1. Assisted Suicide: Legal Questions and Answers Kevin O’Shea

2. Public Legal Information Association of NL (PLIAN) Legal Information Line/Lawyer Referral Service (9-12, M-F) Community and School Presentations Publications www.publiclegalinfo.com

3. Outline 1.Where Have We Come From? - The Criminal Code, The Charter, Rodriguez, and Carter 2.The Current State of the Law - Dialogue between Supreme Court and Parliament, and the election campaigns 3.Examples From Other Countries - Oregon, the Netherlands, Switzerland 4.Where Are We Heading? -What happens on February 6, 2016?

4. Criminal Code Sections (www.canlii.org) S. 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. S. 241: Counselling or Aiding Suicide Everyone who: a) counsels a person to commit suicide; or b) aids or abets a person to commit suicide, whether suicide ensues or not, is indictable of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

5. Other Relevant Criminal Code Sections S. 222 – Homicide S. 229 – Murder S. 245 – Administering a Noxious Thing (administering or causing a person to take poison or any other destructive or noxious thing)

6. The Sue Rodriguez Case Rodriguez v. British Columbia (Attorney-General) decided in 1993 Woman from B.C. suffering from ALS (aka Lou Gehrig’s Disease) In 1992, condition deteriorating – life expectancy of 2-14 months Asked to have a physician assist her to end her life at a time of her choosing

7. Charter of Rights and Freedoms Ms. Rodriguez asked the Supreme Court of B.C. to declare s. 241(b) of Criminal Code invalid because it violated sections 7, 12 and 15(1) of the Charter of Rights and Freedoms

8. Charter of Rights and Freedoms Passed in 1982 as part of the Constitution Act, 1982 which forms part of the Canadian Constitution along with the Constitution Act, 1867 Key Sections: s. 52(1): Any law inconsistent with the Constitution (including the Charter) is of no force or effect s. 7: the right to life, liberty, and security of the person AND the right not to be deprived of these things except in accordance with the principles of fundamental justice

9. Charter of Rights and Freedoms Important Sections continued: s. 12: the right not to be subjected to cruel or unusual punishment s. 15: the right to equality of every individual before and under the law and the right to equal protection and benefit of the law without discrimination based on several grounds (race, sex, religion, physical disability, etc….)

10. Charter of Rights and Freedoms section 1 s. 1: All rights in the Charter are guaranteed, subject only to reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society (aka there has to be justification to deny Charter rights)

11. Rodriguez v. British Columbia (Attorney- General) First level of case: Supreme Court of B.C. (1 judge) Trial judge disagreed with Ms. Rodriguez, found no violation of Charter Second level of case: B.C. Court of Appeal (3 judges) By a 2-1 vote, the majority agreed with the first judge and rejected Ms. Rodriguez’s appeal

12. Rodriguez v. British Columbia (Attorney- General) (www.canlii.org) Last level of Court: Supreme Court of Canada Decided by 5-4 decision Majority rejected Ms. Rodriguez’s appeal and said s. 241(b) is still constitutional Ban on assisted suicide DOES impact Ms. Rodriguez’s right to security of her person, but this is in accordance with principles of fundamental justice Also violates s. 15 (equality right) but is justified under s. 1 of the Charter

13. Supreme Court Decision in Rodriguez 4 judges disagree with majority, including Chief Justice Antonio Lamer and current Chief Justice Beverley McLachlin Sue Rodriguez took her own life in 1994, with the assistance of an anonymous physician

14. Case of Gloria Taylor and Kay Carter Gloria Taylor from B.C. – diagnosed with ALS in 2009 Started claim at B.C. Supreme Court challenging s. 241(b) and s. 14 of the Criminal Code as violating the Charter Kay Carter – suffered from degenerative spinal stenosis Assisted by her daughter and son-in-law, Lee Carter and Hollis Johnson, who traveled with her to Switzerland where Ms. Carter took her own life with the assistance of an assisted suicide clinic Lee Carter and Hollis Johnson joined Ms. Taylor’s case, arguing Kay Carter should have been given assistance to end her life in Canada

