March 19, 2015

Could Canadians one day be able to make a power of attorney that authorizes their death?

In a Charter decision that may already rank among its most significant, the Supreme Court of Canada unanimously struck down the criminal offences that prohibit aiding or abetting a person to commit suicide this past month. The ruling, in Carter v. Canada (Attorney General), will have profound implications for end of life decisions – although only where carefully circumscribed conditions are met.

Gloria Taylor was diagnosed with ALS in 2009, a progressive and fatal neurodegenerative disease. Not wanting to die “slowly, piece by piece,” she brought a claim in the British Columbia Supreme Court challenging the provisions in the Criminal Code that prohibit assisted suicide, namely ss. 14, 21, 22, 222 and 241. By 2010, Taylor’s health had deteriorated to the point that she required a wheelchair to go short distances and was suffering pain from muscle deterioration. She told her friends that she did not want to die in bed without dignity or independence. To Taylor, it appeared the choice was to either end her life while she was still physically capable of doing so, or to simply wait and die. Taylor died later that year, long before her case reached the Supreme Court of Canada (“SCC”).

Overruling the SCC’s 1993 decision in Rodriguez, long the seminal case in Canada on assisted suicide, the trial court struck down the provisions in the Criminal Code that banned assisted suicide. However, on appeal, the British Columbia Court of Appeal reversed the trial court and upheld Rodriguez.

The question the SCC dealt with was whether Taylor (who sadly had died shortly after the trial in 2012) could establish that a ban on physician-assisted suicide infringed her 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,” under section 7 of the Charter, and if so, whether it could be saved under section 1.

The SCC agreed that the physician-assisted suicide ban could effectively force Taylor to take her life earlier, and thus infringed on her right to “life.” The court declined to go further and hold that the “right to life” protects a right to “die with dignity.” Next, the court considered whether the right to liberty and security of person was infringed by the prohibitions. The court again agreed with the trial judge, holding that the right to request a physician’s assistance in dying is critical to maintaining an individual’s dignity and autonomy.

The court then considered whether these infringements were in accordance with the “principles of fundamental justice.” The court found that the object of the prohibition was to protect vulnerable people from being induced to commit suicide at a time of weakness. It was not, as was argued on appeal, simply to preserve life. The court held that the law was not arbitrary, but was overbroad and grossly disproportionate. The court declined to engage in a section 15 analysis on equality.

Turning next to section 1 to see if the law could be upheld despite the violations of s. 7 of the Charter, the court held that law was rationally connected to its goal of curtailing the risk of inducing the weak to taking their own lives. However, the central issue of the whole case was whether or not the law was “minimally impairing.” The trial judge had considered evidence from other jurisdictions which allowed physician-assisted dying. She had found that it was possible to prevent vulnerable people from being abused by putting in place a system of properly qualified and experienced physicians who could determine whether a candidate was properly independent and uninfluenced in his or her decision. The SCC declined to overturn the trial judge’s findings of fact on this point. Thus, prohibitions on physician-assisted suicide were not saved by section 1 of the Charter.

The court decided to declare sections 241(b) and 14 of the Criminal Code to be void, but only if two conditions were met: 1) a competent adult clearly consents to the termination of life, and 2) the person has a grievous and irremediable medical condition that causes “enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The court added that this declaration was intended to respond to the factual circumstances of the present case, and that it made no pronouncement on other situations. It suspended the effect of the decision for 12 months to give Parliament an opportunity to craft new legislation.

The immediate question is how will Parliament respond to the decision. The Canadian government has yet to give any indication on how it will proceed. It is possible that Parliament may effectively end up doing nothing, which is what happened in 1988 when the SCC struck down abortion regulations in R. v. Morgentaler. Should Parliament fail to respond, it would mean that the SCC’s restricted approach to assisted suicide would govern, in which case only competent individuals with a specific medical conditions would be eligible to make such an election.

Some have suggested that the criteria should be expanded by Parliament, and that individuals who execute powers of attorney for personal care should be able to give specific instructions to their substitute decision maker to consent to physician-assisted death on their behalf if they were to become incompetent. These types of instructions, when made by a grantor prior to becoming incapable, already govern a substitute decision maker under both the Substitute Decisions Act and the Health Care Consent Act. Doubtless, allowing such a provision in power of attorney documents will attract a host of questions and issues. But for at least the next year, all eyes will be on Parliament to see what changes, if any, are made to the laws governing physician-assisted suicide.