On Friday you got to read Ms. Magna Carta’s take on Clause 39. Now tune in to hear what Alberta Court of Queen’s Bench Justice Clackson has to say about the famous chapter of the Magna Carta!
On Friday you got to read Ms. Magna Carta’s take on Clause 39. Now tune in to hear what Alberta Court of Queen’s Bench Justice Clackson has to say about the famous chapter of the Magna Carta!
What is the most important sentence to have ever been written in a legal instrument?
“No free man shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.”
Clause 39 is credited with setting out rule of law, meaning that the King (or government) cannot arbitrarily rule, and instead the nation is to be governed by law. King John was known for raising taxes sky high and entering battles that his country did not wish to fight, which explains why a peace treaty would establish such a rule.
Clause 39 contains both procedural and substantive elements. For a man to be penalized he must first be found guilty of an offence which is set out by law; and guilt may only be found after a genuine trial rather than being handed out at the King’s whim . The phrase “law of the land” is an early conception of “due process of law” which we are entitled to today .
The Supreme Court of Canada’s Chief Justice McLachlin referenced the Magna Carta in United States of America v. Ferras, commenting that “[i]t is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law” . Chief Justice McLachlin is not alone in proclaiming the importance of the Magna Carta, and specifically Clause 39. Former Speaker of the Canadian Senate, Noël Kinsella, has stated that the Magna Carta became “a symbol for justice and the protection of basic rights around the world” and “Chapter 39 came to be associated with habeas corpus and the principle that any person under arrest must be brought before a judge or into court to determine the legality of his or her detention” .
“Judgement of his peers” is the first utterance suggesting an entitlement by an accused person to a trial by jury, so Clause 39 is also commonly acknowledged for the concept. In Canada, an accused person has the right to a trial by jury for any offence which carries a possible penalty of 5 or more years. See yesterday's post for more information on juries!
Protection from government tyranny, security against unlawful detention, the concept of jury trials, and the guarantee of due process all originate from Clause 39, which is why it is Ms. Magna Carta’s favorite part of the historical document. Which clause is your favorite? Let us know in the comment section below!
 A.E. Dick Howard, Magna Carta: Text & Commentary, (Charlottesville: University of Virginia Press, 1998), at 14.
 United States of America v. Ferras, 2006 SCC 33 at para 19.
There has recently been a fair amount of commentary in the news surrounding an upcoming 42 week jury trial . The trial requires 12 members of the public to be present at the nearly year long trial, which would prevent those people from making a livelihood or attending school. There has been a great deal of concern, as the possibility of finding people capable of being summoned is miniscule.
Jury trials are often considered to originate from the 1215 Magna Carta, which makes reference to “12 sworn knights” and “judgement by peers”. At that time, the knights were used in a way similar to the United States’ grand juries - where the members determine whether there is enough evidence for the case to even go to trial. In present day Canada, juries (called “petty/petite juries”) are only used for ultimate determination of guilt, and our juries are made up of 12, 13, or 14 members .
The right to trial by jury is not absolute - in civil cases, there is no constitutional right to a jury. In criminal cases, trial by jury is compulsory for indictable offences unless waived by the accused person . There have been several court cases in which litigants have attempted to argue that their right to trial by jury is an absolute right (for any offence rather than solely for indictable offences) originating from the Magna Carta, and should therefore take precedence over the current provisions of the Criminal Code . However, the courts across Canada have consistently held that the Magna Carta has no constitutional authority. While we have often discussed the significance of the Magna Carta in today’s legal world, it must be remembered that modern legislation renders any actual “binding” phrase from the Magna Carta as inoperative .
What do you think about trial by jury – are they a necessary part of criminal trial, and should civil matters be given the same protections? Should there be a restriction for the length of a trial when there are juries involved? Or should trials be restricted to judge alone, no matter the circumstance?
Let us know what you think in the comments below, or send us a tweet @msmagnacarta !
