In a landmark decision the Supreme Court of Canada ruled on Friday that prohibiting assisted suicide is unconstitutional and a violation of the country’s Charter of Rights and Freedoms. Canada is now the first country outside Europe to legalize assisted suicide. 

The court unanimously affirmed the decision of the British Columbia Court of Appeal which had struck down the ban and ruled that a woman suffering from ALS, Gloria Taylor, had the right to ask for assistance in dying. Its judgement in what became known as Carter v. Canada stated that it is unconstitutional to deny physician-assisted suicide to:

“a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The lengthy judgement reaffirmed the reasoning of Justice Jo-Ann Prowse in the Carter case but still leaves many features of end-of-life decisions undecided. For instance, the Supreme Court declared that “We make no pronouncement on other situations where physician‑assisted dying may be sought”. It therefore refused to decide whether people may legitimately request help to commit suicide if they are simply tired of life or fearful of the future. Nor does it set an age limit for suicide requests.

While the unanimous decision is surprising, it was not unexpected. Canada has been debating assisted suicide and euthanasia for years. In 2011 a report from the Royal Society of Canada, a think tank, strongly recommended the legalisation of assisted suicide and euthanasia. In June Quebec, defying the Federal government, passed legislation which allowed it. In August the Canadian Medical Association declared that it no longer opposed it.  

The reasons underlying the Court’s decision were fundamentally two: personal freedom and security. “An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.”

Upending pro-life arguments against assisted suicide, it also declared that a prohibition infringed upon people’s right to life because they might end their lives sooner than they would if they could rely upon assistance: “it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”

What about conscientious objectors to assisted suicide? The Supreme Court tried to reassure them by declaring that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.  The declaration simply renders the criminal prohibition invalid.” This is a matter for legislatures and professional associations. However, it also said that “we underline that the Charter  rights of patients and physicians will need to be reconciled”, thus framing requests as a legitimate right under Canada’s charter. Opponents of assisted suicide are unlikely to be reassured.

The Court’s views on the experience of Belgium, where euthanasia has been legal for more than a decade, were interesting. It studied research by Professor Etienne Montero, a professor in bioethics and an expert on the practice of euthanasia in Belgium. He claimed that safeguards there were flimsy and that there were many abuses. Without contesting this, the Court declared that the experience in Belgium was irrelevant because of the many cultural differences between the two countries.

It will take a while for the consequences of the Carter case to work themselves out. However, it is abundantly clear that bioethicists are divided into two camps. Arthur Schafer, of the University of Manitoba hailed it as “a victory for humanity and justice.”

“The fact the Supreme Court decision was unanimous reflects the overwhelming consensus in Canadian society that individuals should have their liberty respected when it comes to such important decisions as when and how we die.”

 But Margaret Somerville, of McGill University in Montreal, said that it was a disaster.

 “Canada has fallen over the edge of the abyss in legalizing the intentional infliction of death on our most vulnerable citizens — those who are old, frail, disabled, depressed, mentally, physically, or terminally ill…

“This is not an incremental change, but a seismic shift in one of our most important foundational values — respect for human life at both the individual and societal levels,” she said. “I believe that future generations will look back on this decision, in the light of its future consequences, as the most important, harmful and regrettable ethical, legal and public policy decisions of the 21st century.”

Michael Cook

Michael Cook is the editor of MercatorNet.