The much-anticipated Supreme Court of Canada decision on physician-assisted dying was released last month.
Criminal Code section 241(b) states that anyone who aids or abets a person to commit suicide is guilty of an offence.
Criminal Code section 14 states that no person is entitled to have death inflicted upon him, and such consent does not remove the criminal responsibility of anyone assisting with that death.
In the Kay Carter case, the court concluded that laws prohibiting a physician’s assistance in terminating life (those sections of the Criminal Code) infringe upon a person’s rights under The Canadian Charter of Rights and Freedoms.
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In particular, the section 7 charter right to life, liberty and security of the person were infringed in a manner not in accordance with the principles of fundamental justice.
The court, in summarizing the differing interests before it, reported:
“This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.”
In reviewing the decision made at trial in the lower court, the Supreme Court accepted that judge’s findings on the review of evidence before her. The court also found that “a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.”
The court said it is for Parliament and the provincial legislatures to respond by enacting legislation consistent with its decision in the Carter case.
In practical terms, those two sections of the Criminal Code are declared void to the extent that they prohibit physician-assisted death for a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual.
The court suspended that declaration of invalidity for 12 months, meaning that there is a year for Parliament and legislatures to bring in such new laws.
Importantly, the court stated at paragraph 113 of the decision, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.”
