity issued a report in 2012, recommendingamendments to legislation to recognize medical aid in dying as appropriate end-of-life care (now codified in

An Act respecting end-of-lifecare, CQLR, c. S-32.0001 (not yet in force)). [8] The legislative landscape on the issue of physician-assisted death has changed in the two decades since Rodriguez. In 1993 Sopinka J. noted that no other Western democracy expressly permitted assistance in dying. By 2010, however, eightjurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington,Montana, and Colombia.

The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws topermit medical aid in dying for a person suffering from a terminal disease. Colombia followed in 1997, after a decision of theconstitutional court. The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similarregime, with Luxembourg joining in 2009.

Together, these regimes have produced a body of evidence about the practical and legalworkings of physician-assisted death and the efficacy of safeguards for the vulnerable. [9] Nevertheless, physician-assisted dying remains a criminal offence in most Western countries, and a number ofcourts have upheld the prohibition on such assistance in the face of constitutional and human rights challenges: see, e.g., Washington v.Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); Pretty v. United Kingdom, No. 2346/02, ECHR 2002-III; andFleming v. Ireland, [2013] IESC 19.

In a recent decision, a majority of the Supreme Court of the United Kingdom accepted that theabsolute prohibition on assisted dying breached the claimants’ rights, but found the evidence on safeguards insufficient; the courtconcluded that Parliament should be given an opportunity to debate and amend the legislation based on the court’s provisional views(see R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843). [10] The debate in the public arena reflects the ongoing debate in the legislative sphere.

Some medical practitioners seelegal change as a natural extension of the principle of patient autonomy, while others fear derogation from the principles of medicalethics. Some people with disabilities oppose the legalization of assisted dying, arguing that it implicitly devalues their lives and rendersthem vulnerable to unwanted assistance in dying, as medical professionals assume that a disabled patient “leans towards death at asharper angle than the acutely ill — but otherwise non-disabled — patient” (2012 BCSC 886, 287 C.C.C. (3d) 1, at para. 811). Other

people with disabilities take the opposite view, arguing that a regime which permits control over the manner of one’s death respects, rather than threatens, their autonomy and dignity, and that the legalization of physician-assisted suicide will protect them by establishing stronger safeguards and oversight for end-of-life medical care. [ 11 ] The impetus for this case arose in 2009, when Gloria Taylor was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness.

ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe. Like Sue Rodriguez before her, Gloria Taylor did “not want to die slowly, piece by piece” or “wracked with pain,” and brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assistance in dying, specifically ss. 14 , 21 , 22 , 222 , and 241 . She was joined in her claim by Lee Carter and Hollis Johnson, who had assisted Ms.

Carter’s mother, Kathleen (“Kay”) Carter, in achieving her goal of dying with dignity by taking her to Switzerland to use the services of DIGNITAS, an assisted-suicide clinic; Dr. William Shoichet, a physician from British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association, which has a long-standing interest in patients’ rights and health policy and has conducted advocacy and education with respect to end-of-life choices, including assisted suicide. [ 12 ] By 2010, Ms.

Taylor’s condition had deteriorated to the point that she required a wheelchair to go more than a short distance and was suffering pain from muscle deterioration. She required home support for assistance with the daily tasks of living, something that she described as an assault on her privacy, dignity, and self-esteem. She continued to pursue an independent life despite her illness, but found that she was steadily losing the ability to participate fully in that life. Ms. Taylor informed her family and friends of a desire to obtain a physician-assisted death.

She did not want to “live in a bedridden state, stripped of dignity and independence”, she said; nor did she want an “ugly death”. This is how she explained her desire to seek a physician-assisted death: I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends. I know that I am dying, but I am far from depressed. I have some down time - that is part and parcel of the experience of knowing that you are terminal.

But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality. There will come a point when I will know that enough is enough. I cannot say precisely when that time will be. It is not a question of “when I can’t walk” or “when I can’t talk.” There is no pre-set trigger moment.

I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile.” When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good-bye and obtain final closure – for me and for them. My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician- assisted dying when that “enough is enough” moment arrives.

I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. . . . . . . . . . What I fear is a death that negates, as opposed to concludes, my life. I do not want to die slowly, piece by piece. I do not want to waste away unconscious in a hospital bed. I do not want to die wracked with pain. [ 13 ] Ms.

