The ‘beneficiaries’ of the Carter decision
The third and final issue with the Divisional High Court’s reasons for disregarding Carter is that the judgment ‘was concerned with the category of people who face unbearable suffering, rather than the category which Mr Conway identifies of people who face death within six months’. This alleged difference can be disposed of swiftly, when regard is had to the characteristics of the applicants in Carter, the conclusions reached by Justice Smith and the amendments ultimately made to Canadian criminal law to permit medical assistance in dying.
There were several applicants in Carter including, notably, Gloria Taylor who, like Noel Conway, had a terminal neurodegenerative disease. Justice Smith considered the impact of Canada’s analogous ban on a wide group of individuals including those with disabilities whose deaths were not imminent but who nevertheless suffered unbearably as a result of a grievous and irremediable medical condition. While that was a broader focus than Mr Conway’s case which was confined to an individual who had a terminal illness with a prognosis of 6 months or less, it is not clear how a broader focus which necessarily encompassed individuals like Mr Conway renders Carter of no assistance to the Divisional High Court. The Canadian Supreme Court, in confirming Justice Smith’s decision, issued a declaration that the relevant provisions giving rise to the ban:
[W]ere void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable’, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.18
Ultimately, the Canadian Government introduced amendments to the Criminal Code to allow medical assistance in dying for adults who have a grievous and irremediable medical condition. While initially the definition of grievous and irremediable medical condition required, inter alia, that the individual’s ‘natural death has become reasonably foreseeable’, that requirement is being repealed following a successfully challenge to its constitutionality before the Superior Court of Quebec.19
While the decision in Carter was not confined to individuals who were terminally ill with a life expectancy of 6 months or less, Justice Smith determined that Canada’s analogous ban was overbroad and grossly disproportionate as it applied to individuals who, like Mr Conway, had a terminal neurodegenerative disease. The Divisional High Court failed to provide any reasons for why the broader category of people to which the Carter judgment applied supported its claim that the decision was of little assistance and in the absence of such reasons, it is clear that the decision’s broader focus bolstered, rather than undermined, its utility in other courts considering the human rights implications of domestic bans on assisted suicide. Indeed, it should be noted that Nicklinson involved applicants whose deaths were not imminent, yet the High Court in Conway still relied heavily on the reasoning of Lord Sumption in Nicklinson when considering the ban’s necessity.
The preceding discussion of the rights, analysis, and evidence at the centre of the Carter proceedings clearly demonstrates that, contrary to the Divisional High Court’s contention in Conway, a decision that an equivalent ban was incompatible with remarkably similar rights in respect of individuals with the same or similar conditions would have been of very significant assistance to the Court when considering the compatibility of s 2 of the Suicide Act 1961 with Article 8 of the ECHR. Having established the relevance of Carter, the ensuing sections will consider the findings of Justice Smith and the impact, if any, of subsequent data on those findings.