 Halsbury’s Laws of Canada, Criminal Procedure, “Trial Procedure: Juries” (VIII.4.(5)) at HC2-329 “Composition of jury”
 Criminal Code, RSC 1985, c C-46, s 471
 R v Dobell,  BCJ No 1041, 5 CR (3d) 233 (SC) ; R. v. Lindsay, 2003 BCSC 1203; DADS Transport Systems Inc v MacDonald,  BCJ No 1922, 65 ACWS (3d) 409 (SC); R v Jebbett, 2003 BCCA 69; Harper v Atchison, 2001 SKQB 38; Fearn v Canada (Customs), 2014 ABQB 114
 Harper v Atchison, 2001 SKQB 38 at para 12
Please see the below video for our exclusive interview with Melanin 9! Not only does Melanin 9 produce great music, he is an advocate for human rights. In his album Magna Carta, Melanin 9 shares his passion for Hip-hop music and political issues. We are very thankful to have had the opportunity to interview him and excited to share another perspective on the Magna Carta. If you are interested in learning more about Melanin 9 and his music, visit his website http://www.melanin9.com or you can follow him on Twitter @Melanin_9 .
"I covered political topics, I covered topics regarding law and the justice system… the policing system… stop and search, what it means to the freeman [and] to the corporate entity… which do have some sort of relationship with the Magna Carta".
*We apologize for the quality of the video - this interview was done over Skype, as the artist lives in the UK.
When Jay-Z released his album Magna Carta...Holy Grail in 2013, the music industry applauded him for producing a well-versed and successful album. However, what many people did not know was that there was already an album out there worthier of the title Magna Carta. Melanin 9, a popular UK-based Hip-hop artist, released his album titled Magna Carta on December 3rd, 2012. Arguably, not only does Melanin 9’s album do justice to the Magna Carta, but its production and lyricism is far superior in its depiction of the Magna Carta.
While Jay-Z titled his album after the Magna Carta in order to symbolize a reinvention of the rules regarding Hip-hop album releases, Melanin 9 titled his to update the 1215 Magna Carta into a spoken statement of human rights and liberties. Through powerful and intricate lyrics Melanin 9 addresses real world issues, such as “human rights, social cohesion, and self worth.” . As Melanin 9 stated, “I titled my album to personify the purpose of [the Magna Carta’s] existence through my lyrics. I’m trying to write for the liberation of people, who are…mentally, socially, politically in a bubble... I’m trying to free them, make them see a bigger picture” . The Magna Carta was written for the people, which introduced concepts such as human rights and freedom from oppression of the monarch. In his song “Organized Democracy”, Melanin 9 talks about the law and injustices in society. The powerful hook in this song, “has freedom got a shotgun”, challenges the power of the state and questions the politics of society. Melanin 9 carefully selects the lyrics in his music to feature a social voice, one that is socially conscious and politically orientated. His music, which accurately portrays what Hip-hop is meant to represent, is worthy of praise.
Bonafide Magazine recognized the danger in titling an album after the Magna Carta - by using the name of such a revolutionary and well-recognized document, there is the risk that “the musician will fail if they can’t create something powerful enough to aspire to move their audience” . While Jay-Z arguably failed in this respect, as his music did not do justice to the foundational rights which have their roots in the Magna Carta, “the title Magna Carta is safe with Melanin 9” . In fact, Melanin 9 brings greater awareness to this historical document and the rights it embodies through his music. Melanin 9 uses the unique medium of Hip-hop music to disseminate ideas regarding human rights and liberties. Not only does Melanin 9 reach a broader audience through employing this method, he does the Magna Carta justice through relating principles from this historical document to contemporary issues. For example, he discusses the justice system, the policing system and other political topics in his music. During our interview with Melanin 9, when asked how his album is different from Jay-Z’s, he explained that “if you listen to [Jay-Z’s] album there is no correlation with the Magna Carta… or any sort or political standpoint or anything about law”. Check back tomorrow for our exclusive interview with Melanin 9, as he discusses the significance of the Magna Carta to his album!
 Supra note 1.
On July 4th, 2013, Jay-Z released his album, Magna Carta...Holy Grail, in a very unconventional way - in a Samsung TV commercial during game 5 of the NBA finals. The irony is far from subtle; a commercialized artist announcing the release of his album in… a commercial. This was an extravagant promotion for the phone company, whereby they purchased one million copies of Jay-Z’s album to give to “Samsung Galaxy smartphone users for free” . This cost Samsung, according to the Wall Street Journal, “$5 a piece for the million digital copies, along with the rights to exclusively distribute the album for the first three days” . This was a lucrative and strategic move by the famous rapper, Jay-Z, who ultimately pocketed “$5 million dollars before his album” even went on sale . Jay-Z claimed that this unusual marketing campaign was in relation to the title of his album, Magna Carta...Holy Grail. To Jay-Z, the Magna Carta symbolized the rewriting of rules and the unique style of his album release embodied that idea. It is well-known that record labels have often taken liberties over their artists and their album releases. As a result, Jay-Z decided to make “new rules” regarding Hip-hop album releases. His underlying objective was to rewrite the rules in relation to restrictions that major labels impose on artists - Jay-Z wanted to give the power back to the artists.
