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Home > Our Insights > No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)
Publication

No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)

Published:

February 9, 2015

Author(s):

  • Catherine D. A. Watson Coles, KC, T.E.P., Lawyer
  • Jane O'Neill, KC, Lawyer
  • Christa Bourque, McInnes Cooper Alum

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NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo medical-assisted dying must meet. Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) proposes legislation defining medical assistance in dying, the eligibility criteria to access it and the safeguards around it. 

On February 6, 2015 the Supreme Court of Canada reached a watershed decision: the criminalization of physician-assisted dying in Canada violates the right to life, liberty and security of the person that the Canadian Charter of Rights and Freedoms guarantees. The healthcare profession, and physicians in particular, will be most directly impacted by the decision – but the ripple effect is wide, impacting healthcare and estate planning professionals and life, disability and health insurers.

The Canadian Criminal Code makes it a crime for a person to assist another to die in Canada. Ms. Taylor was diagnosed with a fatal disease. She sued the federal government of Canada, claiming this violates her right to life, liberty and security of the person that section 7 of the Charter guarantees.

In a watershed decision, all of the Supreme Court of Canada judges agreed: the Code is unconstitutional – and invalid – to the extent it prohibits physician‑assisted death for:

  • a competent adult person
  • who clearly consents to the termination of life and
  • who has a grievous and irremediable (though the patient isn’t required to undergo  treatments unacceptable to her) 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 decision will only take effect in 12 months to give the government time to come up with new or revised laws that comply with it; the current laws will remain in effect in the meantime.  Both the federal government and each provincial government have the authority to enact laws over different aspects of physician-assisted dying. This could lead to different legal processes across Canada – and raises the issue of whether Canadians will be able to travel inter-provincially to end their lives, and the impact of this on medicare coverage for the service.

This decision will have a broad ripple effect:

Healthcare. Members of healthcare professions – and physicians in particular – are most directly impacted by this decision. The SCC was crystal clear: the decision only applies to “physician-assisted death” – and it doesn’t compel physicians to provide assistance in dying. The practical impact on physicians and other healthcare professionals will be fleshed out by physicians’ colleges and the federal and provincial governments, both of which the SCC confirmed have authority to enact laws respecting aspects of physician‑assisted dying. And it’s certain that new laws will and rules will follow in the decision’s wake. The SCC was also clear that a physician’s decision to participate in assisted dying is a matter of conscience and sometimes of religious belief – but cautioned that any laws and rules that flow must reconcile the Charter rights of both patients and physicians.

Healthcare Planning. Advance healthcare directives are legal in many provinces: documents where a competent person appoints a delegate to make healthcare decisions for her when she isn’t competent to make them herself, and usually providing an indication of her healthcare wishes. Many directives typically include an extensive “Refusal of Medical Treatment” section dealing with end of life decisions – but since physician-assisted was illegal, they didn’t deal with physician-assisted dying. Healthcare planning professionals – like lawyers – will need to figure out how to determine their clients’ wishes around physician-assisted suicide, and how to incorporate that into advance healthcare directives. One issue: an advance healthcare directive is only valid if the person giving it doesn’t have mental capacity; people will need to think hard about an advance healthcare directive authorizing a delegate to make a decision about physician-assisted dying on their behalf. Another issue: the SCC explicitly limited its decision to a “competent adult”. Legally, it’s not clear whether this means a delegate can’t even make such a decision for someone who doesn’t have mental capacity. Practically, it’s not clear whether a physician will act on a delegate’s request for physician-assisted dying when the patent is incompetent, even though she made the advance directive when she was. Physicians will likely be hesitant if there’s no new legislation giving a clear direction – and if there isn’t, another court case might be down the road.

Estate Planning. Estate and tax planning can be very precise when the main variable – time of death – is removed. For example, if spouses know the wife will die first, they can avoid probate by moving all assets out of her name before death – or they can move everything into her name so it all flows through the estate into a trust structure that will provide matrimonial protection for the survivor and certainty of eventual distribution amongst family members.

