Downie, Jocelyn, Bern, Simone, Health Law Journal
Assisted suicide (1) has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. (2) In addition, the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide (3) and the results of an Ipsos Reid public opinion poll on assisted suicide were released. (4) Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, (5) and given this recent spate of attention, we believe that it is worth re-engaging with the issue of the legal status of assisted suicide in Canada. Therefore, in this paper, we first describe the history and current legal status of assisted suicide in Canada. We then argue that, under new evidence and new jurisprudence only available after the Rodriguez decision was released, s.241 (b) of the Criminal Code (the prohibition on assisted suicide) is unconstitutional--violating s.7 of the Canadian Charter of Rights and Freedoms and not saved by s.1. (6) We also append an annotated draft statute that the federal Parliament could use were it to take up the challenge we issue at the end of this paper.
Where we've come from and where we are
The first Criminal Code included prohibitions on attempted and assisted suicide. (7) In 1972, attempted suicide was removed from the Criminal Code. (8) The current section of the Criminal Code therefore now reads:
s.241 Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (9)
On December 17, 1992, Sue Rodriguez launched a challenge to the Criminal Code before the British Columbia Supreme Court. Sue Rodriguez was a woman suffering from amyotrophic lateral sclerosis (ALS, also commonly known as Lou Gehrig's Disease). She believed that, at some point in the future, her quality of life would be such that she would no longer wish to continue living. She realized that by that time, she would no longer be physically able to commit suicide without assistance. She therefore sought to have the Criminal Code prohibition on assisted suicide struck down as a violation of her Charter rights. In 1993, her case was heard by the Supreme Court of Canada.
On September 30, 1993, the majority (5 judges) ruled that there was no breach of s.7 (there was a breach of security of the person but this was in accordance with the principles of fundamental justice). Further, they assumed without deciding that there was a breach of s.15 (there was discrimination on the basis of physical disability) but held that the s.15 breach was saved by s.1 (the breach was demonstrably justified in a free and democratic society). Chief Justice Lamer found a s.15 breach that was not saved by s.1. Justices McLachlin and L'Heureux-Dube found a s.7 breach that was not saved by s.1. Justice Cory found a breach of both s.7 and s.15 and held that neither was saved by s.1. Thus, s.241(b) was found, by the slimmest of majorities, to be constitutional.
After Rodriguez, the Senate of Canada set up a Special Committee to explore the issues of euthanasia and assisted suicide. It addressed the full spectrum of assisted death (including not just euthanasia and assisted suicide but also the withholding and withdrawal of potentially life-sustaining treatment and the provision of potentially life-shortening palliative treatment). For this paper's purposes, it is most important to note that the Committee split, again by the slimmest of majorities, 4:3 against recommending the decriminalization of assisted suicide.
Consequently, after consideration by the Supreme Court of Canada and a Special Committee of the Senate of Canada, s. …