Big news out of the Supreme Court of Canada yesterday - relevant for all of us, whether or not we currently have a disability.
I am speaking, of course, of the Supreme Court of Canada's decision striking down the law against assisted suicide in Canada. Or, at least, that's what the media would tell you happened.
Prior to yesterday, there were two sections of the Criminal Code, which, when combined together, banned assisted suicide.
Sec. 241 prohibited counseling, aiding or abetting anyone to commit suicide
and sec. 14 provided that no one can consent to having someone else end their life.SuicideCounselling or aiding suicide
241.Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years
Consent to deathWhat the Court did was to strike down these two sections of the Criminal Code only to the extent that they prohibited physician-assisted suicide "for a competent adult person who
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
- clearly consents to the termination of life and
- 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".
And, for just a bit more clarity (in case you missed this little tidbit in the ongoing roar), this declaration of invalidity was suspended for 12 months - what that means is all will continue as it was for the next year, giving the government the opportunity to attempt to craft a new law. Of course, the federal government could also decide to do nothing at all (after all, not deciding is a decision in and of itself, isn't it?) in which case, come February 5, 2015, physician-assisted suicide (but only under the circumstances set out above) will be legal in Canada.
In case anyone is wondering why the SCC would approve of physician-assisted suicide today when it didn't, ten years ago, when the case involving Sue Rodriguez was decided (which is a very good question, by the way), the Court explained this inconvenient little inconsistency away by stating that law relating to sec. 7 of the Charter (which protects an individual's right to "life, liberty and security of the person" and is the section of the Charter that the Court used to strike down the relevant Criminal Code sections) has "materially advanced" since the Rodriguez case was decided.
But back to the Carter decision; the Court found that, insofar as the Criminal Code prohibited physician‑assisted dying for competent adults who were suffering from a grievous and irremediable medical condition that caused enduring and intolerable suffering, it deprived these adults of their right to life, liberty and security of the person under s. 7 of the Charter. How you ask?
Well, the Court reasoned that the prohibition had the effect of forcing some of these people 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), were also engaged as a person’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denied people in this situation the right to make decisions concerning their bodily integrity and medical care and by leaving them to endure intolerable suffering, it impinged on their security of the person.
Further, this infringement was done in a manner that was not in accordance with the principles of fundamental justice. The object of the prohibition was not to preserve life whatever the circumstances, but 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 were not deprived arbitrarily. However, the prohibition caught people outside the class of protected persons and the limitation on their rights was in at least some cases not connected to the objective, making the prohibition overbroad.
Looking at the question of whether the government was justified in violating these individuals' right under sec. 7, the Court went on to hold that although an absolute prohibition on physician‑assisted dying was rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, the evidence did not support the contention that a blanket prohibition was necessary in order to substantially meet that objective. The evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making showed that a permissive regime with properly designed and administered safeguards would be capable of protecting vulnerable people from abuse and error. Vulnerability could be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally.
As an interesting aside, because the Court found that the prohibition on physician‑assisted dying violated s.7 of the Charter, it did not go on to consider whether it also deprived adults with physical disabilities of their right to equal treatment under s. 15 of the Charter. Any equality arguments around sec.15 of the Charter concerning this issue remain to be dealt with on another day.
And given that the Supreme Court of Canada is the highest court in the land, that, as they say, is that. Or is it?