Background and Criminal Code

When the Criminal Code was introduced in Canada in 1892, suicide and attempted suicide were both considered a criminal offence under section 241(b). While suicide was decriminalized in 1972, assisted suicide remained illegal. Anyone found guilty of counselling someone to take their own life, or aiding someone to take their own life, was guilty of culpable homicide and liable to imprisonment of up to 14 years. Much debate followed in provincial and federal legislatures concerning the right of individuals to physician or other-assisted suicide, particularly in cases where the person is too disabled to commit the act without assistance.

The Difference Between Assisted Suicide and Euthanasia

Although assisted suicide is sometimes called voluntary or active euthanasia, the two are in fact different. Assisted suicide is when someone provides the knowledge or means to help someone end their own life. For example, assisted suicide would include a physician providing drugs to a patient, who then uses those drugs to kill herself. Euthanasia, however, involves someone deliberately acting to cause the death of someone else, to end their suffering; the act itself is the direct cause of death. Euthanasia can be voluntary, involuntary (the person did not provide consent) or non-voluntary (the person could not provide consent). An example of euthanasia would be a doctor administering the drugs that end someone’s suffering and result in their death.

Sue Rodriguez Challenges Assisted Suicide Law (1993)

In the early 1990s, Sue Rodriguez submitted to the courts that section 241(b) of the Criminal Code, which prohibited assisted suicide, was constitutionally invalid. Rodriguez suffered from amyotrophic lateral sclerosis (ALS) and wanted the legal right to have a physician’s help in ending her own life at a time of her choosing. After losing her challenge at both the Supreme Court of British Columbia and the British Columbia Court of Appeal, Rodriguez took her case to the Supreme Court of Canada.

On 30 September 1993, a 5–4 majority of Supreme Court justices upheld the status quo, affirming that the provision was constitutional and did not violate the Canadian Charter of Rights and Freedoms. The decision conformed to the principle of fundamental justice based on the idea that assisted suicide is intrinsically blameworthy on the moral and legal planes, and could lead to abuses. However, the four minority judges argued that the prohibition of assisted suicide was arbitrary. In effect, a physically able person can commit suicide (which is not a criminal act) while a physically disabled person commits a crime when she asks assistance to perform the same act. In their opinion, this distinction was contrary to the principles of fundamental justice.

Rodriguez committed suicide in February 1994, assisted by an anonymous doctor and in the presence of NDP MP Svend Robinson, who had championed her cause. (See also Assisted Suicide in Canada: The Rodriguez Case.)

Euthanasia and the Robert Latimer Case (1994)

In November 1993, Robert Latimer was charged with the murder of his severely disabled daughter, Tracy. Tracy’s oxygen supply was cut off during birth, causing severe brain damage and recurring seizures. After years of medication and painful operations, her parents were informed in October 1993 that their 12-year-old daughter would require further surgeries. The thought of his daughter’s continued distress led Latimer to end Tracy’s life. On 24 October 1993, he placed Tracy in his truck, asphyxiating her with the fumes from the exhaust.

When the autopsy showed Tracy had died from carbon monoxide poisoning, Latimer confessed that he had ended her life, but insisted that he had not murdered her. However, on 16 November 1994, he was convicted of second-degree murder and sentenced to life imprisonment with no parole for 10 years (a decision upheld by the Saskatchewan Court of Appeal). He was retried in February 1997, by order of the Supreme Court of Canada, and was again found guilty of second-degree murder. (See also Robert Latimer Case.)

Latimer’s case was first argued in the courts in November 1994, about a year after Sue Rodriguez lost her case at the Supreme Court. Many sympathized with Latimer, as they did with Rodriguez. However, the cases were different in an important way: Latimer’s action could best be described as non-voluntary euthanasia (the deliberate act of ending someone else’s life, without their consent), while Rodriguez wanted a physician’s assistance in ending her own life.

Physician-Assisted Suicide Becomes Legal in Canada (2015)

In 2011, the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit challenging the law against assisted suicide, arguing that the prohibition violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (guaranteeing, respectively, the right to “life, liberty, and security of person” and equality). The case was brought to court on behalf of the families of Kay Carter, who suffered from degenerative spinal stenosis, and Gloria Taylor, who had ALS (Carter died in 2010; Taylor in 2012). In June 2012, the Supreme Court of British Columbia ruled in favour of the plaintiffs. However, the federal government appealed the ruling and, in October 2013, the Court of Appeal for British Columbia overturned it. The BCCLA then appealed to the Supreme Court of Canada.

When Carter v. Canada came before the Supreme Court in 2014, the national and international context had changed significantly since the Rodriguez v. British Columbia decision (1993). In 1993, assisted suicide was illegal in all countries except Switzerland, where it was legal unless motivated by selfish reasons; in the Netherlands, assisted suicide was officially illegal, but physicians were not prosecuted as long as they followed strict guidelines. By 2014, however, the situation had changed: the Netherlands, Belgium, Luxembourg, and the states of Oregon, Washington and Vermont had all passed legislation allowing assisted suicide in certain circumstances.

Meanwhile, in June 2014, the province of Québec passed legislation legalizing “medical aid in dying” for “consenting adult patients who suffer from an incurable illness, an advanced state of irreversible decline in capability, and constant and unbearable suffering.” By 2015, therefore, legal precedents had been set both in Québec and internationally, and there was greater public support for decriminalizing assisted suicide.

On 6 February 2015, the Supreme Court voted unanimously (9–0) to allow physician-assisted suicide for “a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” The court reasoned that the Criminal Code prohibition was unconstitutional because it breached the rights to life, liberty and security of the person as enshrined in section 7 of the Charter. The Supreme Court gave Parliament 12 months to draft a new law concerning assisted suicide. However, no such law had been drafted by the time the Conservative government of Stephen Harper left office in October 2015.

Medical Assistance in Dying (MAID) Act, 2016

In January 2016, the Supreme Court granted a four-month extension to the new Liberal government under Justin Trudeau. At the same time, it established a constitutional exemption that allowed individuals to apply for judicial authorization to access physician-assisted dying, provided that they met the criteria set out in the 2015 Supreme Court decision. On 6 June 2016, with no new law in place, physician-assisted suicide became legal in Canada. At the time, the House of Commons had passed Bill C-14, but the proposed legislation was still being debated in the Senate.

On 17 June 2016, more than a year after the Supreme Court decision, Bill C-14 became law. The Medical Assistance in Dying (MAID) Act established the procedural safeguards and eligibility criteria for medically assisted suicide: those eligible have to be at least 18 years of age, with a “grievous and irremediable medical condition” that causes “enduring physical or psychological suffering that is intolerable” to them. Moreover, they must be in an “advanced state of irreversible decline,” in which their “natural death has become reasonably foreseeable.” Critics have pointed out that the new legislation is more restrictive than the Supreme Court decision, and that it may be vulnerable to constitutional appeal.