Canada: Criminal Code Provisions On Physician-Assisted Dying Declared Unconstitutional In Carter et al v. Canada (Attorney General)

Following a summary trial at the end of 2011, on 15 June 2012 the Honourable Madam Justice Lynn Smith of the Supreme Court of British Columbia issued a landmark judgment in which she concluded that the Criminal Code provisions prohibiting physician-assisted dying violated sections 15 (right to equality) and 7 (right to life, liberty and security of the person) of the Canadian Charter of Rights and Freedoms and were thus invalid: 2012 BCSC 866 (

On 13 July 2012, the Attorney General of Canada commenced an appeal from Madam Justice Smith's decision. The Attorney General also expressed an intention to seek a stay of all aspects of the trial decision - including the constitutional exemption for Ms. Taylor. The case will now make its way to the Court of Appeal for British Columbia (the highest court in B.C.), and quite likely the Supreme Court of Canada thereafter.

How does Carter affect the current law in Ontario

The Criminal Code prohibitions on physician-assisted dying have been declared unconstitutional, but remain in force across Canada for now. The Court suspended its declaration of invalidity until June 2013 to allow the government time to redraft the legislation.

The Carter Case

It has been nearly twenty years since Sue Rodriguez lost her challenge to the constitutionality of a Criminal Code prohibition on physician-assisted dying in a close 5-4 decision of the Supreme Court of Canada in 1993. The four plaintiffs in Carter have resumed the challenge in British Columbia. They are: Gloria Taylor (a woman with ALS or Lou Gehrig's disease, a fatal neurodegenerative condition), Lee Carter and Hollis Johnson (the daughter and son-in-law of a woman who terminated her life in Switzerland by assisted suicide which, although legal in Switzerland, exposes them to the threat of criminal prosecution in Canada), Dr. William Shoichet (a family physician), and the BC Civil Liberties Association (which successfully sought public interest standing).

The binding effect of Rodriguez constituted a threshold legal issue in the case. The Court concluded that to some extent Rodriguez continued to bind lower courts, but in other respects left certain matters open to be decided afresh. Rodriguez bound on the fact that the impugned provisions engaged Ms. Taylor's rights to security of the person and liberty under section 7 of the Charter, and that section 241(b) of the Criminal Code was not arbitrary. Rodriguez did not decide whether the impugned provisions offended Ms. Taylor's equality rights under section 15 of the Charter, whether any such breach could be justifited under section 1 of the Charter, whether the impugned provisions infringed Ms. Taylor's right to life under section 7 of the Charter, and whether any of the plaintiffs had been deprived of their section 7 rights in a manner not in accordance with the principles of fundamental justice regarding overbreadth and gross disproportionality (principles of fundamental justice, both of which emerged after Rodriguez).

Justice Smith considered that the impugned provisions infringed the plaintiff Gloria Taylor's equality rights because they preclude persons with physical disabilities who are grievously ill and experiencing intractable suffering from receiving physician assistance in death. By contrast, able-bodied persons who seek to take their own lives, and fail, are not subject to criminal sanction because there is no longer a criminal offence of suicide or assisted suicide. Justice Smith further held that this discriminatory distinction was not a reasonable limit of the law that could be justified under section 1 of the Charter. An absolute prohibition on physician-assisted death goes too far: while there is disagreement as to the effectiveness of safeguards designed to prevent abuse in jurisdictions where physician-assisted death is permitted, a limited and carefully monitored system could be devised. On the section 7 analysis, the Court also concluded that the impugned provisions had a "very severe" effect on the plaintiffs' life, liberty, and security of the person interests, one grossly disproportionate to its salutary effects (preventing inducement of vulnerable people to commit suicide, promoting palliative care, protecting physician-patient relationships, protecting vulnerable people, and upholding the state interest in the preservation of human life.)

The Court suspended its declaration of invalidity for one year to allow Parliament to consider replacement legislation that will conform to the Charter. The effect of this suspension is that the criminal prohibition on physician-assisted dying remains in force during that time. The plaintiff Gloria Taylor was granted a constitutional exemption during the period of suspension to enable her (if she so decides) to proceed with a plan to end her life with the assistance of her physician under specified conditions.

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