Counselling Suicide (s. 241) Charges in Canada: Offences, Defences, Punishments

What is a counselling suicide charge?

A counselling suicide charge is covered under s. 241 of the Criminal Code found in Part VIII. Part VIII covers “Offences Against the Person.”

A counselling charge occurs when a person counsels another person to die by suicide, abets another person by dying in suicide, or aids another person to die by suicide. In other words, a counselling charge can occur in the act of counselling someone to commit suicide or the act of aiding someone in such an act. A person who commits suicide does not commit an offence, only the person who counsels or assists is guilty of a crime. However, the offence is made out regardless of whether the suicide ensues.

Medical Exemptions: Medical Assistance and Dying

No medical practitioner or nurse practitioner commits a counselling offence if they provide a person with medical assistance in dying in accordance with s. 241.2. A person is not a party to the offence if they do anything for the purpose of aiding a medical or nurse practitioner to provide a person with medical assistance in dying in accordance with s. 241.2 No pharmacist who dispenses a substance to a person other than a medical or nurse practitioner commits an offence if they dispense the substance further to a prescription that is written by the practitioner in providing medical assistance in dying in accordance with s. 241.2.

A person does not aid one’s suicide if they do anything, at another person’s specific request, for the purpose of aiding that person to self-administer a substance that has been prescribed for that other person as part of medical assistance in dying in accordance with s. 241.2.

No social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits a counselling offence if they provide information to a person on the lawful provision of medical assistance in dying in accordance with s. 241.2.

Counselling suicide is an indictable offence. This means that the crime is more serious and attracts greater punishment, both in terms of fines and institutional sentences.

Examples

Some examples of a counselling suicide charge may include the following:

• The accused actively encourages someone to commit suicide in an argument;
• The accused provides someone with a gun for the express purpose of committing suicide;
• The accused provides a suicidal person with pills to commit suicide, where the accused knows that person is suicidal; and
• The accused and an individual make a suicide pact, where only the accused survives.

Defences

The defences available to a counselling suicide charge are entirely dependent on the facts of your case. There are exemptions to this charge listed within the Criminal Code relevant to medical assistance and dying, in addition to other defences that an accused can call upon.

The exemptions listed in the Criminal Code are:

• A medical practitioner or nurse practitioner providing an individual with medical assistance in dying (and those aiding the medical practitioner or nurse practitioner);
• A pharmacist who provides an individual with a substance for the purpose of providing medical assistance in dying (or assisting the individual in taking the substance that has been prescribed); and
• A health practitioner who provides information to a person on the lawful provision of medical assistance in dying.

All of these exemptions apply even where the accused invoking that exemption has a reasonable, but mistaken, belief about the fact of the exemption. This means that an accused can be found not guilty where it was reasonable for them to believe that an exemption would apply to them.

Some defences to counselling or aiding suicide charges may include:

• The accused had no deliberate intent to aid or encourage an individual to commit suicide;
• The accused’s words did not have the required persuasive or convincing manner to be determined as counselling; and
• The person who committed suicide had no intent to do so, and their suicide was an accident.

Punishment

A counselling suicide charge is an indictable offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 14 years, with no minimum.

Suicide by the victim is not necessarily to be punished under this offence, as individuals can be charged if they unsuccessfully attempt to counsel a victim into committing suicide.

A counselling charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s.241 of the Criminal Code:

The Guilty Act (Actus Reus) 

The actus reus for counselling or aiding suicide conviction under s.241(1) of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:

• The deliberate encouragement or active inducement of committing suicide.

In R. c. Morin, 2014 QCCQ 1609, the court held that the actus reus to be found guilty under s. 241(1) requires that the speech, assessed objectively, aims to induce, persuade or convince a person to commit suicide. In this case, the accused told the victim that she should kill herself and instructed her to harm herself, instructing her to “go cut yourself”.

