The equal rights guarantee under section 15 of the Canadian Charter of Rights and Freedoms is an inclusive one, in the sense that equality is guaranteed not only on the enumerated grounds of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, but also on ‘analogous grounds’ of discrimination. In its decision in Miron v. Trudel ([1995] 2 S.C.R. 418), the Supreme Court of Canada identified a number of factors to consider in determining whether a group or personal characteristic is analogous to those enumerated under section 15, and so deserving of Charter protection.

Such factors include whether the group sharing the characteristic has been the object of historical stereotyping, prejudice or disadvantage; whether the group constitutes a “discrete and insular minority” which is lacking in political power or influence; whether the characteristic is beyond an individual’s control or “changeable only at unacceptable personal cost”; and whether the characteristic is recognized as a prohibited ground of discrimination under other human rights laws, or is similar in any other way to the grounds explicitly included under section 15.

Among the analogous grounds of discrimination recognized by the Supreme Court are citizenship status (see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, Lavoie v. Canada, [2002] S.C.J. No. 24), sexual orientation (see Egan v. Canada, [1995] 2 S.C.R. 513, Vriend v. Alberta, [1998] 1 S.C.R. 493), marital status (see Miron v. Trudel, above) and off-reserve band member status (Corbiere v. Canada, [1999] 2 S.C.R. 203).

Sources:

• R.J. Sharpe & K.E. Swinton, “Equality” in R.J. Sharpe & K.E. Swinton, The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998) 184.

Introduction

On January 25, 2013 the Supreme Court of Canada ruled[1] that the exclusion of common law partners from the Civil Code of Quebec[2] does not violate the right to equality guaranteed under section 15 of theCanadian Charter of Rights and Freedoms (Charter).[3] The Civil Code of Quebec governs the legal duties and rights of married and civil union spouses[4] upon their separation.[5] In Quebec (AG) v A, the Supreme Court did not extend the benefits and obligations of the Civil Code of Quebec to common law partners in order to respect their freedom to choose not to marry.[6] The following Featured Court Ruling summarizes the judgment, and it highlights the ongoing evolution of the section 15 test used by courts to analyze discrimination claims.

Facts

The Parties

A and B were in a common law relationship from 1995 to 2002.[7] They met in A’s home country, Brazil, in 1992. At that time, A was a 17 year old student, and B was a wealthy 32 year old business owner. In 1995, A moved to Canada to continue a relationship with B. During the seven years A and B cohabitated, A had three children. On at least two occasions, A told B that she wanted to be married, but B refused because he did not believe in the institution of marriage. The relationship ended in 2002, and A began proceedings seeking custody of the children, spousal support, a lump sum support payment, and use of the family home. A also notified the Quebec Attorney General that she intended to challenge several provisions in the Civil Code of Quebec.[8] A claimed that some of the provisions were discriminatory because they did not give the same benefits and obligations to common law partners as those given to married and civil union spouses.[9]Quebec (AG) v A only deals with the constitutional challenges to the Civil Code of Quebec.[10]

The Civil Code of Quebec

The Civil Code of Quebec governs the legal duties and rights of married and civil union spouses upon their separation, but the legislation completely excludes common law couples.[11] A argued that the outright exclusion of common law couples from the legislation violated the Charter right to equality guaranteed under section 15.[12] She challenged the Civil Code of Quebec provisions relating to three separate issues: (1) spousal support, (2) division of property, and (3) compensatory allowance.[13]

Article 585 of the Civil Code of Quebec states: “Married and civil union spouses…owe each other support.”[14] The Quebec legislature introduced this article to acknowledge that people who marry or enter into a civil union create a social and economic partnership. When couples breakup, one spouse may require support from the other to maintain a comfortable lifestyle.[15] Spousal support is not available to common law spouses under the Civil Code of Quebec.[16]

Article 414 of the Civil Code of Quebec states: “Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.”[17] According to this article, both spouses in a marriage or a civil union have a right to the family property, even if one spouse has the legal title. In common law relationships, however, each spouse only has a right to property that he or she can prove is his or her own.[18]

Article 427 of the Civil Code of Quebec defines compensatory allowance as money or property given to one spouse by the other as compensation for increasing the value of the spouse or the property during a marriage or civil union.[19] Common law couples are not eligible for compensatory allowance under theCivil Code of Quebec.[20]

Procedural History

In 2009, a Quebec Superior Court judge dismissed A’s constitutional challenge to the Civil Code of Quebec.[21] The trial judge ruled that the legislation did not discriminate against common law partners. For the discrimination claim, A had to prove (1) the legislation drew a distinction between common law partners and married or civil union spouses, and (2) the distinction deprived A of a benefit or imposed a burden that was a result of stereotypical or prejudicial attitudes.[22] The judge ruled that the legislation did draw a distinction between common law partners and married or civil union spouses. However, this distinction protected people’s freedom of choice, and this did not impose a burden or deny a benefit to common law couples.[23] A appealed this decision to the Quebec Court of Appeal, claiming her right to equality under section 15 of the Charter had been violated.[24]

In 2010, the Quebec Court of Appeal unanimously ruled[25] that article 585 (spousal support) of the Civil Code of Quebec[26] violated section 15 of the Charter (right to equality), and that it was not justified under section 1 of the Charter.[27] The Court of Appeal justices disagreed about the appropriate remedy. Justices Dutil and Giroux ordered a declaration of invalidity for article 585, but stated that the declaration should be suspended for 12 months without an exemption for A.[28] Justice Beauregard stated that article 585 should be applied immediately to common law spouses.[29] The Court ruled that the other sections of the Civil Code of Quebec, relating to the division of property and compensatory allowance, did not violate section 15 because the legislature wanted to preserve people’s freedom to choose to marry or to enter into a civil union.[30] In other words, if a couple chooses to live in a common law relationship, obligations associated with division of property and compensatory allowance should not be imposed upon common law couples as if they were married or in a civil union.

A appealed the Quebec Court of Appeal decision to the Supreme Court of Canada for two reasons: (1) A wanted multiple articles of the Civil Code of Quebec declared unconstitutional, and (2) A wanted an immediate remedy – that is, A wanted article 585 (spousal support) to apply immediately to common law couples.[31] B and the Attorney General of Quebec also appealed the decision to the Supreme Court, arguing that the provisions in the Civil Code of Quebec dealing with spousal support, division of property, and compensatory allowance were constitutional.[32]

Issues

The Supreme Court of Canada considered the following issues:

1. Does the exclusion of common law spouses from the Civil Code of Quebec violate the right to equality guaranteed under section 15 of the Charter?[33]

2. If so, is the violation justified under section 1 of the Charter?[34]

3. If the violation is not justified under section 1 of the Charter, what is the legal remedy for the claimant?[35]

Decision

1. A 5-4 majority of justices on the Supreme Court of Canada (Justices Abella, Deschamps, Cromwell, Karakatsanis, and Chief Justice McLachlin) ruled that the Civil Code of Quebec violated the right to equality guaranteed in section 15 of the Charter.[36] Justice LeBel (writing for himself, and Justices Fish, Rothstein, and Moldaver) wrote the dissent, and determined there was no violation of section 15. In other words, the dissent determined that the Civil Code of Quebec was constitutional.[37]

2. Even though a majority of justices ruled that the Civil Code of Quebec violated section 15 of the Charter, Chief Justice McLachlin ruled that the violations were justified under section 1 of the Charter.[38] As a result of the Chief Justice’s ruling, the majority of the Supreme Court of Canada (Justices LeBel, Fish, Rothstein, and Moldaver and Chief Justice McLachlin) determined that the Civil Code of Quebec was constitutional.[39] Justice Abella ruled that none of the Civil Code of Quebec provisions in question were justified under section 1 of the Charter.[40] Justices Deschamps, Cromwell, and Karakatsanis ruled that article 585 of theCivil Code of Quebec was not justified under section 1 of the Charter, but the remaining provisions in question were justified.[41]

3. A’s appeal was dismissed, and no remedy was necessary.

Court’s Analysis

Issue 1: Does the exclusion of common law spouses from the Civil Code of Quebec violate section 15 of the Charter?

