Report No. 196
Section 241 of the Criminal Code (RSC 1985, c. C-46) reads as follows:
"section 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 indictable offence and liable to imprisonment for a term not exceeding fourteen years"
The plaintiff contended section 241(b) was invalid.
The Court dismissed the appellant's application by majority (there was dissent by Lamer CJ, L'Heureux Dube, Cory and McLachlin JJ) and the validity of section 241(b) was upheld.
The relevant provisions of the Canadian Charter of Rights and Freedoms are as follows:
"Article 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Article 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Article 12: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Article 15 (1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without dissemination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
We shall refer to the majority judgment, which upheld the provisions that made assisted suicide, an offence.
Sopinka J, speaking for the majority, observed that the 'right to security of person', under Article 7 of the Charter cannot encompass a right to take action that will end one's life in as much as security of the person is intrinsically concerned with the well-being of the living person. This is based on the notion generally held and deeply routed in our society that human life is sacred and inviolable (which terms are used in the non- religious sense described by Dworkin (in 'Life's Dominion:
An argument about Abortion, Euthanasia, and Individual Freedom (1993) ) to mean that human life is seen to have a deep intrinsic value of its own. As members of a society based on respect for the intrinsic value of human life and on the inherent dignity of every human being, can we incorporate, he asked, within the Constitution which embodies our most fundamental values, a right to terminate one's own life in any circumstances? This raises issues of sanctity of life which includes notions of quality of life.
Sanctity of life has been understood as excluding freedom of choice in the self-infliction of death and certainly in the involvement of others in carrying out that choice.
It was argued that for the terminally ill, the choice was one of time and the manner of death rather than death itself since the latter was inevitable. Sopinka J disagreed stating that "it is one of choosing death instead of allowing natural forces to run their course. The time and precise manner of death remains unknown until death actually occurs. There can be no certainty in forecasting the precise circumstances of death. Death is, for all mortals, inevitable.
Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life, as a value, is engaged even in the case of the terminally ill who seek to choose death over life. Indeed, it has been abundantly pointed out that such persons are particularly vulnerable as to their life and will to live and great concern has been expressed as to their adequate protection,."
The Canadian case law leads to the conclusion that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of the security of the person.