Verbatim: Court allows assisted suicide in Canada

By F&O
February 6, 2015
 
Canadian physicians in Canada will be legally allowed to assist some patients to die, the Supreme Court of Canada ruled Friday.
 
The ruling affects those with “a grievous and irremediable medical condition that causes enduring and intolerable suffering,” throws out Canada’s Criminal Code law prohibiting assisted suicide, which it ruled is unconstitutional and violates the Canadian Charter of Rights and Freedoms.

The court said its ruling will come into effect in 12 months. When it does, Canada will join a tiny group of countries, mostly in Europe, and some American states, that allow assisted suicide under some conditions.

The court noted Canada’s criminal law aimed to protect vulnerable people but is “overbroad” because it catches everyone in its safety net. It upheld a lower court decision that concluded, “on the basis of 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. “

The constitutional challenge to the criminal law was filed in  2011 by the British Columbia Civil Liberties Association, with Gloria Taylor (who since died of natural causes), Dr. William Schoichet, a family doctor, and Lee Carter and Hollis  Johnson, who took Carter’s 89-year-old mother Kathleen Carter to Switzerland to obtain legally help dying.
 
The conservative federal and B.C. governments, opposed the constitutional challenge, while numerous religious, human rights and other groups held intervenor status.
 
In the wake of the ruling the organization representing Canadian doctors urged lawmakers to work with them to draft any new legislation “to ensure patient needs are respected and the physician perspective is reflected.”  The Canadian Medical Association “supports physicians being able to follow their conscience in choosing whether to participate in medical aid in dying,” said president Chris Simpson in a statement.
 
 
Simpson said the association “recognizes that there are rare occasions where patients have such a degree of suffering, even with access to palliative and end of life care, that they request medical aid in dying. We believe in those cases, and within legal constraints, that medical aid in dying may be appropriate.”
 
Excerpts of the ruling, Lee Carter, Hollis Johnson, William Shoichet, British Columbia Civil Liberties Association and Gloria Taylor, appellants, and Attorney General of Canada and Attorney General of British Columbia, respondents: 
 
Section 241 (b) of the Criminal Code  says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14  says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. 
 (A lower court judge) found that the prohibition against physician‑assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1  of the Charter . She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided T with a constitutional exemption. 
That ruling, following a trial in the British Columbia Supreme Court, was overturned on appeal in the top provincial court, the Court of Appeal of British Columbia, citing a landmark ruling in 1993 that prohibited assisted suicide. But the Supreme Court of Canada justices said the current challenge raised a new legal issue, and that circumstances or evidence “fundamentally shifts the parameters of the debate.”  The country’s top court agreed with the trial judge:
 
…Section 241 (b) and s. 14  of the Criminal Code 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 and (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 declaration of invalidity is suspended for 12 months.
 
… Insofar as they prohibit physician‑assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241 (b) and 14  of the Criminal Code  deprive these adults of their right to life, liberty and security of the person under s. 7  of the Charter . 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. 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. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.
 
The prohibition on physician‑assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of 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. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. 
Related reading on F&O:

Quebec legalizes doctor-assisted death, F&O blog report, June, 2014 

Death with dignity: The renewed debate over euthanasia. Column by Deborah Jones (subscription required)
 
References:
 
  
Court of Appeal for British Columbia ruling that overturned ruling of the trial judge in the B.C. Supreme Court:    http://www.courts.gov.bc.ca/jdb-txt/CA/13/04/2013BCCA0435.htm
 
 
Canadian Medical Association statement:  https://www.cma.ca/En/Pages/cma-examining-supreme-court.aspx
 
Wikipedia page on assisted suicide:  http://en.wikipedia.org/wiki/Assisted_suicide
 
Noteworthy elsewhere:
 
 

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