Life Insurance. Many life insurance policies typically exclude payment if the insured person commits suicide within a defined period of time after the policy takes effect. The question is whether this exclusion for suicide applies to physician-assisted dying. Life insurers will likely be reviewing – and possibly revising – their policies to make this clear.

Disability Insurance. Long-term disability insurance typically says that if an insured has a condition that causes her to be totally disabled from employment, the insurer will pay benefits until the insured person is 65. Many group disability insurance policies that employers offer employees end completely, or the benefits start to be reduced, when the insured person turns 65.  The question is whether the SCC’s decision would motivate an insured person to accelerate her death by a short (or even long) time if she falls within the SCC’s parameters for physician-assisted death and is close to 65 – and how the disability insurance policy would deal with that.

Health Insurance. A person with health benefits could look to her health insurer to cover the costs of physician-assisted dying, either in her own province (if its medical laws don’t cover those costs), or in another province. Health insurers will also be reviewing and possibly revising their policies to  make this coverage (or lack of it) clear.

Read the SCC’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 here.


Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Health Law, Estates & Trusts or Insurance Teams to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2015.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    Jun 30, 2016

    As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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    Publication
  • Weigh Now or Weight Later: New Cargo Container Verified Gross Mass (VGM) Rules Effective July 1, 2016

    Jun 20, 2016

    As of July 1, 2016, packed cargo containers to which the International Convention for the Safety of Life at Sea (SOLAS), Chapter VI, Regulation…

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    Publication
  • Realtor Risk Management: 10 Practical Tips to Help Realtors Manage Litigation Risk

    Jun 20, 2016

    Real estate vendors and purchasers have high expectations of their realtors – and they don’t often hesitate to pursue legal action against…

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    Publication
  • The Parameters of Municipal Power: Supreme Court of Canada Decides Municipality Can’t Block Radiocommunication Tower Construction

    Jun 17, 2016

    In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…

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    Publication
  • Supreme Court of Canada Decides Income Tax Act Sections are Unconstitutional – and Strengthens Solicitor-Client Privilege in Canada (Attorney General) v. Chambre des notaires du Québec & Canada (National Revenue) v. Thompson

    Jun 6, 2016

    On June 3, 2016, the Supreme Court of Canada, in two related decisions, strengthened the legal protection of solicitor-client privilege in…

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    Publication
  • Get Your SEDAR Profile: Changes to Private Placement Filing Requirements Effective May 24 & June 30, 2016

    Jun 6, 2016

    On June 30, 2016, amendments to National Instrument 45-106 Prospectus Exemptions and related changes to Companion Policy 45-106 Prospectus…

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    Publication
  • 3 Tips to Use “Forward-Looking Information” to Enhance Your Investor Relations

    May 31, 2016

    You’re on a tight timeline to issue a press release. You finish your draft and ‘cut & paste’ your standard “forward-looking…

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    Publication
  • Newfoundland & Labrador Crown Immunity for Mechanics’ Lien Holdbacks: 3 Key Risks for Subcontractors in Brook Construction (2007) v. Blackwood Contractors Ltd.

    May 24, 2016

    It’s now certain: in Newfoundland & Labrador, liens can’t be placed on Crown land or holdbacks with the possible exemption allowing for…

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    Publication
  • A Red Flag for Municipalities & Developers: Supreme Court of Canada Decides Not Every Positive Covenant Under a Development Agreement Runs With the Land in Heritage Capital Corp. v. Equitable Trust Co.

    May 10, 2016

    On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…

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    Publication
  • From Watershed Decision to Watershed Law: Government Proposes Physician-Assisted Dying Law in Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

    Apr 15, 2016

    On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…

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    Publication
  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

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    Publication
  • Doe 464533 v. D.: Business Implications of the Civil Privacy Claim for “Public Disclosure of Private Facts”

    Jan 27, 2016

    On January 21, 2016, the Ontario Superior Court of Justice dramatically expanded the scope of legal privacy protection – and the liability…

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    Publication
  • Tax Implications of Personal Services Businesses (PSB) Status & Strategies to Avoid It

    Oct 23, 2015

    Incorporation offers legal advantages to sole proprietors of small businesses, including certain tax advantages. However, when a corporation…

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    Publication
  • New Kid on the Block: Crowdfunding Joins Traditional Equity-Based Funding Options for Startups & SMEs

    Oct 19, 2015

    Access to sufficient capital to fund operations, research and development, and other costs is a key challenge for start-ups and for some small…

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    Publication
  • Invalidation of Bequest to Neo-Nazi Group as Against Public Policy Withstands Appeal

    Jul 30, 2015

    Note: On June 9, 2016, the Supreme Court of Canada dismissed the National Alliance’s application for leave to appeal the New Brunswick Court…

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    Publication
  • A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

    Jul 29, 2015

    On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…

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    Publication
  • Bad Faith & Production of an Insurer’s Business Information: 4 Key Implications of the NB Court of Appeal’s Decision in Wade v. Wawanesa Ins. Co.

    Jul 21, 2015

    On July 16, 2015, the New Brunswick Court of Appeal ordered an insurer to produce a significant amount of its financial and business information…

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    Publication
  • Nova Scotia Goes Its Own Way: Future CPP Disability Benefits Deductible Under SEF 44 in Portage Le Prairie Mutual Insurance Company v. Sabean and Hallett

    Jun 8, 2015

    On June 4, 2015, the NS Court of Appeal decided the value of future CPP disability benefits is deductible under the SEF 44 family protection…

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    Publication
  • The New NS Missing Persons Act: 5 Privacy Implications for Businesses, Organizations & Public Bodies

    Jun 2, 2015

    Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access…

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    Publication
  • SCC Gives Municipalities (& Other Government Authorities) 3 Reasons Not to Say A Little Prayer in Mouvement laïque québécois v. Saguenay (City)

    Apr 15, 2015

    On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…

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    Publication
  • Wait a Minute Mr. Postman … 3 Lessons Health Canada’s Privacy Breach Delivers to the Private Sector

    Mar 25, 2015

    On March 3, 2015 Canada’s Privacy Commissioner determined that Health Canada breached privacy laws by mailing letters to over 40,000 Marihuana…

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    Publication
  • Final Form of New NS Limitation of Actions Act: “Sudden Death” Limitation is Out for Personal Injury Claims

    Feb 18, 2015

    The new NS Limitations of Actions Act – the legislation that determines the limitation period (time limit) in which a lawsuit must be started…

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    Publication
  • Charter Protects the Right to Strike

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publication
  • NS Proposes New Limitation of Actions Act: The 3 Top Benefits & The 10 Key Changes

    Nov 3, 2014

    Note: On November 20, 2014 the NS Government passed the final form of Bill 64, Limitations of Actions Act into law. The final form of the Act…

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    Publication
  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    This publication has been updated as at August 25, 2022. Many believe that only public companies or large, established companies with many…

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    Publication
  • Canadian Treaty Shopping Proposal Shelved Pending Final OECD Recommendation, First To Be Released September 16

    Sep 11, 2014

    The Canadian federal government has been concerned for some time about “treaty shopping” by non-residents – the practice of non-residents…

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    Publication
  • Changes to NB Rules of Court Effective October 1, 2014 Benefit Successful Party

    Sep 9, 2014

    Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982.…

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    Publication
  • Estate Planning Solutions: 5 FAQs About Alter Ego & Joint Partner Trusts

    May 22, 2014

    This publication has been updated as at February 17, 2021. Trusts offer a very useful estate planning solution for a wide variety of special…

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    Publication
  • What’s In The Pipe? Municipal Liability for Flood & Sewage Back-Up Claims

    May 2, 2014

    April showers bring … flood and sewage back-up claims. Flooding and sewage back-up can result in significant damage for municipal ratepayers,…

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    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publication

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