Supreme Court reverses course, allowing assisted suicide and reshaping nation’s political agenda
It set out circumstances where the country’s top court said assisted suicide is constitutional — under a physician’s care, for consenting adults who determine they cannot tolerate the physical or psychological suffering brought on by a severe, incurable illness, disease or disability — a stunning reversal of the court’s 21-yearold ruling in the Sue Rodriguez case.
Justice Minister Peter MacKay said the government needs to absorb the ruling on a matter so “sensitive” for many Canadians. He hinted it could take the whole year granted by the court to develop a legislative response. Neither the NDP nor Liberals stated a clear party position, but both hinted at the need for federal guidelines to protect the vulnerable.
In the 9-0 judgment, the court declared the Criminal Code’s absolute ban on assisted suicide goes too far. Its attempt to protect “vulnerable people” also prevents competent, consenting adults suffering “grievous and irremediable medical conditions” from making core decisions about how they live and die, and so breaches three of the most basic rights: to life, liberty and security of the person, all enshrined in Sec. 7 of the Charter, and is not justified in a free democratic society. The judges declared the right to life does not mean individuals “cannot ‘waive’ their right to life.”
The ruling is not limited to disabled individuals who are unable to kill themselves unaided, nor to cases of terminal illness or people near death. Instead, the ruling applies broadly in cases of a major illness, disease or disability that inflicts intolerable physical or psychological suffering on a patient. The court said nothing in its ruling would compel a physician to act against his or her conscience or religious beliefs, and it is up to lawmakers to balance conflicting rights.
The decision was signed by the court, as a signal of a powerful consensus among all nine judges including the retiring Louis LeBel, and six of Prime Minister Stephen Harper’s appointees.
The court suspended the effect of the ruling for 12 months.
Parliament now has several options:
It could enact a new law laying out a scheme for physician-assisted suicides — setting out guidelines for determining consent, timelines, residency requirements, or the extent of medical assistance for example, as Quebec has done.
It could decide not to draft a new law, allowing the ruling to stand as an expression of principles and leave details up to provinces or medical regulatory bodies and authorities to oversee.
If Parliament does not draft a new law within that time, the effect of the decision would be to allow physician-assisted suicides within those limited circumstances. But it would not permit anyone to aid individuals to commit suicide at any time. The general prohibition still stands.
Afederal government could invoke the Constitution’s little-used escape or override clause that allows governments to legislate “notwithstanding” basic rights in the Charter. In an election year, that’s seen as political dynamite.
University of Ottawa law professor Carissima Mathen said unlike when the abortion law was struck down in 1989, the overall law against assisted suicide still stands, so a national regime that codifies the Supreme Court ruling would be an appropriate legislative response rather than no law at all, said Mathen, “and you need co-operation with relevant health authorities to ensure the system is managed competently.”
She said it would be “very dangerous and unfortunate” if there were no law, leaving disputes to be settled in individual prosecutions by a trial judge “who will basically be told by a defendant that applying this law in this case is unconstitutional. That’s what would happen if they do nothing.” She said use of the “notwithstanding” clause to override the court’s findings would be out of step with a majority of Canadian public opinion on an issue that affects many families directly.
Already social conservatives who support the Harper-led government are calling on the Conservatives to do just that.
Campaign Life Coalition urged Parliament to invoke the override clause, Sec. 33 of the Charter, or enact a law “that protects vulnerable Canadians from assisted suicide.” Others slammed the high court for judicial policy-making.
The family of Kay Carter, one of two B.C. women at the heart of the challenge, was overjoyed at what daughter Lee called a “huge victory for Canadians and a great legacy for (her mother) Kay.”
For them, and the civil libertarians and right-to-die advocates who joined their fight for the change, it was a clear and decisive victory.
Kay Carter and Gloria Taylor, another B.C. woman, suffered from different debilitating conditions when they launched the landmark case. Both have since died. Carter’s family escorted her to Switzerland, which allows physician-assisted suicide. The British Columbia Civil Liberties Association took up their challenge. The court said the litigation was in the broad, national public interest and deserved full legal costs — estimated to be in the millions — to be paid by the federal government with some costs to be paid by the government of British Columbia.
But disabled advocates agonized. In a statement, the Council of Canadians with Disabilities (CCD) and the Canadian Association for Community Living challenged governments to maintain or expand home-care services and supports, a national suicide prevention strategy for persons with disabilities and degenerative conditions, and “most critically” questioned whether governments would provide access to palliative care as a universally available service at the end of life.
CCD spokeswoman Catherine Frazee, shaken by the ruling, said “disabled people are very much at risk and I think we have to rise up and assert that disabled lives matter.”
Friday’s decision overturned the court’s1993 ruling in Sue Rodriguez’s bid for help to end her life before ALS made it impossible to even ask. The high court said it was time to revisit that because of legal changes in how courts analyze the constitutionality of statutes, and evidence based on the international experience that now shows how “safeguards” can be built into a “permissive regime” to protect vulnerable people from error or abuse.