Taylor, however, knew she would be unable to request a physician-assisted death when the time came, because of the Criminal Code prohibition and the fact that she lacked the financial resources to travel to Switzerland, where assisted suicide is legal and available to non-residents.

This left her with what she described as the “cruel choice” between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death. [ 14 ] Other witnesses also described the “horrible” choice faced by a person suffering from a grievous and irremediable illness.

The stories in the affidavits vary in their details: some witnesses described the progression of degenerative illnesses like motor neuron diseases or Huntington’s disease, while others described the agony of treatment and the fear of a gruesome death from advanced- stage cancer.

Yet running through the evidence of all the witnesses is a constant theme — that they suffer from the knowledge that they lack the ability to bring a peaceful end to their lives at a time and in a manner of their own choosing. [ 15 ] Some describe how they had considered seeking out the traditional modes of suicide but found that choice, too, repugnant: I was going to blow my head off. I have a gun and I seriously considered doing it. I decided that I could not do that to my family. It would be horrible to put them through something like that. . . . I want a better choice than that.

A number of the witnesses made clear that they — or their loved ones — had considered or in fact committed suicide earlier than they would have chosen to die if physician-assisted death had been available to them.

One woman noted that the conventional methods of suicide, such as carbon monoxide asphyxiation, slitting of the wrists or overdosing on street drugs, would require that she end her life “while I am still able bodied and capable of taking my life, well ahead of when I actually need to leave this life”. [ 16 ] Still other witnesses described their situation in terms of a choice between a protracted or painful death and exposing

their loved ones to prosecution for assisting them in ending their lives. Speaking of himself and his wife, one man said: “We both face this reality, that we have only two terrible and imperfect options, with a sense of horror and loathing.” [ 17 ] Ms. Carter and Mr. Johnson described Kay Carter’s journey to assisted suicide in Switzerland and their role in facilitating that process. Kay was diagnosed in 2008 with spinal stenosis, a condition that results in the progressive compression of the spinal cord.

By mid-2009, her physical condition had deteriorated to the point that she required assistance with virtually all of her daily activities. She had extremely limited mobility and suffered from chronic pain. As her illness progressed, Kay informed her family that she did not wish to live out her life as an “ironing board”, lying flat in bed. She asked her daughter, Lee Carter, and her daughter’s husband, Hollis Johnson, to support and assist her in arranging an assisted suicide in Switzerland, and to travel there with her for that purpose.

Although aware that assisting Kay could expose them both to prosecution in Canada, they agreed to assist her. In early 2010, they attended a clinic in Switzerland operated by DIGNITAS, a Swiss “death with dignity” organization. Kay took the prescribed dose of sodium pentobarbital while surrounded by her family, and passed away within 20 minutes. [ 18 ] Ms. Carter and Mr. Johnson found the process of planning and arranging for Kay’s trip to Switzerland difficult, in part because their activities had to be kept secret due to the potential for criminal sanctions.

While they have not faced prosecution in Canada following Kay’s death, Ms. Carter and Mr. Johnson are of the view that Kay ought to have been able to obtain a physician- assisted suicide at home, surrounded by her family and friends, rather than undergoing the stressful and expensive process of arranging for the procedure overseas. Accordingly, they joined Ms. Taylor in pressing for the legalization of physician-assisted death. III. Statutory Provisions [ 19 ] The appellants challenge the constitutionality of the following provisions of the Criminal Code : 14.

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. 21.

(1) Every one is a party to an offence who . . . (

b) does or omits to do anything for the purpose of aiding any person to commit it; or . . .

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. 22.

(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite. 222.

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act; . . . 241. Every one who (

a) counsels a person to commit suicide, or (

b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [ 20 ] In our view, two of these provisions are at the core of the constitutional challenge: s. 241 ( b ), which says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 , which says that no person may consent to death being inflicted on them. It is these two provisions that prohibit the provision of assistance in dying. Sections 21 , 22 , and 222 are only engaged so long as the provision of assistance in dying is itself an “unlawful act” or offence.

Section 241 (

a) does not contribute to the prohibition on assisted suicide. [ 21 ] The Charter states: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. IV. Judicial History A. British Columbia Supreme Court, 2012 BCSC 886 , 287 C.C.C. (3d) 1 [ 22 ] The action was brought by way of

summary trial before Smith J. in the British Columbia Supreme Court. While the majority of the evidence was presented in affidavit form, a number of the expert witnesses were cross-examined, both prior to trial and before the trial judge. The record was voluminous: the trial judge canvassed evidence from Canada and from the permissive jurisdictions on medical ethics and current end-of-life practices, the risks associated with assisted suicide, and the feasibility of safeguards. [ 23 ] The trial judge began by reviewing the current state of the law and practice in Canada regarding end-of-life care.

