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Friday, 6 February 2015

What does the Carter case say about the constitutional right to die?

by Eric Adams

Three things to know about a constitutional right to die in the Carter case:

1.   Section 7 of the Canadian Charter of Rights and Freedoms protects the rights to “life, liberty, and security of the person”. In Carter v Canada, a unanimous Supreme Court of Canada ruled s. 7, in some circumstances, also protects the right to die.

2.  Canadian law has a long and complicated relationship with suicide. Traditionally, the common law viewed suicide as an offence against both God and the Crown. Until 1823, English law commanded that the body of a person who has committed suicide be driven by a stake and placed at the intersection of two highways. In Canada, attempting suicide and assisting someone to commit suicide were both among the crimes listed in Canada’s first Criminal Code in 1892.  Although Canada repealed the criminalization on attempted suicide in 1972, the prohibition on aiding or abetting a person to commit suicide – s. 241 of the Criminal Code – remained in force.

3.  Gloria Taylor argued that the criminal prohibition on assisted suicide violated her constitutional rights to life, liberty, and security of the person. Ms. Taylor suffered from ALS, a fatal neurodegenerative disorder which causes sufferers to lose control of their bodies, culminating in the inability to speak, swallow, and breathe. “I do not want to end my life violently,” Ms. Taylor argued in her evidence. “I do not want to die slowly, piece by piece.” “I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.” Ms. Taylor’s compelling evidence played a large role in convincing In large part, it was the compelling evidence of Ms. Taylor, that convinced the Court of the law’s unconstitutionality.

Three myths about the Carter case and a constitutional right to die:

Myth #1:  The Carter case should have been decided on the basis of the previous decision in Rodriguez.

Reality:  Carter was not the first time the Supreme Court has confronted the delicate and difficult matters of constitutional rights to life and death. In 1993, the Court upheld the prohibition on assisted suicide in Sue Rodriquez’s unsuccessful constitutional challenge. But life and law has changed a good deal since 1993, the Court ruled in Carter. For example, expert and public opinion (including within the medical profession) has increasingly titled towards the need for legal reform in the law concerning end of life care. As well, although most countries continue to ban assisted suicide, eight jurisdictions outside of Canada (several American states and a number of countries in Europe) now permit some form of assisted dying. Perhaps most importantly, the Court agreed that a number of recent cases – involving hospital waiting times, safe injection sites, and sex workers, among others – had altered and expanded the meaning of the right to life, liberty, and security of the person in Canadian constitutional law. Accordingly, the legal, social, and political context that existed in Rodriquez no longer bound the Court.  

Myth #2:  Carter is likely to result in a deluge of assisted suicides in Canada.

Reality:  “The sanctity of life is one of our most fundamental societal values,” the Court held. “Section 7 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.” Overruling its previous decision in Rodriguez, the Court held that the prohibition on assisted suicide violated Ms. Taylor’s s. 7 rights because it forced upon her, and others like her, the “cruel” choice of ending her life prematurely or suffering until she dies from natural causes. Those grave consequences, the Court ruled, were not in keeping with the “principles of fundamental justice,” or a “reasonable limit” since they went far beyond the law’s objective of preventing vulnerable persons from being induced to commit suicide in moments of weakness.

The Court rejected arguments that the law recognized that life must be preserved at all costs, or that the decision would open the floodgates to masses of depressed people demanding physicians assist them to die. There is no medical duty on any physician to assist someone to die, the Court noted. In addition, the right exists only for those adults freely consenting to death, and suffering from a “grevious and irremediable medical condition.” Medical professionals will continue to determine true consent and real vulnerability as they do in countless other medical care decision-making contexts.

Myth #3:  Carter marks the end of the assisted suicide debate.

Reality:  As Robert Leckey suggests in his analysis of Quebec’s assisted suicide legislation, the decision in Carter is just one further step in the on-going societal debate on assisted suicide. Although the Supreme Court struck down the prohibition on aiding and abetting suicide as unconstitutional, it suspended that result for one year to allow time for Parliament to fashion an appropriate constitutional solution. There will be ample room for Parliament to continue to protect individuals from undue influence to end their lives, so long as individuals like Ms. Taylor have their autonomy and dignity to end their lives exempted from criminal punishment.

The Supreme Court of Canada peered deep into the right to life, liberty, and security of the person and found that sometimes, to give those rights full and true meaning, an individual must have the right to die. Finding the balance between those rights and the needs of vulnerable persons in practice is a task that now lies with Parliament. In that sense, the constitutional right to die may have begun with the courts, but it ends in the democratic debates in which we all play a role.

Read more on this topic, from Dr. Erin Nelson.

Eric M. Adams teaches and researches in the fields of constitutional law, legal history, and employment law at the University of Alberta, Faculty of Law. Follow him on twitter @ericadams99

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