The court ultimately found that the statements did not contain the degree of, “insistence, persuasion and inducement” required for guilt under s. 241(1). The court considered the fact that the accused did not refer to or directly address the subject of suicide, nor did he make any remarks which sought to induce, encourage or lead the victim to suicide.

The Guilty Mind (Mens Rea)

The mens rea for a counselling or aiding suicide conviction under s.241 of the Criminal Code is established by proof, beyond a reasonable doubt, of the following

• The accused had the intent to counsel someone to commit suicide; or
• The accused had a conscious disregard of the substantial and unjustified risk inherent in committing the actus reus of counselling to commit suicide (recklessness).

In R. c. Morin, 2014 QCCQ 1609, the court held that the criminal intent required for the offence of counselling entails providing counselling with the intent to either see the offence carried out, or with conscious disregard to the unjustified and substantial risk it entails.

The person who counsels must want to induce a person through his or her comments to do something. The person must want to use his or her influence to induce another person to commit an act or encourage that person to commit an act. The person’s speech must seek to convince or persuade the other person to do something with a specific objective. In determining if the accused’s conduct satisfies the mens rea requirement, the accused’s remarks must be considered in context. For example, in this case it was found that the accused’s marks, considered in context, were sarcastic and not meant to be taken seriously.

Defences

How to Beat a Counselling or Aiding Suicide Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. In the case of a counselling charge, it is also important to determine the occupation of the accused due to the listed exemptions.

The following are some possible defences that may be used when fighting a counselling suicide charge:

Medical Assistance in Dying

A strong defence against a counselling or aiding suicide charge is that the accused is authorized to counsel or aid the victim in Medical Assistance in Dying (MAID). Section 241(2) to 241(7) of the Criminal Code protects medical practitioners, nurse practitioners and pharmacists from charges under the Criminal Code where they ensure that the victim is eligible for MAID.

Eligibility is determined by s. 241.2 (1) of the Criminal Code, which requires the following to be true:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

If a medical practitioner, nurse practitioner, or pharmacist ensures that all these criteria are met, they will be found not guilty of an offence under s. 241(1) of the Criminal Code. In order to qualify for this exemption, the accused must be entitled to practice as a medical practitioner, nurse practitioner or pharmacist under the laws of the province.

Not Counselling

Another strong defence against a counselling suicide conviction is that the words or action towards the victim were not sufficient to meet the actus reus of the offence. The words uttered by the accused must have a certain level of insistence, persuasion and inducement to qualify as counselling. This defence could be available in an instance where an accused makes an off-hand comment that the victim should commit suicide but provides no further details on how the victim should commit suicide, or why they should commit suicide.

A defence on these grounds will depend on a number of factors, including: what words were said, the context of the words said, the specificity of the words said, the relationship between the accused and victim, and the pressure put on the victim.

No Requisite Intent

If you can show that you did not have the requisite intent to counsel someone to suicide, or that you did not display a degree or recklessness in the alleged ‘counselling’, you have a potential defence under s. 241(1) of the Criminal Code.

This defence is possible in a situation where the words you spoke were not for the purpose of counselling someone to suicide, but the victim commits suicide regardless. A defence on these grounds will depend on your intent, but it will also depend on the context of the words said, as you could still be deemed to have been reckless in the act of counselling.

Not a Suicide / Unintentional Suicide

While it is a rare defence, it is possible to defend a counselling suicide charge by proving that the victim did not commit suicide, or that the victim had no intention to commit suicide but died regardless.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 14 years for those found guilty of a counselling suicide offence. This offence is a “straight indictable offence”.

Persons found guilty of counselling or aiding suicide are eligible for sentencing entailing a suspended sentence, stand-alone fine, custody, custody with a fine or probation. They are not eligible for a discharge or a conditional sentence.

Beyond any immediate jail and/or probation sentence you receive, there is also a discretionary DNA Order.

Convictions under s. 241(1) may be eligible for a record suspension 5 years after the expiration of 10 years after the expiration of the sentence.