Section 15 in Withler v Canada (AG)

In 2011, the Supreme Court of Canada modified the test used to establish a violation of section 15 of theCharter.[42] Withler v Canada (AG) involved a challenge by spouses of deceased members of the Civil Service and the Canadian Armed forces.[43] The claimants alleged that specific legislative provisions governing survivor benefits violated their right to equal treatment under section 15 of the Charter.[44] The Supreme Court ruled that a section 15 claim requires two steps:

1. The legislation must create a distinction based on enumerated or analogous grounds, and

2. The distinction must create a disadvantage by perpetuating prejudice or stereotyping.[45]

The first step of a section 15 analysis is largely a comparative exercise.[46] Claimants assert that they are being deprived a benefit or forced to incur a burden based on an enumerated or analogous ground.[47]Enumerated grounds are the personal characteristics listed in section 15 of the Charter, such as age, sex, and religion.[48] Analogous grounds are not written in section 15 of the Charter but they may arise over the course of time.[49] They are similar to those grounds that are enumerated because analogous grounds are also based on personal characteristics that people cannot change or are “changeable only at an unacceptable personal cost.”[50]

Prior to Withler v Canada (AG), claimants were required to find a group to be compared to in order to establish that there was a distinction in the way that the claimant group and the other group were treated.[51] This group was referred to as the “comparator group.” The Withler v Canada (AG) judgment noted that there were problems with the comparator group analysis and therefore concluded that it is “unnecessary to pinpoint a particular group that precisely corresponds to the claimant.”[52] Following the ruling in Withler v Canada (AG), the first step of the section 15 analysis no longer requires a comparator group analysis. It is satisfied if a distinction has been established based on an enumerated or analogous ground.[53]

The Supreme Court lessened the emphasis on “comparator groups” because such a rigid analysis does little to achieve substantive equality.[54] Section 15 of the Charter has long been recognized as a tool to achieve substantive equality as opposed to formal equality.[55] Whereas formal equality refers to the idea that persons who are similarly situated should be treated the same, substantive equality acknowledges that “identical treatment may frequently produce serious inequality.”[56] As a result, substantive equality requires the courts to examine the impact of a law on the claimants rather than to engage in a comparative exercise that might deny them the opportunity to address that impact.[57]

The second step of the section 15 analysis requires an examination of the “social, political, economic and historical factors concerning the group.”[58] This is to assist with determining the impact of the alleged discriminatory act on that group. In R v Law, a Supreme Court judgment dealing with a discrimination claim under section 15 of the Charter, four contextual factors were identified: (1) pre-existing disadvantage, (2) correspondence with actual characteristics, (3) impact on other groups, and (4) the nature of the interest affected. [59] R v Kapp, another case dealing with section 15 of the Charter, came after R v Law and addressed the issue of whether all or only some of the contextual factors needed to be addressed.[60] R v Kapp did not eliminate the contextual factors but it made clear that not all of the factors must be considered. This decision was arrived at because it became too difficult for claimants to address all of the contextual factors.[61] The Court in Withler v Canada (AG) followed the R v Kapp decision and noted that the contextual factors used to examine the alleged discrimination are varied with every case, making it easier for complainants to argue their case.[62]

Majority’s Analysis of Section 15 in Quebec (AG) v A

Justice Abella, Justice Deschamps (writing for herself and Justices Cromwell and Karakatsanis), and Chief Justice McLachlin wrote separate judgments, but they all agreed that the Civil Code of Quebec violated A’s right to equality as guaranteed under section 15 of the Charter.[63] The exclusion of common law partners from the spousal support provisions of the Civil Code of Quebec was discriminatory.[64]

The first step in the section 15 test established in Withler v Canada (AG) was followed by the majority. The majority ruled that the Civil Code of Quebec creates a distinction between married or civil union spouses and common law partners by providing economic protection for individuals in formal unions but not for common law spouses.[65] The distinction is based on marital status, a recognized analogous ground.[66]

However, the majority and the dissent interpreted the second step of the section 15 analysis differently. Justice Abella noted that for a law to be discriminatory, it does not have to perpetuate prejudice or stereotypes.[67] For Justice Abella, prejudice and stereotypes are examples of discriminatory attitudes. If a section 15 analysis is focused solely on attitudes, it may fail to catch a law that has discriminatory effects.[68] For instance, Justice Abella acknowledged that unmarried persons were historically considered to have adopted a lifestyle less worthy of respect than that of married persons, and this is clearly a discriminatory attitude based on prejudice and stereotypes. Evidence offered to the Court, however, suggests that public opinion has changed, such that common law couples are no longer viewed negatively. Nonetheless, the legislation has discriminatory effects because it does not provide the same benefits and obligations to common law partners as those given to married and civil union couples. Justice Abella’s interpretation of the second step of the section 15 test is less concerned with discriminatory attitudes (i.e. prejudice and stereotypes) and more focused on examining the negative effects of the law on the group.[69]

Justice Deschamps, agreeing with Justice Abella, ruled that prejudice and stereotyping are not necessary for a section 15 analysis. Specifically, Justice Deschamps agreed that common law couples have suffered historical disadvantage, but society has largely changed its attitude towards common law relationships. Additionally, there is no evidence that the legislature intended to discriminate against common law couples; however, intention is irrelevant because discrimination can result from the effect of a law or practice rather than from the deliberate intention to discriminate. In this case, the Civil Code of Quebec does in fact discriminate because it perpetuates the historic disadvantage suffered by common law spouses.[70]

Chief Justice McLachlin also agreed with Justice Abella’s section 15 analysis. Specifically, the Chief Justice ruled that perpetuating prejudice and stereotyping are not necessary for a discrimination claim because a section 15 analysis requires a broader contextual approach.[71] The focus of the analysis needs to be on establishing negative effects on the complainant group.

