Canada's Supreme Court strikes down physician-assisted suicide ban

Deborah Gyapong

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The Supreme Court of Canada unanimously struck down the Criminal Code of Canada's ban on physician-assisted suicide to mentally competent but suffering and "irremediable" patients.

The historic decision does away with most provisions in law prohibiting physician-assisted suicide. It gives Parliament and provincial governments a year to craft legislation, if they show choose, that allows clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help to end their lives.

In its Feb. 6 decision in the case known as Carter, et al v. the Attorney General of Canada, the court said the Criminal Code provisions infringe on section 7 of the Canadian Charter of Rights and Freedom, which covers the right to life, liberty, and security of the person.

The court said the provisions "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; 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."

The decision does not mean all prohibitions in the Criminal Code against assisted suicide are struck down, however.

The decision overturns the court's 1993 ruling in Rodriguez v. British Columbia. The court then voted 5-4 to uphold the physician-assisted suicide ban. Sue Rodriguez was a 42-year-old mother who was suffering from amyotrophic lateral sclerosis, better known as Lou Gehrig's disease, and who wanted to end her life.

In its latest decision, the Supreme Court determined the "law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez." On the principle of overbreadth, the court decided the prohibition was not in accord with "fundamental justice."

"The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness," the decision said.

The total ban achieves the objective of protecting the vulnerable but is overbroad in that it "catches people outside the class of protected persons."

The court agreed with the trial judge who first heard the case that evidence from "scientists, medical practitioners and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error."

Though the decision said "nothing in this declaration would compel physicians to provide assistance in dying," both the College of Physicians and Surgeons of Ontario and the College of Physicians and Surgeons of Saskatchewan are proposing policy changes that would ultimately require doctors to refer on cases of physician-assisted suicide or in some instances to kill their patients.

"The charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment," the court said.

The decision pointed out that in 1993, no Western jurisdiction permitted physician-assisted suicide, but in 2010, "eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia."

The Carter case began in 2009 with Gloria Taylor, who like Rodriguez suffered from Lou Gehrig's disease. Lee Carter and others subsequently joined the case. Carter had assisted her mother Kathleen Carter in obtaining an assisted death at a Swiss suicide clinic.

The court said Taylor knew she could not request physician-assisted suicide and lacked the money to travel to Switzerland. "This left her with what she described as the 'cruel choice' between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death."

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