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Assisted suicide – a new reality


Civil and commercial litigation

As we begin our second year of publishing articles in English on the website of Alepin Gauthier, we would, first, like to take a brief look back at our first year.

We began publishing articles on the Alepin Gauthier website in English on February 18th, 2014, with the aim and goal of publishing articles twice per month, on the 1st and 15th days of each month, on newsworthy topics in law, as well as interesting legal questions.

We ran into some problems and hiccups, and we were unable to maintain the projected scheduled at first. However, we are proud to say that, since mid-August, 2014, we have maintained a schedule of publishing new articles twice per month (with the exception of the Christmas / New Year’s Day period). In total, in the first year, we published 18 articles. We hope and plan for this next year to respect our promise to publish articles every 2 weeks, for a total of 23 articles over the next year.

With respect to one of the latest developments in law in Canada, on February 6th, 2015, the Supreme Court of Canada rendered a decision in the case of Carter v. Canada (Attorney General), 2015 SCC 5. In this decision the Supreme Court of Canada ruled against the constitutional validity of section 241(b) of the Criminal Code of Canada with respect to the prohibition of being assisted by a physician to commit suicide, by a fully capable, consenting adult.

The articles of the Criminal Code of Canada that were under challenge before the Supreme Court were article 14 and article 241(b), which prohibited assisting a person to commit suicide, as well as prohibiting a person from consenting to have death inflicted upon them, and stating that such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent was given.

The Supreme Court ruled that, together, those 2 sections of the Criminal Code were in violation of section 7 of the Canadian Charter of Rights and Freedoms and were therefore of no force or effect to the extent that they prohibit doctor-assisted suicide for a competent adult person who:

a) Clearly consents to the termination of life; and
b) Has a grievous and 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.

However, the Court suspended the declaration of invalidity for 12 months, until February 6th, 2016 so that, for the time being, assisted suicide remains illegal in Canada until that date, so that Parliament may enact a different law.

The Court decided that the prohibition on physician-assisted dying was a violation of the rights of competent adults to their life, liberty and security of the person under section 7 of the Charter. The Court ruled that the right to life was violated because the law imposed on such people an increased risk of death, whether directly or indirectly, because it had the effect of forcing some persons to take their own lives prematurely, for fear that they would be incapable of doing so when their suffering became intolerable. The right to liberty was violated because the law prohibited people from making decisions concerning their integrity and medical care, and thus infringed on their liberty. By leaving persons to suffer in an intolerable manner, the law also infringed on the security of the person.

Further, these infringements, the Court decided, were not in accordance with the principles of fundamental justice. The Supreme Court recognized that the purpose of the law was to protect vulnerable persons from being induced or manipulated to commit suicide at a time of weakness. But, since the prohibition on assisted suicide would apply to all people, including those who were not vulnerable or making a decision at a time of weakness, the complete prohibition on assisted suicide is not connected to the stated objective of the law. Therefore, the prohibition is too broad and not in accordance with the principles of fundamental justice.

Furthermore, the Court decided that the prohibition was not a reasonable limit as could be demonstrably justified in a free and democratic society, as would be permitted under section 1 of the Canadian Charter of Rights and Freedoms. The Court decided that the complete prohibition on physician-assisted suicide was not necessary to the objective of protecting the vulnerable from taking their lives in a time of weakness. The Supreme Court found that the trial judge did not make a significant error, concluding on the basis of the evidence, that a permissive regime of physician-assisted suicide, with properly designed and administered safeguards, as had been put into practice in a number of other jurisdictions - including the Netherlands, Belgium, Luxembourg, Switzerland, and Oregon and 3 others Americans states - was capable of protecting vulnerable people from abuse and error. Vulnerable persons could be assessed individually and physicians could properly apply their assessment of informed consent and the capacity to make decisions, in order to protect those who needed to be protected. The absolute prohibition on physician-assisted suicide contained in the Criminal Code was not minimally impairing and therefore was not saved by section 1 of the Canadian Charter of Rights and Freedoms.

The Supreme Court also added that nothing in the declaration of invalidity of the Criminal Code articles could compel or force any physician to provide assistance in dying. The Court further added that any new legislation and regulations would need to reconcile the rights of both patients and physicians.

The current law remains in force for now, and will no longer be valid only as of February 6th, 2016. Currently, then, physician-assisted suicide is and remains illegal in Canada and can still be the subject of criminal prosecution.

However, that is not the end of this story. The Supreme Court also made clear that the provinces continue to have a role to play, as health care remains an area of provincial jurisdiction. Certain aspects, therefore, of physician-assisted dying may be, and likely will be, the subject of valid legislation by provincial legislatures. The federal government continues to exercise criminal law powers under the Constitution Act, 1867, and provinces still can make their own laws regarding the health care system, as well as possible procedures, systems and criteria for the provision of, and payment for, physicians to assist those who wish to die and who consent to die

In fact, in 2014, the National Assembly of Quebec passed a new law, the Act respecting end-of-life care. Most of that law is not yet in force. In fact, it is scheduled to come into force on or before December 10th, 2015, on a date that the Quebec government will decide.

The Act was passed with multi-party support in the National Assembly. The law affirms the rights of every person to end-of-life care that is the appropriate to their needs. It establishes rules for providers of end-of-life care, including heath care institutions, palliative care hospices and private health facilities. It sets requirements for certain types of end-of-life care, including continuous palliative sedation and medical aid in dying. It prescribes criteria that must be met for persons to obtain medical aid in dying and the requirements to be complied with before a doctor administers such aid. The Act also establishes an Advanced Medical Directives Regime that people can have and specifies the conditions under which such directives would be valid and binding.

A national Canadian election is scheduled for October 2015. Therefore, politics will certainly play a role in the proposals that both the government and the opposition parties in Ottawa may bring forth for new laws to replace those articles of the Criminal Code that will be invalid as of February 6th, 2016. It may also happen that Parliament will not enact a new law, if the federal government feels that they there is no consensus, or that the question remains contentious. As an example, since the decision in 1988 in the Morgentaler case which declared unconstitutional the prohibition on abortion, no new law on the subject has been passed by Parliament. Should such a result occur in this instance, then, in the criminal law, there may be no prohibition whatsoever on assisting in the suicide of another person and it may well be that from then on, a person may consent to their own death, and it may affect the criminal responsibility of any person who participated in a death or suicide of such nature.

At this point, a new reality is coming, but what they reality may look like might be difficult to predict.

Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.

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