The Supreme Court Decision on Assisted Suicide

Martha Butler
Legal and Social Affairs Division

On 6 February 2015, the Supreme Court of Canada released its decision on a constitutional challenge of the prohibition in the Criminal Code against assisted suicide.

The Court held unanimously in Carter v. Canada (Attorney General) that the prohibition violates the rights under section 7 of the Canadian Charter of Rights and Freedoms of competent individuals suffering from grievous and irremediable medical conditions who seek physician-assisted death.

Section 7 states: “everyone has the 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 Supreme Court last addressed assisted suicide in 1993 in Rodriguez v. British Columbia (Attorney General). The claimant, Sue Rodriguez, was living with amyotrophic lateral sclerosis (ALS), a fatal disease that causes progressive paralysis and pain while leaving cognitive functions intact.

Ms. Rodriguez challenged section 241(b) of the Criminal Code, which states that everyone who assists a person to commit suicide is liable to imprisonment for up to 14 years.

The Supreme Court upheld the prohibition by a 5-4 margin. Former Supreme Court Justice John Major, who had formed part of the majority in Rodriguez, has since spoken publicly about the case. He called on Parliament to “update” assisted suicide laws.

The Carter case history

In 2011, Gloria Taylor, who also had ALS, challenged the prohibition against assisted suicide. Ms. Taylor was joined by the British Columbia Civil Liberties Association, Lee Carter and Hollis Johnson.

Ms. Carter and Mr. Johnson had assisted Ms. Carter’s mother, Kay Carter, who suffered from spinal stenosis, to travel to an assisted suicide clinic in Switzerland. By doing so, they could have faced prosecution under section 241(b).

The claimants were successful at trial. Ms. Taylor was granted a constitutional exemption to allow her to seek physician-assisted suicide, but she died of an infection soon after that decision.

On appeal, the British Columbia Court of Appeal held that the trial judge was bound by the decision in Rodriguez, and that only the Supreme Court could modify that precedent. The claimants appealed.

Court’s ruling: Rights to life, liberty and security at play

In its 6 February 2015 decision, the Supreme Court held that section 241(b) violates all three of the rights set out in section 7 of the Charter in the context of grievously ill individuals seeking physician-assisted death.

The Court concluded that the right to life is at play for these individuals because the prohibition against assisted suicide could lead some grievously ill people to end their lives prematurely while they are still physically able to do so.

The Court held that rights to liberty and security of the person are also at play. The reason is that the prohibition could leave people to suffer pain and stress, and deny them the “opportunity to make a choice that may be very important to their sense of dignity and personal integrity.”

Having made these findings, section 7 also required the Court to determine whether the deprivation of section 7 rights was in accordance with the principles of fundamental justice. The Court held that the deprivation was not in accordance with these principles.

Finally, the Court held that the government was unable to show that the violation of section 7 is a reasonable and justifiable limit on the rights of grievously ill individuals.

The Court concluded that section 241(b) is invalid. This is because it prohibits “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 (…) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The Court noted that the term “irremediable” “does not require the patient to undertake treatments that are not acceptable to the individual.”

Although the Court declared section 241(b) invalid, it suspended this declaration for 12 months. It noted that “[i]t is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”

Reaction polarized

Reaction to the Carter decision has been polarized. A number of interested groups have commented, and links to their responses are provided below.

The Canadian Medical Association has urged that any legislative changes protect the rights of both patients and physicians. Legal scholars have noted that much work remains to be done.

Here are some selected stakeholders’ views: