linkCanadian adults who are mentally competent and suffering intolerably and permanently have the right to a doctor’s help in dying, the Supreme Court ruled unanimously on Friday morning. The intolerable suffering can be physical or psychological.
The court suspended its ruling for 12 months to give the Canadian government, medical regulatory bodies and the provinces a chance to draft new laws and policies around assisted dying. It said doctors have the ability to address whether an individual is capable of consent.
The court said nothing in its ruling suggests doctors may be compelled to assist a patient in dying.
In its direct effect on how Canadians are permitted by their government to die, the ruling may be the one out of the court’s 140-year history that most directly and powerfully touches Canadians’ lives. The decision was signed by “The Court,” signifying its institutional weight.
The case at issue involved two women, both of them now dead. Kathleen Carter, 89, suffered from a degenerative disease, spinal stenosis, that left her lying “flat as an ironing board,” in her own words, and unable even to read a newspaper. Her daughter Lee Carter took her to Switzerland for an assisted death. Gloria Taylor, like Sue Rodriguez in 1993, suffered from amyotrophic lateral sclerosis, and died of an infection in late 2012.
The court called the law against assisted suicide cruel and said that, far from protecting the vulnerable, it harms those who suffer terribly and unchangingly. It began Friday’s momentous ruling: “It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”
The court did not strike down the Criminal Code’s prohibitions on assisted suicide, but said they no longer apply “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 court also ordered a major change to the rules around who pays the costs of litigants in cases of broad public importance. It said the governments involved should pay the full costs. In this case, that is likely to amount to more than $1-million for Canadian taxpayers, and a smaller portion to British Columbia.
The federal government had argued that Canada needs a blanket ban on doctor-assisted suicide to protect vulnerable people and assert the value of the lives of disabled people. Twenty-two years ago, the Supreme Court accepted similar arguments, ruling 5-4 that the government was justified in trying to protect the sanctity of life. Justice John Sopinka, writing for the majority, said that to the extent a consensus existed, it opposed assisted suicide, and cited Canada’s abolition of capital punishment in support of the view that Canadians wished the sanctity of life to prevail.
But this time, the court overwhelmingly rejected the notion that the sanctity of life was at stake, or that the vulnerable were endangered by assisted dying.
A key to the ruling was a trial judge’s finding that jurisdictions such as Belgium, Luxembourg, Washington and Oregon that allow physician-assisted dying have shown they can protect vulnerable people from death against their wishes. No Western jurisdiction had such a policy when the court decided the Rodriguez case. (Quebec has passed a law recognizing medical aid in dying as an appropriate part of end-of-life– care, the only province to have done so.)
The court said the blanket ban was unconstitutional under Section 7 of the national charter of rights because it limited the right to life, liberty and personal security more than was necessary to accomplish its goals, and in such a way as to deprive suffering people of their dignity and autonomy.
Text of the ruling
I have not always been of one mind about assisted suicide. In the earlier years of the AIDS epidemic, watching friends die by degrees in interminable agony, I was a staunch advocate. In the wake of the revolution in antiretroviral therapy post-1996, I wondered how many of the several friends I had who committed suicide in the few months or years prior might still be alive today if only they had been able to hang on a bit longer. I think of the several times I was near death and contemplating suicide and that on one of those occasions I might have chosen to die if the option had been available to me. I think of my partner dying of cancer, who was likely as not killed by the morphine used to dull the pain, rather than by the actual disease. I am always and will forever be concerned about those whose brain chemistry has been so altered by severe depression, etc. that they are pushed towards actions they would not otherwise take.
But eventually I came to realize that in most, if not all, of those cases, the choice to die was hastened by the fear of waiting too long and becoming physically incapable of procuring and administering the necessary drugs oneself, and that a change in the law would have provided a safety valve that might well have put off suicide long enough to have been able to take advantage of effective treatments.
So yes, I welcome this ruling, yet one more in a long line when courts have been required to act because legislators have punted questions of life and death down the field for too long.
