The issue capturing headlines has been whether or not physician-assisted suicide should be made available to the terminally ill as an alternative to the difficult passage projected by their doctors. Indeed, it was this issue that the trial judge explored in considerable depth before concluding that the criminal prohibition violated sections 7 (life, liberty and security of the person) and 15 (equality) of the Canadian Charter of Rights and Freedoms and could not be saved under section 1 (reasonable limits). The Court of Appeal's decision, however, turned on the answer to a somewhat less stimulating question regarding stare decisis: were the trial judge's findings precluded by the precedential effect of Rodriguez?
Though she acknowledged the authority of Justice Sopinka's majority reasons in Rodriguez, the trial judge determined that there were issues before her that the Supreme Court had left open. On section 7, for instance, she found that Rodriguez had considered the right to liberty and to security of the person, but not to life. On section 15, she pointed out, Rodriguez did not actually decide the issue; instead, it had assumed an equality violation and then justified it under section 1. Finally, on section 1, she determined that a different set of legislative and social facts, combined with an evolution in the applicable legal test, warranted a fresh s. 1 inquiry.
In rejecting the trial judge's application of stare decisis, the majority decision of Justice Newbury embraced the observation made by the Ontario Court of Appeal in Canada (AG) v Bedford that a robust approach to stare decisis should be taken in Charter cases. On this basis, the majority found that while Rodriguez had not in so many words rejected the notion that section 241(b) violated the right to life, such a rejection could be inferred. Inherent in Justice Sopinka's reasons, wrote Justice Newbury, is a finding that life under section 7 has a narrow compass and does not include a right to die in the manner and at the time of one's choosing. She went on to explain that despite applying the Oakes test in a fairly unstructured way, the Rodriguez majority still found that any infringement of section 15 is clearly justified under s. 1 of the Charter. Accordingly, [i]f the constitutional validity of s. 241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so. Now it may, especially given its decision to revisit and, ultimately, overturn the Prostitution Reference in December's decision in Bedford v Canada.