Supreme Court of Canada upholds physician-assisted dying

9 February 2015 by

TaylorCarter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment

The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.

The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)

Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.

An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

To be absolutely clear, for the purposes of their claim the appellants used “physician-assisted death” and “physician-assisted dying” to describe the situation

where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient.

Background facts and law

Gloria Taylor was diagnosed with amyotrophic lateral sclerosis (ALP), a fatal neurodegenerative disease, in 2009. She challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe.  Like Sue Rodriguez before her, Mrs Taylor did “not want to die slowly, piece by piece” or “wracked with pain,” and brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assistance in dying. Her claim, and those of the other appellants, was initially heard by way of summary trial before Smith J. in the British Columbia Supreme Court, where it was upheld (see my post on that decision).

As Mrs Taylor’s condition deteriorated, and she was confined to a wheelchair, she said that there would come a point when she would have had enough, and that her present quality of life was impaired by the fact that she was unable to say for certain that she would have the right to ask for physician-assisted dying when that “enough is enough” moment arrived:

I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.

I know that I am dying, but I am far from depressed. I have some down time – that is part and parcel of the experience of knowing that you are terminal. But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality.

Mrs Taylor lacks the financial resources to travel to end her life with Dignitas in Switzerland. However, she was joined in her claim by Lee Carter and Hollis Johnson, who had assisted Ms Carter’s mother Kay in achieving her goal of dying with dignity by taking her to Switzerland. While they have not faced prosecution in Canada following Kay’s death, Ms. Carter and Mr. Johnson were of the view that Kay ought to have been able to obtain a physician-assisted suicide at home, surrounded by her family and friends, rather than undergoing the stressful and expensive process of arranging for the procedure overseas.  The third appellant was William Soichet, a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited. The British Columbia Civil Liberties Association also joined their claim. The Attorney Generals of Canada and British Columbia were the main respondents in this constitutional litigation.

Although successful in the court of first instance, on appeal the ruling allowing the claim was overturned because the majority found themselves to be bound by Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519.

The Supreme Court upheld the appeal. Furthermore, it emphasised the importance of its decision by awarding the appellants special costs on a full indemnity basis to cover the entire expense of bringing this case.

A court may depart from the usual rule on costs and award special costs where two criteria are met. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not been previously resolved or that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact.

Reasoning behind the judgment

The prohibition on physician-assisted dying (in Sections 241(b) and 14 of the Criminal Code) were not saved by s. 1 of the Charter. While the limit is prescribed by law and the law may have a pressing and substantial objective, the prohibition was not proportionate to the objective.

As a result [of these provisions], people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.

Not only is this choice cruel, but leaving the prohibition in place means that only “traditional modes of suicide” are left open to people in Mrs Talyor’s position. The Court did not shrink from repeating in its judgment the barbarity of these options considered by witnesses:

I was going to blow my head off. I have a gun and I seriously considered doing it. I decided that I could not do that to my family. It would be horrible to put them through something like that. . . . I want a better choice than that.

… One woman noted that the conventional methods of suicide, such as carbon monoxide asphyxiation, slitting of the wrists or overdosing on street drugs, would require that she end her life “while I am still able bodied and capable of taking my life, well ahead of when I actually need to leave this life”.

The Court did not agree with the respondents that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life:

 This would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.  The sanctity of life is one of our most fundamental societal values.  Section 7 is rooted in a profound respect for the value of human life.  But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per Sopinka J.).  And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect.

The existing law, said the Court, is inconsistent. It allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.

In Canada, as in the UK, this debate has reached fever pitch over past two decades. A certain stalemate has settled in between opponents to legalisation who emphasise the inadequacy of safeguards and the potential to devalue human life as against a vocal minority who argue in favour of reform, highlighting the importance of dignity and autonomy and the limits of palliative care in addressing suffering. There has also been something of a sea change in the legislative landscape on the issue of physician-assisted death since Rodriguez was decided. By 2010,

 eight jurisdictions permitted some form of assisted dying:  the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia.  The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease.  Colombia followed in 1997, after a decision of the constitutional court.  The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009.  Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.

As I have repeatedly said in my previous writing on the subject, it is somewhat surprising that the UK, a secular jurisdiction, has remained opposed to change, despite the very effective campaigns via the courts and media conducted by Pretty, Purvey, Nicklinson et al. In Nicklinson [2014]  the Supreme Court came closest to meeting this challenge, but backed off at the last minute by deciding that  the evidence on safeguards against potential abuse of vulnerable people was insufficient; the buck was handed back to Parliament.

