Rodriguez+c.+British+Columbia+(A.G.)


 * //Rodriguez v. British Columbia (Attorney General)//**


 * __Facts:__** Rodriguez suffered from Lou Gehrig’s disease and as a result wished to end her life. She wished to obtain a declaration that would allow for physician-assisted suicide if she so desired when the disease progressed to a point at which she could no longer enjoy life. Assisted suicide is a criminal offence under section 214(b) of the Criminal Code. Rodriguez claimed that 214(b) violates the rights under sections 7, 12 and 15(1) of the Charter, and that 241(b) should be declared invalid and of no force and effect to the extent that it stops a terminally ill person from carrying out physician-assisted suicide.

Every one who (//a//) counsels a person to commit suicide, or (//b//) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. __Judicial History__ BCSC: Section 241 represents a reasonable limit on the Charter; it is not unconstitutional. BCCA: Upheld the trial court decision.
 * s. 241 (b):**

Should s. 241(b) be declared unconstitutional to the extent that it prohibits terminally ill patients from carrying out physician-assisted suicide?
 * __Issue:__** Does s. 241(b) violate the rights protected in Charter sections 7, 12 or 15(1)?
 * __Held:__** Appeal dismissed. Section 241(b) does not violate the //Charter// (except with regard to s. 15 where infringment is assumed, but is justified by s. 10). It is constitutional.


 * __Reasoning, majority (Sopinka J):__**


 * Section 7: does 241(b) deprive the appellant of liberty and security of the person?**

Appalant argues that it contravenes: “(a) the right to live her remaining life with the inherent dignity of a human person, (b) the right to control what happens to her body while she is living, and (c) the right to be free from governmental interference in making fundamental personal decisions concerning the terminal stages of her life.”

//a) Has there been a violation of Ms. Rodriguez’s security of the person?// Security of the person cannot encompass a right to take action to carry out suicide as security of the person is concerned with the sanctity of the living person. This is in line with the profound belief held by society that human life has a deep intrinsic value of its own. The choice of time and manner of death for terminally ill people is not distinct from outright choosing death, when held in opposition to letting life run its natural course. ·  The judgment in Morgentaler encompasses a ntion of personal autonomy that involves control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress. Personal autonomy, in this sense, is encompassed in the security of the person. ·  Consequently, as s. 241(b) deprives the appellant of autonomy of her person and control over physical pain and stress, it impinges the security of the person protected by s. 7.

As a result of this possible //Charter// violation, the question arises: //b) Has there been any deprivation that is not in accordance with the principles of fundamental justice?// Analysis must first consider the rationale behind and the principles underlying the criminalization of assisted suicide. · The deprivation of an interest protected by s. 7 might be in accordance of the principles of fundamental justice if there is a greater interest involving the protection of society. From //Cunningham v. Canada// [1993] (McLachlin J.): “The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society**. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally”.** In considering this premise, is the blanket provision in s. 241(b) unrelated to the state’s interest in protecting the vulnerable to the extent that it lacks a foundation in legal traditions and societal belief? No, for: · “Section 241(//b//) has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This policy finds expression not only in the provisions of our //Criminal Code// which prohibit murder and other violent acts against others notwithstanding the consent of the victim, but also in the policy against capital punishment and, until its repeal, attempted suicide. This is not only a policy of the state, however, but is part of our fundamental conception of the sanctity of human life.” · In addition, there is no indication that fundamental principles have evolved through history so that they now conflict with the validity of Parliamentary interests. - The decriminalization of attempted suicide is not helpful in this analysis. - Both the House of Lords and the Law Reform Commission of Canada have failed to condone assisted suicide even for the terminally ill on the basis that “active participation in the death of another is intrinsically morally and legally wrong”, and because “there is no certainty that abuses can be prevented by anything less than a complete prohibition”. - Blanket prohibitions, with some exceptions, are the norm among Western countries, and nowhere have they been deemed unconstitutional or contrary to fundamental human rights.

· “Treatment” as it appears in s. 12 includes treatment imposed by the state that is not of a penal or quasi-penal nature. However, it does not include prohibition by the state on a certain action. · With regard to the personal situation of the appellant, this means that although the prohibition may cause her to suffer, it does not constitute “treatment” (as found in s. 12) on the part of the state. A more active state process must be in operation for this to be the case. The meaning of s. 12 cannot be extended to encompass the prohibition in s. 241(b). //Comparison used by Sopinka: a starving person who is prohibited by threat of criminal sanction from stealing bread is likewise not subject to “treatment” as it appears in s. 12.//
 * Section 12**

· Sopinka: any infringement under this section would be clearly saved under s. 1 of the Charter. Related issues are better left to a case in which they are essential to its resolution.
 * Section 15**

· Section 241(b) ‘has a “clearly pressing and substantial legislative objective” grounded in the respect for and the disre to protect human life’. · The proportionality test is met: introducing an exception so s. 241(b) would create inequality, which would lead to a “slippery slope” with regards to the protection of the vulnerable in society. The legislation must not be treated as a halfway measure. ·
 * Section 1**