EXPLAINER: How Canada’s Courts Have Propelled Assisted Suicide Laws

The justice statue at the Supreme Court of Canada on Parliament Hill in Ottawa on June 17, 2021. (The Canadian Press/Justin Tang)

Canadian court decisions have been instrumental in prompting lawmakers to open assisted suicide to more Canadians—including to those who are not terminally ill, and soon to those whose sole condition is mental illness.

Before the landmark 2015 Supreme Court ruling that spurred the government to first legalize medical assistance in dying (MAID), helping someone commit suicide carried a penalty of up to 14 years in prison.

The 2015 ruling marked a reversal from the court’s 1993 decision to uphold a prohibition on assisted suicide. These two decisions, along with a 2019 decision by Quebec’s Superior Court, have been key to MAID policies in Canada.

These decisions have involved discussions about how Canada protects the vulnerable, how it values human life, how it handles human rights, and how it defines the “fundamental principles of justice.”

Supreme Court’s 1993 Decision

In the case Rodriguez v. British Columbia, a 42-year-old mother named Sue Rodriguez sought assisted suicide after being diagnosed with the terminal disease amyotrophic lateral sclerosis (ALS).

She brought her case through to British Columbia’s top court, and ultimately appealed to the Supreme Court of Canada. She argued that a prohibition on assisted suicide violates Section 7 of the of Rights and Freedoms, “the right to life, liberty and security of the person.”

In a five-to-four decision, the Supreme Court dismissed the appeal.

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Then-Justice John Sopinka, writing for the majority, said the prohibition did indeed infringe on her section 7 right, but that infringement was justified. Its purpose was to protect the vulnerable and safeguard human life.

“The long‑standing blanket prohibition ... [on assisted suicide], which fulfils the government’s objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken,” he wrote.

Justice Sopinka commented on how society’s prevailing values influence what the court considers to be the “fundamental principles of justice” used to justify infringing on the charter rights of individuals.

“Such principles, [Justice Sopinka] pointed out, are those for which there is some consensus among reasonable people as to their importance to our societal concept of justice,” a government review of the case says.

Justice Sopinka noted that it is the norm in Western democracies to prohibit assisted suicide, and that other nations had not found this unconstitutional or contrary to human rights.

In the B.C. Court of Appeal, Justice H.A. Hollinrake made similar comments on the fundamental principles of justice when evaluating Ms. Rodriguez’s case.

He said those principles must be “anchored in the legislative, social and philosophical context of our society” and the “weight of medical opinion and the intent of Parliament favour retaining the prohibition on physician-assisted suicide.”

Supreme Court justices who dissented brought up various arguments as to why Ms. Rodriguez should be allowed assisted suicide.

One argument was that Parliament had decriminalized attempted suicide, showing it no longer believed the preservation of human life overrides the right to self-determination. Another argument was that able-bodied people can take their own lives, but physically disabled people may be unable to, so in the name of equality, they should be allowed assistance.

Sue Rodriguez, who suffered from amyotrophic lateral sclerosis, is pushed in a wheelchair to a room for a news conference in Vancouver on Dec. 3, 1992. (CP PHOTO/Chuck Stoody)

Supreme Court’s 2015 Decision

In Carter v. Canada, a B.C. woman named Lee Carter was subject to criminal charges in Canada for arranging her mother’s assisted suicide in Switzerland. She was joined by other plaintiffs, including Gloria Taylor who suffered from ALS and wanted assisted suicide, and Dr. William Shoichet, a doctor who supported legalizing it.

On Feb. 6, 2015, the court ruled unanimously that the prohibition on assisted suicide violates the charter. The court agreed with the Rodriguez ruling that the prohibition infringes on Section 7 rights to life and liberty, but disagreed that the infringement was justified.

The 1993 decision had sought to protect vulnerable people from ending their lives prematurely. The 2015 decision said “properly designed and administered safeguards ... [are] capable of protecting vulnerable people from abuse and error.”

