Supreme Court of Canada Strikes Down Physician Assisted Suicide Law

Recently the Supreme Court of Canada released its long awaited, much debated and surely controversial judgement on physician assisted suicide (Carter v. Attorney General of Canada, 2015 SCC 5 (“Carter”). In the decision, a unanimous Court overruled their 1993 decision in Rodriguez v. British Columbia (Attorney General) ([1993] 3 S.C.R. 519) and ruled that the Canadian Criminal Code provisions that make physician assisted suicide a criminal act are unconstitutional, and struck them down.

In relation to physician assisted suicide, in a nutshell what the Court ruled was that an adult who “clearly consents to the termination of life” and” 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” has a right to have a physician’s assistance in ending their life. The Court also ruled that no particular physician would be required to assist in such a procedure.

Early criticism of this portion of the decision has tended to focus on the fact that the court did not narrow the application of this assistance to people with terminal illness, but rather specifically included those with disabilities as qualifying. The concern of many opponents of this decision is that with a wide definition of medical conditions fitting into this category, people with these types of illnesses may choose to take their own life in situations where their condition is not actually life threatening, or that they may feel pressured by family members or medical professionals to take their own lives in situations where they themselves do not want to.

In Carter, although the Court did strike down the provisions, they suspended their judgment from coming into force for a year, in order for the government to have time to craft legislation in line with their decision. In theory, this gives the government a year to get legislation in place to regulate this activity, and the medical systems a year to get adjusted before the practice actually starts occurring legally.

The Court did a similar thing with some of the Canada’s Criminal Code provisions relating to prostitution in 2013 in the case of Canada (Attorney General) v. Bedford (2013 SCC 72) (“Bedford”). In Bedford, a unanimous Court struck down several of the provisions relating to prostitution, but again allowed a year before their decision came into force, in order for the government to put legislation in place that was in line with their ruling. In that case the Stephen Harper-led Conservative government’s response to the Court’s decision was Bill C-36, which came into effect in late 2014. The government’s response in that bill has been widely criticized for being an attempt to comply with the Court’s decision on the surface, but in effect, to almost completely circumvent the Court’s decision, and in fact to make Canada’s prostitution laws more archaic and less protective of Canada’s sex trade workers.

The current Conservative government has been clear that their position on physician assisted suicide is that they would not support a change to Canadian law that would make it legal. Early speculation has been that they are likely to take the full year allowed to come up with legislation in response to the Carter decision. Only time will tell if their response to the Carter decision creates the same type of response as their response to the decision in Bedford