Sue Rodriguez (left) and Lee Carter (right)
In the 1993 Rodriguez case, the Supreme Court of Canada upheld the constitutional validity of the ban on assisted suicide in section 241(b) of the Criminal Code. Since then, advocates of so-called death with dignity have made several failed attempts to legalize assisted suicide by means of a private-member’s bill; most recently in 2010, when the bill was thoroughly debated and decisively rejected by the Commons in a vote of 228 to 59.
Regardless of this clear legislative and judicial record, Madam Justice Smith of the British Columbia Supreme Court proceeded on June 15, 2012, in Carter v. Canada to strike down the ban on assisted suicide in section 241(b) of the Criminal Code on the ground of incompatibility with the right to “life, liberty and security of the person” in section 7 and the equality rights in section 15 of the Canadian Charter of Rights and Freedoms. In Rodriguez, the Supreme Court of Canada had come to precisely the opposite conclusion, albeit by a bare majority of five to four.
Upon further review, the British Columbia Court of Appeal overturned Smith’s precedent shattering ruling last October. In exemplary reasons for the majority for the Court of Appeal in Carter, Madam Justice Newbury regretted that there is no “political questions” doctrine in Canada that insulates legislative decisions on public policy from Charter review. She wrote: “If there were such a doctrine in Canada, we would certainly be minded to leave the value-laden question of physician-assisted suicide to be decided by our elected representatives after an informed public debate.”
In contrast, the Supreme Court of the United States has adopted a doctrine of political questions that restrains the Court from invoking the United States Bill of Rights as a pretence for second guessing the wisdom of decisions by the legislative branch on controversial issues of public policy. The Supreme Court of Canada could have adopted a similar, restrained approach to interpretation of the Charter, but chose not to do so. As a result, Newbury lamented that in Canada: “No law is immune from Charter scrutiny.”
Nonetheless, Canadian courts are still obligated by “binding precedent,” a basic principle of the common law which holds that in deciding each case, a judge is constrained to follow legal rules established in similar, previous cases. To underline this point, Newbury recalled the often-cited statement by Chief Justice Rinfret of the Supreme Court of Canada in Woods Mfg. Co. Ltd. v. The King (1951): “It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined.”
The Carter and Rodriguez cases are nearly identical in that they both arose from a plea for physician-assisted suicide by a woman afflicted with Amyotropic Lateral Sclerosis (ALS). While sympathizing with the plight of such patients, the Supreme Court of Canada held in Rodriguez that the total ban on assisted suicide in section 241(b) of the Criminal Code constitutes a reasonable and prudent safeguard for the sacred lives of vulnerable Canadians that is in no way incompatible with the Charter.
For Newberry and her colleague Madam Justice Saunders of the British Columbia Court of Appeal, this ruling by the Supreme Court of Canada in Rodriguez constituted a definitive and binding precedent. Therefore, they reversed Neilsen’s unprecedented ruling in Carter and reinstated the ban on assisted suicide in section 241(b) of the Criminal Code.
Now, alas, the Supreme Court of Canada has chosen to review the Carter case once again. The outcome is far from clear. Unlike Rinfret, Newbury and Saunders, most judges of the Supreme Court of Canada have displayed such scant regard for hitherto binding precedents over the past 30 years that it is not inconceivable that in Carter, this out-of-control Court will reverse its ruling in Rodriguez and agree with Smith that a right to death by assisted suicide is implicit in the right to life guaranteed in section 7 of the Charter.
The rogue judges who perpetrate such absurd and unprecedented decisions should beware. Rinfret was right: sooner or later, such arbitrary judicial behaviour will fatally undermine public confidence in the law and the courts.
