Friday, Feb. 6, 2015
In a unanimous decision, The Supreme Court Friday struck down as unconstitutional the nation’s contentious century-old law against assisted suicide.
The historic ruling opens the door to physician-assisted suicide for consenting, severely ill adults who want to control the method, timing and circumstances of their death.
In the landmark 9-0 decision, the high court ruled that the Criminal Code provision against aiding and abetting someone to commit suicide deprives people suffering from grievous and irremediable medical conditions the right to life, liberty and security of the person as guaranteed under the Charter.
The court’s ruling limits physician-assisted suicides to “a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
Within those parameters, the court said the nature of the suffering includes either physical or psychological pain. The person’s condition need not be terminal.
Doctors, meanwhile, cannot be compelled to assist someone in suicide, the court stressed.
The court made no pronouncement on Quebec legislation, now being challenged in court, allowing for doctor-assisted suicide in that province in defiance of the Criminal Code.
The high court suspended Friday’s declaration for 12 months in order to give the federal and provincial governments time to respond and, should they choose, to launch legislative efforts to craft a regulatory framework for physician-assisted suicide. The court did not set practical parameters for doctor-assisted dying beyond the criteria for who is eligible to access physician-assisted suicide.
In the meantime, it will remain a crime to aid or abet a suicide.
In an unusual move, the unanimous ruling was written “by the court” rather than by a single justice for the majority, signalling the importance the top court places on the issue.
The right-to-die debate has been one of the most tempestuous ethical clashes of the past quarter-century in Canada. It tests core human values, from the sanctity of life and protecting society’s most vulnerable to individual dignity and free will.
The little common ground that exists between sides is that wilful death, assisted or not, reminds society of life’s difficulties, injustices and limitations.
Dying with Dignity Canada applauded the ruling.
“We’re deeply heartened by the court’s compassion towards those who suffer unbearably or face the prospect of a horrific death,” CEO Wanda Morris said in a statement. “This is a fantastic victory, and today we rejoice with the 84 per cent of Canadians who support the right to compassion and choice at end of life.”
Canadians have been legally free to step into the ultimate abyss since the law against attempted suicide was removed from the Criminal Code in 1972.
It ended the centuries-old, secular-world view that individuals were subjects of the state and taking one’s life was an act of rebellion that must be suppressed.
But assisted suicide has remained a crime in Canada since 1892, punishable by up to 14 years in prison.
That means severely infirm individuals physically incapable of legally killing themselves did not – until now – have the same life-ending option as suffering but able-bodied individuals.
Today’s ruling stems from the appeal of a 2012 lower court ruling launched on behalf of two British Columbia women with debilitating and terminal illnesses, Gloria Taylor and Kay Carter, both now dead.
During oral arguments in October, their lawyers argued that section 241(b) of the Criminal Code, prohibiting aiding or abetting someone to commit suicide, violates the Charter’s section 7 rights to life, liberty and security of the person and condemned them to a life of severe and intolerable suffering.
Given the section’s disproportionate impact on physically disabled persons, it also violates section 15 equality rights of the physically disabled, they said.
Federal and provincial government lawyers countered that the law protects the sanctity of life and the most vulnerable.
They said an absolute prohibition must remain on the books to send a message that lives are valued and worthy of protection, especially from those who subtly encourage vulnerable people to terminate their lives.
On the issue of patient consent, the court cited the reasoning of the B.C. Supreme Court judge who struck down the law in the 2012 case. A series of appeals of that decision led to Friday’s momentous high court ruling.
“The trial judge found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process. In reaching this conclusion, she particularly relied on the evidence on the application of the informed consent standard in other medical decision-making in Canada, including end-of-life decision-making.
“She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity.”
The court also responded to concerns from intervenors in the case that doctors not be forced to assist in suicides and that the court craft a remedy to account for physicians’ freedom of conscience and religion.
“Nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying,” it writes.
“The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief.
“In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.”
The court rejected government arguments that sought to find error with the original trial judge’s finding that vulnerable populations, such as the elderly and disabled, would be at heightened risk of accessing physician-assisted dying and that a permissive regime in Canada would result in a “practical slippery slope.”