A Missed Opportunity: Affirming the Section 15 Equality Argument against Physician-Assisted Death

Maneesha Deckha


In the 2012 decision of Carter v Canada (AG) the British Columbia Supreme Court found that Section 15 equality rights under the Canadian Charter of Rights and Freedoms were infringed by the blanket prohibition against assisted death in the Criminal Code. Madam Justice Lynn Smith’s application of the substantive equality model is a critical factor in the judgment, enabling a responsive and nuanced understanding of disability, the systemic disadvantages that people with disabilities experience, and the disability rights responses to physician-assisted death. Her equality analysis also exhibits a respect for the agency of those in vulnerable positions because of their physical health. These dimensions lead to a sophisticated judicial treatment of the disability rights debate on physician-assisted death in the Section 15 portion of the trial decision. The views of disability scholars feature significantly in this portion of the decision and the diverse perspectives within the disability community about physician-assisted death are synthesized and explored. The Section 15 analysis also extends generous judicial recognition to the fundamental autonomy and embodied interests at stake for those wishing to pursue physician-assisted death. The combined effect of Justice Smith’s Section 15 analysis, as this Article will argue, is a progressive line of reasoning about access to physician-assisted death that advances judicial discourse about inequality in relation to disability. It is regrettable that neither the dissenting judgment of the British Columbia Court of Appeal nor the unanimous judgment of the Supreme Court of Canada endorsed the trial judge’s Section 15 equality ruling. This Article explains the positive egalitarian impulses in the trial decision’s Section 15 analysis to illuminate how Justice Smith advances judicial discourse about inequality in relation to disability. In view of enhancing the critical equality impact of the decision, the Article also identifies some concerns with the remedies she crafts in terms of their imbrication in biomedical power disparities that typically work to disadvantage non-normative bodies.