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On Death and Dying: The Supreme Court of Canada's Landmark Decision in Carter v. Canada (Attorney General)

There is no doubt that Carter has caused an enormous cultural shift for Canadians as Canada joins the few but growing number of jurisdictions that have decriminalized physician-assisted dying, including Belgium, Luxembourg, the Netherlands, and in the United States, Montana, New Mexico, Oregon, Vermont and Washington.

In a nutshell, in Carter, the Supreme Court in a unanimous decision held the criminal offence under the Criminal Code of aiding and abetting suicide and the Criminal Code provisions which say that no person may consent to death being inflicted on them are unconstitutional. In Carter, Gloria Taylor was diagnosed with ALS which causes progressive muscle atrophy eventually leading to difficulty in swallowing and breathing and sought the right to seek a physician's assistance if her suffering became intolerable. 

The Court overturned the prior decision on this issue in Rodriguez as no longer being good law. It held the provisions under the Criminal Code are overly broad and that its blanket prohibition violated Taylor's rights to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. The Court found that individuals who meet specific criteria should be able to avail themselves of physician-assisted dying where: they are a competent adult; clearly consent to the hastening of the death; and have a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable.

But in many ways, Carter raises more questions than it answers.

Some of the questions that remain to be answered include to whom does Carter apply? For example, do you have to currently be "dying" or instead, not necessarily dying but suffering from a grievous and irremediable medical condition? An example might be severe and debilitating depression. Also, can you make a decision and give a directive in advance of having the medical condition? It seems the Court has said that the decision has to be concurrent with the event, and can't be done beforehand, which rules out pre-planning prior to the onset of such a medical condition.

Even the nomenclature shows a lack of clarity and consistency. The term "physician-assisted suicide" is frequently used, the historic term euthanasia increasingly less, while the less pejorative "physician assisted dying" seems to be gaining more traction, in particular in the health community.

What will happen next? The Court has said Parliament and the provincial legislatures have twelve months to enact new legislation to uphold these fundamental rights if they wish to, but they are not obliged to. Doing nothing, however may be problematic given the risk it could expose doctors and other healthcare professionals to if there are no clear parameters for when an act may be criminal or not, and conversely could expose patients to possible abuse, including those most vulnerable. It would seem there will be a clear need to set out what constitutes consent to physician-assisted dying, and rigorous safeguards for providing consent, including appropriate witness requirements.

Undoubtedly, we are embarking on a new frontier which among many matters, may impact the scope of health care directives we prepare as part of our personal care planning.

Stay tuned for the legislative response we are all keenly waiting for.

- Margaret O'Sullivan

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.

 

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