On Friday, the Supreme Court of Canada released its landmark
end-of-life decision in Carter
v Canada (Attorney General). The Court
unanimously held that the prohibition on aiding or abetting a
person to commit suicide in the Criminal Code is
unconstitutional, notwithstanding that, in 1993, it dismissed a
constitutional challenge to the same provision in Rodriguez v British Columbia (Attorney
General). The Court justified its decision to
expressly overturn Rodriguez on the basis that, in the 20
years since, a number of Western democracies have permitted some
form of assisted dying and there have been substantial changes in
the constitutional framework.
The main issue on the appeal was whether the prohibition on
physician-assisted dying deprives competent adults, who suffer a
grievous and irremediable medical condition that causes the person
to endure physical or psychological suffering that is intolerable
to that person, of their right to life, liberty and security of the
person under section 7 of the Canadian Charter of Rights and
Though Carter will undoubtedly be the subject of much
legal commentary, we have a few preliminary observations:
The Court affirmed that the "right to life" is
engaged where the law or state action imposes death or an increased
risk of death on a person. But the Court also made clear that the
right to life does create a "duty to live" and cannot
require an absolute prohibition on assisted dying.
There was no dispute that the purpose of the ban on assisted
suicide is to protect the vulnerable from ending their life in
times of weakness. Though the Court held that a total ban is not
arbitrary, it did find it to be overbroad because the law sweeps in
people who are not vulnerable.
The Court gave very little guidance to Parliament as to what a
constitutional assisted suicide law might be. But the Court did
agree with the trial judge that a "permissive regime with
properly designed and administered safeguards was capable of
protecting vulnerable people from abuse and error."
In drafting new legislation, Parliament must be mindful of the
need to reconcile the Charter rights of patients and the
religious or conscience rights of healthcare workers.
The Court has suspended the declaration of invalidity for 12
months. As such, the federal government will either have to
introduce new legislation, leave it to the provinces to regulate
(like Quebec is doing with An act
respecting end-of-life care) or invoke the
Robert Staley, Ranjan Agarwal and Jack Maslen were counsel
to the interveners Catholic Civil Rights League, Faith and Freedom
Alliance and Protection of Conscience Project in Carter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).