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 Rodriguezv. British
Columbia,2 in which a majority of the Court
upheld the blanket prohibition on assisted suicide.
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).
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.
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
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
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
1 2015 SCC 5.
2  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.
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