Dissent’s Analysis of Section 15 in Quebec (AG) v A

Justice LeBel (writing for himself and Justices Fish, Rothstein, and Moldaver) dissented on the section 15 analysis by finding that the Civil Code of Quebec did not violate A’s right to equality. The dissent agreed with the majority that the Civil Code of Quebec draws a distinction based on marital status, a recognized analogous ground. However, contrary to the majority judgment, the dissent argued that the distinction drawn by the legislation did not violate the guarantee of substantive equality because the distinction is neither prejudicial nor stereotypical.[72]

Justice LeBel ruled that prejudice can exist in two ways: (1) if a law promotes a view that an individual is less capable or worthy of recognition as a human being or (2) if a law establishes a hierarchy between different groups of people.[73]

Addressing the first point, Justice LeBel noted that common law couples were historically viewed negatively and as less deserving of recognition; however, establishing a past history of discrimination is insufficient. The dissent ruled that a claimant must also show that the prejudicial attitude continues. Common law couples in Quebec are not currently viewed negatively by the public or legislation. As a result, the Civil Code of Quebec is not prejudicial because it does not promote the view that common law spouses are less worthy of respect. Addressing the second requirement for establishing prejudice, Justice LeBel determined that the Civil Code of Quebec does not favour one type of union over another. Everyone, including common law spouses, can be subject to the benefits and obligations in the Civil Code of Quebec provided they consent to marriage or a civil union. This fact demonstrates that the legislation does not prioritize one type of relationship.[74]

Justice LeBel ruled that a law discriminates based on stereotypes if the law is premised on personal traits or circumstances that do not correspond to the individual needs, capacities, or merits of the claimant.[75] In this case, the Civil Code of Quebec is premised on the belief that people have free will, and can therefore choose to be married or enter into civil unions. If free will and autonomy were shown to be non-existent, then the Civil Code of Quebec would discriminate based on stereotypes. Justice LeBel noted that there was no evidence suggesting that freedom of choice did not correspond to the reality of the claimant. As a result, theCivil Code of Quebec does not stereotype.[76]

Issue 2: Is the violation of section 15 justified under section 1 of the Charter?

Like all Charter rights, the right to equality is not absolute. Section 1 of the Charter allows rights to be limited.[77] Once a court finds that a Charter right or freedom is violated by a piece of legislation, as in this case, it must then consider the arguments put forward by the Government about the reasonable and justifiable nature of that legislation. To determine whether the Civil Code of Quebec reasonably violated the right to equality, the five justice majority performed a section 1 analysis.[78] Justices Abella and Deschamps and Chief Justice McLachlin each wrote a separate judgment. The dissent, finding no violation of section 15, did not perform a section 1 analysis.[79]

A section 1 analysis asks two questions:

1. Is the objective sufficiently important?

The objective served by the legislation must be sufficiently important to infringe a constitutionally guaranteed right or freedom. To prove that the objective is sufficiently important, the Government must demonstrate that the objective relates to concerns which are pressing and substantial in a free and democratic society.[80]The objective of the Civil Code of Quebec is to preserve people’s freedom to choose to marry, to enter into a civil union, or to live as a common law couple.[81] The five justice majority agreed that preserving freedom of choice is a sufficiently important objective to limit the constitutional right to equality.[82]

2. Is the limit proportional to the objective?

The limit on the freedom must be proportional to the objective of the legislation. Three questions are asked to determine proportionality: (A) Is the legislation rationally connected to the legislation’s objective? (B) Does the legislation limit the constitutional right or freedom as little as possible? (C) Do the benefits of the objective outweigh the negative effects of limiting a constitutionally protected freedom?[83]

A. Rational Connection

The five justice majority agreed that the legislation was rationally connected to the objective of preserving people’s freedom of choice. The Civil Code of Quebec, and all the benefits and obligations associated with it, only governs people if they choose to marry or enter into civil unions. The legislation requires people to make an active choice, and this is consistent with the objective of enhancing autonomy.[84]

B. Minimal Impairment

The minimal impairment requirement of the proportionality test requires the legislation to only minimally limit the right to equality while still achieving its objective. Justice Abella ruled that the Civil Code of Quebecfails the minimal impairment part of the proportionality test because of the outright exclusion of common law couples.[85] Under the minimal impairment branch, the government must “explain why a significantly less intrusive and equally effective measure was not chosen.”[86] Justice Abella ruled that a suitable alternative to the current Civil Code of Quebec would be a presumptively protective scheme.[87] Under this alternative, common law couples would automatically have the same benefits as married and civil union couples. If common law couples did not want these benefits and obligations, they would have the ability to opt-out of the scheme. A presumptively protective scheme protects economically vulnerable partners and preserves freedom of choice.[88]

Justice Deschamps agreed with Justice Abella, and she ruled that article 585 (spousal support) of the Civil Code of Quebec is not minimally impairing.[89] Specifically, Justice Deschamps noted that because common law couples are completely excluded from the spousal support provisions, without any exceptions, this is sufficient to rule that the legislation fails the minimal impairment test.[90]

Unlike Justice Abella, Justice Deschamps distinguished between article 585 (spousal support) and the articles dealing with the division of property.[91] For Justice Deschamps, spousal support is granted to one spouse as recognition that people in common law relationships become dependent on one another. Common law couples often have “no real control” over this interdependence; it is something that simply occurs with time.[92] On the other hand, couples who acquire property together must do it deliberately. Justice Deschamps argued that it would be unfair for the Government to impose laws that demand common law couples to share property when that was clearly not their intention.[93] Because of this, Justice Deschamps ruled that the provisions dealing with division of property were minimally impairing.

Chief Justice McLachlin ruled that all of the articles in question satisfy the minimal impairment test. A presumptively protective scheme would not achieve the government’s objective. A presumptive scheme makes decisions for people, regardless of their individual choices. Free will and autonomy would not be respected if a presumptively protective scheme was to be applied to common law couples.[94]

C. Benefits of the Objective and Negative Effects

Under a presumptively protective scheme, Justice Abella determined that freedom of choice would be preserved without any violation of the right to equality. As a result, Justice Abella ruled that preserving freedom of choice did not outweigh the negative effects of exposing economically vulnerable people to serious harm.[95]

With respect to article 585, Justice Deschamps agreed with Justice Abella. For the remaining provisions, however, Justice Deschamps ruled that the benefits of the objective do outweigh the negative effects. Legal measures exist for common law partners to divide property, such as making a claim for unjust enrichment and entering into a formal union, such as marriage or a civil union. Because other options exist, preserving choice outweighs the violation of the right to equality.[96]

Chief Justice McLachlin determined that the legislature’s decision should be respected when it enacts laws that address social and policy concerns. That being noted, the negative effects of the legislation did not outweigh the benefits of the objective such that the Civil Code of Quebec should be ruled unconstitutional.[97]

Issue 3: What is the remedy for the claimant?

Five justices (Justices LeBel, Fish, Rothstein, and Moldaver and Chief Justice McLachlin) ruled that the Civil Code of Quebec was constitutional, and therefore, A’s right to equality under section 15 was not violated. A’s appeal was dismissed.