If the UK courts applied the proportionality test the way the Canadian Supreme Court does here, then they may find it easier to overcome the apparently insurmountable obstacles to reform. The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object. As the Canadian Court said, “overbreadth is not concerned with competing social interests or ancillary benefits to the general population.” If it were, it would constantly thwart the exercise of the individual’s rights by attempting to bring societal interests into the principles of fundamental justice. Societal differences – such as the broadly religious opposition to a change in this law, the fears of vulnerable people being tipped over the edge by unscrupulous relatives, the reluctance of some physicians to take on this responsibility – should play no part in the assessment of whether the interference with Diane Pretty or Debbie Purdey’s rights to autonomy and dignity is justified.

The focus is not on the impact of the measure on society or the public, which are matters for s. 1 [of the Canadian Charter], but on its impact on the rights of the claimant.

The Canadian court did not underplay the role of Parliament in this contentious matter.  There is no doubt that physician-assisted death involves complex issues of social policy.

Parliament faces a difficult task in addressing this issue; it must weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying.  It follows that a high degree of deference is owed to Parliament’s decision to impose an absolute prohibition on assisted death. On the other hand, the trial judge also found — and we agree — that the absolute prohibition could not be described as a “complex regulatory response” (para. 1180).  The degree of deference owed to Parliament, while high, is accordingly reduced. [my italics]

It is to be hoped that, the next time a claimant like Mr Nicklinson or Ms Purdy have the courage and resources to bring this matter before the UK courts, this ruling will boost judicial morale. Throwing the matter back at Parliament has achieved virtually nothing over the years. Successive governments have not have the stomach to do what the trial judge did in this case, which is to hear and assess the extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated, and to reach the radical, but correct, conclusion that the absolute prohibition was unsupported by that evidence. None of those jurisdictions show that physicians are unable to reliably assess competence, voluntariness, and non-ambivalence in patients; nor that they fail to understand or apply the informed consent requirement for medical treatment; or indeed that there was any evidence at all from permissive jurisdictions which show

abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life

Indeed, the Supreme Court was careful to note the trial judge’s finding that not only was there no evidence of inordinate impact on socially vulnerable populations in the permissive jurisdictions, and that in some cases palliative care actually improved post-legalisation.

Nor did the Court accept the government’s argument that the appropriate relief in this case should be a stand-alone exemption, something like the change to the DPP’s guidelines that followed the UK’s Supreme Court ruling in Nicklinson.  It had found that the prohibition infringed the claimants’ s. 7 rights, and issuing such an exemption in respect of these particular litigants would create uncertainty and undermine the rule of law. The only concession the Court made to the government’s argument on this point was that the declaration of invalidity should be suspended for twelve months, to give the legislature an opportunity to respond and reframe the provisions of the Criminal Code accordingly.

As for physicians’ rights to conscientious objection, the Court was not prepared to pre-empt the legislative and regulatory response to this judgment.  But it was firm about the need to “reconcile” these rights with the Charter rights of patients (para 132).

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7 comments


  1. John says:

    I agree with Rosalind: this judgment is a breath of fresh air in an area which has become stale beyond belief.
    If grasping relatives pressurise vulnerable individuals into ending their lives sooner than necessary I am sure there is legal provision for them to be stripped of any proceeds they might expect to receive from the death of any person they have hounded to death.
    I imagine there is also provision in law to pursue them in the criminal courts too.
    It is high time UK law began shielding the interests of individuals and stopped acting as a blunt sword on behalf of ideologically motivated groups of religious fanatics.

  2. I posted the following when the assisted dying bill was first debated in the House of Lords:

    Euthanasia is increasingly viewed by debt-ridden, industrialized nations as a panacea to their aging and infirm populations. Don’t be fooled by Lord Falconer’s Assisted Dying Bill. Euthanasia is destined to be introduced under the guise of compassion and choice; a euthanasia law was recently passed in my hometown province of Quebec. Lethal injection was obfuscatorily termed “medical aid to die.” (An Ipsos Marketing survey found only one-third of Quebecers understood this meant a lethal injection.) It is a cost-saving mechanism: The economic argument in favour of euthanasia regards the elderly, sick and disabled as all cost and no benefit—and it is designed to save the government monies in benefits provision and elderly care costs.

