The Alberta Court of Appeal ruled in May in Canada (AG) v. E.F. that a woman suffering from “severe conversion disorder” — a nonterminal, psychiatric condition that causes physical symptoms — was eligible to receive “aid in dying” under the “criteria” stated in the Supreme Court of Canada’s February 2015 decision on physician-assisted dying, known as Carter I.

The Attorney General of Canada argued in E.F. that the applicant was not legally eligible for assisted dying because her illness was not terminal and was at root a psychiatric condition. The Attorney General’s position was that the Supreme Court’s criteria in the “Carter declaration” — in particular, the “grievous and irremediable medical condition” criterion — must be read in the context of the factual circumstances of Carter (where the plaintiff, Gloria Taylor, suffered from ALS, a physically degenerative and terminal illness). The Attorney General noted the Court’s explicit statement that its declaration was limited to those facts and not intended to apply to other circumstances. On such a reading, the Attorney General argued, a nonterminal, psychiatric illness is not a qualifying condition under Carter I. The Alberta Court of Appeal, however, concluded that in light of the “purpose, context and underlying principles articulated in Carter 2015,” the applicant was eligible to have access to an assisted death.

The ruling has been hailed as a death blow to Bill C-14, a bill that includes in its eligibility criteria the requirements that a person seeking “medical aid in dying” be “in an advanced state of irreversible decline in capability” and that “their natural death has become reasonably foreseeable.” Dying with Dignity Canada, for example, says the Alberta Court of Appeal ruling throws cold water on the government’s reasoning for its restrictive stance and means Bill C-14 must not be passed in its current form. The eligibility criteria set out in Bill C-14 are said to be in conflict with the criteria set out in Carter I.

However, this position misunderstands the respective roles of Parliament and the judiciary and the relevance of Carter I for future legislation dealing with euthanasia and assisted suicide (regardless of how Carter I has been interpreted and applied by lower courts).

The declaration in Carter I did not create an appendage to section 7 of the Charter of Rights and Freedoms or a stand-alone legislative amendment to the Criminal Code. Rather, it is best understood as a summary explanation for why the existing criminal prohibition infringed section 7 rights and as a common-law interpretation of the Charter that Parliament must take into account in crafting a legislative response. Parliament has wide constitutional leeway to craft a legislative response to Carter, including an approach that is more restrictive than the Alberta Court of Appeal’s ruling in E.F. — and, indeed, even Carter itself.

In short, Carter I should be seen as the start of a legal “dialogue,” not the final (and only) word on euthanasia and assisted suicide. As the Court has acknowledged, its interpretation of what section 7 of the Charter requires on a given issue “does not preclude Parliament from coming to a different conclusion, so long as its conclusion is consistent with the Charter in its own right.”

The “first word”: The so-called “Carter criteria”

The “Carter criteria” for eligibility for euthanasia or assisted suicide are drawn from the Supreme Court’s declaration that two Criminal Code provisions were invalid. The Court said the provisions were “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

This declaration was not originally intended to govern when euthanasia or assisted suicide will attract criminal liability. If that had been the Supreme Court’s intent, there would have been no reason to suspend the declaration of invalidity for a year until Parliament came up with legislation. The express purpose of the suspension, and the reason the Court did not initially grant a free-standing constitutional exemption to the law, was that it would “create uncertainty, undermine the rule of law, and usurp Parliament’s role.” Rather, the Court ruled in Carter I, “Parliament must be given the opportunity to craft an appropriate remedy.”

Carter II: “Usurping Parliament’s role,” temporarily

The Supreme Court gave Parliament a year to craft a law, but Parliament failed to do so within that time frame. In Carter II, the Attorney General of Canada asked for a further six-month suspension of the declaration of invalidity. The Court decided unanimously to further suspend the declaration by four months. The Court split five to four, however, on the question of whether to create an exemption that would allow individuals to apply to a court for authorization to receive “assisted dying” during those four months.

The minority, opposing an exemption, noted that the Court’s comments in Carter I about not creating uncertainty, undermining the rule of law and usurping Parliament’s role remained compelling. The majority, however, reasoned that in these circumstances, “an exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now pending Parliament’s response.”