Significance of the Ruling

The Supreme Court of Canada has struggled with establishing a framework for assessing discrimination claims since its first case on section 15 of the Charter in 1989, Andrews v Law Society of British Columbia.[98] Courts must address claims of discrimination in a uniform manner while avoiding an overly rigid test that can produce injustice. While earlier Supreme Court judgments tried to create a unified approach,[99]the Quebec (AG) v A case clearly demonstrates that the Court remains divided because the individual justices applied the section 15 test differently.[100] Specifically, it is unclear whether a claimant must prove prejudice or stereotyping in order to prove that a distinction based on a protected ground is discriminatory. If the test were more clearly stated, there would be greater clarity and unanimity from the Court. As a result ofQuebec (AG) v A, lower courts do not have a clear guiding principle for section 15 claims, and, most likely, the Supreme Court will be asked in the future to explain and modify the test for discrimination yet again.[101]

The 5-4 majority of the Supreme Court ruled that the Civil Code of Quebec was constitutional because it did not unjustifiably discriminate against common law couples.[102] Considering that the Court did not think it appropriate to extend the benefits of the Civil Code of Quebec to common law partners, it always remains within the power of the Quebec legislature to amend the legislation. Following the release of the Quebec (AG) v A decision, Quebec Justice Minister Bertrand St-Arnaud said the Quebec Government was not ruling out legislative reform.[103]

Additionally, this judgment may prompt other provincial legislatures to reconsider the common law benefits currently being offered in their own provinces. British Columbia, for example, recently amended its family law legislation.[104] Under the new legislation, British Columbia couples who live together for two years now have all of the same legal rights as married spouses.[105] Quebec’s and British Columbia’s legislation relating to common law spouses represents two extremes. On the one hand, Quebec has totally excluded common law partners from the rights given to married couples. On the other hand, British Columbia has given identical rights to common law and married couples. As of right now, Alberta has adopted a middle of the road approach. For example, common law partners in Alberta who separate have rights similar to married couples concerning spousal support, but the same is not true for division of property. Upon separation, common law spouses are only entitled to the property that he or she owns, whereas married couples’ property is divided equally between the partners.[106] As society’s perception of what constitutes a traditional family continues to evolve, changes in the legislation seem inevitable.

 

[1] Quebec (AG) v A, 2013 SCC 5 .

[2] Arts 401-30, 432-33, 448-84, 585 Civil Code of Quebec [CCQ].

[3] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“[e]very 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,” s 15(1)).

[4] A civil union is a legal contract between partners that is recognized by the government as conferring all or some of the rights conferred by marriage, but without the implicit historical and religious meaning associated with marriage. Individuals who wish to form a civil union are subject to the same rules as people who wish to marry.

[5] CCQ, supra note 2.

[6] Ibid; Quebec, supra note 1 at paras 358, 438, 449; A common law relationship is where two people live together as a couple without being married or in a civil union.

[7] As is typical in family law cases, the parties were not referred to by their real names.

[8] CCQ, supra note 2.

[9] Ibid.

[10] Quebec, supra note 1; CCQ, supra note 2.

[11] Ibid.

[12] Charter, supra note 3.

[13] CCQ, supra note 2.

[14] Ibid, art 585.

[15] Quebec, supra note 1 at paras 80, 86.

[16] CCQ.

[17] Ibid, art 414.

[18] Justice Quebec, De facto spouses, online: Justice Quebec.

[19] Art 427 CCQ.

[20] CCQ.

[21] CCQ, supra note 2; A v B, 2009 QCCS 3210, 67 RFL (6th) 315 <http://www.canlii.org/en/qc/qccs/doc/2009/2009qccs3210/2009qccs3210.html>.

[22] Ibid at para 211.

[23] Ibid at paras 222, 272, 283.

[24] Charter, supra note 3.

[25] A v B, 2010 QCCA 1978 <http://www.canlii.org/en/qc/qcca/doc/2010/2010qcca1978/2010qcca1978.html>.

[26] Art 585 CCQ.

[27] Charter, supra note 3, ss 1, 15(1).

[28] A v B, supra note 21 at para 155.

[29] Ibid at para 199.

[30] Ibid at para 60; CCQ, supra note 2; Charter, supra note 3.

[31] CCQ, supra note 2.

[32] Ibid.

[33] Ibid; Charter, supra note 3.

[34] Ibid, s 1 (“[t]he 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,” s 1).

[35] Ibid.

[36] CCQ, supra note 2; Charter, supra note 3; Quebec, supra note 1 at paras 357, 382, 415.

[37] Ibid at para 281; Charter, supra note 3; CCQ, supra note 2.

[38] Ibid; Charter, supra note 3, ss 1, 15; Quebec, supra note 1 at para 415.

[39] Ibid at paras 281, 415; CCQ, supra note 2.

[40] Ibid; Quebec, supra note 1 at para 380; Charter, supra note 3, s 1.

[41] Art 585 CCQ; Quebec, supra note 1 at para 383; Charter, supra note 3, s 1.

[42] Ibid, s 15.

[43] Withler v Canada (AG), 2011 SCC 12, [2011] 1 SCR 396 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/7925/index.do>.

[44] Charter, supra note 3; Withler, supra note 44 at para 1.

[45] Ibid at para 30; Charter, supra note 3.

[46] Withler, supra note 44 at para 62.

[47] Ibid; Constitutional Keywords, Analogous grounds, Centre for Constitutional Studies.

[48] Charter, supra note 3.

[49] Ibid; Miron v Trudel, [1995] 2 SCR 418 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1264/index.do> (marital status is an analogous ground); Egan v Canada, [1995] 2 SCR 513 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1265/index.do> (sexual orientation is an analogous ground).

[50] Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at para 60 <http://csc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1704/index.do>.

[51] See especially Auton (Guardian ad litem of) v British Columbia (AG), 2004 SCC 78, [2004] 3 SCR 657 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2195/index.do>.

[52] Withler, supra note 44 at para 63.

[53] Ibid.

[54] Ibid at para 55.

[55] See Andrews v Law Society of British Columbia, [1989] 1 SCR 143 <http://www.canlii.org/en/ca/scc/doc/1989/1989canlii2/1989canlii2.html>; Charter, supra note 3.

[56] Andrews, supra note 56 at 164.

[57] See Lovelace v Ontario, 2000 SCC 37 at para 53, [2000] 1 SCR 950 <http://www.canlii.org/en/ca/scc/doc/2000/2000scc37/2000scc37.html>.

[58] Withler, supra note 44 at para 39.

[59] Charter, supra note 3; Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 <http://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html> (the four contextual factors were first articulated in this case).

[60] Ibid; R v Kapp, 2008 SCC 41 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/5696/index.do>; Charter, supra note 3.

[61] Kapp, supra note 61.

[62] Ibid; Withler, supra note 44 at para 43.

[63] Quebec, supra note 1 at paras 357, 382, 415; CCQ, supra note 2; Charter, supra note 3.

[64] CCQ, supra note 2.

[65] Ibid; Quebec, supra note 1 at para 357.

[66] Miron, supra note 50.

[67] Quebec, supra note 1 at 325.

[68] Ibid at para 327.

[69] Ibid at para 357.

[70] Ibid at paras 382, 385; CCQ, supra note 2.

[71] Quebec, supra note 1 at paras 416, 418.

[72] Ibid at para 281; CCQ, supra note 2; Charter, supra note 3.

[73] Quebec, supra note 1 at para 243.

[74] Ibid at paras 244, 248-49, 255-56; CCQ, supra note 2.

[75] Quebec, supra note 1 para 201.

[76] Ibid at paras 269, 271-72; CCQ, supra note 2.

[77] Charter, supra note 3, s 1.

[78] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 <http://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html> (established the test for a section 1 analysis); Constitutional Keywords, Balancing rights (section 1), Centre for Constitutional Studies.

[79] Quebec, supra note 1 at para 281.

[80] Oakes, supra note 79.

[81] CCQ, supra note 2.

