The Supreme Court of Canada – the top court in our country – recently came out with a decision about assisted suicide that will forever change the legal landscape and profoundly touch the lives of all Canadians. The effect of the decision, to be elaborated upon below, is that physician-assisted suicide will be legal in Canada. However, the decision raises many questions about how this law will operate.
History of the Case
The plaintiffs in this case essentially argued that the sections of the Criminal Code that prohibit assisted suicide unjustifiably infringe upon the rights of people who cannot commit suicide themselves. People with terminal illnesses who do not want to risk prolonged suffering and deterioration terminate their lives earlier than necessary because to wait a few months longer could mean suicide is no longer an option (due to diminished physical capabilities). It is currently a crime to help someone else commit suicide (through counselling, aiding or abetting) and most people do not want their loved ones to be prosecuted. The fact that the person consents to his or her own death is not a defence.
In 2012 the B.C. trial court agreed with the plaintiffs that the ban on assisted suicide infringed upon their rights, but the B.C. Court of Appeal subsequently overturned the decision because it felt bound by precedent (as discussed in our blog here). The Supreme Court of Canada agreed to hear the case and it was unknown whether it would – or could – overturn the precedent it created in 1993 in the Rodriguez case (which had very similar facts to this case).
What the Supreme Court of Canada Decided
The Supreme Court of Canada was influenced by the “cruel” two choices currently available: taking one’s life prematurely versus suffering terribly until dying from natural causes. Some of the suffering of individuals was discussed in the judgment, such as losing the ability to eat, swallow and breathe.
The Court commented on the lower court’s decision, which extensively reviewed evidence from other jurisdictions where physician-assisted suicide is legal. Despite many people’s concerns about a slippery slope, the Court noted that “the trial judge found that there was no evidence from permissive jurisdictions that people with disabilities are at heightened risk of accessing physician-assisted dying” and “there was no evidence of inordinate impact on socially vulnerable populations”. In other words, the fear might be unfounded. And further, the Court reminded us that we should not assume the law to be drafted will be defective and fail to provide necessary protections.
The Supreme Court of Canada agreed with the plaintiffs that the total ban on assisted suicide infringes upon the rights of the plaintiffs (in particular, the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms). They unanimously decided that while the ban generally has an important purpose – protecting the vulnerable – it is also over-broad and not every person who wishes to die is vulnerable. The Court was confident that an appropriate balancing of rights could be struck.
Impact of the Decision
It is often important to take note not only what judgments say, but what they do not say. The Court did not say that the prohibition on assisted suicide should be struck down entirely. Rather, they declared it void to the extent that it prohibits physician-assisted death for a “competent adult” where:
(1) the person affected clearly consents to the termination of life; and
(2) the person 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.
It appears this could include non-terminal conditions. It does not appear that assisted suicide without a physician would be permissible.
It is the Court’s job to rule on whether existing laws are legal, but it is not the job of the judiciary to create new law. Therefore, the Court created boundaries – the two factors above – but not the law itself. It suspended the declaration of invalidity for 12 months, which is common practice when government will need time to adjust to changes and amend existing statutes or draft new law.
Parliament will likely now create a law consistent with the parameters outlined (although technically they could choose not to draft anything, which would leave us in a state of confusion). The provinces may also enact legislation, such as Quebec’s Bill 52, setting additional requirements or restrictions. The law will also be supplemented by health regulatory bodies and associations such as the Canadian Medical Associationand the College of Physicians and Surgeons of Ontario, which will likely provide leadership to their members about the practical aspects of physician-assisted suicide. It is possible different provinces will have different regulatory regimes, from who qualifies, how “competent” or “intolerable” is defined, to what safeguards protect the vulnerable. The regimes enacted could be subject to further litigation. For example, a province could decide to impose a minimum age of consent to physician-assisted suicide, which might subsequently be challenged on the basis of age discrimination. Or, provinces may impose different standards on physicians in terms of their obligations to assist people who request assisted suicide or their rights to refuse on moral grounds.
Impact on Families
Families should not assume this decision absolves them of any liability when a loved one seeks assisted suicide.
It was mentioned in the decision that the plaintiffs exposed themselves to prosecution in Canada by helping their loved ones travel to Switzerland for the purpose of assisted suicide.
The Court said little about the deprivation of families’ rights under the Charter, but hinted that their “interest in liberty may be engaged by the threat of criminal sanction”. However, the arguments raised at trial focused on the rights of patients to request physician-assisted suicide and therefore so did the decision.
Families will want to ensure that any role they play helping loved ones seek physician-assisted suicide is compliant with the Criminal Code because it is not the entire prohibition that was declared invalid, but rather it was declared invalid to the extent it prohibits certain individuals from accessing the assistance. The decision introduces a lack of clarity around what families may or may not do to facilitate physician-assisted suicide, and what actions could potentially attract a criminal charge or conviction.
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