Canada: Canada's Absolute Criminal Prohibition On Physician Assisted Death Is Unconstitutional

Last Updated: February 9 2015
Article by Christopher D. Bredt, Angus Gunn and Margot Finley

Most Read Contributor in Canada, September 2016

Carter v. Canada (Attorney General), 2015 SCC 5

The Supreme Court of Canada has pronounced its long-awaited judgment in the Carter proceedings that tested the constitutionality of Canada's absolute criminal prohibition on physician assisted death. The Court held that section 241(b) 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 physical or psychological suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity has been suspended for 12 months to permit Parliament to consider any legislative response. During those 12 months the status quo will continue to prevail.

The Criminal Code prohibits anyone from consenting to death being inflicted upon them (section 14) or aiding or abetting a person to commit suicide (section 241(b)). The Court held that these absolute prohibitions deprive adults of their right to life, liberty, and security of the person, as guaranteed by section 7 of the Charter, in a manner that is not in accordance with the principles of fundamental justice.

The Court considered separately each of the "life, liberty, and security of the person" interests protected by section 7 of the Charter. Consistent with the Court's consideration of the right to life in Chaoulli v. Quebec (Attorney General) and Canada (Attorney General) v. PHS Community Services Society, the Court held that the right to "life" is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. The Court declined to expand this element of section 7 to embrace a broader, qualitative right that would encompass self-determination and dignity. The Court stated, however, that the absolute prohibition on assisted-dying essentially creates a "duty to live" rather than a "right to life" and opined that this could call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.

The Court accepted the trial judge's finding that the prohibition had the effect of forcing some individuals to take their own lives prematurely, often by dangerous or violent means, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. Consequently, the Court concluded that the prohibition deprived some individuals of the right to life.

Turning to the protection of "liberty and security of the person", the Court again found that the prohibition breached section 7. The Court stated that anyone who suffers intolerably as a result of a grievous and irremediable medical condition and pursues physician-assisted dying does so out of a deeply personal response to pain and suffering. Such "fundamentally important and personal medical decision-making" is a matter critical to the values of dignity and autonomy. By denying the individual the opportunity to make that choice, the prohibition impinges on liberty and security of the person. The Court recognized that the law has long protected patient autonomy in medical decision making, and endorsed the "tenacious relevance in our legal system of the principle that competent individuals are – and should be – free to make decisions about their bodily integrity."

The Court also found that the prohibition was overbroad in that it catches people outside the class of protected persons – namely, vulnerable individuals who may be induced to commit suicide in a time of weakness. In other words, the Court found that the prohibition also affected people who have reached a considered, rational, and persistent wish to end their own lives due to intractable suffering.

In light of the conclusions reached under section 7, the Court considered it unnecessary to consider whether the prohibition also deprived adults who are physically disabled of their right to equal treatment by the law as protected by section 15 of the Charter.

The Court held that the prohibition's breach of section 7 cannot be justified under section 1 of the Charter. The Court found that the prohibition is rationally connected to the pressing and substantial objective of preventing people from taking their life at a time of weakness. Nevertheless, the Court again accepted the trial judge's factual findings that physicians are able to assess reliably the patient's competence and voluntariness of decision-making in this context. Further, the Court accepted the trial judge's conclusion that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care. As a result, the absolute prohibition did not minimally impair the section 7 rights with which it interfered.

This decision revisits the Court's decision in Rodriguez v. British Columbia (Attorney General), decided 22 years ago. The Court found that the trial judge was entitled to distinguish Rodriguez given that a new legal issue had been raised and there had been a "change in the circumstances and evidence that fundamentally shifts the parameters of the debate".

Today's result puts this sensitive issue squarely back into the political arena. Several legislative options are available in response to the Carter decision, and the Court has allowed 12 months for the choice to be made. We will continue to monitor these issues and will provide updates as circumstances warrant.

Borden Ladner Gervais LLP acted in the Supreme Court of Canada on behalf of The Canadian Civil Liberties Association (Christopher D. Bredt and Margot G. Finley) and The Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society (Angus M. Gunn QC and Duncan A. W. Ault).

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