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Assisted Suicide and the Supreme Court of Canada University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2015-07-24 Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of Canada Ogilvie, Chelsea Ogilvie, C. (2015). Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of Canada (Unpublished master's thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/28714 http://hdl.handle.net/11023/2363 master thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY Winning Conditions for Charter Reconsideration: Assisted Suicide and the Supreme Court of Canada by Chelsea Ogilvie A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS GRADUATE PROGRAM IN POLITICAL SCIENCE CALGARY, ALBERTA JULY, 2015 © Chelsea Ogilvie 2015 Abstract In February 2015, the Supreme Court struck down Canada’s prohibition of physician-assisted suicide (PAS). Not only did the Carter decisions mark a historic point in the long fight to legalize PAS in Canada, but it was also the second Supreme Court case in a little over a year to revisit, and depart from, an earlier Charter precedent. Stare decisis, or precedent, is a fundamental doctrine of the legal system that judges are reluctant to ignore. However, in Bedford, the Supreme Court outlined new criteria for revisiting a precedential decision, and these same criteria allowed for the success of Carter fourteen months later. The Supreme Court is taking a new approach to stare decisis, and this thesis used the PAS movement and Carter as a case study to explore the winning conditions for precedent reversal. ii Acknowledgements I would like to begin by thanking both the Social Science and Humanities Research Council and the University of Calgary’s Department of Political Science for their generous funding of this project. Beyond financial support there are several people who contributed, in one way or another, to this degree, and to them I extend my gratitude. My supervisor, Dr. Rainer Knopff, whose assurances and gentle encouragement kept me writing, and whose suggestions and advice made that writing much more concise and coherent than it has ever been. Thank you for your patience. My friends and colleagues who read, edited, or acted as soundboards on this and other projects (special thanks to Dave and Elsa), who laughed and adventured with me, and whose welcomed distractions made my years as a Masters student some of the best so far. Thank you for the memories. My parents, who felt the ups and downs, stress and anxieties as much as – or sometimes more than – I did, but never gave up and never let me give up. Thank you for the unconditional love. And Stu, whose unwavering support, constant encouragement, and occasional bribery kept me plugging away, one paragraph at a time. Thank you for everything. iii Table of Contents Abstract ............................................................................................................................... ii Acknowledgements ............................................................................................................ iii Table of Contents ........................................................................................................... iv List of Symbols, Abbreviations and Nomenclature .............................................................v CHAPTER 1: INTRODUCTION ........................................................................................1 Morality Policy ................................................................................................................3 Public Opinion .................................................................................................................5 Plan of the Study ............................................................................................................11 CHAPTER 2 – RODRIGUEZ V. BRITISH COLUMBIA...................................................14 The Judicial Opinions: An Overview ............................................................................19 The Justification Debate ................................................................................................21 Fundamental Justice .................................................................................................22 Reasonable Limits ....................................................................................................27 Parliament and the PAS Policy Ball: The Next Step .....................................................32 Aftermath of the Rodriguez Decision: ...........................................................................34 CHAPTER 3: POLITICAL AVOIDANCE AND RETURN TO THE COURTROOM ..37 The First Wave of Legislative Activity: Svend Robinson and Sharon Carstairs ...........39 The Second Wave of Legislative Activity: Lalonde and the Quebec Movement .........40 Return to the Courtroom: Genesis of the Carter Litigation ...........................................43 CHAPTER 4: STARE DECISIS: THE RULES, THE EXCEPTIONS, AND THE CHARTER ...................................................................................................................................47 Stare Decisis ..................................................................................................................48 Traditional Reasons for Reversal: Outdated, Unworkable, Confusing .........................53 Reversal in Constitutional Cases ...................................................................................59 The Charter and Criteria for “Revisiting” Constitutional Precedent ............................64 New Legal Issues ......................................................................................................65 Social Facts ...............................................................................................................68 From Kindler to Burns: The Impact of Changing Social Facts .....................................71 Bedford and the Interaction of “New Legal Issues” and “Social Facts” .......................73 CHAPTER 5: WINNING CONDITIONS FOR PHYSICIAN ASSISTED SUICIDE IN COURT .....................................................................................................................76 New Legal Issues ...........................................................................................................77 Social Facts ....................................................................................................................80 Societal Consensus ...................................................................................................81 Jurisdictions ..............................................................................................................86 Social Evidence ........................................................................................................90 CHAPTER 6: CONCLUSION ..........................................................................................97 WORKS CITED ..............................................................................................................104 iv List of Symbols, Abbreviations and Nomenclature Term Abbreviation British Columbia Civil Liberties BCCLA Association British Columbia Court of Appeal BCCA British Columbia Supreme Court BCSC Ontario Superior Court of Justice ONSC Ontario Court of Appeal ONCA Physician-Assisted Suicide PAS Supreme Court of Canada SCC v CHAPTER 1: INTRODUCTION Over twenty years ago, in the famous case Rodriguez v. British Columbia (Attorney General) (1993), the Supreme Court of Canada narrowly upheld Canada’s traditional criminal prohibition of physician-assisted suicide (PAS), placing the ball of legal reform on this issue squarely into the legislative arena. However, after two decades of lobbying the federal government, Canadian advocates of PAS had no success at reforming the Criminal Code. In light of this failure, they eventually launched a second major legal challenge – Carter v. Canada (Attorney General) – in 2011. On February 6, 2015, a unanimous Supreme Court of Canada handed down its decision in Carter, effectively reversing the Rodriguez precedent and declaring the country’s complete prohibition of physician-assisted suicide to be unconstitutional. Giving officials 12 months to come up with new legislation, the Supreme Court declared that “grievously ill” and mentally competent adults should be allowed to request – and receive – aid in dying. As a result of this decision, Canada became the fifth country in the world to legalize physician-assisted suicide at the national level, and the first jurisdiction to do so as a direct result of a constitutional rights challenge. What changed in the two decades between Rodriguez and Carter to finally create what René Duval called the “winning conditions” (cited in White 2011) for a renewed courtroom challenge, one that would reverse an established legal precedent? That is the central question addressed by this study. This question is particularly intriguing because, as indicated, the successful Carter
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