The right to seek assistance with suicide was illegal prior to Canada v. Carter, a Supreme Court of Canada decision from 2015, in which the Court made a unanimous ruling that the current laws prohibiting physician-assisted suicide were repugnant to section 7 of the Charter. The Court proposed an exemption which would allow a competent adult with grievous and irremediable disease causing intolerable suffering to make an informed decision as to how to end their life. The Court felt that with proper safeguards, the medical profession could mitigate the risk that vulnerable patients might be coerced into assisted suicide.
As this was a matter concerning the Criminal Code, and therefore a federal issue, Parliament was given one year to draft a legislative response to the Carter ruling. After more discussion, and delay, the new assisted dying rules became law on June 17, 2016. Interestingly, this is the same subject matter that was adjudicated in the Rodriguez case, in 1993. In that decision however, the court upheld the Code, finding that the prohibition of assisted suicide was not offensive to the Charter. Twenty three years later, in the 2016 Carter decision, the same court reversed direction on the issue, and concluded a change must be made.
The court found that the purpose of the crime was to protect a vulnerable individual from being persuaded to take her own life in a moment of weakness. A blanket provision was overbroad, as not every person who wishes to end their life is vulnerable. The court concluded that the risks associated with physician-assisted death could be minimized through a carefully monitored system of safeguards, designed to assess the vulnerability of patients and to ensure informed consent.
A patient must satisfy some strict criteria to qualify for assisted suicide. The Court and Parliament defined the necessary criteria. While the criteria are many, and somewhat nuanced, the gist is this:
- The illness must be terminal – that is, it will bring about death, rather than discomfort alone;
- It must be incurable;
- Death must be reasonably foreseeable – that is, not in the far distant future;
- It must cause intolerable and enduring suffering – that is, intermittent, and mild to moderate suffering, may not suffice;
- The patient must be an adult;
- A rather strict protocol must be followed at the time; and
- The patient must be lucid at the time the decision is made, and provide informed consent.
A number of objections have been raised in response to the criteria associated with the process. Of particular note is the fact that the patient must be capacitated, and make an informed decision, at the time of death. One cannot yet plan assisted suicide in advance by Representation Agreement, Advance Directive, or general proxy.
Various forms of medical assisted suicide have been approved in a number of states and countries around the globe. Remarkably, Switzerland’s laws go back as far as 1944. Although Canada is just joining the movement, many feel the time is right. It is naturally a topic that invites much discussion. It is expected that the area of assisted death will evolve over time.
We will have to wait to see how it develops.