Canada: Supreme Court Overrules Rodriguez; Physician-Assisted Death Legal In Canada

Last Updated: February 23 2015
Article by Byron Shaw

Most Read Contributor in Canada, September 2018

Physician-assisted death is permissible in Canada, for competent adults who: (1) clearly consent to the termination of life; and (2) have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of their condition. In Carter v. Canada (Attorney General),1 a unanimous Supreme Court of Canada overruled its 1993 decision in Rodriguez v. British Columbia,2 in which a majority of the Court upheld the blanket prohibition on assisted suicide.

Background

Certain provisions of the Canadian Criminal Code have the effect of prohibiting assisted suicide. In particular, s. 241(b) makes it an indictable offence to aid or abet a person to commit suicide, and s. 14 says that no person may consent to death being inflicted upon them.

These provisions have been challenged on the basis that they infringe the constitutional right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice (s. 7 of the Charter) and the right to equal protection and equal benefit of the law without discrimination (s. 15 of the Charter).

Rodriguez

In Rodriguez, a majority of the Court (5-4) held that the Criminal Code prohibitions deprived the applicant of her security of the person, but in a manner that was in accordance with the principles of fundamental justice. Writing for the majority, Sopinka J. concluded that there was "no halfway measure that could be relied upon with assurance" to protect the vulnerable.3 The majority assumed, without deciding, that the Criminal Code prohibitions on assisted suicide violated s. 15 of the Charter.

Carter

By the Court's own admission, the facts in Rodriguez were "very similar" to the facts in Carter. Both Sue Rodriguez and Gloria Taylor (the impetus for the Carter application), were dying of ALS (amyotrophic lateral sclerosis), which causes progressive muscle wasting eventually leading to difficulty speaking, swallowing and breathing. Both Ms. Rodriguez and Ms. Taylor wanted the right to seek a physician's assistance in dying when their suffering became intolerable.

Yet, the Court in Carter held that Rodriguez was no longer good law. Physician-assisted dying violates the right to life, liberty and security of the person. A blanket prohibition on assisted suicide does not comport with the principles of fundamental justice. Physician-assisted suicide is permissible in the circumstances set out above.

The Court issued a suspended declaration of invalidity, meaning that it declared s. 241(b) and s. 14 of the Criminal Code void to the extent they prohibit assisted suicide in the circumstances set out above. The declaration is suspended, meaning that it does not take effect until 12 months after the Court's ruling, in order to give Parliament and the legislatures time to enact new legislation, if they so choose, in compliance with the Court's ruling.

Implications of Carter

The Carter Court took great pains to note that "[t]he scope of this declaration is intended to respond to the factual circumstances in this case" and that it was making "no pronouncement on other situations where physician-assisted dying may be sought."4

It will be a question in fact in each case as to whether an adult5 seeking physician assistance to end their life: (1) is competent; (2) "clearly consents" to the termination of life; and (3) suffers from a medical condition that satisfies the standards set by the Court. The concepts of competency and consent are relatively well-defined in Canadian law already. It is expected that physician-assisted death, like other important medical and life decisions, will require evidence of an autonomous decision by a "competent, fully informed" adult "free from coercion or distress".6 The more difficult question will be in determining whether a particular medical condition qualifies as sufficiently "grievous" and "irremediable" and "causes enduring suffering that is intolerable to the individual in the circumstances". Ultimately, it will be left to patients, physicians and trial judges to define the exact parameters of the Court's ruling in Carter.

Footnotes

1 2015 SCC 5.

2 [1993] 3 S.C.R. 519.

3 Ibid., p. 614.

4 Ibid. at para. 127.

5 It is noteworthy that the Court did not expressly define the term "adult". In Ontario, the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. does not identify any minimum age of consent for "treatment" as defined in the Act.

6 Ibid. at para. 86.

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