She found that current unregulated end-of-life practices in Canada — such as the administration of palliative sedation and the withholding or withdrawal of lifesaving or life-sustaining medical treatment — can have the effect of hastening death and that there is a strong societal consensus that these practices are ethically acceptable (para. 357).

After considering the evidence of physicians and ethicists, she found that the “preponderance of the evidence from ethicists is that there is no ethical distinction between physician- assisted death and other end-of-life practices whose outcome is highly likely to be death” (para. 335).

Finally, she found that there are qualified Canadian physicians who would find it ethical to assist a patient in dying if that act were not prohibited by law (para. 319). [ 24 ] Based on these findings, the trial judge concluded that, while there is no clear societal consensus on physician- assisted dying, there is a strong consensus that it would only be ethical with respect to voluntary adults who are competent, informed, grievously and irremediably ill, and where the assistance is “clearly consistent with the patient’s wishes and best interests, and

[provided] in order to relieve suffering” (para. 358). [ 25 ] The trial judge then turned to the evidence from the regimes that permit physician-assisted dying. She reviewed the safeguards in place in each jurisdiction and considered the effectiveness of each regulatory regime. In each system, she found general compliance with regulations, although she noted some room for improvement. The evidence from Oregon and the Netherlands showed that a system can be designed to protect the socially vulnerable.

Expert evidence established that the “predicted abuse and disproportionate impact on vulnerable populations has not materialized” in Belgium, the Netherlands, and Oregon (para. 684).

She concluded that although none of the systems has achieved perfection, empirical researchers and practitioners who have experience in those systems are of the view that they work well in protecting patients from abuse while allowing competent patients to choose the timing of their deaths. [para. 685] While stressing the need for caution in drawing conclusions for Canada based on foreign experience, the trial judge found that “weak inference[s]” could be drawn about the effectiveness of safeguards and the potential degree of compliance with any permissive regime (para. 683). [ 26 ] Based on the evidence from the permissive jurisdictions, the trial judge also rejected the argument that the legalization of physician-assisted dying would impede the development of palliative care in the country, finding that the effects of a permissive regime, while speculative, would “not necessarily be negative” (para. 736).

Similarly, she concluded that any changes in the physician-patient relationship following legalization “could prove to be neutral or for the good” (para. 746). [ 27 ] The trial judge then considered the risks of a permissive regime and the feasibility of implementing safeguards to address those risks. After reviewing the evidence tendered by physicians and experts in patient assessment, she concluded that physicians were capable of reliably assessing patient competence, including in the context of life-and-death decisions (para. 798).

She found that it was possible to detect coercion, undue influence, and ambivalence as part of this assessment process (paras. 815, 843). She also found that the informed consent standard could be applied in the context of physician-assisted death, so long as care was taken to “ensure a patient is properly informed of her diagnosis and prognosis” and the treatment options described included all reasonable palliative care interventions (para. 831).

Ultimately, she concluded that the risks of physician-assisted death “can be identified and very substantially minimized through a carefully-designed system” that imposes strict limits that are scrupulously monitored and enforced (para. 883). [ 28 ] Having reviewed the copious evidence before her, the trial judge concluded that the decision in Rodriguez did not prevent her from reviewing the constitutionality of the impugned provisions, because (1) the majority in Rodriguez did not address the right to life; (2) the principles of overbreadth and gross disproportionality had not been identified at the time of the decision in Rodriguez and thus were not addressed in that decision; (3) the majority only “assumed” a violation of s. 15 ; and (4) the decision in Alberta v.

Hutterian Brethren of Wilson Colony , 2009 SCC 37 , [2009] 2 S.C.R. 567, represented a “substantive change” to the s. 1 analysis (para. 994). The trial judge concluded that these changes in the law, combined with the changes in the social and factual landscape over the past 20 years, permitted her to reconsider the constitutionality on the prohibition on physician-assisted dying. [ 29 ] The trial judge then turned to the Charter analysis. She first asked whether the prohibition violated the s. 15 equality guarantee.

