Counselling or Aiding Suicide (Offence): Difference between revisions
m Text replacement - "c.f." to "cf." |
m Text replacement - "'''([A-Z][a-z]+)'''<br>" to "; $1" Tags: Mobile edit Mobile web edit |
||
| Line 8: | Line 8: | ||
{{OverviewVIII|counselling or aiding suicide}} | {{OverviewVIII|counselling or aiding suicide}} | ||
; Pleadings | |||
{{PleadingsHeader}} | {{PleadingsHeader}} | ||
{{PleadingsIndictableList|s. 241 [counselling or aiding suicide] | {{NA}} | Yes }} | {{PleadingsIndictableList|s. 241 [counselling or aiding suicide] | {{NA}} | Yes }} | ||
| Line 14: | Line 14: | ||
{{PleadingsIndictElection|s. 241 [counselling or aiding suicide]}} | {{PleadingsIndictElection|s. 241 [counselling or aiding suicide]}} | ||
; Release | |||
{{ReleaseOnlyBail|s. 241 [counselling or aiding suicide]}} | {{ReleaseOnlyBail|s. 241 [counselling or aiding suicide]}} | ||
| Line 27: | Line 27: | ||
==Offence Wording== | ==Offence Wording== | ||
{{quotation| | {{quotation| | ||
; Suicide | |||
'''Counselling or aiding suicide'''<br> | '''Counselling or aiding suicide'''<br> | ||
241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, | 241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, | ||
| Line 45: | Line 45: | ||
(5) No person commits an offence under paragraph (1)(b) if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying in accordance with section 241.2. | (5) No person commits an offence under paragraph (1)(b) if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying in accordance with section 241.2. | ||
<br> | <br> | ||
; Clarification | |||
(5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying. | (5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying. | ||
<br> | <br> | ||
| Line 51: | Line 51: | ||
(6) For greater certainty, the exemption set out in any of subsections (2) to (5) applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption. | (6) For greater certainty, the exemption set out in any of subsections (2) to (5) applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption. | ||
<br> | <br> | ||
; Definitions | |||
(7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacist have the same meanings as in section 241.1. | (7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacist have the same meanings as in section 241.1. | ||
<br> | <br> | ||
| Line 78: | Line 78: | ||
</ref> | </ref> | ||
; Constitutionality | |||
Sections 241(b) and 14 were found to violate section 7 Charter protecting rights of the terminally ill and is not saved under s. 1 of the Charter.<ref> | Sections 241(b) and 14 were found to violate section 7 Charter protecting rights of the terminally ill and is not saved under s. 1 of the Charter.<ref> | ||
Carter v Canada (Attorney General), [http://canlii.ca/t/gg5z4 2015 SCC 5] (CanLII){{TheCourtSCC}}<br> | Carter v Canada (Attorney General), [http://canlii.ca/t/gg5z4 2015 SCC 5] (CanLII){{TheCourtSCC}}<br> | ||
| Line 150: | Line 150: | ||
* [[Counselling]] | * [[Counselling]] | ||
* [http://www.bailii.org/uk/cases/UKHL/2009/45.html R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)] | * [http://www.bailii.org/uk/cases/UKHL/2009/45.html R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)] | ||
; References | |||
* [[Pre-Trial and Trial Motions Checklist]] | * [[Pre-Trial and Trial Motions Checklist]] | ||
[[Category:Offences with Maximum Penalty of 14 Years]] | [[Category:Offences with Maximum Penalty of 14 Years]] | ||
[[Category:Unconstitutional Offences]] | [[Category:Unconstitutional Offences]] | ||
Revision as of 19:19, 13 January 2019
| Counselling or Aiding Suicide | |
|---|---|
| s. 241 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Indictment |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Indictable Dispositions | |
| Avail. Disp. | Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 14 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
- Offences under s. 241 were found to be unconstitutional, see below for details
Offences relating to counselling or aiding suicide are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
|---|
Offences under s. 241 [counselling or aiding suicide] are straight indictable. There is a Defence election of Court under s. 536(2).
- Release
Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Offence Designations
Offences under s. 241 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Suicide
Counselling or aiding suicide
241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,
- (a) counsels a person to die by suicide or abets a person in dying by suicide; or
- (b) aids a person to die by suicide.
Exemption for medical assistance in dying
(2) No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if they provide a person with medical assistance in dying in accordance with section 241.2.
Exemption for person aiding practitioner
(3) No person is a party to an offence under paragraph (1)(b) if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2.
Exemption for pharmacist
(4) No pharmacist who dispenses a substance to a person other than a medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if the pharmacist dispenses the substance further to a prescription that is written by such a practitioner in providing medical assistance in dying in accordance with section 241.2.
Exemption for person aiding patient
(5) No person commits an offence under paragraph (1)(b) if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying in accordance with section 241.2.
- Clarification
(5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.
Reasonable but mistaken belief
(6) For greater certainty, the exemption set out in any of subsections (2) to (5) applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption.
- Definitions
(7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacist have the same meanings as in section 241.1.
R.S., 1985, c. C-46, s. 241; R.S., 1985, c. 27 (1st Supp.), s. 7; 2016, c. 3, s. 3.
– CCC
Proof of the Offence
|
Proving counselling or aiding suicide under s. 241 should include:
|
Interpretation of the Offence
A survivor of a suicide pact may be convicted under this section, however, may have a defence to a murder charge if the two parties formed a common and irrevocable intention to commit suicide, together, simultaniously where the risk is identical to each other. [1]
A successful suicide does not constitute a form of homicide.[2]
- Constitutionality
Sections 241(b) and 14 were found to violate section 7 Charter protecting rights of the terminally ill and is not saved under s. 1 of the Charter.[3]
- ↑ R c Gagnon, 1993 CanLII 3973 (QC CA), per curiam - "cela se réalisera lorsque deux personnes forment un véritable et authentique pacte de suicide, c'est-à-dire lorsque les partenaires se trouvent dans un état mental tel, qu'ils ont formé une intention commune et irrévocable de se suicider, ensemble, simultanément, dans le même événement et par un moyen unique où le risque de mort est identique et égal pour chacun"
- ↑ London Life Ins. Co. v Trustee of the Property of Lang Shirt Co. Ltd., 1928 CanLII 20 (SCC), [1929] SCR 117, per Mignault J
- ↑
Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), per curiam
cf. Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, per Sopinka J
Consent
Section 14 prohibits death by consent:
Consent to death
14. 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.
R.S., c. C-34, s. 14.
– CCC
Participation of Third Parties
Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 241 [counselling or aiding suicide] | N/A | 14 years custody |
Offences under s. 241 are straight indictable. The maximum penalty is 14 years incarercation.
Minimum Penalties
These offences have no mandatory minimum penalties.
Available Dispositions
| Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
|---|---|---|---|---|---|---|---|---|
| s. 241 | N/A |  |
 |
|
|
|
|
|
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 241 |
|
General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
See also
- Counselling
- R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent)
- References
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Serious Personal Injury Offences
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Straight Indictable Offences
- Offences with No Mandatory Minimum
- Secondary Designated Offences for DNA Orders
- Offences with Maximum Penalty of 14 Years
- Unconstitutional Offences