#1749 - Rodriguez V Ag Of British Columbia - Medical Law

Rodriguez v AG of British Columbia [1993] 3 SCR 519

Supreme Court of Canada

Facts

D was a 42yo woman who had a progressively degenerative illness. She had a life expectancy of around a year, and eventually would only be able to breathe via respirator, and wouldn’t be able to talk, move or eat normally. She wished a physician to set up a device which allowed her to, by her own hand, end her life when she considered life no longer with living.

Lamer CJ (dis)

• In my view, persons with disabilities who are or will become unable to end their lives without assistance are discriminated against by [the provision which does not permit assisted suicide]

  • since, unlike persons capable of causing their own deaths, they are deprived of the option of choosing suicide.

  • This inequality is moreover imposed on persons unable to end their lives unassisted solely because of a physical disability,

    • the inequality may be characterized as a burden or disadvantage, since it limits the ability of those who are subject to this inequality to take and act upon fundamental decisions regarding their lives and persons.

      • For them, the principle of self-determination has been limited

    • Although at first sight persons who cannot commit suicide and those who can are given identical treatment under [the provision]

      • they are nevertheless treated unequally since by the effect of that provision persons unable to commit suicide without assistance are deprived of any ability to commit suicide in a way which is not unlawful,

      • whereas it does not have that effect on those able to end their lives without assistance

• It should be pointed out that the advantage which the appellant claims to be deprived of is not the option of committing suicide as such

  • But that she will be deprived of the right to choose suicide, of her ability to decide on the conduct of her life herself.

  • Can the right to choose at issue here, that is the right to choose suicide, be described as an advantage of which the appellant is being deprived?

    • The Court should answer this question without reference to the philosophical and theological considerations fuelling the debate on the morality of suicide or euthanasia.

      • It should consider the question before it from a legal perspective

      • You can say it is unequal and discriminatory from a secular legal perspective without saying it is morally justified to do it.

• Is it justified?

  • Clearly, the aim of the legislation is to protect vulnerable people from the influence of others in deciding when, whether and how to terminate their lives

    • The repeal of the offence of attempted suicide suggests that Parliament was giving consideration to the fact that medical help rather than criminal sanctions were more appropriate

  • An individual's right to control his or her own body does not cease to obtain merely because that individual has become dependent on others for the physical maintenance of that body;

    • indeed, in such circumstances, this type of autonomy is often most critical to an individual's feeling of self-worth and dignity

    • However, this self determination is never absolute

      • P can always refuse treatment if competent, but can never demand doctors give him it.

  • Is the infringement of the right proportionate?

    • The government has argued that an absolute prohibition on assisted suicide is necessary as there is no practicable way for the government to divine what the motives of those assisting in a suicide might be.

      • The compassionately motivated, in other words, cannot be distinguished from the corrupt

      • The limitation of this prohibition to those who require assistance to terminate their own life is, to a certain extent, irrational,

        • since it is based on the untenable assumption that those who require assistance will necessarily be more vulnerable to coercion or other undue influence

    • As a result, there is no way, under the present legislation, to distinguish between those people whose freely chosen will it is to terminate their life, and those people who are potentially being pressured or coerced by others.

      • Vulnerability, in a sense, is simply imposed on all people who happen to be physically unable to commit suicide independently and the right to choose suicide is therefore removed from this entire class of persons.

      • The measure is therefore overbroard

• The principal fear is that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others.

  • 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.

    • We don’t know the effect that the decriminilisation could lead to

      • What we do know and cannot ignore is the anguish of those in the position R

      • 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

• I fail to see how preventing against abuse in one context must result in denying self-determination in another

  • And remain unpersuaded by the government's apparent contention that it is not possible to design legislation

    • that is somewhere in between complete decriminalization and absolute prohibition

Sopinka J (maj opinion)

• The appellant seeks a remedy which would assure her some control over the time and manner of her death

  • This engages questions of security and liberty

  • A consideration of these interests cannot be divorced from the sanctity of life

    • None of these values prevail a priori over the others. All must be taken into account in determining the content of the principles of fundamental justice

      • and there is no basis for imposing a greater burden on the propounder of one value as against that imposed on another

• However security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person

  • Per Dworkin, Human life is sacred or inviolable

  • Sanctity of life, as we will see, has been understood historically as excluding freedom of choice in the self-infliction of death and certainly in the involvement of others in carrying out that choice

    • The appellant suggests that for the terminally ill, the choice is one of time and manner of death rather than death itself since the latter is inevitable

    • But actually it is choosing death instead of allowing natural forces to run their course

      • The time and precise manner of death remains unknown until death actually occurs

        • Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life.

          • It follows that life as a value is engaged even in the case of the terminally ill who seek to choose death over life

• 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,

    • at least to the extent of freedom from criminal prohibitions which interfere with these.

  • The effect of s.241(b) is to prevent the appeallant from having assistance to commit suicide

    • This means she will be totally competent on machines and required to live until the deterioration of her disease

    • the prohibition in s. 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person

• Can it be justified?

  • S.241(b) is valid an desirable legislation as it fulfils the government’s objective of protecting the vulnerable and protecting life

    • The complaint is that the legislation is over-inclusive because it does not exclude from the reach of the prohibition those in the situation of the appellant

      • who are terminally ill, mentally competent, but cannot commit suicide on their own

  • The state interest is an important consideration, which involves a balancing of the interest of the state and the individual is required

    • Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be),

      • it seems to me that a breach of fundamental justice will be made out, as the individual's rights will have...