Rodriguez v British Columbia [1993] 3 S.C.R 519
Introduction
This is a landmark decision from the Supreme Court of Canada in a case that ran from 20 May to 30 September, 1993. It was an appeal from the Court of Appeal for British Columbia. The file was number 234776 and indexed as Rodriguez v British Columbia (Attorney General), with Sue Rodriguez as the appellant and the Attorney General of British Columbia as the main respondent, alongside others interveners who included the British Columbia Coalition of People with Disability, the Right to Die Society, the Coalition of Provincial Organization of the Handicapped, the Pro-Life Society of British Columbia, the Pacific Physicians for Life Society, the Canadian Conference of Catholic Bishops, the Evangelical Fellowship of Canada, and the People in Equal Participation Inc.. The subject of contention was based largely on Constitutional Law and other ancillary issues of law touching on Fundamental Justice, the Criminal Code, and the Canadian Charter of Rights and Freedom.
Within this case, there emerged three main issues. The first was whether the provisions of the Criminal Code against aiding a person to commit suicide is an infringement of section 7 of the Canadian Charter of Life and how the scenario would unfold in consideration of section 1 of the same Charter. The second was whether the Criminal Code provisions prohibiting aiding one to commit suicide is an infringement of section 15(1) of the Canadian Charter of Rights and Freedoms and if so, if the infringement justifiable under section 1 of the Charter touching on remedies available if the same Charter is infringed. The third was weather the same prohibition against aiding a person to commit suicide was an infringement of section 12 of the Canadian Charter of Rights and Freedoms and if in any event that this is true, whether the latter was justifiable under section 1 of the Charter. In all these three scenarios, the provision of the Criminal Code of 1985 at section 241(b) was a prominent feature and had a bearing on various issues ranging from the life, liberty and security of the person and the position of the law when it came to terminally ill patients seeking assistance to end their life in light of the discourse on equality of rights, touching on issues of discrimination on the basis of physical disability and the Charter of Life touching on the cruelty and unusual punishments.
The judges who presided were Lamer Antonio, La Forest Gerard V, L’Heureux-Dube Clare, Sopinka John, Gonthier Charles Doherty, Cory Peter DeCateret, McLachlin Beverly, Lacobucci Frank, and Major John C. At the conclusion of the case, the majority holding was that the appeal should be dismissed, thereby affirming the judgment of the Court of Appeal for British Columbia. Nine judges concurred while Lamer CJ, L’Heureux-Dube, Cory, and McLachlin held a dissenting opinion.
The appellant, Sue Rodriguez was a mother of 42 years suffering from Amyotrophic Lateral Sclerosis (ALS). Given the degenerative nature of this condition, manifested by a rapid deterioration of the body, she would lose her ability to speak, swallow, or walk, and breathing would become difficult without aid of respirators. Her doctors had put her life expectancy to just over a year at the maximum. For the love of life and probably her 8 year old son, she did not want her life to end while she still had a conscious ability to live, but wished to be allowed to get assistance from a qualified technician to set up some technological means by which she could end her life when she desired. This being a legal issue, the appellant made an application to the Supreme Court of British Columbia for an order declaring that section 241 (b) of the Criminal Code which had a provision against assisting one to commit suicide, was null and void on the ground that it infringed on her rights under the Canadian Charter of Rights under sections 7, 12, and 15 (1). Her argument was that the Criminal Code precluded a person who was terminally ill from committing suicide albeit by assistance from a physician, and that the provision was, therefore, a nullity by virtue of section 52 (1) of the Constitution Act of 1982. The Supreme Court of British Columbia rejected her request for the order and she appealed to the Supreme Court of Canada to get the requested orders on the basis of the ostensible infringement of the rights. The matter came to the Supreme Court on 20 May 1993 and was concluded with a finality on 30 September 1993 with the holding that the appeal from the Supreme Court of British Columbia be dismissed on the premise that section 241 (b) of the Criminal Code was constitutional.
Legal Issues
The main issue that the Supreme Court of Canada had to decide was whether the Supreme Court of British Columbia had erred in disallowing the desired orders that would have lawfully ensured that that the appellant gets a ‘physician assisted suicide’. The question before the court was whether section 214 (b) of the Criminal Code in contravention of the Canadian Charter of Rights and Freedoms at Sections 7, 12 or 15? And if so, was it ‘saved’ by Section 1 in a moment?
Holding
According to La Forest, Sopinka, Gonthier, Lacobucci, and Major JJ, the violation claim of the appellant as based on section 7 of the Charter of Rights touched on her liberty and security of the personal interest. The judges were of the opinion that the said interests could not be divorced from the sanctity of life doctrine, which ideally was one of the values that section 7 sought to protect. The same was highly regarded that even in the eminence and certainty of death, any attempts to take control of the manner and timing of an individual’s death would be construed as a conscious choice of death over life. In light of the issue in question, the appellant’s lawful security of person interest should have been considered alongside all other values as encapsulated in section 7 of the Charter of Rights.
In section 7, the security of person is an amalgam to the notions of personal autonomy in respect to physical and psychological choices, and the state could not interfere as this was essential for attainment of human dignity. Section 241 (b) which was a positive deprivation of this freedom of choice was, however merely an interaction with the justice system that sought to closely engage section 7 of the Charter. It was therefore, not contrary to the principles of fundamental justice. The principles of fundamental right in section 7 implied a general consensus about the importance of the protected values, which were to be identified with precision and applied in manners that gave understandable results. Assisted suicide as prohibited under common law had been adopted in the Canadian criminal code under 241 (b) with the aim of protecting the vulnerable, bearing in mind that the state has an interest in protecting the sanctity of life.. Parliament’s repeal of the crime of attempted suicide was not in recognition or acceptance of suicide but rather the recognition that criminal law was not effective in dealing with the psychological problems involved in suicide. The prohibition in section 241 (b) relates to the states’ interest in protecting the vulnerable and was, therefore, reflective of the fundamental values in the society and did not as such infringe on the rights advanced in section 7 of the Charter.
Further, Section 241 (b) of the Criminal Code did not infringe on section 12 of the Charter of Rights because the appellant was not subjected to any form of cruelty or unusual treatment or punishment. Even if the treatment were to be construed to mean constrains imposed by state in the context of penal or quasi-penal spheres, mere prohibition of certain actions could not constitute ‘treatment’ under section 12 of the Charter. There had to be some active state process in operation whether positive action, inaction or prohibition. A holding that 241 (b) was unconstitutional in that regard without the appellant being in any way subjected to state machinery would be stretching the term ‘treatment’ to its very limits.
Dissenting
L’Heureux-Dube and McLachlin, in dissenting explained that section 241 (b) of the Criminal Code was an infringement of the right to security of the person as construed in section 7 of the Charter of Rights. This fundamental right had the benefit of individual autonomy, which is a protection of the privacy and dignity of persons with respect to personal decisions concerning their personhood. If the legislation was crafted to limit this right of an individual to deal with his or her own body as s/he chooses then it was a violation of the principle of fundamental justice under section 7, more so if the limit was arbitrary. Arbitrariness would be discernible if it bears inconsistency with the objective premiering the legislation. The focus when considering arbitrariness in respect to section 7 would be on whether the scheme of legislation infringes on a particular person’s interests as protected by the law. The principles of fundamental justice dictated that each person had to be treated fairly by the law. This essentially meant that when there was likelihood that a person will be treated unfairly on a strict application of the law, then one might evoke the said section to declare the law unconstitutional. Any balancing of the interests of the society against those of an individual should have been exercised within the confines of section 1 of the Charter of Rights. From the facts of the issue, parliament had advanced a legislation that made individually executed suicide lawful but assisted suicide unlawful. The effect of this position was to deny some people the choice of terminating their lives solely because they are physically incapable of doing so. This amounted to a denial of autonomy over one’s body while availing the same to others. This constructive denial was arbitrary as it limited one’s right to security of the person which did not blend well with the principles of fundamental justice.
