Carter Vs Canada Case Brief

Case Brief (Précis)-

The extraordinary court decision in Carter v Canada discusses the monumental decision of the B.C court of appeal and Canada that one’s right to receive aid by a willing able-bodied physician inn dying should be legalized. The litigants in the Carter case are Hollis Johnson and Lee Carter. Hollis and Lee Carter brought their family member Kay Carter to Switzerland where it is legal to have a physician assist in ones death. The issue facing them is that, they are concerned about prosecution when they return to Canada for this. The justice who looked after the matter was the Honorable Madame Justice Smith in which she had a major hurdle to overcome. This was the decision of the Supreme Court of Canada in R. vs. Rodriguez

in 1993. Sue Rodriguez was a woman who suffered from ALS, and was in a similar position to the plaintiff Gloria Taylor in this case. The majority in the Rodriguez case upheld the Criminal Code section by a five to four vote. They held that while s. 241(b) affected Ms. Rodriguez rights to liberty and security of the person, this was a justifiable limitation given the inherent danger that would enable the wrongful death of a vulnerable person. In Carter the majority of the court of appeal allowed the plea on the ground that the trial judge was bound to follow the courts decision in Rodriguez v B.C.
Over the twenty years since Rodriquez there has been numerous amounts of complaints from Canadians, who have chosen to go to Switzerland to see loved one’s receive assisted suicide.

The objection that the plaintiffs in Carter V Canada argued that Canadian law should allow assisted suicide and that there was not a good enough reason under our Charter of Rights and Freedoms to prevent assisted suicide. In the Carter case the lower court judge Smith allowed the plaintiffs to be successful in there claim that the criminal code section 241(b) was constitutionally invalid and should be reformed because it did not allow a doctor to perform assisted suicide or euthanasia to a person who wished to have that done. The government appealed this decision to the BC court of appeal. The lower court has struck down the lower court ruling and has found that the reasoning used by the lower court judge to legalize assisted suicide is

coerced.
Madame Justice Smith struck down s. 241(b) of the Criminal Code for Three reasons. One the section infringed on the plaintiffs rights to life, liberty and security of the person as stated in S. 7 which outlines ones civil liberties and deprived thereof except in accordance with the principles of fundamental justice. The section infringed on the plaintiffs right to equal protection under the law. S. 15(1) 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 third reason is that the limitations on the plaintiff’s rights could not be justified under s.1.
The key to understanding the decision rests on two main points.

In this decision there is no difference between the ethics of current end of life practices such as withholding life sustaining treatment or providing pain management and physician-assisted death. The second key point is that Justice Smith holds that there is a way to protect the vulnerable from the loss of their s.7 right to life, liberty and security of the person in a physician assisted death regime through legal restrictions. Trial Judge at the BC Supreme Court, following an exhaustive review of empirical and expert evidence, Justice Lynn Smith found (and the Supreme Court accepted) that: “it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, that coercion, undue influence, and ambivalence could all be reliably assessed as part of that

process.”
Justice Smith struck down the Criminal Code section, under the provisions of s.24 of the Charter but delayed the implementation of her order by one year to give Parliament time to amend the Criminal code. She gave the plaintiff Gloria Taylor a constitutional exclusion so that her physician assisted death might be facilitated.