Canadian Constitutional Challenge to Prohibition on Assisted-Dying
Canada’s top court is once again set to decide on the constitutionality of physician-assisted dying for terminally ill patients.
Last Wednesday, the Supreme Court of Canada heard oral arguments in Carter v Attorney General of Canada regarding the constitutionality of physician-assisted dying. Canada’s Criminal Code makes it illegal for doctors to assist patients who wish to end their own lives. In particular, section 241(b) of the Criminal Codemakes it a punishable offence of up to 14 years in prison for any person to “aid or abet” another individual with taking their own life.
In 1993, Sue Rodriguez, a 42-year-old woman suffering from amyotrophic lateral sclerosis (ALS), challenged the constitutionality of this provision. Ms. Rodriguez sought allowance for a physician to assist her with taking her own life at a time of her choosing after she lost the ability to enjoy it. She argued section 241(b) of the Code violated her constitutional rights to life, liberty and security of the person and to equality, and that the provision constituted cruel and unusual punishment.
By a 5-4 majority, the Supreme Court of Canada ruled against Ms. Rodriguez, and upheld the constitutionality of the provision. Ms. Rodriguez passed away the following year.
The current challenge to the prohibition on assisted dying started in the Canadian province of British Columbia and was brought by a number of individuals, including Gloria Taylor and the daughter and son-in-law of Kay Carter. Both Ms. Taylor and Ms. Carter suffered from intractable diseases and wished to end their own lives. Prior to the commencement of legal proceedings, Ms. Carter travelled with her family and ended her life at a clinic in Switzerland.
In June 2012, a British Columbia trial judge ruled in favour of Ms. Taylor and Ms. Carter’s family, declaring certain provisions of the Criminal Code that prohibit physician-assisted dying to be unconstitutional. The judge noted changes in domestic and international law since the Rodriguezcase which allowed her to reach this conclusion.
The Court of Appeal for British Columbia subsequently overturned this decision in 2013 on the basis that the trial judge was bound to follow the Supreme Court’s decision in the Rodriguez case. Ms. Taylor had passed away prior to the release of the Court of Appeal’s decision.
Proponents of physician-assisted dying argue that adequate safeguards can be developed to ensure that the practice is not misused, while opponents fear exploitation of vulnerable citizens. The federal government of Canada, which has jurisdiction over criminal law and therefore the Criminal Code, opposes physician-assisted dying and has expressed no desire to open the debate in Canada’s Parliament.
Currently four European countries – the Netherlands, Belgium, Luxembourg and Switzerland – and five states in the United States – Vermont, Oregon, Washington, New Mexico and Montana – permit physician assisted dying.
Despite Canada’s Criminal Code provision, in June 2014, the Canadian province of Quebec passed its own bill providing terminally ill patients with the right to choose to die. Section 26 of “An Act Respecting End-of-Life Care” specifies a number of conditions an individual must satisfy to request medical aid in dying. Notably, a person must be in an advanced state or irreversible decline in capability, be of full age and capable of giving consent to care, and must request medical aid in dying in a “free and informed manner” by the means of a form signed in the presence of a health or social services professional. Quebec claims its legislation does not contradict the Criminal Code provision as the law deals with palliative care, which is within the jurisdiction of provinces in Canada, as opposed to criminal law, which is within the jurisdiction of the federal government.
Quebec’s law is set to take effect at the end of 2015, to give hospitals time to establish clinical protocols. Any challenges to Quebec’s legislation will likely be contingent on what the Supreme Court decides from last Wednesday’s hearing.
The Court has reserved its judgment and will likely release a decision within the next year.