David Moscrop believes the legal right to an assisted death will be recognized in Canada.
A struggle over the legal right to die is at the frontier of human rights debates in Canada. This struggle is both complex and contentious, as evidenced by the varying terms used to refer to assisted death – euthanasia, assisted suicide, death with dignity, murder. These terms reflect deep ethical, social, political, and legal perspectives.
In the coming months, this debate is likely to become more heated as the Supreme Court of Canada has agreed to hear an appeal in the case brought forward by the British Columbia Civil Liberties Association (BCCLA) challenging the Criminal Code prohibition on assisted-death. The case, Carter et al. v. Attorney General of Canada, has become the contemporary vanguard in the battle for what the BCCLA—and many others—call the right to “death with dignity.”
The contemporary history of the legal right to die in Canada reaches back to 1983, when the Law Reform Commission of Canada recommended against legalizing or decriminalizing euthanasia. Ten years later, in 1993, this view was reflected in the Supreme Court’s 5-4 decision in Rodriguez v. British Columbia (Attorney General). Sue Rodriguez, a 42-year-old woman with amyotrophic lateral sclerosis (ALS) argued that the criminalization of assisted suicide violated the Charter of Rights and Freedoms. Then, in June 1995, a Special Committee of the Senate of Canada issued a report, Of Life and Death, ultimately deciding not to recommend legalization of either assisted suicide or euthanasia.
Now, twenty years after Rodriguez, the Supreme Court is poised to revisit the issue of physician-assisted death. The initial decision in Carter found the current law prohibiting assisted suicide and voluntary euthanasia unconstitutional – a violation of the Charter. The British Columbia Court of Appeal then overturned the lower court decision, and now it is before the Supreme Court of Canada.
Rights advancements emerge from the delicate interplay between structural sociological realities, including values and beliefs, and the particular political and legal climate of the day. Since the 1960s, Parliament and the courts, driven in part by attitude and value shifts within the Canadian population, have made significant strides in advancing the rights of linguistic minorities, new Canadians, disabled Canadians, women, the LGBTQ community, and recently (though perhaps only temporarily) sex workers (to name several diverse groups). Why, then, not recognize the right of citizens to choose the manner and timing of their death? Typically, opposition from federal and provincial governments and interest groups revolves around the potential abuse of the right to assisted death, which they stylize as wrongful death. Accordingly, opposition to assisted death becomes about protecting the vulnerable. But such critiques are paternalistic, and fail to appreciate the institutional safeguards in place.
As recently reported in the Globe and Mail, a majority of Canadians support the right to assisted death. An Environics poll published in October 2013, found that 68 per cent of the country supported a patient’s right to choose to end his/her life. This number is up slightly from a 1992 poll by the same company that found support at 64 per cent. In the more recent poll, older Canadians were found to be more likely to support the right to assisted death; in no province did support fall below 62 per cent. In Quebec approval reached 79 per cent.
These numbers are important insofar as Parliament can’t afford to fall too far behind, or get too far ahead, of the people. In some ways, its legitimacy is bound up with their ability to navigate the shadowy but expanding boundaries of human rights as conceived of, and understood, by the general public.
As members of a thoroughly liberal society, for better or worse, Canadians generally want to be left alone, and it appears that increasingly we are troubled by the idea that the government might interfere in our plans for living and dying. As the Canadian population ages, life expectancy increases, and medical science advances, more and more Canadians are proving to be interested in having the option of assisted death. This should pressure Parliament to accede to the population of rights seekers and their supporters who wish for the chance to die with dignity.
In the long run, the legal right to assisted death will exist in Canada. The moral arc of the issue cannot remain stalled forever. Carter may be an important step along the way.
David Moscrop is a doctoral candidate in the department of political science at the University of British Columbia and a freelance journalist.