[82] Quebec, supra note 1 at paras 358, 394, 435.

[83] Oakes, supra note 79.

[84] Quebec, supra note 1 at paras 359, 394, 400, 438.

[85] CCQ, supra note 2; Quebec, supra note 1 at para 360.

[86] Ibid at para 362.

[87] CCQ, supra note 2; Quebec, supra note 1 at para 360.

[88] Ibid.

[89] CCQ, supra note 2; Quebec, supra note 1 at para 395.

[90] Ibid at para 399.

[91] Ibid at para 382.

[92] Ibid at para 403.

[93] Ibid at para 403.

[94] Ibid.

[95] Ibid at para 379.

[96] Ibid at paras 401-06.

[97] Ibid at para 449.

[98] Law, supra note 60; Charter, supra note 3.

[99] Andrews, supra note 56; Law, supra note 60; Kapp, supra note 61; Withler, supra note 44.

[100] Quebec, supra note 1.

[101] Ibid; Charter, supra note 3.

[102] Quebec, supra note 1; CCQ, supra note 2.

[103] Rhéal Séguin, “Despite top court ruling, Quebec open to changing spousal-support law” The Globe and Mail (25 January 2013), online: The Globe and Mail <http://www.theglobeandmail.com/news/national/despite-top-court-ruling-quebec-open-to-changing-spousal-support-law/article7858974/>.

[104] Justine Ma & Jesara Sinclair, “Common-law couples as good as married in B.C.” CBC News (19 March 2013), online: CBC News <http://www.cbc.ca/news/canada/british-columbia/story/2013/03/18/bc-common-law-property-rules.html>.

[105] Family Law Act, SBC 2011, c 25.

[106] Alberta Human Services, Alberta’s Adult Interdependent Relationships Act and you, online: Alberta Justice and Solicitor General <http://humanservices.alberta.ca/guardianship-trusteeship/opt-adult-interdependent-relationships-act-and-you.html>.

INTRODUCTION

On June 15, 2012, the Supreme Court of British Columbia rendered its long-awaited decision in Carter v Canada (Attorney General),[1] a case that considers whether a full prohibition on assisted suicide is contrary to the Canadian Charter of Rights and Freedoms.

Under section 241(b) of the Criminal Code, assisting someone to commit suicide is prohibited - a criminal offence. Justice Lynn Smith ruled that this “absolute” prohibition is contrary to two rights guaranteed by theCharter: (1) the equality guarantee in section 15; and (2) the right to “life, liberty and security of the person” in section 7. The prohibition is “absolute” because it does not allow for any exceptions, even in limited circumstances.

The 395-page decision re-opens a debate about assisted suicide that has been considered closed by the Supreme Court of Canada since 1993. In Rodriguez v British Columbia (Attorney General),[2] the Supreme Court considered the constitutionality of the same assisted suicide provision of the Criminal Code and a majority of the Court decided that it did not breach the Charter.

Justice Smith’s decision is sure to be appealed, potentially all the way up to the Supreme Court.

FACTS

The plaintiffs challenged several provisions of the Criminal Code relating to assisted suicide, but the challenge is centred on section 241(b), which states:

Everyone who … (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.[3]

Three different sets of plaintiffs challenged this prohibition of assisted suicide in Carter:

1. Gloria Taylor, who suffers from a fatal, neurodegenerative disease called amyotrophic lateral sclerosis (also known as “ALS”);[4]

2. Lee Carter and her husband Hollis Johnson, who helped Ms Carter’s mother to arrange an assisted death in Switzerland, knowing that providing this assistance could expose them to criminal charges in Canada;

3. Dr William Shoichet, a B.C.-based family doctor who would be willing to participate in physician-assisted dying if it were no longer illegal and he was convinced that it was appropriate medical care in the circumstances; and

The British Columbia Civil Liberties Association was also granted public interest standing in the case as it has a “long-standing interest in matters of patients’ rights and health policy”, and has some involvement in advocacy regarding end-of-life policy.[5]

The case mainly centered on the first plaintiff, Gloria Taylor. As an ALS patient, Ms. Taylor will lose her physical capacity over time, while retaining all cognitive and mental faculties.[6] While she is currently able to live fairly independently, Ms. Taylor wants to know that she can have a physician-assisted death when she is no longer able to move physically and her life becomes unbearable to her.[7] As she stated in her affidavit before the Court:

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… As Sue Rodriguez asked before me – whose life it is anyway?[8]

Ms. Taylor argued that, in limited circumstances, there should be exceptions to the absolute prohibition on assisted suicide for patients. Her position was that the absolute prohibition contained in the Criminal Codeis contrary to both her right to equality, and her right to life, liberty, and security of the person. The law prevents terminally ill, competent adults, who are well-informed and voluntarily seeking out physician-assisted dying, from receiving such assistance.[9]

ISSUES

The issues for the Court’s consideration were:

1. Is the ban on assisted suicide in section 241(b) of the Criminal Code contrary to section 15 of the Charter, which guarantees the right to equality?

a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of the Charter?

2. Is the ban on assisted suicide contrary to section 7 of the Charter, which guarantees the right to life, liberty, and security of the person except in accordance with the principles of fundamental justice?

a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of the Charter?

3. If there is an infringement of either section 15 or section 7 of the Charter that cannot be justified, what is the appropriate remedy?

DECISION

The Court concluded that the law, which is an absolute prohibition on assisted suicide (i.e. a prohibition without exceptions), is an infringement of Ms. Taylor’s right to equality and her right to life, liberty, and security of the person. The infringement is not justified under section 1 of the Charter. Further, the law is an infringement of Ms. Carter and Mr. Hollis’ right to life, liberty, and security of the person, and this infringement is also not justified.[10]

As a result, the Court struck down the law and declared it invalid.[11] However, the Court declared that the applicable sections of the Criminal Code would not be struck down immediately. It gave Parliament one year – a period of time to allow it to respond and enact new laws.[12] In the meantime, Ms. Taylor was granted a “constitutional exemption” – a court order that allows her the option of physician-assisted death under several stipulated conditions without risk of exposing someone to criminal charges.[13]

ANALYSIS

Preliminary Issues for Consideration

Before embarking on a detailed analysis of the issues before it, the Court had to resolve a number of preliminary matters, including:

1. What is meant by the term “assisted suicide”?

2. What is the effect of the Supreme Court of Canada decision on assisted suicide in the Rodriguez case?

What is meant by the term “assisted suicide”?

In this decision, the Court defined “assisted suicide”, or “physician-assisted suicide” as “the act of intentionally killing oneself with the assistance of a medical practitioner who provides the knowledge, means, or both.”[14] “It is closely related to voluntary euthanasia, which is “the intentional termination of the life of a patient by a physician, at the patient’s request, for compassionate reasons.”[15] The term “physician-assisted dying” encompasses both physician-assisted suicide and voluntary euthanasia.

What is the effect of the Rodriguez decision?

The Supreme Court ruled that the Criminal Code ban on assisted suicide is constitutional in the 1993Rodriguez decision. Rodriguez also involved a woman with ALS who wished to obtain a physician-assisted death, and so challenged the constitutionality of the law.

