Is Canada Prepared for Physician-Assisted Death?

Written on Behalf of Affleck & Barrison LLP

In February of this year, the Supreme Court of Canada struck down the provisions in the Criminal Code prohibiting physician-assisted death in Carter v Canada (Attorney General), 2015 SCC 5. The historic decision was written by all nine Supreme Court Justices signifying the institutional and national importance of the decision. The Supreme Court held that the ban on physician-assisted death contravenes Canadians’ right to “life, liberty and security of the person” as outlined in section 7  of the Charter of Rights and Freedoms by forcing patients to endure intolerable suffering against their wishes and denying them autonomy over their bodies.

The Supreme Court was clear that the ruling only applies to competent adults who clearly consent to the termination of life and who have a grievous and irremediable condition that causes enduring, intolerable suffering. The Supreme Court gave the federal and provincial governments one year to draft appropriate legislation during which time the ban will continue to stand.  The Supreme Court also held that physicians who oppose the decision on ethical grounds cannot be compelled to assist in a patient’s death.

Since then, little has been done to consult with the public and to draft new legislation. According to a poll published in August, 2015,  77 per cent of Canadians support physician-assisted death for terminally ill patients. The Conservative government, however, is not in favour of the ruling, and waited until July to appoint a committee to consult Canadians, also stipulating that it could not consult during an election campaign.

Despite the having received significant media coverage in recent weeks, physician-assisted death has remained largely absent from the federal party leaders’ election platforms and the leaders have had little to say about the issue. In last week’s French-language debate, the question of doctor-assisted death was raised but the responses provided by the federal leaders were brief and somewhat vague. Regardless of which party wins the federal election on October 19, it seems unlikely, given the time constraints, that the February 6, 2016 deadline for implementing the legislative changes required by the Supreme Court’s ruling will be met. Although the ban on physician-assisted death will be lifted even if the government does not pass legislation, the potential for abuse demands that a comprehensive regime, which takes into the account the complexities of practical application, be implemented as soon as possible. Creating and implementing such a  regime will not be easy and should not be left to the last minute.

If you have any questions about this decision, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision in  Carter v Canada (Attorney General) click here.

Sources:

http://www.thestar.com/news/gta/2015/08/28/77-of-canadians-support-assisted-suicide-poll-shows.html

http://news.nationalpost.com/health/medical-leaders-grapple-with-new-euthanasia-dilemma-what-should-be-on-the-death-certificate

http://www.cbc.ca/news/politics/supreme-court-says-yes-to-doctor-assisted-suicide-in-specific-cases-1.2947487

http://www.theglobeandmail.com/globe-debate/court-has-ruled-on-assisted-death-but-canada-is-not-prepared/article26167297/

http://www.dyingwithdignity.ca/