*Updated January 13, 2020 - since this article was written, the federal government has decided to not appeal the Truchon ruling, and announced that it “has accepted the ruling and has committed to changing the MAID law for the whole country.”
Canada’s euthanasia law has several objectives, according to its preamble. In a recent decision, however, a Quebec judge accepted only one of them (protecting the vulnerable) as a legitimate legislative purpose. The court then struck down a core part of the law because it applied more broadly than necessary to achieve that single goal. Derek Ross explains why this narrow framing is concerning as a matter of legal principle, and how overlooking the law’s broader purposes “foreordained” the ultimate outcome.
Should euthanasia be available to patients who are not DYING?
When euthanasia/assisted suicide (“MAID”) was legalized in 2016 with Bill C-14, it was only made available to those whose natural death was already “reasonably foreseeable”. MAID was understood as “hastening” death in the end-of-life context, and was limited to those who were already dying or near death, not those who had potentially many years left to live.
Last month, however, in Truchon c. Procureur général du Canada, the Quebec Superior Court declared the “reasonably foreseeable” requirement unconstitutional (it made similar findings with respect to Quebec’s provincial law regulating MAID). The court’s order is suspended for 6 months, so the current law remains in effect until then, but unless the government appeals, the “reasonably foreseeable” requirement will be struck down at that time.
Central to the court’s analysis in Truchon was its framing of the law’s purpose. The federal government argued that the law’s purpose, as spelled out in its preamble, was to (i) uphold the inherent and equal value of every human life and avoid perpetuating negative perceptions about the quality of life those who are elderly, ill, or disabled, (ii) the prevention of suicide generally, given its lasting and adverse effects for individuals, families, and communities, and (iii) the protection of vulnerable people from being induced to end their lives.[1]
Remarkably, the Quebec Court refused to accept the first two principles as representing the objectives of the law, stating that they merely reflected broad “affirmations of values or social issues” (para 555, unofficial translation). Instead, the Court determined, the law’s only real objective, at least in relation to the impugned provisions, was the third principle: protecting vulnerable persons from being induced to end their lives in a time of distress. This mirrored the Supreme Court’s approach in Carter, which interpreted Canada’s former euthanasia law as having the same, narrow, single objective.
Carter redux
In both Truchon and Carter, this selective framing ultimately determined the analysis and outcome. Submissions related to the prevention of suicide generally, upholding the inviolability of life, and avoiding negative perceptions of those who are ill, elderly, and/or disabled were largely deemed irrelevant. As Christian Legal Fellowship (an intervener in both Carter and Truchon) previously explained, narrowly framing a law’s purpose as solely the protection of vulnerable patients “make[s] it easy to find a violation of s.7of the Charter (since a law to protect the vulnerable that applies to non-vulnerable people is inherently ‘overbroad’)” and also “side-line[s] ethical and societal concerns.”
A key difference between Carter and Truchon, of course, is that in the latter, the broader goals of the law were spelled out in the text of the legislation itself. In Truchon, the Quebec Court insisted that Bill C-14’s new and expressly-stated objectives were inapplicable, on the basis that they were mere “affirmations of values or social issues” [unofficial translation]. But reinforcing moral commitments, including the protection of human life based on its inherent and inviolable worth, has long been recognized as a valid legislative purpose, especially in the criminal law context (several of these cases were cited in CLF’s intervention factum).
Even in Rodriguez, Justice Sopinka (for the majority) accepted that one of the (valid) purposes of the former euthanasia law was “preserving life”, which was grounded in “the policy of the state that human life should not be depreciated by allowing life to be taken” as well as the conviction that “the active participation by one individual in the death of another is intrinsically morally and legally wrong” (paras. 140, 149, 162, 186).
These findings (especially the latter comment) were not substantively addressed in Carter, other than a passing statement that Justice Sopinka’s comments about the “preservation of life” are “best understood as a reference to an animating social value rather than as a description of the specific object of the prohibition” (para. 76). This is certainly not how the majority in Rodriguez described them. And this characterization has since been critiqued in academic literature (described by Prof. John Keown as “more obfuscation than clarification”[2]) as has Carter’s narrow framing of the former ban’s objective (John Sikkema’s critique, discussed further below, is especially thorough and compelling).
Nonetheless, this passage seems to have inspired the Quebec Court’s conception of Bill C-14’s preamble – or, more specifically, selected parts of it – as representing values statements rather than legislative objects. There are two problems with this approach.