According to the legal rule of “stare decisis” (which literally translates to “let the decision stand”), cases which involve similar facts and similar legal questions must be decided in the same way. In other words, the Court of British Columbia must follow the earlier decision of the Supreme Court of Canada in a similar case with similar facts and issues. The rule ensures predictability and consistency in the legal system.[16]

However, the Court in Carter decided to revisit the Rodriguez decision and the assisted suicide issue. Why? The Court concluded that it was appropriate for several reasons:

• New evidence is available – today, there is significant evidence available from other jurisdictions where assisted suicide is permitted - including evidence regarding the effectiveness of safeguards to protect vulnerable individuals - that was not available to the Supreme Court in 1993 when Rodriguez was decided.[17]
• The legal principles have evolved – new legal principles have been developed since 1993 dealing especially with the proper approach to interpreting section 7 and the right to life, liberty, and security of the person.[18] In addition, new principles have emerged regarding the proper approach to interpreting reasonable limits under section 1 of the Charter.[19]
• Several questions still linger after the Rodriguez decision – a number of the legal issues that arise in this case were not conclusively decided in Rodriguez.

The Rodriguez case divided the Supreme Court. A summary of the decision can be found here.

Of the nine judges who heard the case, a majority of five upheld the law prohibiting assisted suicide, ruling that it was constitutional. They reached this conclusion because, although Ms. Rodriguez’s right to security of the person was violated, the infringement was in accordance with the principles of fundamental justice (a concept that will be discussed in more detail in the sections below) because of the sanctity of human life and the need to protect vulnerable individuals.

Four judges of the Supreme Court disagreed. Justice McLachlin (who later became Chief Justice) and Justice L’Heureux-Dubé concluded that the law was an infringement of the section 7 right to life, liberty, and security of the person, and was not justified under section 1. Chief Justice Lamer concluded that it was an infringement of the section 15 equality guarantee (the only member of the Court to address section 15 in detail). Justice Cory agreed largely with Justices McLachlin, L’Heureux-Dube, and Chief Justice Lamer, concluding that law was an infringement of both sections 7 and 15.

Issue #1: Is the Law Prohibiting Assisted Suicide Contrary to the Section 15 Charter Right to Equality?

Section 15 of the Charter guarantees the right to equality. It reads as follows:

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.

The Arguments of the Parties

The plaintiffs in Carter argued that the law prohibiting assisted suicide infringes the right to equality because it places an extra burden on individuals who are seriously physically disabled.[20] Committing suicide, or attempting to commit suicide, is not (in itself) a crime.[21] However, individuals who suffer from a serious physical disability are not physically capable of ending their lives. Accordingly, Ms. Taylor argued that the Criminal Code prohibition on assisted suicide discriminates against her, and other individuals in a similar situation, on the basis of physical disability.[22]

The Government of Canada argued that because assisted suicide is prohibited for everyone – both able-bodied and physically disabled persons – there is no distinction or discrimination, and thus no infringement of section 15.[23] Canada argued that there are end-of-life choices available to disabled persons that are legal, such as refusing or withdrawing treatment, or declining nutrition and hydration under palliative sedation.[24] Palliative sedation is a currently legal and accepted end-of-life practice. It involves doctor-imposed sedation in order to maintain an individual in a deep state of unconsciousness until the time of death, with or without providing nutrition and hydration.[25] Ms. Taylor argued that there is no ethical or logical reason to distinguish palliative sedation from assisted suicide, while the Government argued that the key distinguishing factor is that with palliative sedation, the doctor does not commit an action that is designed to end the patient’s life.

Has section 15 been infringed in the Carter case?

The Supreme Court decision in Withler v Canada (Attorney General)[26] provides a two-step test to determine whether section 15 has been infringed:

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

The Court considered each of these steps in turn:

Step 1: Does the law create a distinction based on an enumerated or analogous ground?

The section 15 equality guarantee protects individuals from discrimination, that is, distinctions made on the basis of “enumerated” or listed grounds (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or on the basis of “analogous grounds.”[27]

The Court concluded that the assisted suicide prohibition does create such a distinction because it places a burden on people with physical disabilities that is not placed on able-bodied individuals.[28] Physically disabled people may not be capable of taking their own lives and are faced with the dilemma of continuing to suffer or exposing another person to criminal charges for assisting them to commit suicide.[29] The Court expressed a concern that “some resolve this dilemma by taking their lives before their illnesses progress to a point where they are no longer able to do so.”[30] Although there are some methods of suicide available to physically disabled individuals, such as palliative sedation combined with refusal of nutrition, the Court concluded that these means of suicide are far more onerous than those available to able-bodied individuals.[31]

Step 2: Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

This step of the test asks whether the distinction is discriminatory. The Court concluded that the distinction is discriminatory because it “perpetuates and worsens” a disadvantage that is suffered by physically disabled persons.[32] The law does not respect the dignity and autonomy of physically disabled persons, as they do not have the same ability to make the deeply personal choice of whether to end their own lives.

Accordingly, the Court concluded that Ms. Taylor had proven an infringement of her right to equality under section 15 of the Charter.[33]

Is the infringement demonstrably justified in a free and democratic society?

The rights and freedoms contained in the Charter are not absolute – they are subject to reasonable limits that can be justified by the Government. Therefore, once a court determines that there has been an infringement of a Charter right, it must then consider arguments by the Government about the reasonable and justifiable nature of the law in question.

According to section 1 of the Charter:

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.

In order to help the Court determine whether the assisted suicide prohibition is a reasonable limit on the right or freedom in question, it uses a test known as the “section 1” test. The test contains the following steps:

Step 1 - Pressing and substantial objective: Does the legislation have a pressing and substantial objective?

Step 2 - Proportionality: Are the means used to achieve the legislative objectives proportionate in that they do not breach Charter rights more than necessary? The Court uses the following steps to answer this proportionality question:
a) Rational Connection: Is there a rational connection between the legislation that is in violation of the Charter and the objectives of the legislation itself? In other words, are the means rationally connected to the objectives?
b) Minimal Impairment: Does the infringement minimally impair Charter rights?
c) Proportionate Effect: Do the benefits of the legislation outweigh the harms associated with violating the Charter right?

This section 1 test was used by the Supreme Court in the Rodriguez case. There, the Court concluded that, assuming the law prohibiting assisted suicide was a violation of section 15 equality rights, it was justified using this section 1 test.[34] The discussion of section 1 was brief. Strong emphasis was placed on the fact that Parliament should be given significant leeway to address this “contentious and morally laden issue”, and that there was no evidence available to support the effectiveness of appropriate safeguards needed to ensure that vulnerable individuals were protected and decisions were made by the individuals themselves.[35]

As noted above, a trial court would normally be required to follow a decision of the Supreme Court on the basis of the legal rule of stare decisis. However, the Court in Carter decided to give the section 1 issue a fresh look for several reasons:

• The Supreme Court in Rodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the Supreme Court stated that even if there was a section 15 infringement, it was justified under section 1 of the Charter. However, the discussion overall was brief because the issue did not need to be resolved to reach the decision in Rodriguez – the case was decided on other grounds.
•  New evidence is available regarding the effectiveness of safeguards that was not available to the Supreme Court in Rodriguez.
• The law regarding the section 1 test has evolved, and is no longer the same as it was when Rodriguezwas decided (as will be discussed in more detail in the section below).

As a result, the Court proceeded through the section 1 test.

