What is the current status of physician-assisted dying in
For most of Canada's history, physician-assisted dying was a
crime: sections 14 and 241(b) of the Criminal Code absolutely prohibited any
person from assisting another person to commit suicide and provided
that any person who violated this prohibition was liable to
imprisonment for up to 14 years.
has a grievous and irremediable medical condition (including an
illness, disease or disability) that causes enduring suffering that
is intolerable to the individual in the circumstances of his or her
Importantly, however, the Court suspended its declaration of
invalidity for 12 months (until February 6, 2016), to give
Parliament and the provincial legislatures time to draft new,
constitutional legislation governing physician-assisted dying.
On December 10, 2015, Quebec's legislature responded to the
Carter decision by enacting the
Act respecting end-of-life care. Among
other things, the Act respecting end-of-life care specifies
the criteria that must be met for a person to obtain
physician-assisted dying in Quebec and sets out special rules for
institutions and professionals which provide end-of-life care in
Quebec. To date, neither Parliament nor any other provincial
legislature has enacted legislation governing physician-assisted
On January 15, 2016, at Parliament's request, the Court
extended the suspension of its declaration of invalidity for a
further 4 months (until June 6, 2016): see Carter v. Canada (Attorney General), 2016
SCC 4. However, to reduce the harm resulting from the
extension, the Court granted two exemptions. The effect of these
exemptions is that during the extension period (i.e. from now until
June 6, 2016):
persons outside Quebec may access physician-assisted dying in
accordance with the Carter decision, and with the
approval of the superior court in their jurisdiction.
Neither Parliament nor the provincial legislatures are obligated
to formulate a legislative response to the Carter decision. However, both would
be wise to do so.
Ideally, Parliament should revise the Criminal Code to clarify the extent to
which physician-assisted dying is criminal. To the extent that
physician-assisted dying is not criminal, the provincial
legislatures (which have jurisdiction to regulate health care)
should enact legislation addressing, among other things:
whether physician-assisted dying will be publicly
the criteria that must be met for a person to access
physician-assisted dying (e.g. age, mental capacity,
the processes that will be used to evaluate whether a person
has met the criteria to access physician-assisted dying;
whether substitute decision-makers can consent to
whether health care professionals other than physicians can
whether health care providers and/or health care professionals
can refuse to provide physician-assisted dying;
whether physician-assisted dying will be listed as the
manner of death on medical certificates of death;
whether life insurance claims will be paid for deaths resulting
from physician-assisted dying; and
whether and, if so, to what extent data will be collected about
the use and administration of physician-assisted dying.
The next part in this series will be posted on February 5, 2016
and will examine the issue of physician-assisted dying from the
perspective of health care providers.
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.
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