Physician-Assisted Suicide: Where is Canada going?

Posted By Stephanie Hewson – Nov. 1, 2013

Part I: The B.C. Court of Appeal Ruling in Carter v Canada (Attorney General)

On October 10, 2013 the British Columbia Court of Appeal (BCCA) overturned a trial court decision that found the criminal ban on physician-assisted suicide to be unconstitutional. The BCCA upheld the ban, basing its decision on a previous Supreme Court of Canada case, Rodriguez v. British Columbia (Attorney General), decided in 1993.

Legal history of assisted suicide in Canada

Section 241(b) of the Criminal Code states that “Every one who…aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment.” In Rodriguez, the Court upheld this law, stating that though it might infringe a person’s right to liberty and security of the person under section 7 of the Charter, it reflected fundamental values at play in our society. Specifically, the law reflected the state’s interest in protecting vulnerable people from being coerced or pressured into an unwanted end-of-life.

BCCA decision: Majority

The majority found that they had to respect Rodriguez and uphold the ban. Justices Newbury and Saunders found that s. 7 jurisprudence had not changed enough since 1993 to set aside the Supreme Court decision. The majority held that they were bound by the decision in Rodriguez. They further held that a total ban was an appropriate measure to protect vulnerable populations, such as people with chronic illnesses and disabilities, from being coerced into an unwanted end-of-life.

The majority also wrote that there was no clear societal consensus either way on assisted suicide, and suggested “the value-laden question” was one better decided “by our elected representatives after an informed public debate.”

BCCA decision: Dissent

The dissenting judge at the BCCA, Chief Justice Finch, would have struck down the criminal ban. He found that a total ban on assisted suicide infringes the s. 7 “right to life,” which was not specifically addressed by the Supreme Court in Rodriguez. He cited evidence of the premature deaths of people with degenerative illnesses. These people commit suicide earlier than they otherwise would, because they know they will not have access to doctors’ assistance to end their lives when they are no longer autonomous. Justice Finch also found that the law was too restrictive, and that safeguards seen in other countries where physician-assisted suicide is legal could effectively protect vulnerable populations.

What’s next?

The plaintiffs have stated that they will appeal the decision, and hope that their case will proceed to the Supreme Court. The Supreme Court will have to decide whether s. 241(b) is still constitutional in light of the new evidence about premature deaths, and whether there have been substantial changes in how s. 7 Charter claims are decided. The case has generated a surge in public interest on the issue, which is also the topic of new legislation in Quebec.

Part II of the series will discuss the newly proposed legislation on the right to die in Quebec.

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