Ban on physician-assisted dying violates the Charter
Supreme Court overturns ban on physician-assisted dying
In Carter v. Canada (Attorney General), the Supreme Court of Canada has determined that the Criminal Code ban on physician-assisted dying violates the right to life and security of the person, contrary to s. 7 of the Canadian Charter of Rights and Freedoms.
Section 241(b) of the Criminal Code makes it an indictable offence to help someone else commit suicide. Section 14 of the Criminal Code provides that no person may consent to death being inflicted on them.
As a result, individuals who face the prospect of severe and intolerable suffering cannot obtain a physician’s assistance in ending their lives. They are left with only two options: they can commit suicide prematurely (sometimes through unsafe or violent means) or they can suffer until they die of natural causes.
Several individuals challenged these provisions of the Code, arguing that they violated the right to life and security of the person, contrary to s. 7 of the Canadian Charter of Rights and Freedoms. They succeeded at trial, but the decision was overturned on appeal. They then appealed to the Supreme Court of Canada
The Supreme Court’s decision
The Supreme Court allowed the appeal. As the Court bluntly stated in its decision, “The choice [between premature suicide and lengthy suffering] is cruel.”
In considering whether the Criminal Code provisions violated the Charter, the Court was required to balance important competing values. On the one hand, the dignity and autonomy of competent adults who seek death as a response to a grievous and incurable medical condition was at stake. On the other hand, the sanctity of life and the need to protect vulnerable persons also had to weigh in the balance.
The Court held that the law was unconstitutional because it interfered with an individual’s ability to make decisions concerning bodily integrity and medical care, and did so in a manner that was overbroad. While the objective of the prohibition was to protect vulnerable individuals from being induced to commit suicide at a moment of weakness, “not every person who wishes to commit suicide is vulnerable and … there may be people with disabilities who have a considered, rational and persistent wish to end their own lives.”
The Court further held that the prohibition could not be saved under s. 1 of the Charter, since it was not the least drastic means of achieving the objective. The Court agreed with the trial judge that the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.
The Court concluded:
…[T]he impugned provisions] are void insofar as 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 suffering that is intolerable to the individual in the circumstances of his or her condition.
The Court noted that “irremediable” does not mean that a patient will be required to undergo treatments that are not acceptable to the individual. The Court also observed that nothing in its declaration of invalidity would compel physicians to provide assistance in dying:
The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief … In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.
The Court suspended its declaration of invalidity for 12 months, which means that the law will remain in effect for one year in order to give Parliament and the provincial legislatures an opportunity to enact legislation to regulate the practice of physician-assisted dying.
Marlys Edwardh and Daniel Sheppard represented the intervenor, Criminal Lawyers’ Association.
Cynthia Petersen and Kelly Doctor represented the intervenor, Dying with Dignity.