Canadian Court Holds Blanket Criminalization of Assisted Suicide Unconstitutional

Feb 10, 2015 | Labs Blog

By Professor Leslie Francis for healthlawprofblog.

Leslie_Francis_kmphsaIn a much-awaited decision, the Canadian Supreme Court on Friday held that Canada’s statutes criminalizing aiding suicide violated the Canadian Charter.  The decision in Carter v. Canada is being widely hailed by advocates of the legal permissibility of the practice and decried by disability advocates.  I’m writing this post to call people’s attention to some noteworthy aspects of the decision–I am most emphatically not taking sides in this blog post (although I do have a view).

The decision in Carter was under Sect. 7 of the Canadian Charter, which reads:  “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  Briefly, the Court thought that the violation of the right to life is that that criminalization might force people to take their lives earlier than they wish to in order to avoid suffering.  The violation of liberty is that people have a right to make decisions concerning their bodily integrity.  And leaving people to intolerable suffering violates the security of the person.

Importantly, the decision is not limited to cases of terminal illness. It extends its reasoning to anyone in “intolerable suffering as the result of illness, disease, or disability.”  But the Court also said that Canada has an interest in protecting the vulnerable that could justify statutory limits on aid in dying.  The difficulty with the existing statutes was that they are a complete ban, and thus in the view of the Court not proportional to the state’s legitimate goal.  Here, the Court cited evidence from other jurisdictions that statutes permitting aid in dying, with appropriate safeguards, have not resulted in evidence of abuse.

In one respect, the decision is a narrow one, because it simply holds that the criminal statutes (prohibiting aiding and abetting a suicide and prohibiting self-consent to the taking of one’s life) violate the Charter.  The Court left the current prohibitions in place for one year, to allow Parliament to construct a statute that would pass constitutional muster.  It will be fascinating to see what Parliament does in response to the decision, especially with respect to crafting safeguards that are appropriately proportional to the goal of protecting people from abuse.