May 16, 2011

Case Watch: Assisted Suicide Revisited

Health Law

On 26 April, 2011 the BC Civil Liberties Association, along with a number of representative plaintiffs, commenced a constitutional challenge to Canada’s prohibition on physician assisted suicide. In January 2010 two of the plaintiffs, Lee Carter and Hollis Johnson, brought Carter’s mother, Kathleen Carter, to Switzerland to receive such assistance.

In 1993 a similar Charter health rights challenge was heard by the Supreme Court of Canada, a case in which Ms. Sue Rodriguez, who was suffering from ALS,  argued that the section of the Criminal Code which prohibited her from obtaining assisted deprived her of her section 7 Charter protected rights to life, liberty and security of the person and equality.  The majority of the Court in Rodriguez, in reasons penned by Mr. Justice Sopinka, held that despite the fact that the prohibition infringed the section 7 Charter interests of the plaintiff, such a deprivation was justifiable in a free and democratic society. Of particular importance to Sopinka J. was the conclusion that there was significant societal consensus in favour of the prohibition. It is reported that Ms. Sue Rodriguez did eventually die by suicide assisted by an anonymous physician.

In this latest challenge, the plaintiffs argue that the prohibition infringes both section 7 and 15 (equality) Charter rights of the plaintiffs, and is not justified in a free and democratic society.  The Plaintiffs are anticipated to argue that since Rodriguez, there has been a shift in Canadian society’s attitude towards assisted suicide and therefore the infringement to sections 7 and 15 of the Charter are not justified.

Carter v. Canada (Attorney General), B.C.S.C. Action No. S112688, Vancouver Registry. For an evidential ruling, see 2011 BCSC 1371.