A few days ago, we posted about the BC decision (“the Decision”) that struck down the law against assisted suicide. In that post, we mentioned that Gloria Taylor had obtained a “constitutional exemption.”
So what exactly is a constitutional exemption, and where exactly does a court get the power do that? For that, we have to go back to the Charter and the Constitution Act, 1982.
We start with section 52 of the Constitution Act, 1982, which states that: “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is what helped the court strike down s.241(b) of the Criminal Code in the first place. However, in the Decision, the court went on to say that s.241(b) would continue to have force and effect for one year.  So: s.241(b) is of no force and effect, but, it kind of is, for a year. Clear as mud, right?
This inconsistency then butts up against a different provision of the Charter, namely section 24. Section 24 of the Charter states that: “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” In other words: if you bring a Charter case and you win, the Court can give you any remedy (i.e.: solution) that fits the case. That could be almost anything, depending on the case. For example: financial compensation, an old job back, or the right to be released from jail.
In this case, given that the law will still have “force and effect” for one year, Ms. Taylor would not be given the remedy she asked for (which, let’s face it, is the only remedy that will make any difference to her). For one whole year, it would still be illegal for a doctor to help her commit suicide. She could still be denied the choice she was seeking at the end of her life.
So – the compromise. We will let Ms. Taylor do it (this is being appealed by the federal government), but no one else (unless they, too, get a constitutional exemption).
Such compromises have been reached in other situations, although many people might not realize that that is what has occurred.
For example: Insite, the Vancouver Safe Injection Site. When Insite was opened in September 2003, it was originally awarded a three-year exemption under section 56 of the Controlled Drugs and Substances Act (CDSA), for scientific and research purposes. This was then temporarily extended a few times. However, the federal government refused to allow Insite to operate past July 2008. As a result, the non-profit society which operated the site brought a court action claiming, amongst many other things, that the drug possession and trafficking provisions of  the CDSA (section 4(1) and 5(1)), as they applied to the Insite location, were unconstitutional, because they violated section 7 of the Charter (which guarantees that “everyone has the right to life, liberty and security of the person”). The argument was essentially as follows:

• sections 4(1) and 5(1) of the CDSA apply to possession and trafficking for every purpose without discrimination or differentiation;
• the Insite location is a health care facility with a goal to save lives and treat addiction;
• because s.4(1) and s.5(1) of the CDSA impose an absolute and unqualified prohibition on controlled substances, it prevents access to this health care facility (i.e.: Insite) that reduces or eliminates the risk of death from an overdose and the risk of infectious disease, by persons who are ill with an addiction, thereby violating the right to life and security of the person;
• because users of Insite risk incarceration while seeking health care services, the right to liberty is also violated; and
• because s.56 of the CDSA (which refers to exception for science) should not relied upon as a remedy for a Charter violation.

The judge agreed and declared that s.4(1) was inconsistent with section 7 of the Charter. Naturally, the federal government was given time to rewrite the provisions in order to bring them in line with the Charter, and in the meantime (until June 30, 2009) the law remained in force and effect.  In order to be able to continue its operations during this time, and during the appeals processes, Insite was granted a constitutional exemption. The case went to the Supreme Court of Canada (SCC) in 2011, and now, Insite is back to operating under an exemption of s.56 of CDSA. The reason? The SCC found that sections 4(1) and 5(1) of the CDSA are not unconstitutional (i.e. they are ok and can stand as they are). However, the federal government’s act of denying Insite a continuation of the s.56 exemption was in violation of s.7 of the Charter [see paragraph 156 of the SCC decision].
Interestingly, however, the exact extent of the use of constitutional exemptions has not been clearly defined, and there are those that argue that its legal foundation remains precarious.
As an interesting example: mandatory minimum sentences (“MMS”s) in criminal cases.  The most topical case on this issue is R. v. Ferguson, which was heard by the SCC in 2008. In that case, Michael Ferguson, an RCMP officer, was accused of shooting and killing a detainee during an altercation with that detainee in a cell at an RCMP detachment. At trial, Officer Ferguson was convicted of manslaughter, a crime that carries a four year mandatory minimum sentence pursuant to s. 236(a) of the Criminal Code of Canada. However, Mr. Ferguson argued at trial that a four year sentence violates section 12 of the Charter, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” But instead of arguing that s.236(a) should be struck down, he asked for a constitutional exemption (i.e.: the 4 year minimum sentence would continue to apply, just not to him). His reasoning – “the minimum sentence prescribed by Section 236(a) of the Code is grossly disproportionate to the particular circumstances of this case.” The SCC did not agree with him. Amongst many other things, the court found that constitutional exemptions for MMSs intruded on the role of Parliament by granting discretion to sentencing judges that they were not meant to have. This about it: the whole point of MMSs is to take away judges’ discretion to make sentencing decisions based on the circumstances of each individual case: if courts start to grant constitutional exemptions, they are taking back that discretion…something they can only really do if the law in question is generally unconstitutional (which was not argued here).
So… are constitutional exemptions now only available in cases like Ms. Taylor’s? That is, as an interim measure when a claimant requires relief from an unconstitutional law while law-makers examine the options for replacing that law (i.e.: where there has been a “suspended declaration of invalidity” under s. 52 of the constitution)? Hard to say. It will be interesting to see where Canadian law goes with this one.
Fascinating stuff, isn’t it, our constitution!