Step 1: Does the legislation have a pressing and substantial objective?

The first step in the section 1 analysis is to identify the objectives of the legislation and determine whether they are “pressing and substantial” - that is, they must be important enough to justify overriding Charterrights.

Here, the Court concluded that the objective of these provisions in the Criminal Code is to “protect vulnerable persons from being induced to commit suicide at a time of weakness” by ensuring there are criminal consequences for anyone who assists another person with suicide.[36] This objective protects the value of all human life in our society.

In Rodriguez, this objective was ruled to be pressing and substantial. The judge in Carter came to the same conclusion.[37]

Step 2: Are the means used to achieve the legislative objective proportionate?

The second step of the section 1 test involves considering whether the means used to achieve the legislative objectives are proportionate, in that they do not breach Charter rights more than necessary. This step contains sub-parts, which assist a court in coming to its determination.

(a) Are the means rationally connected to the objective?

In Rodriguez, the Court ruled that the law against assisted suicide was rationally connected to the purpose of section 241(b) of the Criminal Code.[38] The judge in Carter came to the same conclusion.[39]

(b) Are the means minimally impairing?

The impairment to rights must be minimal and the law must be carefully tailored so that rights are impaired no more than necessary.

In the Rodriguez case, the Supreme Court ruled that the sections in the Criminal Code prohibiting assisted suicide are indeed minimally impairing, because there is no other measure that could be relied upon to fully achieve the purpose of protecting vulnerable people from being coerced or forced into an assisted suicide[40]

However, the Court in Carter focused its analysis on whether there were alternatives to the absolute infringement which would achieve the legislation’s objective, without seriously infringing the Charter rights of people in Ms. Taylor’s situation. The Court concluded that there is an effective alternative – Parliament could prohibit assisted suicide, but allow for exceptions under “stringent conditions.”[41] These conditions would be designed to ensure that assisted suicide would only be available in a situation where the individual is:

• An adult;
• Grievously ill with no chance for recovery;
• Competent;
• Non-ambivalent (not susceptible to changing his/her mind);
• Seeking assisted suicide voluntarily;
• Fully informed as to their diagnosis and prognosis;
• Suffering symptoms that cannot be treated through means reasonably acceptable to them; and
• Not subject to coercion.[42]

The Court had the benefit of new evidence from other international jurisdictions that permit assisted suicide (including Oregon, Washington, the Netherlands, and Belgium) – evidence that was not available to the Supreme Court in Rodriguez. As a result, the Court concluded that the risk that legalizing assisted suicide will harm vulnerable people can be greatly minimized.[43] Because this evidence was new and not available to the Supreme Court when Rodriguez was decided, the Court concluded that it was appropriate to diverge from the decision in Rodriguez on this point.

Accordingly, Justice Smith concluded that since a less drastic means of preventing vulnerable persons from being induced to commit suicide was available to the Government, the legislation was not minimally impairing. In other words, the legislation failed on this point.

(c) Are the benefits of the legislation proportionate to the harms that result from the violation of theCharter right?

The last stage of the proportionality test involves weighing the benefits of the legislation against the harms imposed by the violation of a Charter protected right. Justice Smith emphasized that this step in the section 1 analysis had evolved since the Rodriguez decision. Following the Supreme Court’s decision in Alberta v Hutterian Brethren of Wilson Colony,[44] the key question at this step is a broad one (broader than it was when Rodriguez was decided): whether the “benefits of the impugned law are worth the costs of the rights limitation.”[45]

While the law has several benefits – it sends an anti-suicide message to society and upholds the sanctity of every life – it imposes an unequal burden on physically disabled individuals who are “suffering unbearably.”[46] In this way, the law denies autonomy to people such as Ms. Taylor.[47]

Accordingly, the Court concluded that any benefits that flow from the absolute prohibition are not worth the costs of the rights they infringe.[48] The Court took issue with the absolute nature of the prohibition – the fact that it did not allow for any exceptions, even in limited circumstances. As a result, the Court ruled that the prohibition infringes section 15 in a manner that is not justifiable.

Issue #2: Does the Absolute Prohibition Infringe the Right to Life, Liberty and Security of the Person Under Section 7?

Section 7 of the Charter states as follows:

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.

Has section 7 been infringed?

Determining whether there has been a breach of section 7 involves a two-part analysis. A court considering a potential section 7 violation must ask:

1. Whether there is a deprivation of the right to life, liberty, or security of the person; and

2. If so, whether the deprivation is in accordance with the principles of fundamental justice.

Step 1: Has there been a deprivation of the right to life, liberty, or security of the person?

Life, liberty, and security of the person are distinct, yet interrelated, concepts. Generally speaking, “life” refers to freedom from fear of death; “liberty” refers to physical freedom and personal autonomy over important life decisions; and “security of the person” refers to freedom from serious state-imposed psychological stress and interference with human dignity. However, the interpretation of each of these terms will vary depending on the specific case.

In Rodriguez, the Court concluded that Ms. Rodriguez’s security of the person interest was affected by the assisted suicide prohibition, because it denied her ability to make a personal choice. The Court emphasized that the ability to make such a fundamental life choice is a component of “security of the person”: “there is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person.”[49]

Accordingly, it is clear from the Court’s decision in Rodriguez that Ms. Taylor’s right to security of the person was deprived by the law prohibiting assisted suicide.

The Court in Carter also concluded that Ms. Taylor’s liberty interest was engaged through the interference with her personal autonomy and loss of control over her own bodily integrity.[50]

In addition, the Court considered whether the right to life was engaged by the legislation. The decision inRodriguez did not decide this issue.[51] While acknowledging that the essence of the plaintiffs’ claim was centred on the liberty and security of the person interests, the Court concluded that the right to life was also at issue. This is because the effect of the law is potentially to force a disabled individual to make an earlier decision regarding suicide – a person whose physical condition is deteriorating may take their life earlier than they otherwise would because they are still physically capable of doing so and may soon lose that physical ability.[52]

Accordingly, Justice Smith concluded that the law prohibiting assisted suicide deprived Ms. Carter of the right to life, liberty, and security of the person.

Step 2: Is that deprivation in accordance with the principles of fundamental justice?

Section 7 of the Charter is unique in that it contains an internal balancing mechanism: individuals may be deprived of their right to life, liberty, or security of the person, so long as the deprivation is in accordance with the “principles of fundamental justice.”

But, what are the “principles of fundamental justice”? These are legal principles that are considered essential to our society’s notion of justice. For example, it is a principle of fundamental justice that our laws not be arbitrary or overly vague.[53] Over time, the courts in Canada have recognized different concepts as principles of fundamental justice.

At the time Rodriguez was decided, there was one principle of fundamental justice relevant to this case: the principle that a law must not be arbitrary.[54] In other words, a law must be logically related to the law’s goals, and not based on whim or fancy. In Rodriguez, a majority of the Supreme Court concluded that the law prohibiting assisted suicide was not arbitrary. As a result, the majority in Rodriguez ruled that the deprivation of Ms Rodriguez’s security of the person was in accordance with the principles of fundamental justice, and so there was no infringement of her section 7 rights.