The Magna Carta was such an inspiration to Jay-Z that he visited Salisbury Cathedral to see an original copy of the document. He also “revealed the artwork for his album alongside the Cathedral’s copy of the 1215 Magna Carta, which is one of the four remaining copies of the famous citizen’s charter” . The Dean of Salisbury was delighted that Jay-Z chose the Cathedral to premiere his album’s artwork and stated that, “Jay-Z, through his album, is creating a huge awareness of this historic document and its modern significance to a huge audience in the run up to its 800th anniversary in 2015” .
Jay-Z may have brought awareness to the Magna Carta, but did he do it justice? Was his album more of a branding ploy than a recognition of the fundamental principles that the Magna Carta symbolizes? The Magna Carta is a document that has transcended its original meaning, as it came to be the root of many of our basic rights and freedoms. In fact, it has arguably become a document for everyone. While Jay-Z may have “rewritten” the rules in the music industry, it is clear that its benefit only extended to himself and other similar artists who have commercialized their music. Those who have subjected themselves to the ideals of corporate record labels have become a valuable commodity, instead of an artist. The artists who comply with what the record labels have dictated to them remain on top, and as a result they capitalize on the opportunities given to them - such as releasing their albums in a Samsung commercial. Jay-Z’s rewriting of the rules only extended a benefit to those select few commercialized artists that have similar marketing opportunities. Isn’t that exactly what the Magna Carta was enacted to guard against? Jay-Z’s claim to be the “King of the Throne” is where the irony persists. The purpose of the Magna Carta was to limit the power of the King and give more power to the people. Instead, Jay-Z rewrote the rules regarding music releases to benefit a select few and himself as “King” of this industry.
If you have listened to his album, Jay-Z’s tribute to the Magna Carta is shallow. His lyrics may evident an interest in the infringement of human rights, but they are seemingly confined to his own . It is doubtful that the lyrics, “I’m caught up in all these lights and cameras, got tattoos on my body, haters in the paper, photo shoots with paparazzi” reflect the concerns of society as a whole. This is contrary to the purpose of the Magna Carta, which aimed to consider the interests of the people rather than those of a single person - the King. It seems as though naming his album after the Magna Carta may be no more than simply a pun on Jay-Z’s real last name, Carter.
In rewriting the rules for album releases, Jay-Z arguably concentrated the power in the hands of himself as “King” and a few other “elite” artists. However, it could alternatively be argued that Jay-Z took the power away from the record labels and gave it back to the artists. In this sense, perhaps Jay-Z did do the Magna Carta justice in his attempt at reform. Let us know what you think in the comments below, or send us a tweet @msmagnacarta !
Jay-Z is not the only artist with an album titled “Magna Carta”. Melanin 9, an artist from the UK, also named his album after this historical document. It can be argued that Melanin 9’s album symbolizes what the Magna Carta truly stands for, which is something that Jay-Z arguably neglected to do. Tune in tomorrow for a discussion of Melanin 9’s album, Magna Carta.
On February 17, 2015, there was a panel discussion titled "The Magna Carta: What does it mean to Canada". This panel discussion was moderated by House of Commons Speaker, Andrew Scheer. During this panel discussion, Len Rodness, co-chair of Magna Carta Canada, mentioned our blog in his speech. We appreciate the recognition and are excited to be involved in generating greater awareness of the Magna Carta. Please see below for a link to a video of the panel discussion, including the mention of our blog around 18:40.
For more information about the Magna Carta's tour to Canada, you can visit http://www.magnacartacanada.ca.
