As the date for argument of the Rodriguez appeal in the Supreme Court of Canada approached, various groups sought leave to intervene. COPOH (now the Council of Canadians with Disabilities) was among those groups granted standing before the Supreme Court. Other interveners included religious and pro-life organizations, the Physicians for Life Society, Dying with Dignity, the B.C. Coalition of People with Disabilities and People in Equal Participation Inc. (a disability group from Winnipeg, Manitoba). The case was argued in the Supreme Court of Canada on May 20, 1993. The argument was televised live, only the second time in the Court’s history that its proceedings have been so transacted.
Judgment was reserved and written reasons released on September 30, 1993. In a split five-to-four decision, the Court denied Ms. Rodriguez’s request.
COPOH’s position before the Supreme Court of Canada:
COPOH’s position before the Supreme Court of Canada reflected the diversity of views in the broader disability community. COPOH supported Sue Rodriguez’s right to exercise her free will and to be accommodated if, because of her disability, she needs physical assistance to exercise that choice. Taking one’s own life is not a crime in Canada. But it is not an option which is open to somebody who, because of disability, is unable to commit suicide without some assistance. COPOH argued that the Criminal Code provision prohibiting assisted suicide has a disparate impact on persons with disabilities and, therefore, violated the equality rights guaranteed by S. 15 of the Charter. However, COPOH was careful to distinguish the situation of assisted suicide from that of euthanasia or “mercy killing,” in which the decision to end a person’s life is made by somebody else. COPOH also urged the Court to consider carefully the vulnerability of persons with disabilities and to recognize the need for safeguards to ensure that decisions to have an assisted suicide are made as an exercise of free will, with knowledge of what the options are, and without any coercion or undue influence. COPOH recognized that there are valid reasons for enacting protections to prevent abuse in the area of assisted suicide, although we said as well that a complete Criminal Code prohibition simply went too far and was overly broad in its application.
The Supreme Court of Canada Decision:
(Note: Judges are referred to as Justice (J.), Justices (JJ.) and Chief Justice (C.J.).)
The Supreme Court of Canada ruled against Sue Rodriguez. Five judges concurred in the majority decision. Separate dissenting judgments were written by Chief Justice Lamer (concurred in by Cory, J.) and by McLachlin, J. (concurred in by L’Heureux-Dubé and Cory, JJ.).
(i) The Majority Decision
The majority of the Court (Sopinka, J. writing on behalf of himself and La Forest, Conthier, Iacobucci and Major, JJ.) dealt with the case under S. 7 of the Charter.
Sopinka, J. affirmed that: “the right to 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, at least to the extent of freedom from criminal prohibitions which interfere with these.”
On this basis, S. 241 (b) of the Criminal Code was found to deprive Sue Rodriguez of her right to security of the person. The Court’s analysis under S. 7 does not end there, however, but goes on to consider whether that deprivation was in accordance with the principles of fundamental justice. In this regard, the Court balanced the individual rights against the state interest underlying S. 241 (b) (which is to protect vulnerable people and uphold the sanctity of life). The Court concluded that the Criminal Code provision was in accordance with fundamental justice and that there was, therefore, no violation of S. 7.
The majority decision does not deal with S. 15 of the Charter. Instead, Sopinka, J. found that even if S. 15 was violated by S. 241 (b) of the Criminal Code, the provision was saved under S. 1 of the Charter as being a reasonable limit. The analysis under S. 1 was similar to the fundamental justice analysis under S. 7. The Court found that the government had “a reasonable basis for concluding” that S. 241 (b) did not go too far in protecting vulnerable people. It seems clear, from the language, that the Court considered this to be a delicate balancing process and preferred to leave to Parliament the “fine-tuning” in matters of this nature.
As stated by Sopinka, J.: “it is not the proper function of this Court to speculate as to whether other alternatives available to Parliament might have been preferable.”
(ii) Chief Justice Lamer’s Decision
The Chief Justice wrote a dissenting judgment (concurred in by Cory, J.) based on an analysis of the case under S. 15 of the Charter. In doing so, he confirmed that the concepts of adverse impact discrimination developed under human rights legislation will be applicable to S. 15 of the Charter. He also rejected as absurd any suggestion that legislation of broad application cannot be discriminatory and emphasized that it is the effect of the legislation which is important. He cited with approval the Saskatchewan Court of Appeal decision in the Huck case, which held that identical treatment of persons with disabilities is meaningless without accommodation and accessibility. Having concluded that S. 241 (b) of the Criminal Code had an equal effect on persons by depriving them of any ability to commit suicide without breaking the law, the Chief Justice went on to consider whether that unequal effect amounted to discrimination. It could only be considered to be discriminatory if it constituted a disadvantage or burden. In deciding that there was a disadvantage, Lamer, C.J. declined to consider the theological, moral or philosophical questions of suicide. Rather, he focused on the importance of individual and self determination and found that it was the removal of choice for persons with disabilities which created the infringement of S. 15 of the Charter.
Having found a S. 15 violation, the Chief Justice went on to consider whether this violation could be saved under S. 1 of the Charter and concluded that it could not. He recognized that S. 241 (b) was legitimately directed towards protecting vulnerability but found that it was too broad in its application under S. 1. His words in this regard are well worth repeating. He stated:
“It was argued that if assisted suicide were permitted even in limited circumstances, then there would be reason to fear that homicide of the terminally ill and persons with physical disabilities could be readily disguised as assisted suicide and that, as a result, the most vulnerable people would be left most exposed to this grave threat. There may indeed be cause for such concern. Sadly for our society, increasingly less value appears to be placed on the lives of those who, due to illness, age or disability, can no longer control the use of their bodies. Such sentiments are often shared by persons with physical disabilities themselves, who often feel they are merely a burden and an expense to their families and society as a whole.” Moreover, as the intervener COPOH observed in its written submissions, “the negative stereotypes and attitudes which exist about the lack of value and quality inherent in the life of a person with a disability are particularly dangerous in this context because they tend to support the conclusion that a suicide was carried out in response to those factors rather than because of pressure, coercion or duress.”
