The extended deadline set by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4 expired last night, June 6, 2016, at midnight. The constitutional exemption created by the Court in granting the extension to its original deadline of February 6, 2016, would have logically expired as well. So what is the state of the law today in Canada insofar as it relates to medical assistance in death?

In the original Carter v. Canada (Attorney General), 2015 SCC 5, the Court held that a declaration of invalidity would be made as against ss. 14 and 241 of the Criminal Code but that that declaration of invalidity would be suspended for one year to give time for Parliament to consider its legislative response.

Sections 14 and 241 state:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

241. Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Have these provisions now vanished from the Criminal Code? It would seem not. The Court qualified its declaration of invalidity with the following statements:

[126]                      We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code , s. 241 (b) and s. 14 ) infringe Ms. Taylor’s s. 7  rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1  of the Charter .  To the extent that the impugned laws deny the s. 7  rights of people like Ms. Taylor they are void by operation of s. 52  of the Constitution Act, 1982 .  It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

[127]                      The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14  of the Criminal Code  are void insofar as they prohibit physician-assisted death 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.  “Irremediable”, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.  The scope of this declaration is intended to respond to the factual circumstances in this case.  We make no pronouncement on other situations where physician-assisted dying may be sought.

[Emphasis added]

Thus it would seem that these sections which, outside the realm of physician assisted death in the circumstances outlined by the Court in paragraph 127 of its judgment, have an appropriate role to play, were only declared invalid insofar as they apply to physician-assisted death in those specific circumstances. In other words, there is not a general declaration of invalidity. They remain on the statutory books, so to speak. That being said, the Court clearly expected that Parliament would respond legislatively within the 12 month period of suspension granted by their 2015 order. This probably explains the somewhat testy reception that government lawyers received when they applied for an extension of the suspension.

The constitutional exemption that the Court granted in Carter 2016 was expressly limited to apply “during the four month extension period”. The 2016 exemption required persons who wished to avail themselves of such a physician-assisted death required to “apply to the superior court in their jurisdiction for relief in accordance with the criteria set out in para. 127” of the Court’s 2015 reasons.  The requirement to apply to court for an order granting such relief has, in my view, vanished with the expiry of that four month extension. The language of the 2016 judgment is quite clear.

Accordingly, it would seem that, as of today, insofar as federal law is concerned, physicians and patients can consider whether or not their circumstances are such that the physician can assist his or her patient die, bearing in mind the requirements for such assistance as set forth by Carter 2015. This does not mean that physicians and patients can ignore provincial laws. And the provincial response has varied from jurisdiction to jurisdiction. A useful summary of the provincial requirements in the different provinces can be found in the June 6, 2016 edition of The Globe & Mail “A look at guidelines across Canada”.

Bill C-14 is now undergoing Senate scrutiny and, it would seem, is certain to be returned to the House with a number of important amendments. Until then, physicians must carefully consider whether the legal requirements of para. 127 of Carter 2015 are met before complying with any request by a patient requesting  assistance in dying.

I remain

Constitutionally yours,

Arthur Grant