Frequently Asked Questions

Is counselling suicide a criminal offence in Canada?

Counselling suicide is a criminal offence in Canada, but there are a handful of exemptions and defences that are available to individuals accused of the offence. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations.

Can you go to jail for counselling suicide in Canada?

If you counsel or aid in suicide under section 241(1), you can got to jail. As the maximum punishment for counselling suicide is 14 years imprisonment, and there is no minimum, offenders of this provision may be sentenced to any term equal to or lesser than 14 years. Whether or not the offender is imprisoned will depend on a number of factors considered by the court and the facts of the case.

What is the punishment for counselling suicide in Canada?

The punishment for counselling suicide in Canada will depend on many factors, but it can attract sentences of up to 14 years imprisonment. Sentencing under the Criminal Code for a counselling suicide charge will depend on what the court will determine fair in the circumstances. What is fair will depend on several factors, including the severity of the offender’s conduct, the public interest, as well as aggravating and mitigating factors relating to the offender and the offence.

Published Decisions

Rodriguez v. British Columbia (Attorney General), 3 SCR 519 (CanLII) and Carter v Canada (AG), 2015 SCC 5

These two cases are the landmark decisions in Canadian law which define the scope of a charge under s. 241(1)(b), and how the corresponding medical assistance in dying exemptions were created.

In Rodriguez, a woman diagnosed with Lou Gehrig’s disease challenged the counselling and aiding suicide provisions of the Criminal Code on the grounds that it should not be illegal for a terminally ill person to commit physician-assisted suicide. The Supreme Court found that s. 241(1)(b) did not substantially interfere with the woman’s Charter rights to the point that Canada’s long prohibition on suicide should be weakened.

The decision above was overturned in Carter, where several parties challenged the long-standing prohibition on assisted suicide. The Supreme Court found that the prohibition of unjustifiability infringed section 7 of the Charter, which resulted in changes being made to the Criminal Code to allow for physician-assisted suicide. The decision in Carter allows for an accused to defend a charge of counselling and abiding suicide where they are a qualified person aiding an eligible person in medical assistance in dying.

You can access the full Rodriguez case here, and the full Carter case here.

R c. Morin 2014 QCCQ 1609

This case involved three teenagers who knew each other through school. The accused’s girlfriend and the victim were insulting each other over Facebook, and the accused decided to get involved. The accused sent several insults to the victim and told her that she should kill herself. The victim attempted suicide after these conversations.

In finding the accused not guilty of counselling suicide, the court found that his words did not have the required elements to qualify as counselling. When assessed objectively by the court, the words did not aim to induce, persuade or convince the victim to commit suicide. The accused did not specify how the victim should commit suicide, and the comments were not persuasive or convincing enough to find guilt.

You can access the full decision here

R c. Gagnon, 1993 CanLII 3973 (QC CA)

The accused and the victim fell madly in love, and quickly married, but the victim’s 12-year-old daughter did not approve of the marriage. This led to a number of interventions by social workers in the home.

The victim unsuccessfully attempted suicide, as she could not accept being without the accused. The accused and the victim decided to commit suicide together, and the accused prepared the suicide. The two lay on top of each other, and the accused shot a gun through both. The victim died, but the accused survived (deemed “a miracle”).

This was a case whereby s. 241(1) was preferable to the accused as he was originally charged with first-degree murder. The Quebec Court of Appeal upheld the lower court’s decision to find the accused not guilty of murder, and instead guilty on a charge of counselling suicide. The court noted that this defence was only available where the accused and victim(s) formed a common and irrevocable intention to commit suicide together, simultaneously by the same event and the same instrumentality, where the risk of death was identical for both. All of these elements were present in this case.

While a conviction under s. 241(1) can lead to time in jail, it can potentially be used as a defence to murder charges, which will most likely attract greater punishment.

The fully translated decision can be accessed here.