Not surprisingly, this is a question that we at CPLEA have been asked quite a bit lately.
On June 15^th of this year, the British Columbia Supreme Court struck down Canada’s laws against physician-assisted suicide on the basis that it is unconstitutional. In the case in question, Gloria Taylor, a woman suffering from ALS (also known as Lou Gehrig’s disease) asked to be allowed to have a doctor help her commit suicide before she became incapacitated. In making its finding of unconstitutionality, the court also gave Ms. Taylor a constitutional exemption to seek that medical assistance.
So what exactly does all of that mean?
Let’s start with the question of constitutionality. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, protects the people of Canada from certain actions of governmental bodies. More specifically, governments (federal, provincial or municipal) are not allowed to treat people (either through a law or through any other action) in any way that violates the rights and freedoms set out in the Charter. One of these rights (section 15) is the right of every person to be “equal before and under the law” and to have “the right to the equal protection and equal benefit of the law without discrimination” based on various factors. One of these factors is “physical disability”. This is the provision that was applied in this case.
In a nutshell, the reasoning is as follows:

• suicide itself is not illegal;
• as a result, able–bodied people are able to commit suicide (i.e. there is no law that stops them from doing so);
• however, some disabled people are legally prohibited from committing suicide (i.e. those who might need help because they can’t physically do it themselves). The law in question is section 241(b) of the Criminal Code of Canada (“s.241(b)”);
• as a result, disabled people are not equal under the law (i.e. the law specifically prohibits them from doing what able-bodied people can);
• under section 15 of the Charter, that in equality that is not allowed.

The result: s.241(b), the law that says that it is a crime to help someone commit suicide, is unconstitutional and is therefore, “struck down”. What that essentially means is that it is as if s.241(b) is simply crossed off the books – it is as if it does not exist.
So that means the terminally ill can all ask doctors for help, right? Wrong.
Often, when a law is declared unconstitutional, the court has to give the government some time to deal with that fact. Think about all the systems in place, all the official literature on the topic, websites etc. It takes time to prepare for changes in law. Not to mention, the court needs to give the government time to appeal the decision, if it so chooses (and this one already has been). Imagine the back and forth and back forth that could happen throughout the appeal process if law kept being struck down, and maybe reinstated, and struck down again…etc, etc. In this case, the government was given one year to get its affairs in order. For that year, the law remains in effect.
However, leaving it at that would not help Ms. Taylor very much. Not letting her decide her own time of death after she had won her case would not make much sense. As a result, the court granted Ms. Taylor a “constitutional exemption.” This is for her and her alone. In other words, it allows the law to remain in effect (for the one year, as planned), but gives Ms. Taylor the remedy she was seeking. In other words, Ms. Taylor is now free to find a doctor to help her commit suicide (for now anyway, but that is being appealed too). If she does, and that doctor does so during the year that the law technically remains in effect, that doctor will be exempt from prosecution under s.241(b) of the Criminal Code.
So the answer is: no, assisted suicide is not yet legal…unless you are Ms. Taylor.
If you want to read the whole BC decision, it can be found here.