Jocelyn Downie clarifies the Canadian Medical Association’s confusion regarding the Carter v. Canada decision.

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There appears to be some confusion about just what the Supreme Court of Canada’s decision in Carter v. Canada actually means. This confusion was expressed by the Canadian Medical Association in an interview with National Post Media reporter Sharon Kirkey. In that interview, Dr. Jeff Blackmer, director of ethics and professional affairs at the Canadian Medical Association, said: “We’ve got a few key questions that we think need clarity and this is one of them: Is it euthanasia or is it assisted dying?”

As Sharon Kirkey reports, Blackmer, “said it is not clear whether the high court has opened the door not just to assisted suicide — where a doctor writes a prescription for a lethal overdose of drugs the patient takes herself — but also to something many physicians find profoundly more uneasy: pushing the syringe themselves.”

But there is no need for the Canadian Medical Association or its members to be confused. The Supreme Court’s decision is clear. The Court struck down the prohibitions on both physician-assisted suicide and physician-provided voluntary euthanasia. This is clear both from the terms used as well as the specific Criminal Code provisions it struck down.

First, at the trial level in Carter v. Canada, Justice Lynn Smith carefully and clearly defined the terms for her decision:

[39] “Assisted dying” and “assisted death” are generic terms used to describe both assisted suicide and voluntary  euthanasia. “Physician-assisted death” and “physician-assisted dying” are likewise generic terms that encompass physician-assisted suicide and voluntary euthanasia that is performed by a medical practitioner or a person acting under the direction of a medical practitioner. Other medical practices that physicians employ at the end of a patient’s life do not fall within the terms “assisted death” or “assisted dying” as used in these Reasons.

The Supreme Court then used these same terms throughout its decision. Since the Court did not distance itself from her definitions or otherwise offer alternative definitions, there is no reason to believe the Court understood the terms any differently than as set out by Justice Smith. Therefore, given that the Supreme Court struck down the challenged provisions of the Criminal Code “insofar as they prohibit physician-assisted death,” we can conclude that they opened the door to both “writing a prescription” and “pushing the syringe.”

Second, the Supreme Court struck down two provisions of the Criminal Code: section 241(b) and section14. Section 241(b) expressly prohibits assisted suicide: “Every one who (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” Section14 effectively prohibits voluntary euthanasia: “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.” With section 14 in force, consent cannot protect a physician from a murder charge under the Criminal Code. Without section 14, however, consent would protect physicians because it would affect criminal responsibility, and inflicting death on the person by whom consent is given would no longer constitute murder. Thus, by striking down section 241(b), the Supreme Court opened the door to “writing a prescription” and by striking down section 14, the Supreme Court of Canada opened the door to “pushing the syringe.”

In sum, if the Supreme Court of Canada had intended to only allow physician-assisted suicide, it would have used the expression “physician-assisted suicide” rather than “physician-assisted dying” and it would have declared invalid only section 241(b) of the Criminal Code, and not also section14. It did neither. Its decision allows both kinds of physician-assisted dying.

This is not to say that there aren’t complex issues still to be resolved even after the Carter v. Canada decision. Indeed, an issue that clearly troubles the Canadian Medical Association is that of conscientious objection. Will physicians be required to provide assisted dying? Will physicians who are unwilling to provide-assisted dying be required to provide their patients information about it? Will they be required to refer patients who request assisted dying to other willing providers? Will publicly-funded institutions be allowed to prevent patients from accessing physician-assisted dying? These are questions that the Supreme Court did not answer. The Canadian public would be better served if the Canadian Medical Association focused on participating in constructive conversations about these and other important open questions instead of promoting confusion about matters that have already been clearly resolved.

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Jocelyn Downie, SJD, FRSC, FCAHS, is a Professor in the Faculties of Law and Medicine at Dalhousie University. @jgdownie