Some Initial Thoughts on the BCCA Decision in Carter v Canada (Attorney General)

Tuesday, November 12, 2013

by Professor Vanessa MacDonnell

On October 10, 2013, the British Columbia Court of Appeal (BCCA) released its decision in Carter v Canada (Attorney General), 2013 BCCA 435. The majority (Newbury and Saunders JJ.A.) concluded that the trial judge was barred by the doctrine of stare decisis from reconsidering the constitutionality of the assisted suicide provision of the Criminal Code and sundry other provisions. In the Supreme Court’s 1993 decision in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, the Court narrowly rejected challenges to the assisted suicide provision under ss 7 and 15 of the Charter.[1] Chief Justice Finch, writing in dissent in Carter, concluded that despite Rodriguez, the trial judge was justified in hearing aspects of the constitutional challenge. He would have upheld the trial judge’s holding that the provision unjustifiably infringed s 7 of the Charter. 

The Carter decision raises a number of fascinating and difficult issues. The case is advancing through the courts at a time when politicians and the broader society are grappling with the question of whether some form of assisted suicide ought to be permitted in Canada. CBC’s The National is currently broadcasting a four-part series on assisted suicide. In the first segment, retired Supreme Court of Canada Justice Jack Major, who formed part of the majority in Rodriguez, stated that the criminal prohibition on assisted suicide ought to be reformed.[2] The province of Quebec has proposed measures that would classify assisted suicide as part of the “continuum of care” in that province.[3] These debates and the evidence before the Court in Carter show that the issue of assisted suicide remains a polarizing one. 

In this post I want to focus on two narrow legal issues raised by the BCCA’s decision in Carter, both of which relate to the Court’s treatment of s 7 of the Charter. The first concerns the definition and content of the principles of fundamental justice, and specifically, the principles of arbitrariness, overbreadth, and gross disproportionality. The majority’s decision is noteworthy in that it takes a different approach to these principles than did the Ontario Court of Appeal (ONCA) in Bedford v Canada (Attorney General), 2012 ONCA 186. Bedford, which was heard by the Supreme Court in June 2012 and deals with the constitutionality of the prostitution provisions of the Criminal Code, raises many of the same stare decisis and s 7 issues as Carter. The Court of Appeal concluded in Bedford that arbitrariness, overbreadth and gross disproportionality should be dealt with separately in its analysis. By contrast, the BCCA concluded that there was considerable “overlap” between these principles that justified a more holistic approach:

…[L]aws that come under Charter scrutiny are assessed according to a number of standards that, while couched as discrete tenets of the justice system, overlap, oscillate and even merge. This doctrinal imprecision and pliability are likely unavoidable consequences of dealing with normative and abstract ideas. Although the standard, or particular “test”, varies, the essential exercise undertaken with respect to fundamental justice under s. 7 is to evaluate broadly the rationality and normative balance struck by the law in question.[4]    

Some of the confusion that emerges from these cases stems from the Supreme Court’s reluctance to clarify how these three principles of fundamental justice are related.[5] The very different approaches adopted in Carter and Bedford demonstrates that it is time for the Court to provide some guidance on this issue. In my view, the Bedford court’s approach is to be preferred over that of the majority in Carter. By collapsing the distinct concerns of arbitrariness, overbreadth and gross disproportionality into a single inquiry into “rationality and normative balance,” the Carter Court fails to recognize the importance of considering these three principles in sequence. As I have written with colleagues elsewhere, when the three principles are considered in sequence, they essentially replicate the elements of the proportionality test set out in R v Oakes, [1986] 1 SCR 103.[6] The Supreme Court has flatly rejected arguments about the “redundancy” of the elements of the Oakes test.[7] This suggests that each of the three principles of fundamental justice raised in Carter performs an important function. 

The second issue relates to how the courts in Rodriguez and in Carter conceptualize the constitutional interests at stake. Both Rodriguez and Carter can be viewed as being about how to balance competing interests of a constitutional dimension.[8] In Carter, the applicant argued that her s 7 rights were violated by the criminal prohibition on assisted suicide. On the other side of the balance lay the constitutional interests in life and security of individuals who might be “vulnerable”[9] in a system that permitted assisted suicide. Both interests are weighty and deserving of protection; the more difficult question is how to develop a regulatory scheme that adequately protects both interests.[10] Viewed in this light, the “blanket prohibition”[11] on assisted suicide might prove vulnerable to challenge.

It is likely that the Supreme Court of Canada will hear the Carter appeal. With any luck the Supreme Court will begin to tackle some of the conceptual confusion that has emerged in the s 7 jurisprudence.

[1] Carter v Canada (Attorney General), 2013 BCCA 435 at para 328.
[2] CBC, The National, 28 October 2013; CBC Top Stories (@CBCNews), “WATCH Last Right. A four-part series on the right to die starts tonight on @CBCTheNational. Watch this powerful clip:” 28 October 2013.
[3] Quebec, Bill 52, An Act Respecting End-of-Life Care, 1st Sess, 40th Leg., Quebec, 2013. See also Report of the Selection Committee on Dying with Dignity, Assemblé Nationale du Québec, online: at 51 (last accessed 11 November 2013).
[4] Carter, supra at para 289.
[5] R v Khawaja, 2012 SCC 69; Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134.
[6] Jula Hughes, Vanessa MacDonnell and Karen Pearlston, “Equality & Incrementalism? The Role of Common Law Reasoning in Constitutional Rights Cases after Bedford (ONCA)” (2014) 44 Ottawa L Rev (forthcoming) [Hughes et al., “Bedford”]; Hamish Stewart, “Bedford v Canada: Prostitution and Fundamental Justice” (2011), 57 Crim L Q 197 at 213.
[7] Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 75, citing Peter Hogg, Constitutional Law of Canada, 5th ed Supp (Scarborough: Thomson Carswell, 2006) at 38.12.
[8] For a similar argument in the abortion context, see Vanessa MacDonnell and Jula Hughes, “The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law” (2013) 50:4 Osgoode Hall L J 999 [MacDonnell and Hughes, “Protective Function”]. See also Bundesverfassungsgericht [BVerfG] [German Constitutional Court] 25 February 1975, Schwangerschaftsabbruch I, BVerfGE 39, 1 [First Abortion decision], discussed in MacDonnell and Hughes, supra; Bundesverfassungsgericht [BVerfG] [German Constitutional Court] 28 May 1993, Schwangerschaftsabbruch II, BVerfGE 88, 203 [Second Abortion decision], online: <> (last accessed 11 November 2013); Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed (Heidelberg: CF Müller, 1999) at paras 317-18, translated by Jula Hughes in MacDonnell and Hughes, supra; Robert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers (Oxford: Oxford University Press, 2006).
[9] Carter, supra at para 253, citing Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 at 605, Sopinka J.
[10] MacDonnell and Hughes, “Protective Function,” supra.
[11] Carter, ibid at para 253, citing Rodriguez, ibid at 605, Sopinka J.

Vanessa MacDonnell is an Assistant Professor at the University of Ottawa Faculty of Law (Common Law Section).
Designed by Rachel Gold.