Joan M. Gilmour, B.A., LL.B., J.S.D. Osgoode Hall Law School October 2015

 Physician-assisted dying: current law, and the judgment in Carter v. Canada;  What Carter does not change in the law;  The holding in Carter;  Why the law changed;  Potential role of the federal, provincial and territorial governments, regulatory bodies and hospitals;  Next steps;  Challenges in implementation.

 Assisting suicide is a criminal offence (contra ss. 241(b) and 14 of the Criminal Code);  But in Carter v Canada, the Supreme Court of Canada unanimously held these criminal law prohibitions breached the Charter-protected rights of adults in certain circumstances to life, liberty & security of the person. To that extent, they are invalid;  Effect of Court’s declaration was suspended for 12 months, until February 2016.

 Criminal prohibition on assisting suicide where person concerned does not meet conditions in Carter;  Other criminal prohibitions against taking a life;  Existing law about refusing, withholding and withdrawing life-sustaining treatment, by decisionally capable people & substitute decision makers;  Existing law about consenting to treatment, including palliative sedation (para. 66);

 Court held Crim Code ss. invalid “…to the extent they prohibit physician-assisted death for a competent adult person who (1) clearly consents to termination of life & (2) has a grievous and irremediable medical condition (incl. illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” (para. 147);  “no pronouncement” on other situations where PAD may be sought (para. 127).

 Importance of subjective element;  Balancing autonomy & dignity with sanctity of life and protection of vulnerable (para. 2);  Breach of s. 7 of Charter: right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice;  Does not address whether any breach of equality rights under s.15 of the Charter;  Not salvageable under s.1 of the Charter.

 In Rodriguez (1993), which also concerned a woman with ALS, the SCC upheld the criminal prohibition on assisting suicide, 5:4. Why change?  Because of significant changes in both law (Charter interpretation) & social & factual landscape (including experience elsewhere when legalized, reality of practices that are legal already, without abuse etc.).

 SCC concluded that “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards”. (para. 117)  “It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons”. (para. 126).

 Canada is a federation; “health” is not a matter assigned constitutionally to 1 level of government only; fed &/or prov government can legislate, provided it falls under that level of government’s powers;  Prohibition on assisted suicide is based on federal criminal law power; authorizes laws to punish or (to a limited extent) regulate conduct dangerous to health;  Provincial constitutional jurisdiction: hospitals, property & civil rights in the prov; matters of a “merely local or pvte nature in the prov”;  Provinces have the bulk of constitutional jurisdiction over health care.

 Self-governing bodies that regulate physicians and the practice of medicine, and  Hospitals and health facilities;  Both can develop standards of practice (likely needed whether or not governments legislate or regulate by February 2016);  Both fall primarily under provincial jurisdiction, though are subject to laws of general application, eg federal criminal law.

 Many!  Quebec passed legislation to legalize “medical aid in dying” pre-Carter, to come into force Dec Is it consistent with Carter declaration? Lessons to learn?  Protecting vulnerable while implementing patients’ ability to request physician assistance in dying;  What about those with mental illness, mature minors, physician freedom on conscience etc?