The Right to Die: The Carter Case and Assisted Suicide in Canada

Alexis Mulvenna

On October 14, the question of whether Canadians have the right to seek assisted suicide made its way to the Supreme Court of Canada yet again. Assisted suicide, which is currently illegal in Canada, is the intentional killing of oneself with the help of another. The issue was famously first addressed by the Supreme Court over twenty years ago in Rodriguez v. British Columbia.

In 1993, Rodriguez, a woman diagnosed with amyotrophic lateral sclerosis (ALS), contested that she be legally allowed to end her own life once the illness progressed. The arguments made, which challenged the prohibition on assisted suicide under section 241(b) of the Criminal Code, were made on the basis of section 7 of the Charter of Rights and Freedoms – namely, that this prohibition infringed upon individual liberty and personal autonomy in exercising a right to die. In a 5-4 vote, the Court decided that the right to die was outweighed by a societal obligation to protect the vulnerable and ultimately, to preserve life. Rodriguez later ended her life with the assistance of an anonymous physician.

This time around, in Carter v. Canada, arguments are being made under section 15 of the Charter. The appellants are arguing that terminally ill individuals with degenerative illnesses are often unable to exercise their right to die without assistance, and thus laws prohibiting assisted suicide discriminate against them.

This constitutional challenge has been brought forward on behalf of Kay Carter and Gloria Taylor, two women from British Columbia who passed away from degenerative illnesses. While the British Columbia Supreme Court originally struck down criminal prohibitions on assisted suicide as unconstitutional in 2012, the province’s Court of Appeal later overturned this decision.

Yet the 5-4 decision in the Rodriguez case outlines just how close prohibitions on assisted suicide were to being struck down over 20 years ago. This, along with the fact that a majority of Canadians now support the legalization of assisted suicide, means there is real potential for section 241(b) to now be overturned in the Carter case. If these laws are indeed struck down as unconstitutional, the federal government would be forced to draft new legislation pertaining to assisted suicide.

Proponents of assisted suicide, such as the British Columbia Civil Liberties Association, argue that its legalization would allow those facing severe physical and mental disabilities to exercise their right to die with dignity. Many have argued that this practice is in fact already occurring, but without adequate regulation. Other still content that choosing to end ones’ own life with assistance is in no way different from refusing life-saving medical treatment – something that has been legal in Canada since the 1970s.

On the other hand, opponents of assisted suicide, including disability advocacy groups such as the Autistic Self Advocacy Network, argue that its legalization would open up potential abuses. For one, individuals may be coerced into assisted suicide by family members concerned about the costs of continued care. There are also concerns that this practice could over time encompass disabled individuals, and not just those who are terminally ill. Others contend that the legalization of assisted suicide could reduce funding for palliative care services and research into treatment or cures for degenerative illnesses over the long-term.

These concerns would have to be addressed in any policy response developed by the federal government, especially if Parliament does elect to legalize assisted suicide. The perspectives of those directly involved in patient care must also be considered. While the Royal College of Surgeons is opposed to assisted suicide due to concerns that it conflicts with a doctor’s objective of saving lives, the Canadian Medical Association maintains that physicians must “follow their conscience when deciding whether to provide medical aid in dying.”

If the Carter case is successful, and if Canada does indeed decide to legalize assisted suicide, there are various international models that government could follow in building a policy framework. Several American states, such as Oregon, Washington and Vermont, allow for physician-assisted suicide. In Oregon, regulations stipulate that two physicians must diagnose a patient as terminally ill and be in agreement that the individual will die within six months. Patients must be over the age of 18, be residents of the state, and have the cognitive capacity to make and communicate the decision to end their life. The individual must orally request the lethal dose of medication be prescribed to them twice, and also do so once in writing, and then self-administer that medication.

In each of these states, patients must also be fully informed of alternatives treatments, such as pain management or palliative care, and be encouraged to notify family members that they have made the decision to end their life. The number of terminally-ill people choosing to end their own lives through assisted suicide in Oregon has increased steadily since its legalization in 1977. Importantly, despite concerns that these laws will lead to vulnerable populations lacking social supports to opt for assisted suicide, it has not been disproportionately utilized by racial minorities, the elderly, females, the psychiatrically ill, or the poor.

Canada itself has seen the legalization of assisted suicide within the province of Quebec, which recently adopted Bill 52 to allow terminally ill patients to opt for physician-assisted death. In order to receive assisted suicide in Quebec, a patient must be diagnosed as terminally ill, have an ‘irreversible decline’ in capacity, and be in ‘constant and unbearable pain’.

The regulatory and policy frameworks observed in several U.S. states, as well as in Quebec, may serve to address some of the moral concerns held by Canadian physicians on the issue of assisted suicide, particularly in ensuring that physicians are only providing and not administering fatal doses of medication. However, these frameworks fail to adequately address several other areas of concern, including that of those individuals in late stages of illness who no longer retain the capacity to orally and in writing request this treatment, or to self-administer the medicatio.

In addressing the latter concerns, European countries such as Belgium, the Netherlands, and Luxembourg have legalized euthanasia,  a practice where one person intentionally ends the life of another at their request. Unlike in assisted suicide, the terminally ill individual does not self-administer the fatal dose of medication.

The guidelines for those seeking euthanasia are similar to those currently required to qualify for assisted suicide in Oregon. Additional regulations in Belgium include review by commission and that the individual seeking euthanasia have a long history with the doctor that will ultimately administer the treatment. Belgium was also the first country in the world to remove age restrictions on euthanasia following statutory amendments in 2014 allowing terminally ill children to seek assisted death in rare cases. Although there have been some concerns that non-voluntary euthanasia has been occurring in Belgium, evidence presented throughout the Carter trial has indicated that these concerns are largely unfounded.

In the coming months, it will be interesting to see how the Supreme Court of Canada rules on the case of assisted suicide upon second review. In a recent case concerning criminal prohibitions faced by sex workers, the Court showed a willingness to strike down previously challenged laws when presented with new and well-crafted constitutional arguments. Will a pattern now unfold?

Support for the legalization of assisted suicide has been growing on Parliament Hill, with the Liberal caucus already having voted in support of de-criminalization. If the federal government is indeed forced to re-visit the issue and decides to legalize some form of assisted suicide, the international models noted above will surely influence the design and implementation of any policy or regulatory regime.

Alexis Mulvenna is a 2017 Master of Public Policy candidate at the School of Public Policy and Governance, and a 2017 Juris Doctor candidate at the University of Toronto Faculty of Law. She holds a Bachelor of Management and Organizational Studies from Western University, where she completed a double major in business management and psychology. Alexis has a keen interest in the intersection of law and policy, and in many areas of social policy.