Before Rodriguez: The Right to Refuse Treatment

Downie situates the medical assistance in dying (MAID) debate within a longer history of end-of-life litigation in Canada. Before the country ever debated assisted dying, it first had to settle whether patients could refuse life-sustaining treatment at all. As Downie explains, for a period of time people couldn’t even get refusals of treatment respected, so there had to be litigation about that first — and that was the Nancy B case in Quebec, which made clear that people get to refuse treatment they don’t want, even where the consequence could be death. Only once that question was resolved did the country move into what became the MAID debate, a debate that from its earliest days was met with strong public support for reform, even as the law remained unmoved.

Rodriguez: A Narrow Decision Driven by Fear of a Slippery Slope

The episode’s discussion of Rodriguez v. British Columbia (Attorney General) (1993) centres on the closeness of the vote and the reasoning behind it. Sue Rodriguez’s case was decided five-four, with Justice Sopinka writing for the majority, and Downie is direct about what drove that majority: it was speculation on his part as opposed to evidence — there was a fear of the slippery slope, but there wasn’t evidence to support that concern, and yet it drove the decision. The majority was also swayed by a lack of agreement with MAID among medical associations, and a perceived lack of public consensus, although that was belied by the evidence about public opinion, which was in fact supportive of MAID.

The Disconnect: Law on the Books, Law in Practice

One of the episode’s sharper observations concerns the gap between the Criminal Code’s formal prohibition and how it was actually enforced. Downie notes that despite Section 241 criminalizing assisted suicide and homicide provisions technically covering voluntary euthanasia, nobody was ever being convicted of murder or aiding suicide — they could plead to lesser charges and would have suspended sentences, so there was this weird disconnect between the Criminal Code, which was very clear that it’s illegal in the strongest possible way, and what was actually happening. The one clear exception she flags is the Latimer case, which she is careful to distinguish: that is a case of non-voluntary euthanasia, and that is not legal now either — we need to park that one because it’s very different from what people were trying to legalize. Prosecutorial discretion, she suggests, was quietly doing the work that Parliament would not.

Setting Up the Charter Challenge

Martin and Downie walk through how the eventual Charter challenge was framed, under both Section 7 (life, liberty, and security of the person) and Section 15 (equality). Downie describes the deeper motivations beneath the legal arguments: respect for autonomy — a recognition that this is a decision of fundamental significance to individuals — an awareness that some people in the dying process will suffer intolerably in a way that cannot be remediated, and a concern about protecting the vulnerable, three threads together driving a move to legalize, but one that would be wrapped in protections for the vulnerable. She also draws a direct line to an earlier landmark: there are echoes of the Morgentaler analysis — when you have a decision of profound personal significance, it is a decision that should be able to be made by the individual.

Justice Smith’s Trial Decision and the Question of Stare Decisis

A substantial portion of the episode is devoted to the BC Supreme Court trial decision that paved the way for Carter — and to how Justice Lynn Smith navigated the doctrine of stare decisis, which normally binds lower courts to follow Supreme Court precedent. Downie explains the test Justice Smith applied: what she was convinced by was the evidence that the facts on the ground had changed dramatically and the law had changed dramatically — stare decisis says you’re bound by the higher court, but there are times when you are not, and these are the times. On the facts, the evidence of decades was now available to show that the slippery slope was a mirage — it doesn’t happen — and the medical associations had changed their views; by the time of Carter, the Canadian Medical Association was neutral on it. On the law, new Section 7 principles had emerged between the two cases: in Rodriguez there was no principle of overbreadth or gross disproportionality — in Carter, those are the principles upon which the plaintiffs hung their case, and once those principles had been introduced and the evidence was available, it was time to relitigate.

The Supreme Court’s endorsement of Smith’s work was, in Downie’s account, emphatic: they said unanimously, as strongly as they could, signing it “By The Court” — capital T, capital C — putting an exclamation mark on the unanimity of it, saying: you absolutely got this right.

Section 7, Section 1, and the Oakes Test

The conversation turns to the constitutional analysis itself. Downie unpacks why the Court didn’t need to rank the three interests protected by Section 7: I think it was in a sense easier for them because they wouldn’t have to parse them, since all three drive you toward allowing MAID — the right to life, because you have to die earlier than you otherwise would if you can’t access it; liberty and security of the person, about fundamental decision-making. It all comes together, and nothing’s in competition. On why the prohibition failed the minimal impairment branch of the Oakes test, she points to comparative evidence: what all these other jurisdictions show is that you can carefully circumscribe access to MAID and still protect against dying by suicide in moments of weakness — you don’t have to have a blanket ban in order to protect people, and if you can protect the vulnerable with a carefully defined regime, then your law is not demonstrably justified in a free and democratic society.

A Suspended Declaration, Not an Obligation

Downie corrects a common misunderstanding about what happened immediately after the ruling. The Court used a suspended declaration of invalidity, and crucially, people often misstate this and say the government had to legislate — in fact the government didn’t have to; they could have waited for the twelve months and done nothing, and the law would have been gone and MAID would have been a health service, which is what happened with Morgentaler. Ottawa chose to legislate anyway, in part to give guidance to clinicians so they would know what they could and couldn’t do, and so the public would have trust in the system and not think it was a free-for-all.

