IN an historic blockbuster decision that breaks with a 20-year-old legal precedent, the Supreme Court of Canada confirmed Friday that Canadians have the constitutional right to choose medical assistance in dying. The Supreme Court struck down the laws that make physician-assisted dying illegal in Canada, ruling that the Charter of Rights and Freedoms protects the right to die with dignity.
The BC Civil Liberties Association (BCCLA), the civil liberties watchdog responsible for launching the case, hailed the decision as a victory for seriously and incurably ill Canadians, who are suffering against their wishes at the end of life.
“We’re thrilled with the decision. It gives seriously and incurably ill Canadians the right to seek physician assistance to end their lives in a humane way,” said Grace Pastine, Litigation Director for the BCCLA. “We’re very relieved that Canadians will have choice at the end of life. The Court ruled that seriously ill Canadians deserve a peaceful and dignified choice, rather than being forced to suffer and live in fear about how they will die. We expect that the federal and provincial governments will honour this ruling and recognize that physician-assisted dying is one of many choices that competent patients can make as part of compassionate end-of-life medical care.”
The Supreme Court ruled that the criminal prohibition on physician-assisted dying is unconstitutional. The Court determined that the ban violates section 7 of the Charter of Rights and Freedoms, because it forces seriously and incurably ill Canadians to endure unnecessary pain and suffering at the end of life, and takes away their freedom to choose a more dignified and peaceful death.
The Supreme Court of Canada stated: “The sanctity of life is one of our most fundamental societal values. Section 7 (of the Charter of Rights and Freedoms) is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs.” And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect.” (paragraph 63)
The Court’s ruling is limited in its application to competent adults where (1) the person affected clearly consents to the termination of life, and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes ensuring suffering that is intolerable to the individual in the circumstances of his or her condition. The criminal law prohibition against non-medical professionals providing assistance in dying remains in place.
The Court determined that the federal government cannot use its criminal law power to restrict a patient’s choice to have a physician-assisted death. The court recognized that the federal Parliament and provincial legislatures may – “should they so choose” – both validly legislate to regulate physician-assisted dying, so long as they respect the Charter right of Canadians to access this medical service. The Court did not impose any requirement to pass a new law. The Court suspended the effect of its ruling for 12 months.
Québec has already enacted legislation to regulate assistance in dying. Other provinces could now follow suit, but Pastine pointed out that that is not necessary in the BCCLA’s view, adding: “Physician-assisted dying is now recognized for what it is – a medical service. As a result of this ruling, it automatically falls under existing provincial laws that apply to health matters and the professional standards and regulations governing the medical profession across Canada, just like any other form of end of life care. No further legislative action is needed.”
Sheila Tucker, co-lead lawyer for the plaintiffs said, “We are thrilled that the Supreme Court of Canada has found that the constitution gives Canadians the choice to seek what they consider to be a good death, including the option of a physician-assisted dying for seriously and incurably ill, mentally competent adults. The court confirmed what we’ve been arguing all along – inflicting unbearable suffering on patients who wish to end their lives with dignity is unjust and unconstitutional.”
The lawsuit filed by the BCCLA in April 2011 challenged the laws that make it a criminal offense to assist seriously and incurably ill individuals to die with dignity. The suit was filed on behalf of Lee Carter and Hollis Johnson, a married couple of Roberts Creek, B.C., who accompanied Lee’s 89-year-old mother, Kathleen (“Kay”) Carter, to Switzerland to peacefully end her life. Carter and Johnson have lived in the fear that they could be criminally prosecuted for helping Kay Carter. Kay Carter suffered from spinal stenosis, a degenerative condition that confined her to a wheelchair, unable to feed herself or go to the bathroom without assistance and suffering from chronic pain. Gloria Taylor, who was terminally ill with ALS, also known as Lou Gehrig’s disease was also a plaintiff in the case. Gloria died of natural causes in 2012.
Carter said, “We are overjoyed by the Supreme Court of Canada’s decision. My mother raised five children who all respected her choice. She lived with independence and resolve and refused to suffer needlessly at the end of her life. We’re so proud that this case will be my mother’s legacy and that she helped reignite a national debate. My mother never should’ve been forced to seek a death outside of Canada – away from her home – and without all her family by her side. Now Canadians who follow will have a choice for a dignified and peaceful dying process. Words can’t express our joy and relief that the Court has upheld the fundamental rights of the sick and dying.”
Johnson said, “My beloved mother-in-law was a vibrant, intelligent, woman who engaged with the pressing social and political issues of our time. She dreamed of legal change for all Canadians, because she believed that the laws forced people like her to suffer needlessly at the end of life. We are so proud that this case will be her legacy.”
The maximum penalty for assisting suicide is 14 years imprisonment. In June 2012, the BC Supreme Court struck down the criminal prohibition on physician-assisted dying, ruling that the laws violated the rights of Gloria Taylor, who suffered from ALS, and the rights of two other plaintiffs in the lawsuit, Lee Carter and Hollis Johnson. Gloria Taylor became the first person in Canadian history to have the legal right to seek an order allowing her to have the assistance of a physician to hasten her death. The federal government appealed the decision. In October 2013, a majority of the BC Court of Appeal ruled that it could not reverse the Supreme Court of Canada’s 1993 decision in Rodriguez v. B.C., effectively leaving the case for the Supreme Court to sort out. The BCCLA appealed to the Supreme Court of Canada, which heard arguments in the case in October 2014.
The BCCLA argued that the laws prohibiting physician-assisted dying are unconstitutional because they deny individuals the right to have control over choices that are fundamental to their lives and prevent unnecessary suffering. The BCCLA also argued that the laws restrict the liberty of physicians to deliver compassionate end of life care to incurably ill patients. Finally, the BCCLA argued that the prohibition denies equality to the physically disabled by criminalizing a choice – the choice to end suffering through suicide — that is available to the able-bodied. The Court did not rule on the question of whether the prohibition violates equality rights.
Joseph Arvay, co-lead lawyer for the plaintiffs, said, “The Court has shown tremendous courage in its decision today. It has recognized that it is for the Court to protect the fundamental rights and freedoms of Canadians when Parliament fails or refuses to do so. Its decision today is for all Canadians and not just those who are today suffering from horrible illnesses. It provides all Canadians with the peace of mind that should they be so unfortunate to face such an illness in the future that they will have the choice of seeking the assistance of a kind and caring doctor in their death.”
Alison Latimer, lawyer for the plaintiffs, said, “The choice to die with dignity should be available to all competent Canadians who suffer from serious and irremediable medical conditions. We applaud the ruling of Supreme Court of Canada. Countries around the world as well as a number of states in the U.S. now allow for physician assisted dying. Now Canada can follow their lead. All Canadians deserve compassionate care at the end of life, including for some the option of a physician assisted death.”
The plaintiffs were represented by Joseph Arvay, Q.C. and Alison Latimer of Farris LLP and Sheila Tucker of Davis LLP.