Top court opens door to doctor-assisted death

Right to life not a duty to live, Supreme Court rules on assisted suicide

  • Feb. 6, 2015 2:00 p.m.

Sue Rodriguez suns herself at her Saanich

By Bruce Cheadle, The Canadian Press

OTTAWA – The Supreme Court of Canada shifted the goalposts Friday on one of the most fundamental of human laws.

In a charter precedent that will go down in the history books as Carter vs. Canada, the court unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and “irremediable” patients.

The emphatic, unanimous ruling prompted tears of joy and frustration on both sides of the debate, reverberated through provincial health ministries and doctor’s offices across Canada, and left skittish federal parliamentarians groping for time to digest the implications.

“The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice,” the nine justices flatly asserted.

The judgment — left unsigned to reflect the unanimous institutional weight of the court — gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

It does not limit physician-assisted death to those suffering a terminal illness.

And to put an exclamation mark on the ruling, the court awarded special costs against the government of Canada for the entire five-year course of the litigation, less 10 per cent to be paid by the government of British Columbia.

The court suspended its judgment for 12 months, during which the current law continues to apply, placing enormous pressure on Parliament to act in what is an election year.

At least six reform bills on right-to-die issues have been defeated over the past two decades and the Conservative government of Stephen Harper insisted last fall that it would not support changing the status quo.

The political toxicity of the issue was immediately apparent Friday: Not a single MP asked the government a question about the decision during question period, despite the presence of Justice Minister Peter MacKay in the House.

“This is a sensitive issue for many Canadians, with deeply held beliefs on both sides,” MacKay said in a subsequent release.

“We will study the decision and ensure all perspectives on this difficult issue are heard.”

For the families of Gloria Taylor and Kay Carter, two now-deceased women who originally sought a B.C. court’s help to end their suffering, it was an unqualified victory.

Lee Carter, who accompanied her 89-year-old mother to Switzerland to legally end a life ravaged by debilitating disease, raised a bouquet of flowers to the heavens in the Supreme Court lobby as she tearfully recalled her mother’s legacy.

“Justice, dignity and compassion were the defining qualities of my mother,” Carter, flanked by her family, told a crush of reporters.

“We just felt that it was a fundamental right for Canadians that they should have this choice.”

A few steps away, Taylor Hyatt of the Euthanasia Prevention Coalition said the Supreme Court has abandoned the disabled, even though the judgment insists the most vulnerable can be protected.

“The ruling actually wants people with disabilities to end their lives when they believe their suffering, and the condition doesn’t have to be terminal,” said a distraught Hyatt.

“From my point of view, all legal protection has been stripped.”

Others objected on religious grounds.

“The court has ruled that in some circumstances the killing of a person will be legal,” said the Evangelical Fellowship of Canada. “Euthanasia has come to Canada.”

The decision reverses the top court’s 1993 ruling in the case of Sue Rodriguez, a fact the decision attributes to changing jurisprudence and an altered social landscape.

Two decades ago, the court was concerned that vulnerable persons could not be properly protected under physician-assisted suicide, even though courts recognized the existing law infringed a person’s rights.

But the experience of existing jurisdictions that permit doctor-assisted dying compelled the courts to examine the record.

“An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy,” says the judgment.

“The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies the right to request a physician’s assistance in dying.”

The 69-page judgment avoids the term “suicide” throughout, using instead the less morally freighted “death” and “dying.”

The court also weighed in on the “existential formulation” of right to life, which it said is not the same as a “duty to live.” Imposing a duty to live, said the court, “would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.”

The nine Supreme Court justices also noted that when their court struck down the country’s prostitution laws in 2013, it recognized that the legal conception of “gross disproportionality” has changed since the Rodriguez decision.

The court agreed with the trial judge “that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.

“While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them.”

That is now Parliament’s task, while Canadians watch and prepare to go to the polls within the next eight months.

On the web: http://bit.ly/1zoZQVx

Follow @bcheadle on Twitter

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