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Friday, 6 February 2015

What does the Carter case say about the constitutional right to die?

by Eric Adams

Three things to know about a constitutional right to die in the Carter case:

1.   Section 7 of the Canadian Charter of Rights and Freedoms protects the rights to “life, liberty, and security of the person”. In Carter v Canada, a unanimous Supreme Court of Canada ruled s. 7, in some circumstances, also protects the right to die.

2.  Canadian law has a long and complicated relationship with suicide. Traditionally, the common law viewed suicide as an offence against both God and the Crown. Until 1823, English law commanded that the body of a person who has committed suicide be driven by a stake and placed at the intersection of two highways. In Canada, attempting suicide and assisting someone to commit suicide were both among the crimes listed in Canada’s first Criminal Code in 1892.  Although Canada repealed the criminalization on attempted suicide in 1972, the prohibition on aiding or abetting a person to commit suicide – s. 241 of the Criminal Code – remained in force.

3.  Gloria Taylor argued that the criminal prohibition on assisted suicide violated her constitutional rights to life, liberty, and security of the person. Ms. Taylor suffered from ALS, a fatal neurodegenerative disorder which causes sufferers to lose control of their bodies, culminating in the inability to speak, swallow, and breathe. “I do not want to end my life violently,” Ms. Taylor argued in her evidence. “I do not want to die slowly, piece by piece.” “I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.” Ms. Taylor’s compelling evidence played a large role in convincing In large part, it was the compelling evidence of Ms. Taylor, that convinced the Court of the law’s unconstitutionality.

Three myths about the Carter case and a constitutional right to die:

Myth #1:  The Carter case should have been decided on the basis of the previous decision in Rodriguez.

Reality:  Carter was not the first time the Supreme Court has confronted the delicate and difficult matters of constitutional rights to life and death. In 1993, the Court upheld the prohibition on assisted suicide in Sue Rodriquez’s unsuccessful constitutional challenge. But life and law has changed a good deal since 1993, the Court ruled in Carter. For example, expert and public opinion (including within the medical profession) has increasingly titled towards the need for legal reform in the law concerning end of life care. As well, although most countries continue to ban assisted suicide, eight jurisdictions outside of Canada (several American states and a number of countries in Europe) now permit some form of assisted dying. Perhaps most importantly, the Court agreed that a number of recent cases – involving hospital waiting times, safe injection sites, and sex workers, among others – had altered and expanded the meaning of the right to life, liberty, and security of the person in Canadian constitutional law. Accordingly, the legal, social, and political context that existed in Rodriquez no longer bound the Court.  

Myth #2:  Carter is likely to result in a deluge of assisted suicides in Canada.

Reality:  “The sanctity of life is one of our most fundamental societal values,” the Court held. “Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death.” Overruling its previous decision in Rodriguez, the Court held that the prohibition on assisted suicide violated Ms. Taylor’s s. 7 rights because it forced upon her, and others like her, the “cruel” choice of ending her life prematurely or suffering until she dies from natural causes. Those grave consequences, the Court ruled, were not in keeping with the “principles of fundamental justice,” or a “reasonable limit” since they went far beyond the law’s objective of preventing vulnerable persons from being induced to commit suicide in moments of weakness.

The Court rejected arguments that the law recognized that life must be preserved at all costs, or that the decision would open the floodgates to masses of depressed people demanding physicians assist them to die. There is no medical duty on any physician to assist someone to die, the Court noted. In addition, the right exists only for those adults freely consenting to death, and suffering from a “grevious and irremediable medical condition.” Medical professionals will continue to determine true consent and real vulnerability as they do in countless other medical care decision-making contexts.

Myth #3:  Carter marks the end of the assisted suicide debate.

Reality:  As Robert Leckey suggests in his analysis of Quebec’s assisted suicide legislation, the decision in Carter is just one further step in the on-going societal debate on assisted suicide. Although the Supreme Court struck down the prohibition on aiding and abetting suicide as unconstitutional, it suspended that result for one year to allow time for Parliament to fashion an appropriate constitutional solution. There will be ample room for Parliament to continue to protect individuals from undue influence to end their lives, so long as individuals like Ms. Taylor have their autonomy and dignity to end their lives exempted from criminal punishment.

The Supreme Court of Canada peered deep into the right to life, liberty, and security of the person and found that sometimes, to give those rights full and true meaning, an individual must have the right to die. Finding the balance between those rights and the needs of vulnerable persons in practice is a task that now lies with Parliament. In that sense, the constitutional right to die may have begun with the courts, but it ends in the democratic debates in which we all play a role.

