In a rare unanimous decision, Canada's highest court has ruled that the criminal prohibition of assisted suicide is unconstitutional. They struck down two specific sections the Criminal Code and suspended the invalidity of those articles for 12 months so Parliament could get its act together to come up with a new legislative framework that isn't unconstitutional.
The Criminal Code articles in question, 14 and 241(b), were found to be in violation of section 7 of the Charter of Rights and Freedoms because they violate patients' rights to life, liberty and security of the person in a manner that is "overbroad" and "not connected to the objective" of the law, which is to protect people from being induced to commit suicide when they are at their most weak and vulnerable.
In other words, according to the court, the blanket prohibition on assisted suicide that was in effect until today was forcing terminally ill patients 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 ruling added that "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."
Today's landmark decision has changed the legal framework for assisted-suicide cases, but it only applies to a very specific set of circumstances. First, the patient must "clearly consent to the termination of life" and second, they must suffer from "a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition."
Until this morning, physician-assisted suicide was a criminal offence in Canada and could result in criminal prosecution for any person who "aids or abets a person to commit suicide." That meant that any family member, nurse, or doctor who helped a terminally ill patient obtain life-ending treatment or drugs could have faced criminal charges.
One of the plaintiffs in this case, Lee Carter, had to spend $32,000 of her life savings in order to bring her incapacitated 89-year-old mother Kathleen to Switzerland; the Dignitas Clinic, which specializes in physician-assisted suicide, is located there. She suffered from chronic pain and immobility caused by spinal stenosis, and refused to live as an "ironing board," according to court documents. Her daughter argued that she should have been able to get end-of-life-care for her mother in Vancouver without fear of criminal prosecution and a possible 14-year jail sentence.
One of the main legal issues that came up in Carter's case, and what was essentially the argument of the Attorney General of Canada, was that the Supreme Court was bound by its 1993 Rodriguez decision, when a slim majority of judges (5-4) found that a blanket criminal prohibition of assisted suicide was constitutional and necessary to protect those in a position of vulnerability.
But the legal landscape of Canada has changed significantly in the intervening 22 years. For starters, Beverly McLachlin is now the Chief Justice of the Supreme Court. Back in 1993, when the issue of s. 241(b) and assisted suicide first came before the court, she was in the minority and in her strongly worded dissent she asked: "What is the difference between suicide and assisted suicide that justifies making the one lawful and the other a crime, that justifies allowing some this choice, while denying it to others?"
Prime Minister Stephen Harper has expressed discomfort about addressing this political hot potato. "These difficult questions around right-to-die and assisted suicide, as you know they were discussed a couple of years back in the Parliament of Canada, and the government of Canada at this time has no intention of reopening that debate," he told reporters in Quebec last October. Justice Minister and Attorney General Peter McKay, for his part, has defended the 1993 Rodriguez ruling.
But not all Conservative Party members hold the Rodriguez decision in such high regard. Steven Fletcher, Conservative Member of Parliament for the Winnipeg riding of Charleswood-St. James-Assiniboia was rendered quadriplegic when his car struck a moose on a highway north of Winnipeg in 1996. He is Canada's first ever Member of Parliament with a permanent disability and has been a vocal supporter of assisted suicide. He hailed today's decision as "the most important ruling that the Supreme Court has made since the 1982 Constitution."
Conservative MP Steven Fletcher. Photo courtesy Steven Fletcher's House of Commons Office
Speaking from the foyer of the Supreme Court building in Ottawa, Fletcher did not mince words about the decision's controversial nature. "Parliamentarians would rather have their eyes scratched out than deal with this type of issue," he told reporters, "but that is not a reason not to deal with the issue.
"It speaks to so many fundamental Canadian values and what we as Canadians, not only believe, but also what we expect of each other. We do need better palliative care, home care, hospice care. But we also have to be merciful, compassionate, empathetic, understanding, and respect people to make the best decisions for themselves, and, up until 20 minutes ago, Canadians were not allowed to make the best decisions for themselves because they were prohibited from having this choice."
A recent Ipsos Reid poll commissioned by Dying With Dignity Canada found that 88 percent of Canadians were in favour of patients having the right to choose assisted dying if they have a terminal illness "causing unbearable suffering." The same survey showed that almost 80 percent of Canadians were also aware that doctors providing assisted dying could be charged criminally.
Nicolas Steenhout is the director of Living With Dignity and worked with the Physicians Alliance Against Euthanasia to give the Supreme Court the physicians' perspective in the Carter case.
He feels that most Canadians are not sufficiently informed about the intricacies of end-of-life medical treatment. "We actually did an Ipsos Reid survey ourselves and found that only one third of the people really understood what medical aid in dying meant," Steenhout said. "Patients don't necessarily know what they are agreeing to."
Steenhout told VICE he's disappointed with the decision, and said that the "intolerable suffering" at the heart of the Court's decision is usually caused by poor medical treatment. "We don't accept that people are suffering if they have proper access to care. If there was proper medical care they would not be suffering."
Anita Szigeti disagrees. She is a lawyer and leading expert in consent and capacity law. Szigeti told VICE that today's decision is definitely "a step in the right direction. We ought not criminalize somebody helping another incapable person. The criminal law should have no place in what is basically a health care decision because people have the absolute right to the autonomy of their body."
Additional reporting by Justin Ling.