15. Carter v. Canada (Attorney-General) First level: Supreme Court of B.C. Trial judge found in favour of Ms. Taylor and Ms. Carter Criminal Code sections violated s. 15 – placed disproportionate burden on people with disabilities not justified by the government under s. 1 Prohibition of assisted suicide ruled unconstitutional Ms. Taylor passed away before the case was appealed, but did not receive assistance in taking her life Second Level: B.C. Court of Appeal Canadian Government appealed decision 2-1 majority allowed the appeal and overturned the earlier decision Said Trial Judge should have followed Rodriguez case as precedent

16. Carter v. Canada – Supreme Court of Canada Unanimous Supreme Court agreed with Ms. Taylor and Ms. Carter’s family Prohibition on assisted suicide in s. 241(b) violates s. 7 of the Charter of Rights and Freedoms and it cannot be justified Violated rights to life, liberty, AND security of the person Supreme Court noted how much has changed since 1993 decision: New studies on assisted suicide Other countries have now allowed it (8 jurisdictions between 1993 and 2010) 6 Private Member’s Bills debated (but not passed) in House of Commons

17. What’s Next? Supreme Court finds s. 241(b) and s. 14 of the Criminal Code are invalid for certain conditions, meaning it is not criminal for physician- assisted suicide if: -Competent adult -Clearly consenting to the termination of life -With a grievous and irremediable medical condition (including disease, illness, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition

18. What’s Next? Back to Parliament Supreme Court suspended the application of its ruling for 1 year Takes effect on February 6, 2016 Why? Gives Parliament a chance to write new law regulating assisted suicide

19. Where Are We Now? Laws banning assisted suicide are still in force Will change on February 6, 2016, when one of two things will happen: 1) New law passed by Parliament to amend Criminal Code and set up regulations to allows physician-assisted suicide in SOME situations; OR 2) Parliament does nothing, no regulations in place, and as of February 6, 2016 the old laws are of no force and effect to the extent that they apply to competent adults with grievous and irremediable medical conditions clearly consenting to assistance in dying

20. Where Are We Now? Federal Election Campaign Brief mention in French-language debate last week Not much other discussion/debate/platforms Provincial Election Campaign Assisted Suicide is also a provincial issue Becomes more a matter of health care regulation Quebec has passed law to begin physician-assisted suicide in December No discussion I have seen in NL

21. Questions that remain How will criminal law on assisted suicide be enforced or applied if no new law passed? How will the competence of a patient seeking assisted suicide be determined? How do we ensure consent to assisted suicide is given free of pressure or coercion? Does consent have to be given in the present or can a person provide consent in advance (i.e. through Advance Health Care Directive)

22. Questions that remain What does “irremediable” mean in this context? Does it mean only a terminal condition, with person facing death in a certain period of time? Does it mean only physical suffering, or could it include mental illness as well? What does “grievous” and “intolerable suffering” mean as well? What is the role of doctors? Can a doctor be a conscientious objector to participation in assisted suicide based on personal or religious beliefs?

23. Other Countries Oregon: Death with Dignity Act passed in 1997 Adult with mental capability to make own health care decisions and suffering from a terminal illness can request medication to end their life Requires assessment by 2 physicians Places responsibility on doctors to evaluate patient and provide information If patient believed to be suffering from psychiatric/psychological condition or depression impairing their decisions, cannot be prescribed the medication and may be referred for counselling

24. Other Countries The Netherlands: Allows physician to assist with suicide under requirements of due care, meaning: Patient’s request is voluntary and well-considered Physician believes suffering is lasting and unbearable Patient believes no other reasonable solution Second opinion consultation There is no requirement of terminal illness Assisted suicide may be requested in advance (euthanasia) Minors may be allowed to request assisted suicide with parent/guardian consent and involvement (ages 12-18)

25. Other Countries Switzerland: Very broad right to assisted suicide Has been allowed since 1942 Don’t necessarily need to be a doctor to assist No euthanasia allowed, but only prescribing drugs to a person to end their life Do not need to be a Swiss citizen (suicide tourism) Anyone who for selfish motives incites or assists someone to commit suicide or attempt to commit suicide may be liable to criminal prosecution and jail

26. What Can You Do? Stay Informed – especially as we get closer to February 6, 2016 If you are concerned about this issue, contact elected officials and those seeking your vote in Federal Election (October 19) and Provincial Election (November 30) More questions? Contact PLIAN info@publiclegalinfo.com 1-888-660-7788