“We would, as a result,” the majority in Carter II concluded, “grant the request for an exemption so that those who wish to seek assistance from a physician in accordance with the criteria set out in para. 127 of our reasons in Carter, may apply to the superior court of their jurisdiction for relief during the extended period of suspension.”

The declaration of invalidity in Carter I became the de facto law in Canada governing euthanasia and assisted suicide following Carter II. With this decision, the Supreme Court effectively enacted a new access-to-assisted-dying regime, with both substantive criteria governing eligibility and a process for obtaining access. This judicially created regime was temporary, however, and due to expire on June 6 — expire in part, that is. Since Parliament did not pass its law by the June 6 deadline, Carter I will continue to govern when euthanasia or assisted suicide is permissible, though an application to a superior court judge in order to obtain assisted dying will no longer be necessary.

Some contend that the Carter I criteria must continue to govern, whether or not Parliament enacts legislation. Since Carter I has set out the law’s substantive components, Parliament or, perhaps more appropriately, provincial legislatures need only to set out procedural and record-keeping requirements to implement and monitor the Carter I regime. But Bill C-14 does more than set out procedural safeguards. It also adds eligibility criteria to those stated in the Carter declaration. Some argue the legislation is thus unconstitutional and doomed to fail Charter review if enacted into law.

Is Bill C-14 doomed?

As Eric Adams, a constitutional specialist at the University of Alberta, points out, a court’s interpretation of the “Carter criteria” is a separate issue from that of whether Parliament can craft a regime for assisted suicide that is different from and even narrower than the regime created by Carter I and Carter II. “One thing that courts have done in other kinds of constitutional cases,” Adams notes, “is say that it’s not necessarily the case that the government has to follow the exact letter of a Supreme Court of Canada decision in crafting its legislative response.”

In light of the confusion surrounding Carter I and Carter II, the undefined terms contained in the so-called Carter criteria and the uncertainty regarding their meaning and scope in subsequent cases, would it be wise for Parliament to follow the letter of the Supreme Court’s decision in this case? That is for Parliament to decide, but, contrary to what some suggest, Parliament would be well within its constitutional authority to enact a regime that is different from and narrower than the regime created by Carter I and II. There are four reasons why this is so.

First, the uncertainty surrounding the meaning and scope of the Carter I ruling undermines the rule of law, which the Court itself acknowledged was a risk of a judicially created regime. The Alberta Court of Appeal ruling is evidence of this. The Attorney General of Canada offered several sound arguments that the psychiatric condition in question in the E.F. case fell outside the scope of Carter I, all of which were rejected as being contrary to the “purpose, context and underlying principles” of the decision.

Now that the requirement to apply to a judge has expired, how is a physician to interpret and apply Carter I and the various cases, including E.F., that offer differing interpretations of the criteria? Physicians have already indicated they are disinclined to participate in light of the legal uncertainty. On the other hand, would the Crown prosecute a physician for euthanizing a person whose motivation for being euthanized was clinical depression or loneliness or paraplegia? Would such prosecutions have a reasonable prospect of success in light of the Alberta Court of Appeal’s broad reading of Carter I?

The Supreme Court has long recognized that changes to a law with uncertain consequences should be left to the legislature. This explains its caution in Carter and the suspension of its judgment for a year, then an additional four months in Carter II, to give Parliament time to legislate. The need for certainty on this matter is one reason Parliament can pass a law that is more precise than the Supreme Court’s Carter declaration, and Parliament accordingly would be entitled to the courts’ deference.

The need for certainty on this matter is one reason Parliament can pass a law that is more precise than the Supreme Court’s decision.

Second, this uncertainty undermines what the Supreme Court found in Carter I to be the important objective of the prohibition on assisting in someone’s suicide: namely, protecting vulnerable people from being pressured to commit suicide in a moment of weakness. If eligibility is as subjective and open-ended as the Alberta Court of Appeal’s reading of Carter I suggests, it increases the likelihood of vulnerable persons being subtly pressured to choose death, both because more people would be considered eligible and because the array of qualifying medical conditions would include conditions that could cause greater vulnerability, especially psychiatric conditions and mental illness.