To recap last week, we covered the precedent setting Carter v Canada decision on physician assisted-death, which included an interview with Dr. Jim Bell, a family physician in Edmonton, as well as Professor Erin Nelson from our Faculty of Law. We also interviewed Vice Dean Yahya in relation to the innovative course he created, Law and Social Media. This course integrates the old, the Magna Carta, and the new, social media. As well, we hope you found the constitutional shift mini series intriguing. As you may have noticed, Ms. Magna Carta has recently received attention in the media regarding our blog and the Magna Carta’s upcoming tour to Edmonton. We appeared in the Edmonton Sun, in the Edmonton Journal, and on Global News Edmonton over the past two weeks. We want to thank everyone for the continued support and we hope you have enjoyed reading our blog so far. If there is a topic you would like us to discuss, please e-mail us at email@example.com.
Starting next week, we will be venturing outside the legal realm and connecting the Magna Carta to Hip-hop, an unusual yet appropriate connection. Hip-hop’s origins can be traced back to the racial prejudice African American’s have faced throughout history. Such discrimination violated their human rights and freedoms, and resulted in the need for many African American’s to have an outlet to express themselves - one of those outlets being Hip-hop music. Hip-hop gave a “voice” to those who were subjugated by systematic injustice. Hip-hop reflected and continues to reflect what is going on politically, socially and economically. As a former adjunct Professor at the University of Alberta, Michael B. MacDonald explained to us, “ popular creativity is what brings Hip-hop culture to life. Like the Magna Carta, which was a popular movement to create space for the emergence of a voice for people who did not have space in the political realm, so too does Hip-hop culture. It is a creative movement that uses emceeing, djing, b-boying and graffiti to create a culture space.” This distinct music is truly a quintessence of freedom of speech and expression; rights that every member of society is entitled to. Freedom of speech guarantees the right to express one’s self openly, without state interference. It is also fundamental to democracy, without which, democracy would cease to exist. In fact, it may be argued that without the Magna Carta, both freedom of speech and democracy would not subsist.
Jay Z and Melanin 9, two artists with very different styles, can attribute much of their success to Hip-hop. However, the former artist has been critiqued for contributing to Hip-hop music’s historical demise by following the path of commercialization. By trying to appeal to a wider audience, a “money-mentality” arguably destroyed Hip-hop’s traditional function. This commodification and appropriation of Hip-hop by putting platinum records and generous paycheques on a pedestal, has permitted the social, political, and economic contexts of Hip-hop to ultimately be erased . On the other hand, the latter artist, who is popular in the UK, has retained the historical roots of Hip-hop in his music.
You might be wondering why we chose to connect the Magna Carta with these Hip-hop artists. The Magna Carta is relevant to Jay Z and Melanin 9, as their items are titled Magna Carta… Holy Grail and Magna Carta, respectively. Next week, we will discuss why these artists chose to use the Magna Carta for their album titles and who did the Magna Carta justice. As well, we are excited to announce that we will interviewing Melanin 9 regarding his perspective of the Magna Carta and how this relates to his music!
In case you missed our interview on Global News Edmonton last night, check out the below link to watch the video, and read an article regarding our blog and the Magna Carta!
Modern constitutional law situates legislation within an overarching framework which provides both stability and flexibility. Constitutional shift in Canadian law has typically occurred more slowly and incrementally than the shift from the Magna Carta to the Charter of the Forest in the 1200s.
In the 2000s, there are many possibilities for the further development of constitutional law. Although the political consensus required to amend or create a constitution is elusive, issues of great national or even global importance may inspire constitutional shifts. Important issues like environmental protection may warrant constitutional entrenchment. In the coming years an international or global constitution may be drafted!
Although the future potential for the development of constitutional law is very exciting, caution is also necessary. Constitutional law is only one legal tool and it has advantages and disadvantages. As all other legislation must comply with it, a constitution offers robust protection for fundamental rights. However, it is not as effective at providing nuanced regulation. With this in mind, feel free to ponder where constitutional law will take us next! We'll have to wait and see.
First of all, it has been a real thrill to have my students blogging on the Magna Carta the past few weeks.
Second, one of the pleasant by-products of this project is getting to know so many others who are engaged in the Magna Carta story-telling. Among those are John Robson and his wife Brigette Pellerin, who have a new project. The project is to produce a documentary telling the story of the Magna Carta:
From the time Magna Carta was sealed in 1215, it has been the foundation of liberty, the touchstone of those who believe citizens control their government not the other way around.