She found that the provisions imposed a disproportionate burden on persons with physical disabilities, as only they are restricted to self-imposed starvation and dehydration in order to take their own lives (para. 1076). This distinction, she found, is discriminatory, and not justified under s. 1 . While the objective of the prohibition — the protection of vulnerable persons from being induced to commit suicide at a time of weakness — is pressing and substantial and the means are rationally connected to that purpose, the prohibition is not minimally impairing.

A “stringently limited, carefully monitored system of exceptions” would achieve Parliament’s objective: Permission for physician-assisted death for grievously ill and irremediably suffering people who are competent, fully informed, non- ambivalent, and free from coercion or duress, with stringent and well-enforced safeguards, could achieve that objective in a real and substantial way. [para. 1243] [ 30 ] Turning to s. 7 of the Charter , which protects life, liberty and security of the person, the trial judge found that the prohibition impacted all three interests.

The prohibition on seeking physician-assisted dying deprived individuals of liberty, which encompasses “the right to non-interference by the state with fundamentally important and personal medical decision-making” (para. 1302). In addition, it also impinged on Ms. Taylor’s security of the person by restricting her control over her bodily integrity. While the trial judge rejected a “qualitative” approach to the right to life, concluding that the right to life is only engaged by a threat of death, she concluded that Ms.

Taylor’s right to life was engaged insofar as the prohibition might force her to take her life earlier than she otherwise would if she had access to a physician-assisted death. [ 31 ] The trial judge concluded that the deprivation of the claimants’ s. 7 rights was not in accordance with the principles of fundamental justice, particularly the principles against overbreadth and gross disproportionality. The prohibition was broader than necessary, as the evidence showed that a system with properly designed and administered safeguards offered a less restrictive means of reaching the government’s objective.

Moreover, the “very severe” effects of the absolute prohibition in relation to its salutary effects rendered it grossly disproportionate (para. 1378). As with the s. 15 infringement, the trial judge found the s. 7 infringement was not justified under s. 1 . [ 32 ] In the result, the trial judge declared the prohibition unconstitutional, granted a one-year suspension of invalidity, and provided Ms. Taylor with a constitutional exemption for use during the one-year period of the suspension. Ms.

Taylor passed away prior to the appeal of this matter, without accessing the exemption. [ 33 ] In a separate decision on costs ( 2012 BCSC 1587 , 271 C.R.R. (2d) 224), the trial judge ordered an award of special costs in favour of the plaintiffs. The issues in the case were “complex and momentous” (para. 87) and the plaintiffs could not have prosecuted the case without assistance from pro bono counsel; an award of special costs would therefore promote the public interest in

encouraging experienced counsel to take on Charter litigation on a pro bono basis. The trial judge ordered the Attorney General of British Columbia to pay 10 percent of the costs, noting that she had taken a full and active role in the proceedings. Canada was ordered to pay the remaining 90 percent of the award. B. British Columbia Court of Appeal, 2013 BCCA 435 , 51 B.C.L.R. (5th) 213 [ 34 ] The majority of the Court of Appeal, per Newbury and Saunders JJ.A., allowed Canada’s appeal on the ground that the trial judge was bound to follow this Court’s decision in Rodriguez .

The majority concluded that neither the change in legislative and social facts nor the new legal issues relied on by the trial judge permitted a departure from Rodriguez . [ 35 ] The majority read Rodriguez as implicitly rejecting the proposition that the prohibition infringes the right to life under s. 7 of the Charter . It concluded that the post- Rodriguez principles of fundamental justice — namely overbreadth and gross disproportionality — did not impose a new legal framework under s. 7.

While acknowledging that the reasons in Rodriguez did not follow the analytical methodology that now applies under s. 7 , the majority held that this would not have changed the result. [ 36 ] The majority also noted that Rodriguez disposed of the s. 15 equality argument (which only two judges in that case expressly considered) by holding that any rights violation worked by the prohibition was justified as a reasonable limit under s. 1 of the Charter . The decision in Hutterian Brethren did not represent a change in the law under s. 1 .

Had it been necessary to consider s. 1 in relation to s. 7 , the majority opined, the s. 1 analysis carried out under s. 15 likely would have led to the same conclusion — the “blanket prohibition” under s. 241 of the Criminal Code was justified (para. 323). Accordingly, the majority concluded that “the trial judge was bound to find that the plaintiffs’ case had been authoritatively decided by Rodriguez ” (para. 324 ). [ 37 ] Commenting on remedy in the alternative, the majority of the Court of Appeal suggested the reinstatement of the free-standing constitutional exemption eliminated in R. v.

Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, instead of a declaration of invalidity, as a suspended declaration presented the spectre of a legislative vacuum. [ 38 ] The majority denied the appellants their costs, given the outcome, but otherwise would have approved the trial judge’s award of special costs. In addition, the majority held that costs should not have been awarded against British Columbia. [ 39 ] Finch C.J.B.C., dissenting, found no errors in the trial judge’s assessment of stare decisis , her application of s. 7, or the corresponding analysis under s. 1.

However, he concluded that the trial judge was bound by Sopinka J.’s conclusion that any s. 15 infringement was saved by s. 1 . While he essentially agreed with her s. 7 analysis, he would have accepted a broader, qualitative scope for the right to life. He agreed with the trial judge that the prohibition was not minimally impairing, and concluded that a “carefully regulated scheme” could meet Parliament’s objectives (para. 177); therefore, the breach of s. 7 could not be justified under s. 1 . He would have upheld the trial judge’s order on costs. V.

Issues on Appeal [ 40 ] The main issue in this case is whether the prohibition on physician-assisted dying found in s. 241 (

b) of the Criminal Code violates the claimants’ rights under ss. 7 and 15 of the Charter . For the purposes of their claim, the appellants use “physician- assisted death” and “physician-assisted dying” to describe the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient.

The appellants advance two claims: (1) that the prohibition on physician-assisted dying deprives competent adults, who suffer a grievous and irremediable medical condition that causes the person to endure physical or psychological suffering that is intolerable to that person, of their right to life, liberty and security of the person under s. 7 of the Charter ; and (2) that the prohibition deprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter . [ 41 ] Before turning to the Charter claims, two preliminary issues arise: (1) whether this Court’s decision in Rodriguez can be revisited; and (2) whether the prohibition is beyond Parliament’s power because physician-assisted dying lies at the core of the provincial jurisdiction over health.

VI. Was the Trial Judge Bound by Rodriguez ? [ 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, but held that the limit was justified under s. 1 of the Charter . [ 43 ] Canada and Ontario argue that the trial judge was bound by Rodriguez and not entitled to revisit the constitutionality of the legislation prohibiting assisted suicide.

Ontario goes so far as to argue that “vertical stare decisis ” is a constitutional principle that requires all lower courts to rigidly follow this Court’s Charter precedents unless and until this Court sets them aside. [ 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 ). [ 45 ] Both conditions were met in this case.

The trial judge explained her decision to revisit Rodriguez by noting the changes in both the legal framework for s. 7 and the evidence on controlling the risk of abuse associated with assisted suicide. [ 46 ] The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since

Rodriguez. The majority of this Court in Rodriguez acknowledged the argument that the impugned laws were “over-inclusive” whendiscussing the principles of fundamental justice (see p. 590). However, it did not apply the principle of overbreadth as it is currentlyunderstood, but instead asked whether the prohibition was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting thevulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (p.595).

By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the lawinterferes with some conduct that has no connection to the law’s objectives (Bedford, at para. 101). This different question may lead to adifferent answer. The majority’s consideration of overbreadth under s. 1 suffers from the same defect: see Rodriguez, at p. 614. Finally,the majority in Rodriguez did not consider whether the prohibition was grossly disproportionate. [47] The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.

The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive andactive euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the“substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and613). The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of theseconclusions (see Ontario (Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 136, per Rothstein J.). [48] While we do not agree with the trial judge that the comments in Hutterian Brethren on the s. 1 proportionalitydoctrine suffice to justify reconsideration of the s. 15 equality claim, we conclude it was open to the trial judge to reconsider the s. 15claim as well, given the fundamental change in the facts. VII.

Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction Over Health? [49] The appellants accept that the prohibition on assisted suicide is, in general, a valid exercise of the federal criminallaw power under s. 91(27) of the Constitution Act, 1867.

However, they say that the doctrine of interjurisdictional immunity means thatthe prohibition cannot constitutionally apply to physician-assisted dying, because it lies at the core of the provincial jurisdiction overhealth care under s. 92(7), (13) and (16) of the Constitution Act, 1867, and is therefore beyond the legislative competence of the federalParliament. [50] The doctrine of interjurisdictional immunity is premised on the idea that the heads of power in ss. 91 and 92 are“exclusive”, and therefore each have a “minimum and unassailable” core of content that is immune from the application of legislationenacted by the other level of government (Canadian Western Bank v.

Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 33-34). Tosucceed in their argument on this point, the appellants must show that the prohibition, insofar as it extends to physician-assisted dying,impairs the “protected core” of the provincial jurisdiction over health: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2S.C.R. 256, at para. 131. [51] This Court rejected a similar argument in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC44, [2011] 3 S.C.R. 134.

The issue in that case was “whether the delivery of health care services constitutes a protected core of theprovincial power over health care in s. 92(7), (13) and (16) . . . and is therefore immune from federal interference” (para. 66). The Courtconcluded that it did not (per McLachlin C.J.): . . . Parliament has power to legislate with respect to federal matters, notably criminal law, that touch on health.

For instance, it hashistoric jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as “socially undesirable” behaviour: R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; Morgentaler v. The Queen, (SCC), [1976] 1 S.C.R. 616; R. v.Morgentaler, (SCC), [1993] 3 S.C.R. 463. The federal role in the domain of health makes it impossible to preciselydefine what falls in or out of the proposed provincial “core”.

Overlapping federal jurisdiction and the sheer size and diversity ofprovincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federallegislation may not tread. [para. 68] [52] The appellants and the Attorney General of Quebec (who intervened on this point) say that it is possible to describe aprecise core for the power over health, and thereby to distinguish PHS.

The appellants’ proposed core is described as a power to delivernecessary medical treatment for which there is no alternative treatment capable of meeting a patient’s needs (A.F., at para. 43). Quebectakes a slightly different approach, defining the core as the power to establish the kind of health care offered to patients and supervise theprocess of consent required for that care (I.F., at para. 7). [53] We are not persuaded by the submissions that PHS is distinguishable, given the vague terms in which the proposeddefinitions of the “core” of the provincial health power are couched.

In our view, the appellants have not established that the prohibitionon physician-assisted dying impairs the core of the provincial jurisdiction. Health is an area of concurrent jurisdiction; both Parliamentand the provinces may validly legislate on the topic: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995]3 S.C.R. 199, at para. 32; Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112, at p. 142. This suggests that aspects ofphysician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and focusof the legislation.

We are not satisfied on the record before us that the provincial power over health excludes the power of the federalParliament to legislate on physician-assisted dying. It follows that the interjurisdictional immunity claim cannot succeed. VIII.

Section 7 [54]

Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of fundamental justice.” [55] In order to demonstrate a violation of s. 7, the claimants must first show that the law interferes with, or deprives themof, their life, liberty or security of the person.

Once they have established that s. 7 is engaged, they must then show that the deprivationin question is not in accordance with the principles of fundamental justice. [56] For the reasons below, we conclude that the prohibition on physician-assisted dying infringes the right to life, libertyand security of Ms. Taylor and of persons in her position, and that it does so in a manner that is overbroad and thus is not in accordance

with the principles of fundamental justice. It therefore violates s. 7. A. Does the Law Infringe the Right to Life, Liberty and Security of the Person?

(1) Life [57] The trial judge found that the prohibition on physician-assisted dying had the effect of forcing some individuals totake their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering wasintolerable. On that basis, she found that the right to life was engaged. [58] We see no basis for interfering with the trial judge’s conclusion on this point. The evidence of premature death wasnot challenged before this Court.

It is therefore established that the prohibition deprives some individuals of life. [59] The appellants and a number of the interveners urge us to adopt a broader, qualitative approach to the right to life. Some argue that the right to life is not restricted to the preservation of life, but protects quality of life and therefore a right to die withdignity.

Others argue that the right to life protects personal autonomy and fundamental notions of self-determination and dignity, andtherefore includes the right to determine whether to take one’s own life. [60] In dissent at the Court of Appeal, Finch C.J.B.C. accepted the argument that the right to life protects more thanphysical existence (paras. 84-89). In his view, the life interest is “intimately connected to the way a person values his or her livedexperience.

The point at which the meaning of life is lost, when life’s positive attributes are so diminished as to render life valueless, . . .is an intensely personal decision which ‘everyone’ has the right to make for him or herself” (para. 86). Similarly, in his dissent inRodriguez, Cory J. accepted that the right to life included a right to die with dignity, on the ground that “dying is an integral part ofliving” (p. 630). [61] The trial judge, on the other hand, rejected the “qualitative” approach to the right to life.