However, since Rodriguez, the Supreme Court has identified two more principles of fundamental justice. The first is the notion of “overbreadth” – a law should not be more broadly framed than necessary to achieve the legislative purpose.[55] The second is “gross disproportionality” – the idea that a legislative response to a problem (here, the problem of vulnerable people being induced to commit suicide) is so extreme as to be disproportionate to the purpose of the legislation.[56]

In Carter, the Court concluded that the law which absolutely prohibits assisted suicide under any circumstances is too broad because the alternative, a prohibition with limited exceptions, would achieve the same legislative goal – protecting vulnerable people from being induced to commit suicide at a time of weakness.[57] The Court came to this conclusion because the evidence from other jurisdictions which permit assisted suicide under limited conditions, demonstrates that “a system with properly designed and administered safeguards could, with a very high degree of certainty, prevent vulnerable persons from being induced to commit suicide while permitting exceptions for competent, fully-informed persons acting voluntarily to receive physician-assisted death.”[58]

In addition, the Court concluded that the effect of the absolute prohibition on people in Ms. Taylor’s situation was grossly disproportionate to its effect on protecting vulnerable people.[59]

As a result, the Court concluded that because the law is overbroad and grossly disproportionate, the deprivation of life, liberty and security of the person was not in accordance with the principles of fundamental justice, and so Ms. Taylor’s section 7 rights were infringed.

Is the infringement demonstrably justified in a free and democratic society?

In previous cases, the Supreme Court has expressed some doubt about whether an infringement of section 7 can ever be justified using section 1 of the Charter.[60] However, this issue did not need to be resolved in this case. The Court concluded that any infringement of section 7 was not justified, for the same reasons that the section 15 infringement was not justified (as discussed in the section above).[61]

Issue #3: What is the Appropriate Remedy?

As the Court concluded that the law prohibiting assisted suicide was an infringement of both section 15 and section 7 of the Charter and that the infringement was not reasonable or justifiable, it then had to determine how to remedy the infringement.

Under section 52(1) of the Constitution Act, 1982, the Constitution of Canada is declared to be the “supreme law of Canada”, and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This means that a court has the power to strike down a law that is contrary to the provisions of the Charter.

However, the Court recognized that Parliament – not the court – is responsible for determining how to rectify the Criminal Code in order to ensure that the provisions regarding assisted suicide are consistent with theCharter.[62] This could be done, for example, by allowing for exceptions to the prohibition in limited circumstances. However, any changes must be made by Parliament.

Accordingly, the Court declared the assisted suicide provisions of the Criminal Code to be invalid, but suspended the declaration for one year in order to give Parliament time to rectify and amend the offending law.[63] In other words, the law will remain in effect for one year to allow Parliament to respond.

However, this delay would not help Ms. Taylor, because the absolute prohibition would remain in effect for one full year and this might deny her the opportunity to seek assisted suicide if she decided she needed to do this. So, in a rare move, the Court granted Ms Taylor a “constitutional exemption” in the interim.[64] This means that during the upcoming year Ms Taylor can obtain physician-assisted death, under several conditions. These conditions are detailed, and include a requirement that Ms Taylor makes a written request, that her doctor attests to the fact that she has been fully informed of her diagnosis and prognosis, any available alternative treatment options, informed of the risks of physician-assisted dying, and referred to a palliative care expert for a consultation, in addition to other conditions.[65]

WHAT’S NEXT?

It is unlikely that the decision of the trial Court in British Columbia will be the final word on this issue. The Attorney General of Canada announced on July 13, 2012 that the Government will appeal the Carter ruling to the British Columbia Court of Appeal. The case could be appealed all the way up to the Supreme Court in the coming years.

It will be interesting to see whether the British Columbia Court of Appeal (and potentially the Supreme Court) agree that the situation with respect to assisted suicide in 1993 was so markedly different than the situation today that the issue merits reconsideration.

 

[1] 2012 BCSC 886 .

[2] [1993] 3 SCR 519 .

[3] Criminal Code, RSC 1985, c C-46, s 241(b).

[4] Carter, supra note 1 at 47.

[5] Ibid at paras 45, 99. The parties were also supported by a number of interveners: the plaintiffs were supported by the Farewell Foundation for the Right to Die, the Canadian Unitarian Counsel, and the Ad Hoc Coalition of People with Disabilities who are Supportive of Physician-Assisted Dying. The defendants (the government of Canada) were supported by the Euthanasia Prevention Coalition and the Christian Legal Fellowship (see ibid at para 35).

[6] Ibid.

[7] Ibid at paras 44, 50.

[8] Ibid at paras 54, 56.

[9] Ibid at para 25.

[10] Carter, supra note 1 at para 1.

[11] Pursuant to section 52(1) of the Constitution Act, 1982.

[12] Carter, supra note 1 at para 2.

[13] Ibid.

[14] Ibid at para 38.

[15] Ibid.

[16] Ibid at para 900.

[17] Ibid at para 1001.

[18] Ibid at para 1002.

[19] Ibid at para 1003.

[20] Ibid at para 1009.

[21] Ibid at para 1011.

[22] Ibid.

[23] Ibid at para 1075.

[24] Ibid at para 1065.

[25] Ibid at para 200.

[26] 2011 SCC 12, [2011] 1 SCR 396.

[27] Carter, supra note 1 at para 1027.

[28] Ibid at para 1075.

[29] Ibid at para 1042.

[30] Ibid.

[31] Ibid at para 1076.

[32] Ibid at para 1161.

[33] Ibid at para 1162.

[34] Rodriguez, supra note 2 at 613-15, cited in Carter, supra note 1 at para 1165. The majority inRodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the majority of the Court decided that even if they did infringe section 15, the infringement was justified under section 1.

[35] Carter, ibid at paras 1166-67.

[36] Ibid at para 1190.

[37] Ibid at para 1205.

[38] Ibid at para 1208, citing Rodriguez, supra note 2 at 613.

[39] Ibid at para 1209.

[40] Ibid at para 1212.

[41] Ibid at para 1233.

[42] Ibid.

[43] Ibid at paras 1238-41.

[44] 2009 SCC 37, [2009] 2 SCR 567.

[45] Ibid at para 77, cited in Carter, supra note 1 at para 1246.

[46] Carter, ibid at para 1264-65.

[47] Ibid at para 1281.

[48] Ibid at para 1285.

[49] Rodriguez, supra note 2 at 587-589, cited in Carter, supra note 1 at para 1293.

[50] Carter, supra note 1 at para 1303.

[51] Ibid at para 1319.

[52] Ibid at para 1322.

[53] Peter W Hogg, Constitutional Law of Canada: 2011 Student Edition (Toronto: Carswell, 2011) at 47.17-47.18.

[54] Carter, supra note 1 at para 1331.

[55] This principle of fundamental justice was first articulated in 1994 in R v Heywood, [1994] 3 SCR 761.

[56] Gross disproportionality was first identified as a principle of fundamental justice in R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.

[57] Carter, supra note 1 at para 1363-64.

[58] Ibid at para 1367.

[59] Ibid at para 1378.

[60] Ibid at para 1380. The court cited the Supreme Court decisions in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350; and Re: BC Motor Vehicle Act, [1985] 2 SCR 486.

[61] Ibid at para 1383.

[62] Ibid at para 1385.

[63] Ibid at para 1393.

[64] Ibid at para 1411.

[65] Ibid at para 1413.