It issued a “declaration of invalidity” regarding the prohibition, but suspended it for one year, giving Parliament time to legislate accordingly.

“The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment,” it said.

The court said assisted suicide should be permitted to “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.”

The federal government could have invoked the notwithstanding clause, a section of the charter that allows federal and provincial governments to override any judicial rulings based on the charter. It wasn’t forced to legislate based on the court’s ruling, but it did.

It introduced Bill C-14, legalizing assisted suicide, or MAID, and that became law in 2016 amid much debate. Critics have argued that the safeguards in the legislation do not effectively protect the vulnerable as the court said they should.

Bill C-14 limited MAID eligibility to people whose natural death is “reasonably foreseeable.” This limitation and others were debated in a subsequent legal challenge.

Lee Carter holds a bouquet of flowers inside the Supreme Court of Canada on Feb. 6, 2015, ahead of the court’s decision on whether mentally competent but terminally ill patients have a right to a medically assisted death. (The Canadian Press/Sean Kilpatrick)

Quebec Superior Court’s 2019 Decision

In Truchon v. Canada, two plaintiffs challenged Quebec’s and Canada’s MAID legislation. Jean Truchon suffered from cerebral palsy and Nichole Gladu from post-polio syndrome, and they argued that these “grievous and irremediable” conditions should qualify them for MAID without the requirement that their deaths be “reasonably foreseeable.”

They argued the Supreme Court’s 2015 decision did not say death must be foreseeable. They also argued that limiting eligibility to terminally ill patients violated their right to equality under Section 15 of the charter.

On Sept. 12, 2019, Justice Christine Baudouin of the Quebec Superior Court ruled that this limitation on eligibility was unconstitutional. She gave governments six months to legislate accordingly, though that deadline was extended multiple times due to various circumstances.

Neither the Quebec government nor the federal government chose to appeal, and federal legislation passed in 2021 opening MAID to those who are not terminally ill.

With that move came renewed debate on whether people with mental illness as a sole condition should be eligible.

Mental Illness and MAID: What the Courts Say

The Centre for Addiction and Mental Health (CAMH) has summarized the debate on mental illness eligibility that followed the Supreme Court’s 2015 decision.

“Since the Court did not explicitly exclude mental illness in its definition of a grievous and irremediable medical condition, some individuals and groups have argued that people with mental illness as their sole underlying condition should be able to access MAID,” CAMH said in a 2017 policy paper.

“Others note that during the trial process the Court commented that international cases related to MAID for mental illness were not relevant to the current case...implying that mental illness is not within the scope of the Court’s decision, or at least making the Court’s intentions on the matter unclear.”

Nonetheless, the federal government decided to extend MAID to those with mental illness as the sole condition, effective March 17, 2024.

When that decision came through, then-Justice Minister David Lametti made multiple public comments to the effect that “our hands are tied by the courts,” says University of Toronto law professor Trudo Lemmens in a post on the university’s website.

Mr. Lemmens is among 32 law professors who signed an open letter to the prime minister and multiple cabinet ministers, including Mr. Lametti, on Feb. 1. They took issue with the idea that the courts mandated the move to extend MAID to include mental illness.

They argued that provincial rulings, including Truchon v. Canada, are not broadly binding and that the rulings also made limited statements on the specific issue of mental illness.

They said the Carter v. Canada ruling had certain limitations.

“Carter did not involve plaintiffs with mental illness, but with terminal neurogenerative diseases,” the professors wrote.

“The trial court in Carter further explicitly stated that it is ‘problematic to conflate decision-making by grievously and irremediably ill persons about the timing of their deaths, with decision-making about suicide by persons who are mentally ill or whose thinking processes are affected by substance abuse, trauma or other such factors.’”

The letter concluded by urging the government to suspend plans to expand MAID.

“We strongly object to suggestions that MAiD for mental illness needs to be made available as a matter of constitutional right, and support a suspension and review, not just a delay, of further expansion of MAiD.”