Not surprisingly, this is a question that we at CPLEA have been asked quite a bit lately.
On June 15th of this year, the British Columbia Supreme Court struck down Canada’s laws against physician-assisted suicide on the basis that it is unconstitutional. In the case in question, Gloria Taylor, a woman suffering from ALS (also known as Lou Gehrig’s disease) asked to be allowed to have a doctor help her commit suicide before she became incapacitated. In making its finding of unconstitutionality, the court also gave Ms. Taylor a constitutional exemption to seek that medical assistance.
So what exactly does all of that mean?
Let’s start with the question of constitutionality. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, protects the people of Canada from certain actions of governmental bodies. More specifically, governments (federal, provincial or municipal) are not allowed to treat people (either through a law or through any other action) in any way that violates the rights and freedoms set out in the Charter. One of these rights (section 15) is the right of every person to be “equal before and under the law” and to have “the right to the equal protection and equal benefit of the law without discrimination” based on various factors. One of these factors is “physical disability”. This is the provision that was applied in this case.
In a nutshell, the reasoning is as follows:
- suicide itself is not illegal;
- as a result, able–bodied people are able to commit suicide (i.e. there is no law that stops them from doing so);
- however, some disabled people are legally prohibited from committing suicide (i.e. those who might need help because they can’t physically do it themselves). The law in question is section 241(b) of the Criminal Code of Canada (“s.241(b)”);
- as a result, disabled people are not equal under the law (i.e. the law specifically prohibits them from doing what able-bodied people can);
- under section 15 of the Charter, that in equality that is not allowed.
The result: s.241(b), the law that says that it is a crime to help someone commit suicide, is unconstitutional and is therefore, “struck down”. What that essentially means is that it is as if s.241(b) is simply crossed off the books – it is as if it does not exist.
So that means the terminally ill can all ask doctors for help, right? Wrong.
Often, when a law is declared unconstitutional, the court has to give the government some time to deal with that fact. Think about all the systems in place, all the official literature on the topic, websites etc. It takes time to prepare for changes in law. Not to mention, the court needs to give the government time to appeal the decision, if it so chooses (and this one already has been). Imagine the back and forth and back forth that could happen throughout the appeal process if law kept being struck down, and maybe reinstated, and struck down again…etc, etc. In this case, the government was given one year to get its affairs in order. For that year, the law remains in effect.
However, leaving it at that would not help Ms. Taylor very much. Not letting her decide her own time of death after she had won her case would not make much sense. As a result, the court granted Ms. Taylor a “constitutional exemption.” This is for her and her alone. In other words, it allows the law to remain in effect (for the one year, as planned), but gives Ms. Taylor the remedy she was seeking. In other words, Ms. Taylor is now free to find a doctor to help her commit suicide (for now anyway, but that is being appealed too). If she does, and that doctor does so during the year that the law technically remains in effect, that doctor will be exempt from prosecution under s.241(b) of the Criminal Code.
So the answer is: no, assisted suicide is not yet legal…unless you are Ms. Taylor.
If you want to read the whole BC decision, it can be found here.