She concluded that theright to life is only engaged when there is a threat of death as a result of government action or laws. In her words, the right to life islimited to a “right not to die” (para. 1322 (emphasis in original)). [62] This Court has most recently invoked the right to life in Chaoulli v.

Quebec (Attorney General), 2005 SCC 35,[2005] 1 S.C.R. 791, where evidence showed that the lack of timely health care could result in death (paras. 38 and 50, per DeschampsJ.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.), and in PHS, where the clients of Insitewere deprived of potentially lifesaving medical care (para. 91). In each case, the right was only engaged by the threat of death.

In short,the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on aperson, either directly or indirectly. Conversely, concerns about autonomy and quality of life have traditionally been treated as libertyand security rights. We see no reason to alter that approach in this case. [63] This said, we do not agree that the existential formulation of the right to life requires an absolute prohibition onassistance in dying, or that individuals cannot “waive” their right to life.

This would create a “duty to live”, rather than a “right to life”,and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. Thesanctity of life is one of our most fundamental societal values.

Section 7 is rooted in a profound respect for the value of human life. Buts. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “isno longer seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per Sopinka J.). And it is for this reason thatthe law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect. It is tothis fundamental choice that we now turn.

(2) Liberty and Security of the Person [64] Underlying both of these rights is a concern for the protection of individual autonomy and dignity. Liberty protects“the right to make fundamental personal choices free from state interference”: Blencoe v. British Columbia (Human RightsCommission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54.

Security of the person encompasses “a notion of personal autonomyinvolving . . . control over one’s bodily integrity free from state interference” (Rodriguez, at pp. 587-88, per Sopinka J., referring to R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30) and it is engaged by state interference with an individual’s physical orpsychological integrity, including any state action that causes physical or serious psychological suffering (New Brunswick (Minister ofHealth and Community Services) v.

G. (J.), (SCC), [1999] 3 S.C.R. 46, at para. 58; Blencoe, at paras. 55-57; Chaoulli,at para. 43, per Deschamps J.; para. 119, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.). Whileliberty and security of the person are distinct interests, for the purpose of this appeal they may be considered together. [65] The trial judge concluded that the prohibition on assisted dying limited Ms.

Taylor’s s. 7 right to liberty and securityof the person, by interfering with “fundamentally important and personal medical decision-making” (para. 1302), imposing pain andpsychological stress and depriving her of control over her bodily integrity (paras. 1293-94). She found that the prohibition left peoplelike Ms. Taylor to suffer physical or psychological pain and imposed stress due to the unavailability of physician-assisted dying,impinging on her security of the person.

She further noted that seriously and irremediably ill persons were “denied the opportunity tomake a choice that may be very important to their sense of dignity and personal integrity” and that is “consistent with their lifelongvalues and that reflects their life’s experience” (para. 1326). [66] We agree with the trial judge. An individual’s response to a grievous and irremediable medical condition is a mattercritical to their dignity and autonomy.

The law allows people in this situation to request palliative sedation, refuse artificial nutrition andhydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance indying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches onliberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person. [67] The law has long protected patient autonomy in medical decision-making. In A.C. v.

Manitoba (Director of Childand Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this

point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free tomake decisions about their bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to direct the course of theirown medical care (para. 40): it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee ofliberty and security of the person (para. 100; see also R. v. Parker (2000), (ON CA), 49 O.R. (3d) 481 (C.A.)). Asnoted in Fleming v.

Reid (1991), (ON CA), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is notvitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision. It is this same principlethat is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn ordiscontinued: see, e.g., Ciarlariello v. Schacter, (SCC), [1993] 2 S.C.R. 119; Malette v. Shulman (1990), (ON CA), 72 O.R. (2d) 417 (C.A.); and Nancy B. v. Hôtel-Dieu de Québec (1992), (QC CS), 86 D.L.R. (4th)385 (Que. Sup.

Ct.). [68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is engaged “where state compulsions orprohibitions affect important and fundamental life choices” (para. 49). In A.C., where the claimant sought to refuse a potentiallylifesaving blood transfusion on religious grounds, Binnie J. noted that we may “instinctively recoil” from the decision to seek deathbecause of our belief in the sanctity of human life (para. 219).

