A Short Note On The Impact of the SCC Carter Decision On Section 14 of the Criminal Code And On Consenting To Bodily Harm

In a previous Podcast, I discussed section 14 of the Criminal Code as the codification of a common law prohibition that a person is not entitled to consent to his or her own death. In that episode, I referred to the pending Supreme Court of Canada Charter challenge to the section as it related to the right to die. Recently, the Court released the Carter decision on the issue and, as many predicted, sections 14 and 241 were deemed constitutionally invalid to the extent that they prohibit a competent adult from seeking physician-assisted death where the person clearly consents to death and has a “grievous and irremediable medical condition,” which causes intolerable chronic suffering to the consenting individual.

The implications to section 241, which we will come to later in the Podcast series, will no doubt require a complete overhaul of the section. Considering the Federal government has a year to contemplate and re-legislate in the area, I have no doubt by the time we arrive at section 241, we will be looking at a very different section than present.

But how about section 14? How can the statute writers approach this section to ensure it is consistent with the Carter decision? Further, how does this decision impact the common law principle enunciated since Jobidon, which precludes individuals from consenting to bodily harm in certain circumstances. By extension, any  argument re-opening this discussion on Jobidon may impact the law concerning sexual assault and the issue of “rough” sexual activity. I have discussed these issues in a previous blog entitled What’s Wrong With Jobidon.  Although I leave it to the Reader to review this posting to understand and imagine the possible implications of revisiting Jobidon, I will suggest that an argument may now be made that clearly consenting competent adults should be able to engage in “rough” sexual activity as long as both consenting parties adhere to the scope of that consent.

Returning to the issue of section 14, Canada is the only commonwealth country to date, which has legalized physician-assisted death. Indeed, in the New Zealand Crimes Act 1961, which is a codification of criminal law similar to our Code, section 63 prohibits consenting to death in very similar terms to our own Code prohibition. Of note, is the UK experience where the common law principle prohibiting consenting to death is essentially codified through the Suicide Act 1961. Similar to Canada’s position before the Carter decision, a person could commit suicide but could not seek assistance to end life.  Since 2010, the UK Crown Prosecutors have a policy on assisted suicide charges to help guide the Crown on the discretionary decision-making process to prosecute such cases or not.  Of note, however, is the 2002 European Court of Human Rights decision in Case of Pretty v. The United Kingdom. The Applicant was paralyzed and suffering from an incurable degenerative disease and sought the DPP ‘s (UK Director of Public Prosecutions) agreement to grant immunity from prosecution should her husband assist her in ending her life. The DPP refused such consent and the European Tribunal, in determining whether by refusing such immunity the UK was in violation of various articles (2,3,8,9 and 14) of the Convention for the Protection of Human Rights and Fundamental Freedoms, reviewed the Canadian law at that time, including the Rodriguez case. Ultimately, the Court found that the UK legislation and policy position did not violate the Convention. It is useful to review this decision to understand how these Convention articles to some extent mirror the sections found in our own Charter.

This paucity of examples from similarly situated legal systems – English common law - may prove to be a difficulty for Canada in crafting an appropriate legislative response to the Carter decision. Canadian legislative drafters will need to look to American laws (see the Death With Dignity Act – Oregon) and Continental European laws (see the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act) to hopefully arrive at a uniquely Canadian response, which embraces Charter values and is consistent with our concepts of a free and democratic society.