Down through the centuries, its guarantees have been included in the laws and constitutional order of the English-speaking world. Defended when challenged, refined as needed, appealed to again and again, they have protected freedom for nearly a thousand years.
It’s a remarkable story, from its origins in the beleaguered Wessex of the Dark Ages through the rise of Parliament, the English and American revolutions, the granting of self-government to Canada, Australia, New Zealand and later India and the rest of the British Empire. These freedoms have been defended in Parliament, in war and in public debate. But we cannot take them for granted.
If we do not know the story, if we do not cherish these rights, understand them and defend them, if we do not make the story our own, Magna Carta could fade into the pages of history.
The project is being crowd-funded on Kickstarter, and they still need some funds. Click on the link to learn more about the project.
If you want to see a past project that John Robson has been involved in, look no further than his WWI documentary:
Please see the below link for an article in the Edmonton Journal regarding our blog and the Magna Carta's upcoming tour to Edmonton! You can also look at today’s copy of the Edmonton Journal to read this article.
Yesterday we discussed the shift from the first constitutional document to its successor. This shift occurred in very different circumstances and in a very different manner than shifts we have seen in Canadian constitutional law.
Canada originated as a British colony. Canada's Constitution Act of 1867 was written at the time of Confederation and passed as British law modeled after Britain's own constitution. Canada's founding provinces agreed to be bound by the constitution and the federal structure therein (they were not forced by angry English barons) .
Until 1982, amending the Canadian constitution required assent from British Parliament. In 1982 a new constitution came into force following Canada's independence from Britain . This included the famous Canadian Charter of Rights and Freedoms as well as provisions governing how the constitution could be amended in the future. These provisions require a high level of consensus to preserve the stability and supremacy of the constitution.
Actual amendments of a constitution like those present in the shift from the Magna Carta to the Charter of the Forest or the 1867 to the 1982 Constitutions are rare because of the unusual political situations that give rise to them. However, actual amendment to the constitution is not necessary in order to evolve to reflect new political circumstances. The Persons Case, which established that women could hold political office, introduced that the constitution could be interpreted like a "living tree" . While the written constitution provides a stable overarching framework for Canadian law, constitutional interpretation, unwritten constitutional principles and other legal tools help us to balance the need for stability and flexibility in constitutional law.
 The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3
The Constitution Act, 1982, Schedule B to The Canada Act, 1982 (UK), 1982, c 11
 Edwards v A.G Canada  AC 123, 1 DLR 98 (PC)
Since the first constitutional document, the Magna Carta, was written by English barons in 1215, there has been constitutional shift. As constitutions are meant to provide a framework within which all laws governing a nation can be situated, this type of law can be slow to change when compared to other areas of law. However, as societal values shift so too must the law and the constitution organizing its development. These shifts arise under different circumstances and the changes they inspire shape the legal landscape.
The first constitutional shift, from the Magna Carta in 1215 to its successor the Charter of the Forest in 1217, provides a unique first example of how and why constitutional shifts can come to pass and how they can result in the provision very different legal protections. In 1215 the wealthy barons with the power to confront King John drafted the Magna Carta primarily to protect their own rights, especially proprietary interests. However, it was apparent that these protections were not sufficient in light of King John’s use of “forests”. Forests, which made up a third of England at the time, were lands over which the King had exclusive control. King John’s “Law of the Forest” was onerous and sanctioned with serious penalties. Poaching game was punished similarly to murder. The Charter of the Forest was written by 1217 to expand upon the protections included in the Magna Carta and to replace King John’s tyranny over forest land with a communal use for the good of the people.
This constitutional shift happened very quickly in comparison to modern constitutional shifts, likely due in part to factors like the youth of constitutional law as a legislative tool as well as the severity of sanctions under King John’s rule. It resulted not only in broader legal protections that benefitted a greater proportion of English people, it also introduced the function of regulating common resources to constitutional law. As we continue through this mini-series, we will see how modern constitutional shifts also adjust the scope and objective of constitutional protections.
Ms. Magna Carta wishes you all a lovely day off for Family Day today. Be sure to tune in this week for a series discussing shifts in constitutional law. The series will outline the earliest constitutional shift from the Magna Carta to the Charter of the Forest, how our modern constitution has shifted and could shift, and some other interesting points to consider.
