While overturning a lower court's decision striking down Sec. 241 of the Criminal Code, which makes doctor-assisted suicide illegal, the British Columbia Court of Appeal on Thursday revived the discussion of permitting "constitutional exemption" as a remedy for the few people seeking assisted suicide and for whom Sec. 241 is disproportionately unfair in its blanket prohibition for those incapable of ending their lives on their own. In the discussion below, the court's majority recalls the opinions on a constitutional exemption of a number of judges, including Supreme Court judges, in the 1993 case of Sue Rodriguez, who suffered from Lou Gehrig's disease and sought the right to an assisted suicide.
In the event the Supreme Court of Canada does review Rodriguez, the issue of remedy may arise. It is in connection with that possibility that we make the following brief comments.
As the law now stands, there does not appear to be an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals. Such individual relief is often referred to as a constitutional exemption. In the past, that possibility existed in Canada. It arose in R. v. Big M Drug Mart Ltd. (1985) 1 S.C.R. 295 and R. v. Edwards Books and Art Ltd. (1986) 2 S.C.R. 713, where the court left open the "possibility that in certain circumstances a 'constitutional exemption' might be granted from otherwise valid legislation to particular individuals". (Edwards Books at 783.) The idea was subsequently 'picked up' by some appellate courts in connection with mandatory sentencing provisions that were said to have such harsh application that they raised issues under Sec. 12 of the charter. An example is R. v. Chief (1989)... (in which a Yukon judge) crafted an exemption from a mandatory prohibition of possession of firearms on an offence committed in the (then) Yukon Territory by a First Nations trapper.
Dissenting in this court in Rodriguez (1993), (Chief Justice Allan) McEachern (of the British Columbia Court of Appeal) would have provided Ms. Rodriguez an individual exemption from Sec. 241, so as to give her the opportunity to end her life with assistance...
The Supreme Court divided five to four in Rodriguez, with the majority rejecting relief for Ms. Rodriguez. It is perhaps of interest that (Supreme Court of Canada Chief Justice Antonio) Lamer would have declared Sec. 241(b) unconstitutional, would have suspended his declaration for a period of time and, relying upon the suspended declaration of invalidity, would have given Ms. Rodriguez relief from the law for the interval -- that is, he would have ordered a constitutional exemption...
We respectfully raise the remedy of constitutional exemption again, as an alternative to striking down Sec. 241, in the event Rodriguez is reconsidered. As demonstrated by the history of the issue recounted in Rodriguez, and the evidence in this case of still-born legislative initiatives, the issue of physician-assisted suicide has surfaced repeatedly in Parliament without result one way or another. Bearing this history in mind, there is an inherent danger in declaring Sec. 241 and the related provisions invalid, even with a time delay. Apart from the interference by the judiciary in the agenda of Parliament that would be inherent in a suspended declaration of constitutional invalidity, there is no certainty that Parliament would wish to, or be able to, engage both the public debate and its own debate in the time required to satisfy a deadline. The issue is one that goes to the heart of our democratic compact. We are not confident that a fully rounded, well-balanced alternative policy, with comprehensive public support, would or could be developed in the time frame of any of the suspensions of declaration of invalidity that have been issued hitherto. Striking down Sec. 241 would call for more than a top-down design of a broadly applicable system for assisted suicide. In that sense, the remedy of a suspended declaration of invalidity presents the spectre of a vacuum in the protection that Sec. 241 now provides, a danger that would not be present on a more limited remedy.
In its summary, the court also noted conditions that might be required in order for a person to obtain a constitutional exemption.
Accepting that Sec. 241 is directed to the interests of the vulnerable, a constitutional exemption for those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, might not undermine the intention of the legislation.
The majority also suggested that if the constitutional exemption were approved, it should not be on the terms suggested by the trial judge. At the least, court approval of some kind should be sought in addition to the bare requirement of two medical opinions and a request from the patient. An application to a court could provide a perspective and a safeguard from outside the often overstressed health-care regime in which patients and physicians find themselves.