Case Comment by Larry S. Gangbar
Carter v. Canada (Attorney General)

Larry S. Gangbar
September 3, 2015

The Carter decision handed down by the Supreme Court of Canada on February 6, 2015 was a thoughtful reconsideration of the prohibition against physician-assisted suicide. The Supreme Court of Canada is one of our most interesting institutions as it forms a kind of barometer for changing public mores and opinions. One of that Court’s criteria for deciding whether or not to hear an Appeal is their view that it is an important public policy issue.

Until this decision there was an absolute prohibition in the Criminal Code (section 241(b)) which stated that everyone who aided or abetted a person in committing suicide committed an indictable offence. In fact section 14 said that no person may consent to death being inflicted on them. Ms. Carter and two others challenged the constitutionality of this Criminal Code provision prohibiting assistance in dying.

The Supreme Court of Canada decided that section 241(b) and section 14 of the Criminal Code unjustifiably infringe section 7 of the Charter of Rights and Freedoms and are of no force or effect to the extent that they prohibit physician assisted death for a competent adult person who, firstly, clearly consents to the termination of life, and, secondly, has a grievous or 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.

The actual declaration of invalidity was suspended for 12 months to give the federal government an opportunity to enact legislation which could govern the mechanism of physician-assisted suicide.

In making their decision the Supreme Court of Canada considered that the prohibition on assisted suicide was in general a valid exercise of Federal criminal law to protect vulnerable persons from being induced to commit suicide at a time of weakness. The Supreme Court of Canada was also clear that nothing in their declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to the judgment. For clarity, euthanasia is not legal in Canada.

How will this decision affect most of us?

Most of us will not be seeking physician-assisted suicide. Death with dignity in difficult circumstances will not be an issue – thank goodness – for most Canadians. As for lawyers like me who prepare Wills and Powers of Attorney our roles will be much the same. Nothing in this decision will change the present contents of Powers of Attorney for Personal Care which may contain a clause which provides for the wish of a client for no resuscitation in the event of terminal illness. These clauses will not now include any provision with respect to physician-assisted suicide. Alternate decision makers such as attorneys using a Power of Attorney for Personal Care will not be in a position to make that decision on behalf of an incapable client.

As for the legislation which will govern assisted suicide a draft is as yet unavailable but will no doubt arouse great interest as it makes its way through the Houses of Parliament to become law.