Assisted Suicide: Carter, Bentley And The Law Of End-Of-Life Decision-Making

"It is a crime in Canada to assist another person in ending her own life. As a result, 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."

The opening paragraph of the landmark decision in Carter v. Canada (Attorney General), 2015 SCC 5, succinctly outlines the "cruel" choice faced by many Canadians near the end of their lives. In a unanimous decision, the Supreme Court of Canada struck down Canada's Criminal Code provisions prohibiting physician-assisted suicide, paving the way for individuals to choose the means and timing of their death. The decision is highly controversial, and is likely to be a hot topic for the remainder of 2015 as Parliament decides whether to implement new legislation to govern assisted suicide, or to do nothing and leave a legislative void.

The Carter decision was foreshadowed in the dissenting decisions in the Supreme Court's 1993 decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. In Rodriguez, the court split 5-4, with Canada's current Chief Justice, Beverly McLachlin, writing a strong dissent in favour of allowing physician-assisted suicide. Justice Sopinka, for the majority, rejected the right to die as an element of the Charter right to life, liberty and security of the person under s. 7. Instead, Justice Sopinka reasoned that respect for human dignity was not a principle of fundamental justice that could trump society's conception of the sanctity of life.

The Court's ruling in Carter has been lauded in some circles as "compassionate".1 Critics, however, are disappointed that the Court has placed individual autonomy above society's interest in the sanctity of human life.2 The coalitions formed on both sides of the argument in anticipation of Carter are not treating the Court's decision as the last word. Groups opposed to assisted suicide have already called on the Federal Government to draft legislation that imposes "stringent safeguards" on the use of physician-assisted suicide.3

Both camps have been waiting for the Court of Appeal's decision in Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91,4 released this week. The Bentley decision affirms that absent a clear...