The Law and Physician Assisted Dying

By Professor Tom Koch

Tom Koch

Tom Koch

For most Canadians, the October 15 arguments at the Supreme Court in Ottawa will be about medical “aid in dying,” what the Dutch bluntly but accurately call physician assisted or directed termination. But what is really at stake in Carter et al. versus Attorney General et al is Canadian law itself, the meaning of its guarantees, promises, and injunctions. In effect, lawyers for and against “aid in dying” are asking the Supreme Court’s justices to interpret two sections of the Canadian Charter of Rights and Freedoms.

The result will define not simply issues of “assisted dying” but the future of Canadian law and society for years to come.

The Charter’s Section 15 guarantees that: 

“Everyone has the right to life, liberty and security of the person.” Section Seven promises that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination … based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

What does this mean?

In the British Columbia Supreme Court, where the case was first heard in 2012, civil libertarians argued “life liberty and security of person” meant persons should be free to choose the time of their death and the means of their dying. Because physical limits might prevent some from doing so, to not permit the medical termination of the fragile at a time of their choosing is discriminatory, a Section 7 violation.

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