But his response is equally relevant here: it is clear that anyone whoseeks physician-assisted dying because they are suffering intolerably as a result of a grievous and irremediable medical condition “doesso out of a deeply personal and fundamental belief about how they wish to live, or cease to live” (ibid.). The trial judge, too, describedthis as a decision that, for some people, is “very important to their sense of dignity and personal integrity, that is consistent with theirlifelong values and that reflects their life’s experience” (para. 1326).

This is a decision that is rooted in their control over their bodilyintegrity; it represents their deeply personal response to serious pain and suffering. By denying them the opportunity to make thatchoice, the prohibition impinges on their liberty and security of the person. As noted above, s. 7 recognizes the value of life, but it alsohonours the role that autonomy and dignity play at the end of that life. We therefore conclude that ss. 241(

b) and 14 of the CriminalCode, insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous andirremediable medical condition that causes enduring and intolerable suffering, infringe the rights to liberty and security of the person. [69] We note, as the trial judge did, that Lee Carter and Hollis Johnson’s interest in liberty may be engaged by the threatof criminal sanction for their role in Kay Carter’s death in Switzerland. However, this potential deprivation was not the focus of thearguments raised at trial, and neither Ms. Carter nor Mr.

Johnson sought a personal remedy before this Court. Accordingly, we haveconfined ourselves to the rights of those who seek assistance in dying, rather than of those who might provide such assistance.

(3) Summary on

Section 7: Life, Liberty and Security of the Person [70] For the foregoing reasons, we conclude that the prohibition on physician-assisted dying deprived Ms. Taylor andothers suffering from grievous and irremediable medical conditions of the right to life, liberty and security of the person. The remainingquestion under s. 7 is whether this deprivation was in accordance with the principles of fundamental justice. B. The Principles of Fundamental Justice [71]

Section 7 does not promise that the state will never interfere with a person’s life, liberty or security of the person —laws do this all the time — but rather that the state will not do so in a way that violates the principles of fundamental justice. [72]

Section 7 does not catalogue the principles of fundamental justice to which it refers. Over the course of 32 years ofCharter adjudication, this Court has worked to define the minimum constitutional requirements that a law that trenches on life, liberty orsecurity of the person must meet (Bedford, at para. 94).

While the Court has recognized a number of principles of fundamental justice,three have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not bearbitrary, overbroad, or have consequences that are grossly disproportionate to their object. [73] Each of these potential vices involves comparison with the object of the law that is challenged (Bedford, at para.123).

The first step is therefore to identify the object of the prohibition on assisted dying. [74] The trial judge, relying on Rodriguez, concluded that the object of the prohibition was to protect vulnerable personsfrom being induced to commit suicide at a time of weakness (para. 1190). All the parties except Canada accept this formulation of theobject. [75] Canada agrees that the prohibition is intended to protect the vulnerable, but argues that the object of the prohibitionshould also be defined more broadly as simply “the preservation of life” (R.F., at paras 66, 108, and 109).

We cannot accept thissubmission. [76] First, it is incorrect to say that the majority in Rodriguez adopted “the preservation of life” as the object of theprohibition on assisted dying. Justice Sopinka refers to the preservation of life when discussing the objectives of s. 241(b) (pp. 590, 614). However, he later clarifies this comment, stating that “[s]ection 241(

b) has as its purpose the protection of the vulnerable who might beinduced in moments of weakness to commit suicide” (p. 595). Sopinka J. then goes on to note that this purpose is “grounded in the stateinterest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken”(ibid.).

His remarks about the “preservation of life” in Rodriguez are best understood as a reference to an animating social value ratherthan as a description of the specific object of the prohibition. [77] Second, defining the object of the prohibition on physician-assisted dying as the preservation of life has the potentialto short-circuit the analysis. In RJR-MacDonald, this Court warned against stating the object of a law “too broadly” in the s. 1 analysis,lest the resulting objective immunize the law from challenge under the Charter (para. 144).

The same applies to assessing whether theprinciples of fundamental justice are breached under s. 7. If the object of the prohibition is stated broadly as “the preservation of life”, itbecomes difficult to say that the means used to further it are overbroad or grossly disproportionate. The outcome is to this extentforeordained. [78] Finally, the jurisprudence requires the object of the impugned law to be defined precisely for the purposes of s. 7. In

Bedford, Canada argued that the bawdy-house prohibition in s. 210 of the Code should be defined broadly as to “deter prostitution” forthe purposes of s. 7 (para. 131). This Court rejected this argument, holding that the object of the prohibition should be confined tomeasures dir

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