On Friday, the Supreme Court of Canada released its landmark end-of-life decision in Carter v Canada (Attorney General). The Court unanimously held that the prohibition on aiding or abetting a person to commit suicide in the Criminal Code is unconstitutional, notwithstanding that, in 1993, it dismissed a constitutional challenge to the same provision in Rodriguez v British Columbia (Attorney General). The Court justified its decision to expressly overturn Rodriguez on the basis that, in the 20 years since, a number of Western democracies have permitted some form of assisted dying and there have been substantial changes in the constitutional framework.
The main issue on the appeal was whether the prohibition on physician-assisted dying deprives competent adults, who suffer a grievous and irremediable medical condition that causes the person to endure physical or psychological suffering that is intolerable to that person, of their right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Though Carter will undoubtedly be the subject of much legal commentary, we have a few preliminary observations:
- The Court affirmed that the “right to life” is engaged where the law or state action imposes death or an increased risk of death on a person. But the Court also made clear that the right to life does create a “duty to live” and cannot require an absolute prohibition on assisted dying.
- There was no dispute that the purpose of the ban on assisted suicide is to protect the vulnerable from ending their life in times of weakness. Though the Court held that a total ban is not arbitrary, it did find it to be overbroad because the law sweeps in people who are not vulnerable.
- The Court gave very little guidance to Parliament as to what a constitutional assisted suicide law might be. But the Court did agree with the trial judge that a “permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.”
- In drafting new legislation, Parliament must be mindful of the need to reconcile the Charter rights of patients and the religious or conscience rights of healthcare workers.
The Court has suspended the declaration of invalidity for 12 months. As such, the federal government will either have to introduce new legislation, leave it to the provinces to regulate (like Quebec is doing with An act respecting end-of-life care) or invoke the notwithstanding clause.