Talk about flying under the radar. Two days ago, the Supreme Court of Canada dismissed the case of R v Goleski from the bench. In the process, it confirmed that s. 794 imposes a burden of proof on the defendant to prove certain defences and excuses in EVERY summary conviction trial.
This is not a good thing. To find out why, watch my v-blog.
Welcome back! Please see below for Part II of our interview with Professor Nelson.
4. How could safeguards be properly used and enforced to ensure that only individuals who have clearly consented to physician-assisted dying and that are suffering as defined in the SCC’s declaration can access some form of euthanasia? How should it be determined that an individual's suffering has reached the point where they are allowed access to physician-assisted dying? Further, how can we ensure that external factors, such as pressure from or opinions of family members, do not influence this? Could individuals who have a personal directive give the power to make this decision to someone else?
There are a variety of ways that safeguards could be put in place in order to limit the availability of physician-assisted death. Again, one important consideration that will play a significant role in determining what kinds of safeguards are needed is what the law ultimately looks like (ie, if we are dealing with physician-assisted suicide only, or some broader understanding of physician assistance). Some possible safeguards are the following: (1) require a second medical opinion about the presence of consent and / or about the diagnosis and the question of whether the patient is suffering from a “grievous and irremediable” condition; (2) require a waiting period between the time the patient first requests assistance in dying and when the assistance is provided; (3) ensure that the patient is made aware that he or she can change his or her mind at any point by requiring physicians to discuss this issue with their patients on more than one occasion, and to document that this discussion has taken place; and (4) have an oversight body of some kind review all cases of physician assisted death to ensure that all requirements have been complied with.
There is much discussion of safeguards in Justice Smith’s reasons in the British Columbia Supreme Court (Carter v. Canada (Attorney General), 2012 BCSC 886) (she discusses safeguards in place in jurisdictions that permit some form of physician assistance in dying). There is also information on point in the Royal Society’s expert panel report on end-of-life decision making (End-of-Life Decision-Making in Canada: The Report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making, November 2011). For more details on possible safeguards, I suggest taking a look at one or both of these sources.
We cannot assume that safeguards can completely prevent inappropriate access to physician-assisted dying. There is no perfect way to prevent abuse of physician- assisted dying once the possibility of such assistance exists. But it is worth noting that even a blanket Criminal Code prohibition, such as we currently have in Canada, is not 100% effective in ensuring that no one ever receives assistance in committing suicide.
On the issue of external factors and the role they play in influencing health care decisions, the simple answer to how we can ensure that such pressures do not influence a person’s decision about assisted death is that we can’t. That is one of the reasons why many people oppose this change in the law. The question is whether, in order to protect the vulnerable, we also have to “protect” those who are decisionally capable and who are suffering because they do not have the option of physician-assisted suicide. The Supreme Court’s reasons reflect the view that we can craft a law that protects those who are vulnerable without ruling out the choice for those who want it.
As to your last question here, I would be surprised to see the law include the possibility of substitute decision making.
5. Is there a risk that the courts will widen the scope of the specific circumstances under which an individual can have physician-assisted dying as outlined by the Supreme Court of Canada in Carter v Canada?
It is difficult to answer this question without knowing what shape the law will ultimately take. It is possible that courts could interpret the law more broadly than what the Supreme Court envisions. It is also possible (again, depending heavily on what the law ultimately says) that the law will end up facing an equality-rights challenge, and that the reach of the law could be expanded in that way.
6. The Magna Carta played a vital role in the development of human rights and freedoms. Further, the Canadian Charter of Rights and Freedoms also recognizes and reaffirms the importance of these rights. Is the SCC’s decision in Carter v Canada, which struck down laws prohibiting physician-assisted dying, a positive advancement for individuals’ rights and freedoms - specifically, in regards to an individual’s right to make their own decision to preserve autonomy and human dignity?
The answer to this question depends heavily on one’s view of the issue of physician-assisted dying. Allowing physician assistance in dying certainly advances freedom of choice for those who wish to request physician assistance in order to have some control over the time and manner of their own death. It is arguably also from this point of view an advancement of individual rights. However, those who oppose decriminalization of physician-assisted death will argue that this change is a negative one from the perspective of dignity and autonomy of the most vulnerable members of our society. Those who hold this view worry that a law that allows physician assistance in dying in essence suggests that some lives are not worth living. The concern is that those who are vulnerable, particularly those living with disability, will be subjected to “unwanted assistance in dying”, on the assumption that they are suffering because of their disability.
 Carter v Canada 2015 SCC 5 at para 10.
To conclude our discussion of the Carter v Canada decision, we interviewed one of our own professors at the Faculty of Law, Professor Erin Nelson. We are very thankful to have had the opportunity to interview her and are excited to share another perspective on this topic! Please see below for Part I of our interview with Professor Nelson and check back this afternoon for Part II.
1. In Carter v Canada, the Supreme Court of Canada held that, “section 241 and section 14 of the Criminal Code unjustifiably infringe section 7 of the Charter and are of no force or effect to the extent that 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” (Carter v Canada, 2015 SCC 5 at para 147). In regards to this declaration, how should it be determined that an individual has “clearly” consented to physician-assisted dying? Further, how should a “grievous and irremediable medical conditions… that causes enduring suffering that is intolerable” be defined? Is this something that Parliament will determine or that the courts will have to grapple with in subsequent decisions?
The need for consent in health care is not new – health care providers must obtain consent from their patients before proceeding with diagnostic testing, treatment and other interventions. So the mechanisms and processes for obtaining consent to treatment are already in place, and the courts and other decision makers (such as regulatory bodies) already have experience with determining whether consent has been given, based on the evidence (including written consent forms and documentation in patient records). And, given that competent adult patients are entitled to refuse treatment, including life-saving treatment, there is already a degree of familiarity with decision-making that has similar implications to the consent referred to by the Supreme Court in Carter. My sense is that the physicians who agree to participate in assisted dying will be extremely careful about documenting consent to ensure that there are no questions about whether the patient consented.
One important thing to bear in mind is that the Court does not specify whether the only physician assistance that should be allowed is physician-assisted suicide or whether physician assistance could also involve the physician administering the medication or agent that causes the patient’s death. These two alternatives have very different consent implications. Physician-assisted suicide would entail the provision of some means by which a person can end his or her own life. Usually, this would involve providing a prescription for a lethal dose of medication that the patient can take. While it is possible to question the reality of consent in circumstances where a patient expresses a wish to end his or her own life, the consent in this situation needs to be followed up by the patient’s own actions – filling the prescription and ingesting the medication. Where the physician is the one who administers the medication, there is potentially much more room for questions about the reality of consent.
As to defining “grievous and irremediable medical conditions”, and the question of what is meant by “enduring and intolerable suffering”, there are a few possibilities. Assuming that Parliament enacts legislation to respond to the constitutional concerns the Court has expressed in Carter, the legislation could go some distance to defining these terms. It is unlikely that the legislation would specify particular conditions or illnesses that would meet the threshold identified by the Court, but there could be some information in the legislation to guide physicians on this point. Alternatively, the question of what amounts to a “grievous” or “irremediable” condition may be left to physicians (or physician regulators, such as Colleges of Physicians and Surgeons) to define.
A decision as to whether a person is enduring intolerable suffering is a very subjective matter, and I don’t think that this can really be defined in legislation. I imagine that physician regulators will handle guidance on this issue.
2. In light of the fact that the SCC suspended the decision in Carter v Canada for a period of 12 months, how do you think Parliament will react in terms of amending the legislation?
It is difficult to speculate as to how Parliament will respond. My guess is that we will eventually see legislation, but I don’t expect that to happen quickly. I also expect that the legislation will be very restrictive.
There is currently a Private Member’s Bill before Parliament (actually two – Bill C-581 and C-582) dealing with physician assisted death. The Bills are sponsored by MP Steven Fletcher (see http://www.stevenfletcher.com/news.asp?news_ID=2258). It is possible that those Bills (or something along those lines) could be what we ultimately see, although again, my sense is that the law will be more restrictive than these Bills.
3. Should doctors be permitted to include physician-assisted dying as a “treatment option” in consultations with their patients? Does this bring the issue of voluntariness into question?
It is certainly arguable that if physicians start raising assistance in dying as a treatment option, patients will feel pressured to consider it even if they otherwise would not have. However, in practice, I do not think that physicians will raise the possibility of assisted suicide with their patients. I think it is much more likely that they will deal with the issue in response to questions or requests by patients. The majority of physicians will not be prepared to offer assistance in dying.