OTTAWA — In a unanimous decision released Feb. 6, Canada’s highest court gave federal and provincial governments a year to draft legislation that regulates physician assisted suicide for consenting adults who are enduring “intolerable” physical or psychological suffering. The ruling does not require a person’s condition to be terminal to request assisted dying.
Justice Minister Peter MacKay said the government has no intention of acting hastily to draft new legislation in the wake of the historic Supreme Court of Canada decision that struck down a ban on physician assisted suicide.
“There is a wide and obviously very emotional range of perspectives on this issue, but (the decision) has very far-reaching implications,” MacKay said in Ottawa. “We intend to take the time to look at this decision carefully, and thoughtfully.”
The Court ruled that Criminal Code provisions “unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician assisted death for a competent adult person who 1) clearly consents to the termination of life 2) 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.”
The decision does not mean all prohibitions in the Criminal Code against assisted suicide are struck down.
Edmonton Archbishop Richard Smith issued a statement which said he was “deeply disappointed” by the ruling.
“We believe the current provisions in the Criminal Code prohibiting assisted suicide and euthanasia have served Canadians well, by protecting all persons, including those who are most vulnerable in our society,” said the statement. “The law can only respect the inherent dignity of each Canadian life if it acknowledges that no one has the right to take action that would intentionally end another’s life.”
Smith said the ruling “underlines the urgent need” for an effective trans-Canada palliative care strategy.
The Canadian Conference of Catholic Bishops called on governments to “interpret today’s judgment in its narrowest terms, resisting any calls to go beyond this to so-called acts of ‘mercy killing’ and euthanasia,” and to hasten implementation of palliative care across Canada. The bishops also encouraged governments and professional associations to respect freedom of conscience rights so health care workers are never forced to participate directly or indirectly in assisted suicide.
“Helping someone commit suicide is neither an act of justice or mercy, nor is it part of palliative care. The decision of the Supreme Court of Canada today does not change Catholic teaching,” said the statement signed by Archbishop Paul-Andre Durocher, CCCB president.
“Catholics are called by their faith to assist all those in need, particularly the poor, the suffering and the dying. Comforting the dying and accompanying them in love and solidarity has been considered by the church since its beginning a principal expression of Christian mercy.”
The Euthanasia Prevention Coalition called on Ottawa to use the notwithstanding clause to retain the current ban on assisted suicide.
“The Supreme Court is naive to think that assisted suicide will not be abused, when abuse already occurs,” wrote Alex Schadenberg, EPC executive director.
“Giving doctors the right to cause the death of their patients will never be safe and no amount of so-called safeguards will protect those who live with depression or abuse. There will always be people who will abuse the power to cause death and there will always be more reasons to cause death.”
The Court overturned its 1993 Rodriguez decision, saying the trial judge was right to take on the case because there was “a new legal issue raised” and “there was a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”
Section 7 of the Charter deals with the right to life, liberty and security of the person. The SCOC determined the “law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez.”
“The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly,” the Court said. “Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”
“The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged,” the decision said.
The Court said the prohibition on assisted suicide “is a valid exercise of federal criminal law power and it does not impair the protected core of provincial jurisdiction over health.”
“Health is an area of concurrent jurisdiction, which suggests that aspects of physician assisted dying maybe be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation.”
On the principle of overbreadth, the Court decided the prohibition was not in accord with “fundamental justice.”
“The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness,” the decision said. “
The total ban achieves the objective of protecting the vulnerable but is over broad in that it “catches people outside the class of protected persons.”
The court agreed with the trial judge that evidence from “scientists, medical practitioners and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.”
Though the decision said: “Nothing in this declaration would compel physicians to provide assistance in dying,” both the College of Physicians and Surgeons of Ontario and the College of Physicians and Surgeons of Saskatchewan are proposing policy changes that would ultimately require doctors to refer on cases, or in some instances to kill their patients.
“The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment,” the Court said.
The decision pointed out that in 1993 no western jurisdiction permitted physician assisted suicide, but in 2010 “eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia.”
The Carter case began in 2009 with Gloria Taylor who, like Sue Rodriguez, suffered from amyotrophic lateral sclerosis (ALS). Lee Carter and Hollis Johnson joined the case. Carter had assisted her mother Kathleen Carter in obtaining an assisted death at a Swiss suicide clinic.
The Court said Taylor knew she could not request physician assisted suicide and lacked the money to travel to Switzerland. “This left her with what she described as the ‘cruel choice’ between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death.”
In a summary of the trial judge’s decision, the Court said Justice Smith found “the preponderance of the evidence from ethicists is that there is no ethical distinction between physician assisted death and other end-of-life practices whose outcome is highly likely to cause death.”