Read more on this topic, from Dr. Erin Nelson.

Eric M. Adams teaches and researches in the fields of constitutional law, legal history, and employment law at the University of Alberta, Faculty of Law. Follow him on twitter @ericadams99

What does the Carter decision mean for medical care at the end of life?

by Erin Nelson

Today the Supreme Court of Canada unanimously ruled that Canada’s blanket prohibition on assisted suicide violates section 7 of the Charter. To the extent that the law prohibits a competent and consenting adult who seeks to end his / her life in circumstances of a “grievous and irremediable medical condition” that is causing intolerable suffering, it is of no force and effect. The Court suspended its declaration of invalidity to give Parliament 12 months to enact legislation that is consistent with its reasoning.

Three important facts about Carter and medical care at the end of life:

1. Competent adult patients are entitled to refuse medical care – even where that care is necessary to save the person’s life.

2. The focus of the claim, and the Court’s decision, in Carter is on competent adult patients who have expressed a clear wish to end their life in order to avoid continued intolerable suffering.

3. The shape the law will ultimately take is up to Parliament. The Court has provided guidance as to the constitutional imperatives that the law must meet, but has left the details to elected representatives.

Three myths about Carter and medical care at the end of life:

Myth #1:  The Court’s ruling will require physicians who object for moral or religious reasons to assist their patients to die.

Reality: The Court explicitly addressed this question, noting that nothing in its reasons would “compel physicians to provide assistance in dying”. The Court explained that the resolution of this issue is now for regulators and elected representatives.

Myth #2: The Court’s decision reflects its sense that some lives have less value than others.

Reality: The Court focused on the intimate and intensely personal nature of end of life decision-making, noting that  “s. 7 recognizes the value of life, but it also honours the role that autonomy and dignity play at the end of that life.”

Myth #3:  A law that permits physician-assisted suicide (PAS) will result a reduced focus on improving the reach and the effectiveness of palliative care.

Reality The Court notes that one of the trial judge’s findings was that in some jurisdictions with a permissive regime, the provision of palliative care actually improved after PAS was legalized.

Read more on this topic, from Dr. Eric Adams.

Dr. Erin Nelson is a professor in the Faculty of Law at the University of Alberta. She teaches Torts, Health Care Ethics & the Law and Law & Medicine. Her research interests focus on health law and policy.  

Wednesday, 4 February 2015

What are the Implications of Advances in Robotics for Public Organizations?

by Ken Kernaghan

Attribution: "Asimo look new design". Licensed under CC BY-SA 2.0 via Wikimedia Commons -

My June CPA article on Values, Ethics and Information Technology in Public Organizations called among other things for attention to the ethical, social and legal implications of advances in robotics.  I answered my own call with a December article entitled The Rights and Wrongs of Robotics: Ethics and Robots in Public Organizations.

Three things to know about advances in robotics:

1. Some electronic experts, including Bill Gates, believe that within a few decades robots will be as commonplace as computers are now. 

2. Advances in robotics will have widespread implications for the policy, service and regulatory responsibilities of government.

3. Public servants should begin thinking about the impact of robotics and, in some policy fields, positioning their organizations to manage it.

Three myths about the impact of advances in robotics:

Myth #1: Significant impact of robotics on public organizations, including its values and ethics implications, lies far down the road. 

Reality: Robots have become a significant presence in industrialized states and are already raising difficult ethical issues in such policy fields as health care, aging and the military.

Myth #2: Current values statements and ethics codes of public organizations are sufficient to deal with the rise of robotics.

Reality: These documents need to be revised to take account of new ethical issues arising from the increased use of robots.

Myth #3: Current ethical theories can serve easily as a basis for managing robotics in public organizations.

Reality: Deciding on and programming appropriate ethical principles and rules into robots is a major challenge.

Additional reading: Lin, Patrick, Keith Abney and George A. Bekey, eds. 2012. Robot Ethics: The Ethical and Social Implications of Robotics. Cambridge, Mass: MIT Press.

Gates, Bill. 2006 (December 16). “A robot in every home.” Scientific American, 58-65. Available at

Moor, James H. 2009 (March/April). “Four Kinds of Ethical Robots.” Philosophy Now, 72: 12-14. Available at

Robotics VO. 2013 (March 20). A Roadmap for US Robotics: From Internet to Robotics, 2013 Edition. Available at

Read Professor Kernaghan’s earlier post: Which digital dilemmas confront the public service?

Ken Kernaghan is professor emeritus of public administration at Brock University.