Lamer CJ in dissenting pointed out that 241(b) infringed the right to equality as contained in section 15 (1) of the Charter of Rights. At first sight section 241 (b) appeared neutral, but a closer look found a possibility of inequality because it prevented persons who are physically incapacitated from getting assistance to end their life after making a conscious decision for the same. This deprivation could be construed as a burden to the disadvantaged since it limited the ability of those who are subjected to the inequality. For them the principles of self-determination and individual autonomy became limited. By the very fact that the limitation could be connected to inability to exercise the right on an individual basis, it conformed to the grounds of discrimination as listed in section 15 (1).
Cory J. agreed substantially with the reasons advanced by Lamer CJ and McLachlin J that section 241 (b) of the criminal code infringed on sections 7 and 15 (1) of the Charter of Rights and consequently declared it unconstitutional by the application of section 1 of the Charter of Rights. He observed that there was no difference in permitting a patient of proper mental faculties the choice of death over life by refusing treatment and permitting a patient of sound mind who is terminally ill a choice of death with dignity by purposeful termination of life through someone else on her instructions.
Conclusion
The debate surrounding the sanctity of life, where life starts and ends, has been going on for some time now. While people will always hold differing opinions on whether the right of a person to terminate their own life has to be balanced against any interest the state may have in preserving the same, the whole issues will be pegged on competing ideologies on who actually holds a higher right over the other. In the case discussed above, there were many problematic moral arguments that emerged. The bench was split to a 5 for and 4 against, and upheld the prohibition on assisting a person to commit suicide. For the proponents of life (pro-life) this was a welcome victory but an unwelcome discomfort ensues when one seeks public opinion on this very emotive subject. One is not persuaded to believe that this is the last that the Supreme Court of Canada, and indeed other such courts will have to deal with this matter. One does not have to possess legal knowledge to concur intelligently with some of the opinions of the dissenting judges.
Sanctity of life ideally refers to the sacred and holy nature of human life advanced by the pro-life campaigners. This involves issues ranging from abortion, contraception, embryonic stem-cell research and euthanasia and the increasing ‘right to die’. Owing its origin from theological teachings, this ideology is based on the assumption that the life giver should have the ultimate decision on when to take life. This is also reflected in natural law which abhors the taking of one’s life. Common law which is often used to support the state’s interest to sanctity of life owes its origin to natural law, and indeed the judgment makes reference to the prevalence of the laws against suicide. But the advancement of fundamental liberties and the right to self-determination has been eroding the common law position such that criminalization of suicide is slowly dying. Indeed the appellant recognized the lawful nature of suicide and hoped to stretch it to ‘assisted suicide’. This is what rendered the holding so controversial in that the law had given with one hand and taken by the other. The argument that prohibition of assisted suicide is to save the vulnerable does not offer much credence because it does not define ‘vulnerability’ neither does it set the limits. I am of the opinion that just as self-determination has been advanced to persons over their lives, it should not matter how one choses to end his life, and particularly if the intended aim is alleviating suffering of the subject. You will remember the protracted legal battle in the Supreme Court of United States over Terry Schiavo, where the husband sought the court’s permission to switch off her life-support machine. In this case the court ruled in his favor having established that the patient was likely to be in a vegetative state for so long without any chance of getting better. The right of Sue Rodriguez should have been protected by letting her get physician assisted suicide.
References
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 23476 (Supreme Court of Canada September 30, 1993). Retrieved from http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1054/index.do
Beresford, S. (2010). Euthnasia, The Right to Die and the Bill of Rights Act. Human Rights Research Journal , 1-24. Retrieved from ww.victoria.ac.nz/law/centres/nzcpl/publications/human-rights-research-journal/publications/vol-3/Beresford.pdf
