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RIGHT TO LIFE: CANADA SUPREME COURT RULING ON ASSISTED SUICIDE

Feb 6 2015

The Criminal Code says that everyone who aids or abets a person in committing suicide commits an indictable offence, and it also says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. In 2009, a British Columbia woman, Gloria Taylor, was diagnosed with a fatal neurodegenerative disease. She wanted to die with dignity but was legally prevented from seeking assistance to that end. So, she challenged the constitutionality of the Criminal Code. In a 2012 decision the BC Supreme Court trial judge found that the Criminal Code prohibition violated the rights of competent adults suffering intolerably as a result of grievous and irremediable medical conditions under Charter of Rights and Freedoms.

The case went to the Court of Appeal for British Columbia in 2013 and that Court set aside the trial judge’s ruling, preferring to follow the 20 year-old precedent set in the Sue Rodriguez case. The BC Court of Appeal said the lower court should have been “bound” by the earlier case. So, in 2014, the case went to Canada’s highest Court for a final decision. On February 6, 2015, the Supreme Court of Canada held (unanimously) that the appeal should be allowed.

The question the nine SCC judges were asked to answer was whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person, and to equal treatment by and under the law.  The high Court said is a question that asks us to balance competing values of great importance.  On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition.  On the other stands the sanctity of life and the need to protect the vulnerable.

The SCC agreed with the trial judge who found that the Criminal Code prohibition violates the Charter  rights of competent adults who are suffering intolerably as a result of grievous and irremediable medical conditions. They found further that the evidence supported the trial judge’s conclusion that the violation of the right to life, liberty and security of the person guaranteed the Charter was “severe”.

The SCC therefore concluded that the prohibition on physician-assisted dying is void insofar as it deprives competent adults of such assistance 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.  “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The Supreme Court of Canada also said that it is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with those constitutional parameters. It should be pointed out that the Court was very careful to say that the scope of its declaration in this case is intended to respond to the factual circumstances in this case only and is not a pronouncement on other situations where physician‑assisted dying may be sought. The decision does not have immediate effect. The Court stated that it would suspend the declaration of invalidity for 12 months.

This debate has gone on in Canada for many years and will, no doubt, carry on into the future. Time will tell how the Federal and Provincial governments will respond in efforts to conform with this landmark ruling.

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