In a unanimous decision that essentially usurps the power of the Federal Parliament to make or change laws, the Canadian Supreme Court struck down the country’s longstanding ban on assisted suicide and overturned its own 22-year-old ruling declaring the ban constitutional.
According to the Supreme Court justices, the Canadian Criminal Code’s assisted-suicide prohibitions “unjustifiably infringe” on the Charter of Rights and Freedoms “and are of no force or effect 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.” [Carter v Canada (Attorney General), 2015 SCC 5, Case No. 35591, at 147, 2/6/15]
By so ruling, the justices legalized both assisted suicide (where the patient commits the last act of self-administrating the lethal drugs) and euthanasia (where the doctor or another person commits the last act (e.g., giving a lethal injection).
Moreover, the Court chose not to limit this new legal type of death to patients who are terminally ill or those experiencing physical pain or suffering. Now existential or psychological suffering also qualifies a patient for death.
The Court suspended its ruling for twelve months to allow the Federal Parliament and provincial legislatures to enact “legislation consistent with the constitutional parameters set out” in the decision. [Carter, at 126] If the Federal Government opts not to pass such legislation—or more likely runs out of time due to a mid-October federal election and the House of Commons’ term ending in June—the Court’s ruling will take effect without any regulations, procedural or otherwise. That’s what happened when the Court struck down the country’s abortion law in 1988. [Globe & Mail, 2/6/15]
But the Government has another option: to use the “notwithstanding clause” in the Charter of Rights and Freedoms to override the Supreme Court ruling and maintain the ban on assisted suicide. However, no previous Canadian government has ever used that provision, and federal Justice Minister Peter MacKay has said that it is highly unlikely to happen in this case, even though Prime Minister Stephen Harper and his government have steadfastly opposed doctor-prescribed death. [Canadian Press, 2/11/15]
In addition to the Federal Parliament and regional legislatures, the justices have placed the implementation of their ruling in “the hands of the physicians’ colleges,” while stating that doctors are not compelled by the ruling to provide assisted death when asked. But the Court also emphasized that “the Charter rights of patients and physicians will need to be reconciled.” [Carter, at 132]
What that means may not be so clear-cut, and many doctors are concerned, given a recent commentary published in the Canadian Medical Association Journal stating that doctors with conscientious objections should be forced to refer patients to a colleague who is willing to end the patient’s life. If doctors are not forced to refer, then some patients would not be able to exercise their newly declared Charter right. [CMAJ, 5/13/14]
But practicing doctors are not the only ones deeply concerned about the Supreme Court ruling. “It’s a disaster for Canada,” explained Margaret Somerville, founding director of McGill University’s Centre for Medicine, Ethics and Law.
“Canada has fallen over the edge of the abyss in legalizing the intentional infliction of death on our most vulnerable citizens,” she said. “This is not an incremental change, but a seismic shift in one of our most important foundational values—respect for human life at both the individual and societal levels,” she added. “I believe that future generations will look back on this decision, in the light of its future consequences, as the most important, harmful and regrettable ethical, legal and public policy decision of the 21st century.” [Hamilton Spectator, 2/7/15]
The disability community also expressed alarm, calling the ruling a judgment that “creates the potential for the most permissive and least restrictive criteria for assisted suicide in the world, putting persons with disabilities at serious risk.”
[2015, vol. 29, No. 1, Patients Rights Council Update, http://www.patientsrightscouncil.org/site/update-075-volume-29-number-1-2015-1/ ; Council of Canadians with Disabilities, Commentary, 2/6/15]