An Interesting Tidbit Look at Physician-Assisted Suicide

In Canada, suicide is not a crime. However, assisting someone to commit suicide is.

Or, at least, it was.

In a June, 2012 decision out of British Columbia, the British Columbia Supreme Court (BCSC) found that these Criminal Code prohibitions violated the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the relatives of another woman who had terminated her life in Switzerland with their assistance).

Some of you might recall the issue of physician-assisted suicide being dealt with many years ago; in 1993, to be exact. In that case, the Supreme Court of Canada (SCC) found that although the prohibition on doctor-assisted death engaged the s. 7 rights of liberty and security of the person, the law should be upheld based on the importance of the objective behind it; namely, the protection of the vulnerable. This policy is part of our fundamental concept of the sanctity of life and it was noted that blanket prohibitions on assisted suicide is the norm among Western democracies.

The government's repeal of the offence of attempted suicide was not a recognition that suicide was to be accepted within Canadian society but merely reflected the recognition that the criminal law is an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the SCC found that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.

But the law has developed since then, particularly as to what exactly is encompassed in the term "principles of fundamental justice" (as found in s. 7).  Further, the Rodriguez case had not dealt with the issue of s. 15 equality rights.

In the 2012 decision (Carter), the Court found that the assisted-death provisions infringe equality rights (under s. 15 of the Charter) by making a legal act (suicide) more difficult for people with physical disabilities.

Since 1972, there has been no criminal sanction against suicide or attempted suicide. Persons who are physically able to commit the act of suicide are free to do so or attempt to do so. However, the Criminal Code amendments in 1972 left the prohibition against assisted suicide in place. As a result, persons who are physically unable to swallow pills or do other acts designed to end their lives are effectively precluded from suicide because providing assistance in suicide is a criminal act. 

An absolute prohibition against assisted suicide creates a distinction based physical disability and is discriminatory because it has a more burdensome effect on persons with physical disabilities than on others.

The law, viewed as a whole, embodies the following principles: (1) persons who seek to take their own lives, but fail, are not subject to criminal sanction because there is no longer a criminal offence of suicide or attempted suicide; (2) persons who are rendered unable, by physical disability, to take their own lives are precluded from receiving assistance in order to do so by the Criminal Code offence of assistance with suicide. Those principles create a distinction based on physical disability.

The effect of the distinction is felt particularly acutely by a subset of persons with physical disabilities represented by the plaintiff[s] ... - persons who are grievously and irremediably ill and physically disabled or will soon become so, are mentally competent, have full cognitive capacity, and wish to have a measure of control over their circumstances at the end of their lives. They may not wish to experience prolonged pain. They may wish to avoid the anxiety that comes with fear that future pain will become unbearable at a time when they are helpless. They may not wish to undergo palliative sedation without hydration or nutrition for reasons including concern for their families, fear for themselves or reaction against the total loss of independence at the end of their lives.

In my opinion, the law creates a distinction that is discriminatory. It perpetuates and worsens a disadvantage experienced by persons with disabilities. The dignity of choice should be afforded to Canadians equally, but the law as it stands does not do so with respect to this ultimately personal and fundamental choice. ...

As noted above, one of the major issues (and arguments) involved in this type of case is the fact that the purpose of the prohibition is to protect vulnerable people, including those with disabilities. The government argued, not surprisingly, that when it comes to the possibility of wrongful death, there can be no room for error and yet evidence existed of errors in other jurisdictions where physician-assisted death is permitted.

For example, predictions about how long a person has to live could be wrong; cognitive impairment, depression or other mental illness in a patient could be overlooked, especially when the doctor and patient have not had a long-term relationship; coercion or influence from persons who do not see value in the person’s life or who might stand to gain from their early death could escape detection; people who seem resolute about their wish to die could, in fact, be ambivalent; and insufficient pain management or symptom control could undermine a patient’s will to live.

Because the possibility of error cannot be excluded in any system, the government argued that nothing short of an absolute prohibition would achieve its objective.

However, the court was wary of adopting an "unrealistically exacting or precise formulation of the government’s objective that effectively immunizes the law from scrutiny at the minimal impairment stage".  In other words, it's not acceptable to simply argue that the end, effectively, justifies the means; that given the importance of the government's ultimate objective, all enquiry. Must. End. There.

The question, then, is whether there is an alternative means for the legislature to achieve its objective in a real and substantial way that less seriously infringes the Charter rights of [the plaintiff] and others in her situation.

Clearly, it is theoretically possible for the legislature to do so. Parliament could prohibit assisted death but allow for exceptions. The exceptions could permit physician-assisted death under stringent conditions designed to ensure that it would only be available to grievously ill, competent, non-ambivalent, voluntary adults who were fully informed as to their diagnosis and prognosis and who were suffering symptoms that could not be treated through means reasonably acceptable to those persons.

The court also found that the plaintiffs' s. 7 rights under the Charter had been infringed, either by the provisions' "very severe"’ effect on liberty and security of the person or right to life (including the right to shorten life) or in criminalising the acts of persons who have assisted others to die. These infringements were unjustified, as overbroad and disproportionate in relation to the objectives of the prohibition and, thus, not saved by s. 1. *

Although the relevant Criminal Code provisions were declared invalid, this finding was suspended for one year to allow the federal government to devise better legislation to deal with the issue. However, one of the plaintiffs was granted a constitutional exemption to permit her to proceed with a plan to end her life (should she decide to do so) with her doctor's assistance under specified conditions.

Not surprisingly, the government is expected to appeal.

Now my question to you, dear reader, is what effect, if any, might this decision (presuming it survives appeal) have on cases of so-called "mercy killing" of individuals with intellectual disabilities?

* It should be noted that none of the rights granted under the Charter are absolute as all are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

H/T to Neil Guthrie, Borden, Ladner, Gervais LLP (Lexology)