Four Month Extension Granted for Criminal Code Provisions Preventing Physician-Assisted Dying

January 18, 2016 | Alissa Raphael

On February 6, 2015, the Supreme Court of Canada (SCC) declared in Carter v. Canada (Attorney General) that two Criminal Code provisions were of no force or effect to the extent that they prohibit physician-assisted death in Canada in the case of a competent adult person who:

  1. clearly consents to the termination of life; and
  2. 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.

To provide time for a legislative and regulatory response to the judgment, the declaration of invalidity was suspended for 12 months. On January 15, 2016, the SCC granted a further four-month extension of the suspension of the SCC’s declaration. This will begin on February 6, 2016, the date the suspension was set to expire.

In Carter, the SCC declared that section 241(b) of the Criminal Code, which provides that everyone who aids or abets a person to commit suicide is guilty of an indictable offence and section 14, which states that no person may consent to having death inflicted on them, violated the Charter of Rights and Freedoms (Charter). These provisions violated the Charter insofar as they prohibited physician-assisted death for certain individuals (who meet the abovementioned criteria) from seeking such assistance. The prohibition was found to deprive these individuals of their section 7 Charter rights to life, liberty and security of the person. Further, this was not in accordance with the principles of fundamental justice.

The SCC considered the following three questions when deciding to grant the suspension of the declaration of invalidity:

1. Should the Court order an extension of the suspension of the declaration of invalidity?

Yes. The federal election which interrupted the legislative response to the Carter decision for four months justifies granting a four month extension.

2. Should Québec be exempted from the extension?

Yes. Québec should be exempted. The Attorney General of Québec argued that this was necessary to clarify Québec’s legal position under its new law governing end-of-life assistance, An Act respecting end-of-life care, CQLR, c. S-32.0001, which came into force on December 10, 2015 and to avoid a chilling effect due to the threat of possible Criminal Code violations or civil liability during the extension. The SCC was clear that in granting this exemption, they were not expressing any view as to the validity of the Québec legislation.

3. Should individual exemptions be granted to those who meet the criteria set out in Carter and wish to seek assistance in ending their life?

Yes. Individuals who wish to seek assistance from a physician in accordance with the criteria set out in Carter may apply to the superior court of their jurisdiction and obtain judicial authorization to seek assistance in ending their life.
Miller Thomson’s Health Industry Group will continue to monitor further developments arising from this decision. We invite you to contact us if you have any questions regarding the Carter decision or this order and how it may impact your professional practice or organization.

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