Bill C-14 and the “Reasonably Foreseeable” Problem

Downie describes her own reaction to Parliament’s response, Bill C-14, which added a requirement that natural death be “reasonably foreseeable” — a term absent from Carter itself: that was the moment when I read that I fell off my chair — what on earth does this mean? I remember seeing in a technical briefing that natural death is “reasonably foreseeable,” everybody’s death is certain. The narrowing had real consequences for the case’s own plaintiffs: Kay Carter would not have qualified — Kay Carter’s death was easily ten years off; she had spinal stenosis, degenerative, true, but by actuarial tables she could have lived another ten years.

Truchon and Bill C-7

Litigation followed almost immediately, culminating in the Quebec case of Truchon. Downie’s assessment of that decision echoes her praise for Smith’s earlier work: we had yet again a brilliant decision — the quality of the decision, just as in Carter, is exceptional, and we are very fortunate as Canadians to have these two trial decisions with such care, thought, and rigor put into them. The result forced Parliament back to the table with Bill C-7, which removed the reasonably foreseeable natural death requirement — though Downie is candid that not every change was for the better, singling out the exclusion of mental illness as a sole underlying medical condition as inconsistent with Carter.

What’s Next: Mental Illness, Mature Minors, and Advance Requests

Looking ahead, Downie uses a visual to describe the shifting scope of eligibility: picture a circle that’s Carter and it’s the eligibility criteria — then we introduce C-14 and that circle shrinks, then the Truchon decision brings it back out to the same boundaries as Carter, then C-7 shrinks it again. Two frontiers remain open. On advance requests, Quebec has moved ahead of the rest of the country: Quebec came along and introduced its own MAID legislation, and subsequently they said, now we are going to allow advance requests — if I have a diagnosis with a condition that will cause me to lose capacity, I can consent to MAID in advance, a choice federal law does not currently permit. On mature minors — an individual under the age of majority who nonetheless has the decision-making capacity of somebody who’s 22 or 55 — Downie predicts there will be litigation on that in the future, I’m sure of it.

Carter’s Legacy

Asked whether Canadians should be proud of Carter, Downie doesn’t hesitate: indeed, there’s so much to be proud of — it recognized the right to make profound decisions of personal importance while making clear that we need to protect vulnerable persons, and it had a deep compassion in it. She points to the decision’s opening line, later read aloud in the episode by Hugo Martin: “A person facing this prospect has two options. She can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.” Downie recalls encountering that line for the first time: I was sitting at my dining room table with an iPad and a laptop and my phone, and I read the first paragraph — that was such a profound moment, because you knew at that moment where the decision was going to go, and you also knew they understand and they care.

Landmark Decisions Discussed

• Rodriguez v. British Columbia (Attorney General) (1993) — 5-4 decision upholding the Criminal Code prohibition on assisted suicide, driven largely by concern over a “slippery slope” affecting vulnerable people
• Nancy B. v. Hôtel-Dieu de Québec (1992) — Established the right of patients to refuse life-sustaining treatment, even where death could result
• Carter v. Canada (Attorney General), 2012 BCSC 886 (trial decision) — Justice Lynn Smith’s trial-level ruling finding the prohibition on physician-assisted dying unconstitutional
• Carter v. Canada (Attorney General) (2015) — Landmark Supreme Court decision striking down the criminal prohibition on medical assistance in dying as a violation of Sections 7 and 15 of the Charter
• Truchon c. Procureur général du Canada (Quebec Superior Court) — Struck down the “reasonably foreseeable natural death” eligibility requirement introduced by Bill C-14
• Referenced for context: R. v. Morgentaler (1988) — Cited as a parallel example of the government choosing, but not being obligated, to legislate after a declaration of invalidity

Key Legal Concepts Explained

• Medical Assistance in Dying (MAID) — The legal provision of assistance to a qualified person seeking to end their life, either through physician-administered euthanasia or physician-prescribed self-administered medication
• Stare decisis — The principle that lower courts must follow the precedents set by higher courts; the episode explores the narrow circumstances in which a trial judge may depart from it
• Overbreadth and gross disproportionality — Principles of fundamental justice under Section 7 analysis, describing laws that go further than necessary or impose effects grossly disproportionate to their purpose
• Suspended declaration of invalidity — A remedy where a court strikes down a law as unconstitutional but delays the effect of that ruling to give governments time to respond
• Oakes test / minimal impairment — The framework under Section 1 of the Charter for determining whether a rights violation can be justified in a free and democratic society, including whether the law impairs the right as little as possible
• Advance request — A request for MAID made in advance of losing decision-making capacity, currently permitted under Quebec’s provincial legislation but not under federal law
• Mature minor — A person under the age of majority who nonetheless possesses the decision-making capacity of an adult

Resources and References

Decisions Mentioned

• Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519
• Carter v. Canada (Attorney General), 2015 SCC 5
• Carter v. Canada (Attorney General), 2012 BCSC 886 (trial decision, Smith J.)
• Truchon c. Procureur général du Canada 
• R. v. Morgentaler, [1988] 1 S.C.R. 30

Legislation

• Bill C-14 (2016) — Original federal MAID legislation, including the “reasonably foreseeable natural death” criterion
• Bill C-7 (2021) — Amended federal MAID legislation, removing the reasonably foreseeable natural death requirement

Constitutional Documents

• Canadian Charter of Rights and Freedoms, ss. 1, 7, 15

Learn More

• Supreme Court of Canada: scc-csc.ca
• Series website: shaping-canada.ca