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FALQs: Physician-Assisted Suicide in Canada

The following is a guest post by Tariq Ahmad, a legal analyst in the Global Legal Research Center of the Law Library of Congress. Tariq has previously blogged about Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, and Sedition Law in India. This post follows my previous post on Euthanasia under Israeli Law.

On February 6, 2015, in a unanimous decision in Carter v. Canada, the Supreme Court of Canada (SCC) struck down a blanket ban on physician-assisted suicide that is currently contained in sections 241(b) and 14 of Canada’s federal Criminal Code. This post examines the background and findings of this landmark case.

1. What led to the case before the Supreme Court?

https://www.flickr.com/photos/boblinsdell/9450588198/

Supreme Court of Canada, Wellington St, Ottawa, Ontario, Canada, photo by Flicker user Bob Linsdell, May 19, 2013. Used under Creative Commons License, https://creativecommons.org/licenses/by-sa/2.0/.

The case arose in 2009 when Gloria Taylor was diagnosed with a fatal neurodegenerative disease called amyotrophic lateral sclerosis (ALS), which causes progressive muscle weakness. Not wanting to die slowly and “wracked by pain” she brought a claim before the British Columbia Supreme Court challenging the constitutionality of several provisions of the Criminal Code that prohibit assistance in dying. The Court struck down the provisions but its decision was overturned by the Court of Appeal for British Columbia in a decision that was then appealed to the Supreme Court of Canada.

2.  What provisions were challenged in the case?

Section 241(b) of Canada’s federal Criminal Code stipulates that everyone who “aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” Section 14 prohibits persons from consenting to death being inflicted on them.

The SCC struck down these provisions on the basis of section 7 of the Canadian Charter of Rights and Freedoms, which protects every person’s “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Court held that the provisions “unjustifiably infringe” section 7 and are:

… of no force or effect to the extent that 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

(Carter v. Canada ¶ 147.)

It is important to note that the decision strikes down the provisions to the extent that they ban physician-assisted suicide but not assisted suicide generally.

3. What was the position of the Supreme Court of Canada prior to this decision?

In 1993, in a 5-4 decision in Rodriguez v. British Columbia, the SCC upheld the constitutionality of Canada’s blanket ban against physician-assisted suicide. The Court held that although the prohibition on assisted suicide may impinge on the security of person, it is nevertheless in accordance with the principles of fundamental justice. The majority opinion was particularly concerned about abuse and the “great difficulty in creating appropriate safeguards” for the protection of vulnerable persons.

4. What is the reasoning behind the Court’s recent decision?

In Carter v. Canada the SCC held that the blanket ban on assistance in dying is an infringement of the Charter right to life, liberty, and security of the person. The Court rejected the notion that “the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life.” It considered that this “would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.” (Carter v. Canada ¶ 63.)

The Court further reasoned that section 7 isn’t just rooted “in a profound respect for the value of human life” but also “encompasses life, liberty and security of the person during the passage to death.” (Id.) The Court held that it is for this reason that the sanctity of life does not require that all human life be preserved at all cost and that “in certain circumstances, an individual’s choice about the end of her life is entitled to respect.” (Id.). The Court also found that a blanket denial of a patients’ right to request assistance in dying interferes in their liberty “to make decisions concerning their bodily integrity and medical care….” (Id. ¶ 66.) Since many patients are left to endure intolerable suffering and pain, such denial, according to the Court, impinges on the security of those persons. (Id.)

According to the Court, section 7 of the Charter stipulates that persons cannot be deprived of life, liberty and security of person “except in accordance with the principles of fundamental justice.” In other words, laws used to infringe such rights “must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.” (Id. ¶ 72.) The Court reasoned that the law in its current form is overly broad since, while the object of the law is to protect a particular group of “vulnerable persons from being induced to commit suicide at a moment of weakness,” it also catches people outside this group: “people with disabilities who have a considered, rational and persistent wish to end their own lives.” Therefore, “[t]he blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.” (Id. ¶ 86.)

The Court additionally held that the blanket ban was also grossly disproportionate to its aim and that the “impact of the prohibition is severe: it imposes unnecessary suffering on affected individuals, deprives them of the ability to determine what to do with their bodies and how those bodies will be treated, and may cause those affected to take their own lives sooner than they would were they able to obtain a physician’s assistance in dying.” (Id. ¶ 90.)

In reaching its conclusion the Court also considered section 1 of the Charter, which guarantees that the rights and freedoms “set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Here the Court applied the “Oakes Test” to show that though the law was rationally connected with Parliament’s objective, there were less harmful or drastic means of fulfilling Parliament’s aim. (Id. ¶ 99.) The Court was particularly swayed by the evidence of scientists, medical practitioners, and other legal jurisdictions where physician-assisted suicide is permitted. The Court concluded that a “permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error” and can adequately limit the risks associated with physician-assisted suicide. (Id. ¶ 105.)

5. What appears to explain the shift in the Court’s decision?

In finding that the trial judge was able to depart from the ruling in Rodriguez, the Court recognized that the doctrine of stare decisis is an important principle of Canada’s legal system and that it provides certainty in the law while still allowing the “orderly development of the law in incremental steps.” (Id. ¶ 44.) The Court noted, however, that stare decisis  “is not a straitjacket” and, as previously held by the Supreme Court, trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is “a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.” (Id.)

The Court found that both conditions were fulfilled since there had been considerable changes in the Court’s own jurisprudence on section 7. The Court determined that the principles of over-breadth and gross disproportionality had only been introduced after Rodriguez was decided. Having evaluated ethical and societal concerns, evidence from countries and jurisdictions where physician-assisted dying is permitted, as well as the risks related to assisted suicide and the viability of safeguards and protections, the Court appeared to agree with the trial judge that the “social and factual landscape” have changed in the 20 years since Rodriguez was decided. (Id. ¶ 28.)

As some legal experts point out, “significant legal and societal shifts have taken place that have changed the overall landscape and underlying attitudes” on the issue of physician-assisted death. This change in public opinion was reflected in a recent 2014 poll, which found that 84% of Canadians “agree” that doctors should be able to assist someone to end their life in certain circumstances.

6. What is the effect of the Court’s decision?

The Court suspended its ruling for 12 months to allow Parliament, provincial assemblies, and regulatory authorities to adopt or amend legislation and policies. However, the Court has not required lawmakers to enact legislation or establish new policies. The federal government has announced its intention to pass federal legislation, but stated that would first like to conduct a “comprehensive” public consultation process. If Parliament were to fail to pass federal legislation, it may be up to provincial governments and physicians’ colleges to craft a regulatory response. Some experts have argued, however, that a legislative response is unnecessary.

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