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. (See also Assisted Suicide in Canada.) Rodriguez suffered from amyotrophic lateral sclerosis (ALS) and wanted the legal right to have a physician’s help in ending her own life. On 30 September 1993, a 5–4 majority of the Supreme Court of Canada upheld section 241(b), declaring that it was constitutional and did not violate the Canadian Charter of Rights and Freedoms. Nonetheless, 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. In 2015, the Supreme Court decided unanimously to strike down the prohibition and allow medically assisted suicide, which was officially legalized with the passing of the Medical Assistance in Dying (MAID) Act on 17 June 2016. In March 2021, new legislation was passed that expanded eligibility for MAID.
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Sue Rodriguez Case
In 1991, Sue Rodriguez was diagnosed with amyotrophic lateral sclerosis (ALS) — also known as Lou Gehrig’s disease — a quickly progressing neurological disease that attacks the nerve cells controlling voluntary muscle movement. Facing a rapid decline into paralysis, Rodriguez wanted the legal right to have a qualified physician’s help in ending her life at a time of her own choosing. However, assisted suicide was illegal in Canada (as it was everywhere else in the world except Switzerland) and punishable by up to 14 years in prison.
A resident of Victoria, British Columbia, Rodriguez applied to the Supreme Court of British Columbia in December 1992 to have section 241(b) of the Criminal Code, which prohibited assisted suicide, declared constitutionally invalid on the grounds that it violated sections 7, 12 and 15 of the Charter. After losing her case on 29 December 1992, as well as a subsequent appeal on 8 March 1993, Rodriguez applied to the Supreme Court of Canada.
Supreme Court Decision (1993)
On 30 September 1993, a majority (5–4) of Supreme Court judges ruled that section 241(b) was constitutionally valid and did not violate the Canadian Charter of Rights and Freedoms. They held that the most important issue was whether section 241(b) of the Criminal Code violated section 7 of the Charter, which states that, “Everyone has the 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.” The majority recognized that Sue Rodriguez’s right to security of the person was denied by section 241(b) because it deprived her of personal autonomy in decisions concerning her body and that it caused her both physical pain and psychological distress. Nevertheless, they believed that the prohibition against assisted suicide upheld principles of fundamental justice and, therefore, did not violate section 7 of the Charter. Their decision was based on the idea of the sanctity of life and the state’s interest in protecting human life. They argued that assisted suicide was widely considered to be morally and legally wrong and that lifting the prohibition could potentially lead to abuses, particularly among the vulnerable. The majority also rejected the claim that section 241(b) violated sections 12 (protection from cruel and unusual punishments) and 15 (guarantee of equal rights) of the Charter.
The 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 for assistance to perform the same act. In their opinion, this distinction was contrary to the principles of fundamental justice.
Assisted Suicide: International Context
In 1993, there was no consensus in favour of the decriminalization of assisted suicide in Canada or most other Western democracies. Few countries offered a precedent that might be studied as a model for success or perceived risks. In Switzerland, assisted suicide 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 2015, however, the situation had changed: the Netherlands, Belgium, Luxembourg and the states of Oregon, Washington and Vermont had passed legislation allowing assisted suicide in certain circumstances.
Assisted Suicide in Canada
When Sue Rodriguez brought her case to the courts, assisted suicide was illegal in Canada. However, while she lost her appeal to the Supreme Court, the fact that the judges were divided 5–4 on the decision suggested that there was considerable support for decriminalizing medically assisted suicide. In June 2014, just over 20 years after the Rodriguez decision, Quebec passed legislation legalizing physician-assisted suicide for consenting adult patients who suffer from a “serious and incurable illness,” are in “an advanced state of irreversible decline in capability” and “experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.”
At the same time, the Supreme Court of Canada found itself once again debating the issue. In 2011, the BC Civil Liberties Association had filed a lawsuit challenging the law against assisted suicide. The case was brought to court on behalf of the families of Kay Carter and Gloria Taylor, both of whom suffered from debilitating conditions (Carter died in 2010; Taylor, in 2012). In 2014, the case came before the Supreme Court. On 6 February 2015, the court voted unanimously (9–0) to allow medically 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.
Medical Assistance in Dying Act, 2016 and 2021
On 17 June 2016, over a year after the Supreme Court decision, new federal legislation was passed establishing the eligibility criteria and procedural safeguards for medically assisted suicide. According to the Medical Assistance in Dying (MAID) Act, 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 pointed out that the legislation was more restrictive than the Supreme Court decision and that it might be vulnerable to constitutional appeal. In January 2019, a court challenge was launched by two Montrealers who suffered from degenerative diseases and wanted access to medically assisted death. In September 2019, a Superior Court of Quebec justice ruled that the statutory provision — that natural death was “reasonably foreseeable” — was unconstitutional. In February 2020, the Liberal government introduced Bill C-7, which proposed to allow MAID for those whose natural death was “not reasonably foreseeable.” Discussion of the bill was stalled by the COVID-19 pandemic, which disrupted parliamentary proceedings. It was reintroduced in October 2020. After extended debate, consultation and revision, Bill C-7 was passed by the House of Commons and approved by the Senate. It became law on 17 March 2021.
The 2021 MAID legislation removed the requirement that a person’s natural death must be reasonably foreseeable. It also introduced a two-track approach to procedural safeguards, depending on whether or not a person’s natural death was reasonably foreseeable. Persons who suffer only from mental illness are excluded from MAID until 17 March 2023, by which time new protocols, guidance and safeguards must be developed. (See also Assisted Suicide in Canada.)
Rodriguez Case in Popular Culture
A book about Rodriguez’s fight for assisted suicide, Uncommon Will: The Death and Life of Sue Rodriguez, was written by journalist Lisa Hobbs Birnie and published by Macmillan Canada in 1994. It was adapted into the Gemini Award–winning TV movie At the End of the Day: The Sue Rodriguez Story (1998), starring Wendy Crewson as Rodriguez.