Carter v. Canada (AG) [2015] — Medical Assistance in Dying

Introduction

Carter v. Canada (Attorney General), [2015] 1 SCR 331, is a landmark constitutional decision in which the Supreme Court of Canada struck down the Criminal Code prohibition on medical assistance in dying (MAiD). The unanimous Court held that the absolute prohibition on physician-assisted death violated the right to life, liberty, and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.

Facts

The case was brought by three individuals:

• Gloria Taylor, a British Columbia woman suffering from amyotrophic lateral sclerosis (ALS/Lou Gehrig’s disease), who sought the right to a physician-assisted death when her suffering became unbearable.
• Lee Carter and Hollis Johnson, who had assisted Lee Carter’s mother, Kay Carter, in travelling to Switzerland to access assisted dying, and who challenged the prohibition on the basis that it forced Canadians to travel abroad or end their lives prematurely.
• The British Columbia Civil Liberties Association, which brought the application as a public interest litigant.

The applicants challenged section 241(b) of the Criminal Code, which prohibited aiding or abetting a person to end their own life, and section 14, which provided that no person may consent to death being inflicted on them.

The applicants argued that these provisions violated section 7 of the Charter by depriving competent, consenting adults with grievous and irremediable medical conditions of the right to choose a dignified death.

The Supreme Court’s Decision

Chief Justice McLachlin, writing for a unanimous Court, held that the absolute prohibition on physician-assisted dying violated section 7 and could not be justified under section 1.

Section 7 — Life, Liberty, and Security of the Person

The Court held that the prohibition engaged all three interests protected by section 7:

Life: By denying individuals the ability to choose physician-assisted dying, the law could force them to end their lives prematurely while they still had the physical capacity to do so, rather than allowing them to wait until their suffering became unbearable. The prohibition had the effect of shortening some lives — exactly the opposite of its stated objective.

Liberty: The right to make fundamental personal decisions about one’s body and medical care is protected by the liberty interest in section 7. This includes the right to decide when and how to die, free from state-imposed barriers.

Security of the person: The prohibition deprived individuals of the ability to control their bodily integrity and to avoid the severe psychological and physical suffering that accompanies intolerable medical conditions.

Principles of Fundamental Justice — Overbreadth

The Court held that the absolute prohibition was overbroad. The prohibition’s purpose was to protect vulnerable persons from being induced to commit suicide. However, it also caught competent, consenting adults who were not vulnerable and who wished to end their suffering through physician-assisted death. The means chosen by Parliament swept more broadly than necessary to achieve its purpose.

The overbreadth analysis followed the test from Canada (AG) v. Bedford, [2013] 3 SCR 1101: a law is overbroad if it catches conduct that bears no connection to its objective. Here, the prohibition caught conduct (assisted dying for competent, consenting adults with grievous and irremediable conditions) that had no connection to the law’s purpose of protecting vulnerable persons.

The Court also held that the prohibition was not saved by the existence of exceptions (such as the ability to refuse life-sustaining treatment, or the availability of palliative sedation). These alternatives did not address the situation of competent adults who wished to end their lives but could not do so without assistance.

Overruling Rodriguez

The Court explicitly overruled its earlier decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, which had upheld the same prohibition by a 5–4 majority. The Court identified three grounds for overruling:

1. Changed legal framework: The principles of fundamental justice had been elaborated in Bedford (2013), including the concept of overbreadth as a distinct analytical category.
2. Changed evidence: There was now substantial evidence from jurisdictions that had legalized assisted dying (such as the Netherlands, Belgium, Oregon) demonstrating that workable safeguards could protect vulnerable persons while permitting assisted dying.
3. Changed social context: Greater experience with assisted dying regimes showed that the feared slippery slope had not materialized, and that vulnerable persons could be effectively protected.

The Court held that Rodriguez no longer reflected the current state of the law or the evidence, and that continued adherence to it would work an injustice.

Section 1

The Court held that the violation could not be justified under section 1. While the objective of protecting vulnerable persons was pressing and substantial, the prohibition was not minimally impairing — it was an absolute ban that failed to accommodate the rights of competent, consenting adults.

The Remedial Order

The Court granted a declaration of invalidity but suspended it for 12 months to allow Parliament to craft a legislative response. The Court also granted a constitutional exemption to Gloria Taylor (who had died before the decision) and provided guidance on the parameters of a constitutional regime:

• The right extends to a competent adult person who:
  • Consents to the termination of life
  • Has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring and intolerable suffering

The Court was careful not to “freeze” the right, noting that Parliament could develop more specific parameters.

Aftermath

Bill C-14 (2016)

Parliament enacted An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), receiving Royal Assent in June 2016. Bill C-14 established:

• MAiD available for competent adults with a grievous and irremediable medical condition
• Death must be reasonably foreseeable (the “reasonably foreseeable natural death” requirement)
• Safeguards including two independent assessments, a 10-day waiting period (waivable if death is imminent), and the requirement that the person be informed of alternatives

Bill C-7 (2021)

Following a Quebec Superior Court decision (Truchon v. Canada (AG), 2019 QCCS 3792) striking down the “reasonably foreseeable natural death” requirement, Parliament enacted Bill C-7, which:

• Removed the “reasonably foreseeable natural death” requirement for track 2 MAiD
• Created a two-track system: track 1 (natural death reasonably foreseeable) with streamlined safeguards, and track 2 (where death is not reasonably foreseeable) with additional safeguards
• Imposed a 90-day assessment period and a requirement to consider alternatives

Mental Illness Exclusion

Bill C-7 temporarily excluded individuals whose sole underlying condition is a mental illness from eligibility for MAiD. This exclusion was originally scheduled to expire in March 2023 but was extended to March 2024, and then to March 2027, following concerns about the adequacy of safeguards.

Significance

Carter is a transformative decision that:

1. Established constitutional rights: Affirmed that the rights to life, liberty, and security of the person encompass the right to choose physician-assisted death in defined circumstances.
2. Overruled precedent: Demonstrated the Court’s willingness to reconsider its own decisions in light of new evidence and legal developments.
3. Drove legislative reform: Compelled Parliament to develop the comprehensive MAiD regulatory framework now in place.
4. Global influence: The decision has influenced assisted dying law reform in Australia, New Zealand, and other jurisdictions.

Conclusion

Carter v. Canada (AG) recognized that competent, consenting adults with grievous and irremediable medical conditions have a constitutional right to medical assistance in dying. The case established that the state cannot, in the name of protecting life, compel unbearable suffering without violating the most fundamental rights protected by the Charter. The decision has fundamentally transformed Canadian health law and end-of-life care.