The Criminal Code says that everyone who aids a person to commit suicide is a criminal. It also says that no person may consent to death being inflicted on them. Together, these provisions prohibit assisted suicide in Canada. In 2009, a B.C. 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 BC Court of Appeal in 2013 and that court upheld the 20 year-old precedent set in the Sue Rodriguez case. The Court of Appeal said the lower court should have been “bound” by the Rodriguez decision. So, in 2014, the case went to Canada’s highest court for a final decision. On Feb. 6, 2015, the Supreme Court of Canada (SCC) held (unanimously) that the appeal should be allowed.
The question the nine SCC judges were asked to answer was whether the Criminal Code violates Charter rights to life, liberty and security of the person, and to equal treatment under the law. The high court said it is a question that asks us to balance competing values of great importance: the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition, and the sanctity of life and the need to protect the vulnerable.
The SCC agreed with the original 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.
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 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 decision does not have immediate effect. The Court stated that it would suspend the declaration of invalidity for 12 months.
So what does this mean?
It means that one year from now, assisted suicide will be legal in Canada, within certain constitutional parameters. The SCC has said that it is for Parliament and the provincial legislatures, should they so choose, to create laws consistent with those 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.
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 to this landmark ruling.
Doug Lester is a partner with RDM Lawyers LLP in Abbotsford. He practises in the areas of personal injury and labour and employment law. Comments or questions about this article can be sent to legalease@abbynews.com
