The Supreme Court of Canada has granted leave to appeal in a British Columbia decision involving the right to physician-assisted suicide and euthanasia. In Carter v Canada (Attorney General), a terminally ill British Columbia resident sought to declare the provisions of the Criminal Code which prohibit physician-assisted dying.
The concepts of “physician-assisted suicide” and “euthanasia” are not identical. Physician-assisted suicide involves intentionally killing oneself where a physician, or someone under the direction of a physician, provides the knowledge, means, or both to assist in the suicide. The patient, however, performs the act which causes death. Euthanasia occurs where the physician performs the act which leads to death. Euthanasia may be voluntary, non-voluntary, or involuntary. Physician-assisted dying is a term which covers both physician-assisted suicide and voluntary euthanasia.
The trial judge in Carter found that sections 14, 21, 22, 222 and 241 of the Criminal Code of Canada unjustifiably infringe s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms, and are of no force and effect to the extent that they prohibit physician-assisted dying. The Attorney General of Canada appealed.
In Rodriguez v. British Columbia (Attorney General),  3 S.C.R. 519, a case decided on a similar set of facts and legal principles, the constitutionality of the above sections was upheld. In the instant case, the trial judge concluded that the right to liberty and security of the person, and in particular the guarantee against gross disproportionality and overbreadth, had not yet sufficiently evolved at the time Rodriguez was decided. Accordingly, she could deviate from the Rodriguez precedent on that point.
The British Columbia Court of Appeal disagreed. It stated: “The common law system requires that lower courts must follow and apply the decisions of higher courts in the same jurisdiction, to the extent that the higher court has decided the same or a substantially similar issue. The purpose of this rule, referred to as stare decisis, is to promote consistency in the application of the law, so that similar cases are decided similarly.” With reference to a recent opinion, the Court of Appeal emphasized that “[w]here lower courts are of the view that a decision of a higher court was wrongly decided, the appropriate approach is to apply the precedent and provide comment, or even find additional facts, to facilitate a reconsideration of the point by a higher court, if an appeal to that court should be pursued. This approach finds support in Canada v. Craig, 2012 SCC 43 (CanLII)…” In the result, the British Columbia Court of Appeal overturned the trial judge’s decision and upheld the Criminal Code prohibition on physician-assisted dying.
This appears to be a logically sound conclusion. Firstly, as observed by the British Columbia Court of Appeal, the common law system of precedent, with the attendant benefits of clarity and predictability, depends on lower courts abiding by appellate courts’ precedents.
Secondly, it is a rather dubious proposition that the Rodriguez decision can be overturned because the content of section 7 had not yet fully developed by the time it was decided. The history of the judicial interpretation of s. 7 of the Charter, which was engaged in this case, illustrates the difficulty courts face when engaged in adjudication of inherently moral and ethical issues, requiring policy-based determinations. Section 7 states: “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.” Initially, the term “principles of fundamental justice” had been interpreted to refer narrowly to the principles of natural justice, which define procedural, rather than substantive fairness. However, over the past few decades, the section evolved to encompass substantive guarantees against vagueness, arbitrariness, overbreadth, and gross disproportionality. In the recent R. v. Bedford, 2013 SCC 72 decision, the Supreme Court has stated that the concepts of arbitrariness, oberbreadth and gross proportionality “evolved organically as Courts were faced with novel Charter claims.” However, the Court in Bedford also acknowledged that the substantive concepts in section 7 that “evolved” over time “have not always been applied consistently” and that there has been a “conflation of the principles of overbreadth and gross disproportionality.” The Court’s own judgments suggest that overbreadth is not truly a distinct principle of fundamental justice, but rather evokes elements of both arbitrariness and gross disproportionality. In sum, this continued expansion of the meaning of “principles of fundamental justice” has introduced into the section legal concepts that are not, in the Court’s opinion, uniformly or predictably applied. In an attempt at a comprehensive formulation, the Court states that the section 7 analysis is concerned with capturing “inherently bad laws” meaning “laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values.”
Courts must proceed with extreme caution when called upon not to interpret the words of a particular statute, but to determine whether an existing enactment now “runs afoul” of “society’s basic values,” where it did not in the past. The inquiry into society’s “basic values” engages questions of morality, ethics and policy which courts are institutionally ill-equipped to determine. The inquiry is even more difficult if it is assumed, as the Supreme Court’s jurisprudence unequivocally states, that these “basic values” are transitory and constantly evolving, and hence an enactment that may be consistent with them one day may run afoul of them the next. Indeed, the entire system of stare decisis would be undermined if courts, and in particular trial courts, were free to deviate from established precedent because, in their interpretation, its underlying principles no longer accorded with society’s basic, and ipso facto, shifting values. This is the true meaning of Canada v. Craig.
More fundamentally, the trial judge’s reasoning in Carter appears to accept a certain view of the Constitution, in which the wording of the provisions is fixed but their meaning is fluid, and they encompass varying rights, depending on the timing of a particular decision. To the extent societal moral norms evolve, such changes should be reflected in the legal landscape through the proper democratic process. Indeed, if a law truly “runs afoul” of “society’s basic values,” it would be reasonable to expect that society’s disapproval would result in its abolition or amendment through the democratic process. In this case, for instance, it was open to Parliament to amend the relevant statutory prohibitions to permit physician assisted dying. The introduction of major legal reforms, particularly by the lower courts, in the guise of a constitutional reinterpretation and with the assistance of inherently amorphous concepts such as gross disproportionality, undermines the democratic process. It is also philosophically unsound, since the judiciary is no better equipped to decide questions of morality and public policy, such as physician assisted dying, than the citizenry is through its elected representatives.
In Bedford, the Supreme Court overturned Canada’s prostitution laws and its own precedent from two decades earlier, partly on the basis that the meaning of section 7 had evolved in the interim. It finds itself in a similar situation in the context of physician-assisted dying. Once again, the Court will have to determine whether it should uphold its own precedent and leave a difficult ethical conundrum to the democratic process, or whether it should override its own holding based on the contention that the Charter no longer means what it once did.