Anticipating the Legal Right to Assisted Death in Canada

David Moscrop believes the legal right to an assisted death will be recognized in Canada.

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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.”

Jack Gregory, Smithsonian Amercian Art Museum

Jack Gregory, Smithsonian American Art Museum

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.

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David Moscrop is a doctoral candidate in the department of political science at the University of British Columbia and a freelance journalist.

2 comments

  1. For anyone who thinks that it OK to play God, I just want to say one thing. “Repent Now from your evil ways!” For those who think right to “easy death” or for those who want to kill their children who may have some disease, it is not your right. God always only allows what we can stand to strengthen us. If we allow anyone to commit murder then we are also guilty of the crime. These end times are not easy and I am only tying to show those who think they are doing good that they are being mislead. / lied to ..

    I prey you will see that and change your mind, and follow God’s word.

  2. I am in favor of the decriminalization of assisted suicide but against euthanasia (or medical aid in dying as it is called in Quebec). I think the argument about autonomy is important but the protection of the vulnerable is also legitimate. This is why an adequate balance between these social interests must be reached.

    You say : “Accordingly, opposition to assisted death becomes about protecting the vulnerable. But such critiques are paternalistic (…)”.

    My answer would be plain and simple. As judge Gonthier said : “All criminal law is “paternalistic” to some degree — top-down guidance is inherent in any prohibitive rule (…) Autonomy is not the only value which our law seeks to protect” (R. v. Jobidon, [1991] 2 S.C.R. 714).

    Protecting the vulnerable is a legitimate goal and social interest. The chief justice, judge McLachlin said :

    “The s. 7 liberty or “autonomy” right is not absolute, even for adults. In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, there was broad agreement that the s. 7 right to make decisions about one’s body and life may be constrained by law to reflect other competing societal interests. In that case, the competing societal interest was the protection of vulnerable persons who may be subject to coercion to end their life prematurely (…) All members of the Court who addressed the issue accepted that limits on personal autonomy that advance a genuine state interest do not violate s. 7 if they are shown to be based on rational, rather than arbitrary grounds” (A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 par.137).

    You also say that the legitimacy of the parliament : “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”.

    I disagree. The legitimacy of the Parliament depend on his respect for the Constitution of Canada (that include the Canadian Charter of rights and freedoms) which constitute the supreme law of Canada. According to section 52 : “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

    And the rights and freedoms guaranteed by the canadian charter of rights are interpreted by the court and not the general public. As judge Cory said : “Quite simply, it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures” (Vriend v. Alberta, [1998] 1 S.C.R. 493 au para.56).

    Eric Folot, lawyer and bioethicist

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