Ignoring the new law
First, by adopting Carter’s framing of the previous law’s objective, the court in Truchon simply rejected the language of the new law. In fact, the enactment of Bill C-14 and its new objectives is a key factor distinguishing current litigation from Carter, as emphasized by Chief Justice Hinkson of the Supreme Court of British Columbia in a parallel constitutional challenge (which has not yet been heard on its merits):
“I find that while medical assistance in dying is the general subject of both Carter and the present case, the constitutional issues in each case differ because the respective claims challenge two different pieces of legislation with arguably different objectives, purposes and effects, as raised by the AGC. These objectives, purposes and effects are consequential in determining the legislation’s constitutional validity in both the s. 7 Charter analysis and s. 1 Charter analysis. As a result, the constitutionality of the eligibility criteria in Canada’s newly permissive regime remains to be decided.” [para. 70, emphasis added]
Bill C-14’s preamble makes clear that the law’s purposes are consistent with those principles articulated by Justice Sopinka in Rodriguez. It was one thing for the Supreme Court to disregard those principles in Carter, but in Truchon the court had the benefit of an explicitly articulated legislative goal, agreed to and adopted by Parliament as a collective statement, spelling out the reasons why the law was adopted and the objects it sought to achieve. Parliament had spoken corporately and authoritatively, in direct response to Carter’s more narrow interpretation, and laid bare for courts to see that the law’s purpose is more than the protection of vulnerable persons.
This, one would think, is precisely what legal dialogue is supposed to look like: an opportunity for the legislature to clarify the objectives of a law where misunderstood or misinterpreted by the court. Instead of engaging in a dialogue, however, the Quebec Court chose to simply repeat Carter’s previous analysis about the law’s objectives, as if Parliament said nothing in between, and selectively identified its own objective. This, to borrow from Carter, “short-circuited” the remainder of the analysis.
This approach in Truchon also seems inconsistent with the Supreme Court’s holding in Bedford, that a law’s purpose is to be taken at “face value” (para 125). The recent words of Supreme Court Justices Côté and Brown in Frank v Canada are even more on point:
“the best way of discerning a legislature’s purpose will usually be to look to the legislation itself… an express statutory statement of purpose, where it exists, will generally be determinative, as it was available to and voted on by all members of the legislature, knowing that it would represent a corporate statement of legislative purpose.” (para 130, dissenting but not on this point)
In support of the first principle, Justices Côté and Brown cited John Sikkema’s article, “The ‘Basic Bedford Rule’ and Substantive Review of Criminal Law Prohibitions Under Section 7 of the Charter.”[3] In that piece, Mr. Sikkema lays out a compelling critique of Carter’s narrow construction of the former euthanasia ban’s objective, noting that “[s]tripped of its legal trappings, the ratio in Carter amounts to: ‘If we frame the objective of the assisted suicide prohibition as A, the plaintiffs might lose, but if we frame it as B, the plaintiffs win; we choose B.’”
Speaking more generally about Canadian legal doctrine, Mr. Sikkema notes that if “a provision's validity rests on the relationship between its objective and the means used to achieve it, then courts ought to have a clear doctrinal basis for defining a law's objective.” He proposes such a doctrine, based on Bedford (and reflected in the comments adopted by Supreme Court Justices Côté and Brown in Frank), as follows:
“The starting point for interpreting the objective ought to be the text of the impugned provision itself. What legislators say about a law's objective is not necessarily its objective. We cannot know what motivated each legislator among the majority who passed a law to vote for it. The object of the majority vote, however, is the text itself, whatever a legislator's reasons may have been for voting for it. The important question is: What is the public meaning of the text that the legislators voted to enact?” [emphasis added]
This is precisely the query which ought to have guided the analysis in Truchon. Looking to the text of Bill C-14, it clearly states that the reasonably foreseeable death requirement was designed to respect the interests of individuals and society as a whole by, among other things: affirming the inherent and equal value of every person’s life, avoiding negative perceptions of the quality of life of persons who are elderly, ill or disabled, and the prevention of suicide (see especially the third, fourth and fifth clauses of the preamble).
The Truchon court framed these not as legislative objects, but as values statements. But even accepting this characterization, why isn’t this also true of ‘protecting vulnerable patients’? That, as others have noted, is just as much a social value as the other principles. All of these policy goals were spelled out together in the preamble - why were the former three categorically dismissed as mere rhetoric, while the latter was accepted as the sole legislative objective? This is the second problem with the court’s approach. If a criminal prohibition’s underlying policy rationales or ‘animating values’ do not constitute its purpose for the sake of a Charter analysis, this must be applied consistently and not selectively.
If so, then what’s left is quite simply, and perhaps more aptly, the need to formulate the purpose of a prohibition at its most basic level. Strictly speaking, the purpose of the prohibition in Truchon is exactly what the statute says: to prohibit the euthanizing of patients whose natural death is not reasonably foreseeable. Parliament has, after extensive study and consultations on “complex issues of social policy” (Carter, para 98), determined that euthanasia/assisted suicide is generally a harmful practice, and has therefore chosen to prohibit it, except in very specific, prescribed circumstances. That is the purpose of Bill C-14, including its “reasonably foreseeable” restriction – to prohibit, and consequently reduce and prevent, a harmful act.[4] Everything else – including the statements in the statute’s preamble, if the Court’s approach in Truchon is to be applied consistently – is simply an articulation of why and how euthanasia and assisted suicide are considered harmful as a matter of public policy.
The proper methodology
In short, courts can not have it both ways, and should not be able to pick and choose – either all of a statute’s stated goals should be taken into account as representing Parliament’s corporate statement of a legislation’s objects (absent evidence suggesting otherwise), or the purpose of a criminal prohibition should be accepted, on its face, as exactly that: the prohibition of an act that has been collectively determined (potentially for many different reasons according to each individual legislator) to be harmful. In Truchon, either approach would have required the court to accept that the law has, as its purpose, more than the protection of vulnerable patients from coercion.
Of course, whether the law’s prohibition is consistent with fundamental principles of justice, or minimally impairing of a patient’s Charter rights, are separate and necessary questions to ask. But those inquiries are subsequent to, and not determinative of, the analysis as to what the statutory objectives themselves are. That, as Mr. Sikkema explains, is to be discerned primarily from the legislative text itself:
“The objective of an absolute prohibition on acts such as assault, theft, or homicide is simply to deter and to punish those acts. The law itself should be the primary indicator of the law's objective. There should be a strong presumption that the objective apparent on a plain reading or at ‘face value’ is in fact the law's true objective.”[5]
There are other problematic elements in the Truchon judgment, but as a matter of constitutional doctrine, the court’s interpretation of the statute’s objects is particularly concerning. If judges can simply dismiss legislatively-stated objectives out of hand, or characterize some as mere ‘statements of social values’ and selectively prioritize others, they have complete discretion to frame the constitutional analysis however they see fit, and thus “foreordain” any outcome they desire (Carter, para 77). If left unchecked, this approach will have negative implications for the rule of law, reaching far beyond the specific debate surrounding Bill C-14.
Derek Ross, CLF Executive Director and General Counsel. Special thanks to Robert Reynolds, John Sikkema, and Geoffrey Trotter for their feedback on earlier drafts of this article. Any errors are solely those of the author.
References
[1] Christian Legal Fellowship (CLF), represented by Robert Reynolds, intervened in the case, and argued that the “reasonably foreseeable” requirement was both a valid and important safeguard in fulfilling the new legislation’s objectives. CLF pointed to evidence in the record, including experts who expressed concerns that an open-ended euthanasia regime would undermine suicide-prevention efforts, as well as evidence from Holland which showed an increase in suicide generally following the legalization of euthanasia in that country. CLF quoted legal expert Prof. Trudo Lemmens: “The more we move away from the end-of-life context, the harder it is also to argue that the practice is not a substitute for suicide.” [Trudo Lemmens, “Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice” (2018), 85 S.C.L.R. (2nd Series) 459-544 at 54]. CLF also made detailed legal submissions about why the provisions were rationally connected and proportionate to the objectives of the law, and therefore constitutional.
[2] John Keown, “Carter: A Stain on Canadian Jurisprudence?” (2018), 85 S.C.L.R. (2d) 1.
[3] John Sikkema, “The ‘Basic Bedford Rule’ and Substantive Review of Criminal Law Prohibitions Under Section 7 of the Charter” (2018), 85 S.C.L.R. (2d) 49 – 76.
[4] Here, one might counter, such a framing of the law’s purpose collapses “any distinction between legislative means and ends” and has “no real objective other than the measure itself”, as four justices observed in Frank v Canada (para 52). That case, however, did not involve a criminal prohibition. In the criminal context, sometimes the only purpose of a prohibition is to reduce, prevent, and deter certain acts deemed wrong or harmful: see, e.g., R. v. Butler, [1992] 1 S.C.R. 452, esp. at p. 493. For further discussion on this formulation of a prohibition’s statutory purpose, see Sikkema, ibid: “The objective of an absolute prohibition on acts such as assault, theft, or homicide is simply to deter and to punish those acts.”
[5] John Sikkema, “The ‘Basic Bedford Rule’ and Substantive Review of Criminal Law Prohibitions Under Section 7 of the Charter” (2018), 85 S.C.L.R. (2d) 49 – 76.