    People in Britain should be asking: Have we forgotten so soon the lessons of the Liverpool Care Pathway scandal?

  3. Please see Alex Schadenberg: A very dangerous euthanasia ruling | National Post http://news.nationalpost.com/2015/02/07/alex-schadenberg-a-very-dangerous-euthanasia-ruling/

    Full disclosure: Since January 2012, I have been reporting voluntarily to the UN’s human rights office, in Geneva, on the welfare crisis for Britain’s sick and disabled. [Fellow Canadian Leilani Farha (@leilanifarha) is the UN Special Rapporteur on adequate housing; see http://www.ohchr.org/EN/Issues/Housing/Pages/LeilaniFarha.aspx. You can tweet her on UK housing issues or e-mail her at the UN’s human rights office: srhousing@ohchr.org; she does follow my Twitter account.]

    (Montreal, Canada)

  4. Patricia Daymond says:

    Whilst I have witnessed many deaths I have rarely seen anyone who wishes to hasten their death. However unfortunately I have experienced a relative hungry for an inheritance not averse to providing stress to hasten death & promulgating the benefits of assisted suicide.
    Thankfully this remains illegal in UK.

    1. dw says:

      So UK law should be based only on what you have personally witnessed?

      1. Patricia Daymond says:

        We are all affected by what we have witnessed a fact borne out by the comments of the students I have been teaching today by both those for & against assisted suicide. I readily admit my views are the result of 57 years practising medicine & observing people at many stages in life. UK law will rightfully be the subject of thorough debate & I trust we will all be able to air our views through our elected representatives. I have complete trust in my MP.

  5. Lofthouse says:

    Interesting – the Dutch medical regulators the KNMG, took the view that you don’t need a medical degree to kill anyone, so refused to regulate it as a ‘medical practice’.
    Why don’t we make solicitors and barristers responsible for a) putting the diaper on, b) mix up the barbiturates c) holding the straw and d) putting the corpse in a body bag and giving the all clear to the undertaker?

    Any views?
    You could make sure the will wasn’t fiddled at the same time :)

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Sharp MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department Munchausen Munchausen by proxy murder murder reform music Musician's Union Muslim mustafa kamal mutation mutations myanmar MY Cannis my kingdom for a horse Myriad NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 Nadja Benaissa naked rambler Naomi Campbell narcolepsy National Health Act nationality National Origin National Pro Bono Week national security national sovereignty Natural England natural rights nature nature conservation naturism Nazi neanderthals necessary implication need for legal aid needs assessment negligence neighbour dispute Neuberger neural degeneration neurogenerative disease neuroscience Newcastle university news News of the World news roundup new Supreme Court President NGO standing NHS NHS Risk Register NICE Nick Clegg Nicklinson Niqaab niqab No Angels Noise Regulations 2005 non-justiciability nonhuman animals non voluntary euthanasia Northern Ireland Northern Irish Assembly notification requirements nuclear challenges nuisance nurse nursing nursing home obiter dicta Occupy London offensive jokes Offensive Speech offensive t shirt official solicitor of Rights Commission oil and gas oil spill olympics open justice oppress 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Peter Gibson pet shops PF and EF v UK Philip Lawrence Phil Woolas phone hacking phone taps photos photovoltaics physical and mental disabilities physical restraint physician assisted death Pinnock Piracy PJS placement order planning planning human rights planning system planning time limits plantagenet plebgate pleural plaques POCA podcast points poison Poland Police police investigations police liability police misconduct police powers police surveillance policing Policy Exchange report political advertising political judges political persecution politicians for hire Politics Politics/Public Order pollution polonium poor reporting Pope Pope's visit Pope Benedict porsche 917 portal possession order possession proceedings post mortem Posts power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy preliminary reference prerogative powers press Press Association press briefing press freedom Priest priests primary legislation Prince Andrew Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers prison rules Prisons prison vote privacy privacy injunction privacy law through the front door private disputes Private life private nuisance private use procedural unfairness Procedure proceeds of crime Professional Discipline professional indemnity Professional life Property property rights proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill protective costs Protest protest camp protest rights Protocol 15 psychiatric hospitals psychology psychotherapy Public/Private public access publication public authorities public authority public bodies Public Bodies Bill public figure public funding public inquiries public inquiry public interest public interest environmental litigation public interest immunity public interest litigation publicity public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A 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retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest 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Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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