VANCOUVER, B.C. (CN) – The British Columbia Supreme Court on Friday struck down Canada’s criminal prohibition of doctor-assisted suicide.
The ruling stems from cases filed by Gloria Taylor, who suffers from amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and Lee Carter and Hollis Johnson, a couple who feared criminal prosecution for helping a relative obtain physician-assisted suicide services in Switzerland.
Madame Justice Lynn Smith found that the Criminal Code of Canada’s prohibition of physician-assisted suicide was legislatively overbroad and “grossly disproportionate to the objectives it is meant to accomplish.”
Smith also found that the ban had a disproportionate effect on people with disabilities.
“The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability,” according to the 395-page ruling. “The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives.”
The last time the issue went to court, the Supreme Court of Canada upheld the criminal ban in a 5-4 decision on a case filed by ALS sufferer Sue Rodriquez in 1993. Since then the public policy debate has remained alive in Parliament but no substantive changes have occurred despite a few attempts by individual lawmakers.
While the parties wrestled over the standing of certain intervenors, both sides enlisted a number of experts to support their arguments about the ethics of physician-assisted suicide. The role that ethics played in the decision was a point of contention.
Plaintiffs argued “that the ethical position can inform, but not determine, the legal analysis. They submit, however, that in this case the legal resolution should mirror the ethical one. They suggest that there is no societal consensus supporting a principle of the absolute sanctity of human life but that there is a societal consensus supporting the principle of a person’s autonomy over his or her own body,” the ruling states.
“Canada says that whatever one might conclude about the ethical position is irrelevant to the legal questions before the court. It criticizes the plaintiffs’ argument for attempting to raise one ethical view to the status of a principle of fundamental justice. Nevertheless, Canada says that the preservation of human life is a fundamental value in Canadian society and that respect for life transcends individual, religious and diverse cultural values. Canada does not assert a state interest in the absolute protection of all human life. It says, however, that respect for this fundamental value is reflected in the state’s interest in not condoning the taking of human life, and embodied in the criminal law.”
The British Columbia government cited United States of America v. Burns, “where the court stated … The broader aspects of the death penalty controversy, including the role of retribution and deterrence in society, and the view that capital punishment is inconsistent with the sanctity of human life, are embedded in the basic tenets of our legal system, but they also reflect philosophic positions informed by beliefs and social science evidence outside ‘the inherent domain of the judiciary.'”
Madam Justice Smith wrote: “Actions may be ethical but not legal, and, conversely, may be legal but not ethical. The question in this case, in any event, is not what is ethical or legal, but whether specific provisions of the Criminal Code are constitutional. However, because the three realms (ethical, legal and constitutional) tend to converge even though they do not wholly coincide, my view is that the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case.”
Smith noted that doctor-assisted suicide is illegal in most Western nations, although the Netherlands, Belgium, Luxembourg and Switzerland allow it, as do three U.S. States, including Oregon and Washington.
Evidence was presented that assisted suicides do occur in Canada despite the criminal ban. Smith found that potential harms created by lifting the ban, such as elder abuse, can be mitigated with “carefully designed, well-monitored safeguards.”
“The legislation has very severe and specific deleterious effects on persons in Gloria Taylor’s situation. It categorically denies autonomy to persons who are suffering while they face death in any event. It also has deleterious effects on some physician-patient relationships and on the kind of care that some patients receive,” the ruling states. “In my opinion, the law creates a distinction that is discriminatory. It perpetuates and worsens a disadvantage experienced by persons with disabilities. The dignity of choice should be afforded to Canadians equally, but the law as it stands does not do so with respect to this ultimately personal and fundamental choice.”
In conclusion, Smith issued two declarations, but suspended them for a year to allow the Canadian government to amend the law to bring it in line with the constitution. She also issued an exemption to Gloria Taylor to allow her to move forward with a physician-assisted death.
Here are the declarations:
“(a) A declaration that the impugned provisions unjustifiably infringe s. 15 of the Charter, and are of no force and effect to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.
“(b) A declaration that the impugned provisions unjustifiably infringe s. 7 of the Charter, and are of no force and effect to the extent that they prohibit physician-assisted suicide or consensual physician-assisted death by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult person who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.”