While I share a deep concern over the subtle and overt pressures that may be brought to bear on such persons if assisted suicide is decriminalized even in limited circumstances, I do not think legislation that deprives a disadvantaged group of the right to equality can be justified solely on such speculative grounds, no matter how well-intentioned. Similar dangers to the ones outlined above have surrounded the decriminalization of attempted suicide as well. It is impossible to know the degree of pressure or intimidation a physically able person may have been under when deciding to commit suicide. The truth is that we simply do not and cannot know the range of implications that allowing some form of assisted suicide will have for persons with physical disabilities. What we do know, and cannot ignore, is the anguish of those in the position of Ms. Rodriguez. Respecting the consent of those in her position may necessarily imply running the risk that the consent will have been obtained improperly. The proper role of the legal system in these circumstances is to provide safeguards to ensure that the consent in question is as independent and informed as is reasonably possible.
In my view, the fear of a “slippery slope” cannot justify the over-inclusion reach of the Criminal Code to encompass not only people who may be vulnerable to the pressure of others, but also persons with no evidence of vulnerability, and, in the case of the appellant, persons where there is positive evidence of freely determined consent. Sue Rodriguez is, and will remain, mentally competent. She has testified at trial to the fact that she alone, in consultation with her physician, wishes to control the decision-making regarding the timing and circumstances of her death. I see no reason to disbelieve her, nor has the Crown suggested that she is being wrongfully influenced by anyone.
Ms. Rodriguez has also emphasized that she remains, and wishes to remain, free not to avail herself of the opportunity to end her own life, should that be her eventual choice. The issue here is whether Parliament is justified in denying her the ability to make this choice lawfully, a choice that could be made by any physically able person.
Therefore, Chief Justice Lamer would have found in favour of Sue Rodriguez and would have granted her an individual remedy. In terms of the broader constitutional remedies, he would not have immediately struck down S. 241 (b) but would have suspended operation of the declaration of invalidity for one year in order to give Parliament time to enact a more precisely tailored protection if it so desired. In the meantime, he proposed that other individuals in situations like Sue Rodriguez’s could apply to a superior court for a constitutional exemption.
(iii) Madame McLachlin’s Decision
Madame Justice McLachlin (with L’Heureux-Dubé and Cory, JJ. concurring) elected not to decide the case under S. 15.
She wrote: “I have read the reasons of the Chief Justice. Persuasive as they are, I am of the view that this is not at base a case about discrimination under S. 15 of the Charter…and that to treat it as such may deflect the equality jurisprudence from the true focus of S. 15 — ’to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and social prejudice in Canadian society’ (R. v. Swain).”
She then goes on to consider the case under S. 7 of the Charter. On the issue of deprivation of security, her rationale is similar to that expressed by Sopinka, J. They differ substantially, however, on the issue of fundamental justice. McLachlin, J. found that depriving persons with disabilities of a right to choose to commit suicide when able-bodied persons were free to do so could not be consistent with fundamental justice. Therefore, she found that S. 241 (b) of the Criminal Code violated S. 7 of the Charter. She further held that the provision could not be saved under S. 1 because it was overly broad.
In the result, the Supreme Court of Canada ruled against Sue Rodriguez. As such, the decision is a considerable setback to the advancement of the right to autonomy and self-determination of persons with disabilities.
There is, however, much in the reasons for the decision which will be helpful in disability rights cases to come. The most obvious illustration of this is, of course, the decision of the Chief Justice on S. 15 of the Charter. While it is concurred with by only one other judge, it must be noted that none of the other judges expressly rejected it either (with the possible caveat that McLachlin and L’Heureux-Dubé found S. 15 to be inapplicable without expressing reasons). Chief Justice Lamer’s decision on S. 15 — as it relates to disability discrimination and, in particular, adverse impact disability discrimination — is outstanding in its logic and in its grasp of the reality of disability-based discrimination. It will be of considerable assistance in equality rights cases to come.
There is also much which is helpful in the decision of McLachlin, J., particularly with respect to the finding that depriving persons with disabilities of a choice that is given to other persons cannot be in accordance with fundamental justice.
Even the majority decision is helpful in the general rulings that the right to human dignity and self determination are part of the right to security to the person under S. 7 of the Charter. The majority decision dealing with the fundamental justice component of S. 7 is disappointing in that it permits an overriding moral view held by the state to take priority over the self-determination of persons with disabilities. It must be remembered, however, that Rodriguez is an extreme case in its facts; future courts may be less willing to balance fundamental justice in favour of the state in a case which is not literally determinative of life or death.
Accordingly, there are some considerable gains for disability rights in the broader perspective to be found in the Rodriguez decision. As for the more specific concerns about assisted suicide, the responsibility for reform now rests squarely on Parliament’s shoulders. Four of the nine judges on the Supreme Court bench found that S. 241 (b) was overly broad in its application. The other five upheld it under S. 1, but did so on the basis that fine distinctions of this nature should be made by governments rather than courts.
It now remains for disability rights advocates to capitalize on the gains made in the decision. They must work towards requiring Parliament to institute real and effective safeguards that will both protect vulnerable people and support the right of autonomy for persons with disabilities.
(Anne Molloy served as legal counsel to COPOH on the occasion of the Rodriguez intervention.)