October 4, 2016
*Content posted to the blog represents the views of the author only and not those of Health Law in Canada, its Board members or affiliates or IHPME*
Last February, in deciding Carter v. Canada (Attorney General), the Supreme Court of Canada unanimously declared ss. 241(b) and 14 of the Criminal Code to be of “no force or effect” thereby eliminating the prohibition against physician-assisted death for competent and consenting adults who suffer from an intolerable medical condition. In short, assisted death-in a narrow context-is no longer considered an indictable offence. In rendering its decision the Court suspended this declaration for one year (until February 6, 2016), to allow Parliament time to pass new legislation. Earlier this month, the Attorney General of Canada applied to the Court for a six-month extension of time to draft this legislation. Last week, in a 5/4 ruling (with Chief Justice McLaughlin dissenting), the Court granted the application.
The Court extended the suspension of its declaration for four-months, rather than the requested six. The majority decision stressed the “extraordinary step” the Court had taken last year in suspending the declaration of the constitutional invalidity of a law; which, in effect, allowed the continued presence of an unconstitutional law to govern Canadians. The effects of such an extraordinary step, the Court emphasized, would be further exacerbated by an extension of such a suspension. Despite this acknowledgement, the Court ruled a four-month extension of the suspension was justified given the four-month interruption during last year’s federal election from August 2015 – December 2015.
The extension granted is not all-encompassing as the Court did carve out some exemptions. Quebec was granted an exemption given the fact that they have already passed their own Act respecting end-of-life care. The Court was also asked to consider exempting individuals who wish to seek assistance in ending their life during the four-month extension. The Court agreed with this exemption, stating: “we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter.” Personal exemptions; however, will require attending before the Superior Court of the Province and receiving authorization—not an easy threshold to pass in order to exercise the right already granted by Carter.
Once the law comes into effect, any Canadian facing “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” may pursue a physician-assisted death. Parliament has until June 6, 2016 to implement new legislation which will reflect the decision in Carter.
Sana Ebrahimi, Associate Editor