Third, a new law may serve other objectives as well, such as preventing suicide (assisted or not), discouraging the normalization of suicide as a solution to suffering or preventing the devaluation of the lives of the sick and disabled — objectives that are to some extent evident in the preamble to Bill C-14. Depending on the legislative objectives underlying its new law, Parliament would be justified in permitting euthanasia and assisted suicide only for those with physically debilitating and terminal illnesses such as the condition that Taylor (the only plaintiff with an illness in Carter) had, or even prohibiting euthanasia and assisted suicide altogether.

Fourth, Parliament is entitled to deference from the courts, particularly when it attempts to achieve a “balance” between competing rights and pressing legislative objectives. Proportionality is a guiding principle in Charter section 7 and section 1 jurisprudence and “does not require perfection.” At one end of the proportionality spectrum is a complete ban, which does not seek to balance competing rights, interests and objectives but effectively makes one objective trump the others. A “complex regulatory response,” however, “will garner a high degree of deference” because judges are not policy experts and recognize the need to defer to a legislature’s resolution of the “difficult task” it faces in weighing and balancing various factors.

A Charter ruling is “not necessarily the last word”

Deference is owed to Parliament when a law enacted in response to a Charter ruling appears to be in tension with that ruling. In their studies of legislative responses to Charter rulings that invalidate legislation, constitutional scholars Peter Hogg and Allison Bushell  found that the Charter and Charter jurisprudence leave room for legislatures to respond to a court decision striking down a law on Charter grounds by enacting a new law that accomplishes the purpose of the original legislation by other means. They also found that the legislature typically has the last word. They use the term “dialogue” to describe the phenomenon of Charter rulings followed by legislative sequels, the idea being that the back-and-forth between the judicial and legislative branches constitutes a type of interinstitutional Charter dialogue.

Particularly noteworthy are what Hogg and Bushell call “second look” cases, in which legislation enacted in response to a Charter ruling is subjected to judicial review. In R. v. Mills (1999), for example, the statutory regime governing disclosure to the accused of confidential records in sexual assault cases was challenged as a violation of the accused’s section 7 Charter right to make full answer and defence. This regime was enacted after the previous regime was struck down for violating section 7 in R. v. O’Connor. In O’Connor, the Supreme Court split on the question of how to achieve a balance between the accused’s section 7 rights and the complainant’s rights to privacy and equality. The minority articulated guidelines that would allow for more restrictive access to the complainant’s confidential records, whereas the majority, whose opinion governs in law, articulated guidelines that would have allowed for easier access to such records.

In response to the O’Connor ruling, Parliament enacted a regime that followed the recommendations of the minority with a bill containing a lengthy preamble about the need to avoid deterring people from reporting incidents of sexual assault. When the new law was challenged, the Supreme Court ruled that O’Connor was “not necessarily the last word on the subject” nor a “rigid constitutional template,” but simply a common-law interpretation of the Charter, as the Court explained in paragraph 57: “If the common law were to be taken as establishing the only possible constitutional regime, then we could not speak of a dialogue with the legislature. Such a situation could only undermine rather than enhance democracy.” The Court’s common-law interpretation of what section 7 of the Charter required when it came to disclosure in a sexual assault case “does not preclude Parliament from coming to a different conclusion,” the Court ruled in Mills, “so long as its conclusion is consistent with the Charter in its own right.”

In light of Mills and other “second look” cases examined by Hogg and Bushell, the declaration in Carter I should not be read as if it were an appendage to section 7 of the Charter or a judicially imposed amendment to the Criminal Code. Rather, it is best understood as summary explanation for why the existing criminal prohibition infringed section 7 rights and as a common-law interpretation of the Charter that Parliament should take into account in crafting a legislative response. It should not be divorced from its context and the factual circumstances of the Carter case, on which the finding of invalidity depended.

Photo: Drop of Light / Shutterstock

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