Appendix "A"

Full Text

A.1    In February, 2015, the Supreme Court of Canada invalidated the criminal law to the extent that it prohibited physician-assisted suicide and physician-administered euthanasia (EAS, known in Canada as Medical Assistance in Dying or MAiD) in circumstances defined by the Court.17 The Court suspended the decision18 (ultimately until June, 2016)19 to give the federal and provincial governments time to respond.

A.2    Carter did not entirely invalidate murder and assisted suicide laws. They were rendered inoperative only to the extent that they prevented homicide and assisted suicide by physicians adhering to the Court’s guidelines. The term of art for this kind of ruling is “reading down” legislation.

A.3    Physicians could have begun to provide EAS/MAiD once the extension had run out even without a Criminal Code amendment as long as they conformed to the guidelines set out by the Supreme Court. This was one of the points made by the appellants in Carter in opposing a continuing suspension of the ruling.20

A.4    However, Canadian physicians willing to provide euthanasia and assisted suicide wanted statutory assurance that they would not be prosecuted if they did so in good-faith compliance with the law.21 The 2016 Criminal Code amendment implementing Carter ensured that practitioners could not be charged for murder or assisted suicide unless it could be proved beyond reasonable doubt that they had deliberately provided EAS/MAiD to someone they actually believed did not meet the exemption criteria.22 The maximum penalty for knowingly failing to comply with any of the other requirements was five years imprisonment.23

A.5    Though there was much argument about the importance of protecting vulnerable patients, the Carter decision actually enabled EAS/MAiD by protecting physicians. Amending the Criminal Code was arguably essential to secure their collaboration, even if, strictly speaking, they could have legally provided EAS/MAiD without a Criminal Code amendment.

What the Supreme Court did not decide

A.6    Like the trial court, the Supreme court did not decide or affirm that killing patients or helping them to commit suicide was medical treatment.24 It did not decide or affirm that EAS/MAiD was legally/morally/ethically equivalent to accepted contemporaneous end-of-life interventions.25 It did not decide or affirm that a patient can make an illness or medical disorder irremediable by refusing to accept treatment.26

 What the Supreme Court decided

A.7    The Supreme court limited itself to declaring that the absolute prohibition of EAS/MAiD was constitutionally invalid for the reasons summarized in the headnote.27

 In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures.28 (emphasis added)

A.8    Note that the Court here referred to “physicians” (plural), not “a physician” (singular). This passage indicates that invalidating the criminal prohibition did not, in the Court’s view, create an obligation on the part of physicians (individually or collectively) to provide assisted suicide or euthanasia.

A.9    While the Court initially referred to being compelled to provide — being forced to personally kill or provide the lethal prescription — the Court included a broader term — participation — as it continued:

. . . we note - as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler -- that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.29 (emphasis added)

A.10    Appendix “C” considers the comments of Justice Beetz that the Carter court found relevant to reconciliation of physician and patients rights. The Court’s statement that “the Charter rights of patients and physicians will need to be reconciled” is not, as some seem to think, a warrant to coerce practitioners or other health care workers to collaborate in killing patients.

Rights established in Carter

A.11    Subject to the guidelines set out in Carter and s. 1 of the Charter of Rights and Freedoms,

a) state actors must not impede or obstruct patients seeking euthanasia and assisted suicide (EAS/MAiD) from willing practitioners, and

b) state actors must not impede or obstruct willing practitioners who wish to provide EAS/MAid.

A.12    The Court imposed a duty on the state not to interfere with killing people in the circumstances set out in Carter, not a duty to facilitate killing people. Consistent with this understanding, Joseph Arvay argued that Carter was not "a positive rights case," so there was "no duty on Parliament to enact legislation," and governments were not required to do so.30

A.13    Any additional rights claims are derived by reading into the ruling what the judges either did not address, or purposefully and often expressly left out.

Further reading:

Sean Murphy, “Rodriguez v Attorney General of British Columbia et al: Supreme Court of Canada minority would have legalized euthanasia for mental illness in 1993" (6 November, 2024), Protection of Conscience Project (website).

Sean Murphy, “Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada. Reviewing Carter v. Canada (Attorney General) 2012 BCSC 886" (26 July, 2023), Protection of Conscience Project (website).

Sean Murphy, “Supreme Court of Canada orders legalization of physician assisted suicide and euthanasia: Retrospective review of Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 (6 November, 2024) Protection of Conscience Project (website).

Notes

17.    Carter v Canada (Attorney General), supra note 2.

18.    Ibid at para 147.

19.    Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 SCR 13 [Carter SCC 2016].

20.    Carter v Canada (Attorney General), 2016 SCC 4, [2016] 1 SCR 13, (Oral argument, Appellant), Supreme Court of Canada (SCC), “Webcast of the Hearing on 2016-01-11" (22 January, 2018) [Carter SCC 2016 webcast] at 01:05:38 to 01:06:22.

21.    Carter SCC 2015, supra note 2 (Factum of the Intervener, The Canadian Medical Association, at para 5).

22.    Criminal Code, RSC 1985, c C-46 [Criminal Code] at s 227, s 241.3.

23.    Ibid at s 241.3.

24.    Sean Murphy, “Supreme Court of Canada orders legalization of physician assisted suicide and euthanasia: Retrospective review of Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 (6 November, 2024) Protection of Conscience Project (website) at Part VII.

25.    Ibid at Part VIII.

26.    Ibid at Part V–VI.

27.    Carter SCC 2015, supra note 2 at 333–337.

28.    Ibid at para 132.

29.    Ibid.

30.    Carter SCC 2016 webcast, supra note 39 at 01:11:21 to 01:12:15.