Guest Post by Eric MacDonald
In its ruling, handed down on Friday, 6th February 2015, the Supreme Court of Canada ruled that those who are suffering from intolerable and irremediable suffering have a right to receive assistance to die. While not striking down the assisted suicide provisions of the Criminal Code, which would still govern assistance to die by suicide in other situations, the Supreme Court held that
The appeal should be allowed. Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician‑assisted death for 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 declaration of invalidity is suspended for 12 months. Special costs on a full indemnity basis are awarded against Canada throughout. The Attorney General of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costs associated with its presence at the appellate levels on a party and party basis.
The significance of this ruling should be immediately obvious. Some people claim to be surprised that the decision is in fact so liberal, and does not include restrictions as to the terminal nature of the disease suffered by the person seeking physician assisted death. I am not surprised, since the appeal was from the judgement of the British Columbia Court of Appeal to the Supreme Court of Canada, and concerned two persons who could not be considered terminally ill within the meaning of those terms usually held, in much contemporary legislation in the United States, as well as in the bill now before the British House of Lords. A judgement by the Supreme Court would clearly have had to take this fact into consideration, and it did so.
This is a significant departure from the decision of the Supreme Court twenty-one years ago, when, by a narrow margin, Sue Rodriguez’s request for the right to physician assisted death was denied. At that time the Supreme Court, by a narrow margin, defended its use of the notwithstanding clause in the Canadian Charter of Rights and freedoms, in order to deny Ms Rodriguez, and anyone else, the right to receive assistance to die. It was, in my view, even in its time, an illegitimate invocation of the notwithstanding clause.
The notwithstanding clause of the Charter of Rights and Freedoms essentially gives the government the right to suspend parts of the Charter, if doing so is deemed to be necessary in order to preserve the conditions necessary for maintaining a free and democratic society. Any such suspension is temporary, and must be renewed every five years, since a suspension is in fact the suspension of a recognised right of the citizens of Canada. The decision of the Supreme Court in this instance, however, will be very difficult to override in such a fashion since it was (i) a unanimous decision, and (ii) was drafted by all nine members of the court.
Of course, if you follow the news and commentary following the handing down of the decision on Friday, while there are a number of very positive responses to the decision, the reader will be regaled by many who are predicting disaster when the law comes into force. Alex Schadenburg, the notorious Roman Catholic “pro-life” campaigner, and head of the Euthanasia Prevention Coalition (which, despite its name, is effectively an arm of the hydra-headed Roman Catholic Church, whilst welcoming support from other Christians), has suggested in an op-ed in today’s National Post, that the government should invoke the notwithstanding clause until, in his words, it has gained “the time necessary to craft a law that can still protect Canadians.” Since the only law, in Alex Schadenburg’s view, that can protect Canadians, is one that prohibits any form of assisted dying, he is effectively asking the Canadian government to abridge the rights of all Canadians as determined by a unanimous decision of the Supreme Court of Canada.
We can only hope that the hysterical counsel of the religious lobby will not be heeded, and that the government will act as directed by the Supreme Court, and frame a law which will reasonably govern the practice of assisted dying in this great country, to enable the relief of those who are suffering intolerably and irremediably, and protect any vulnerable persons who might be considered to be placed in harm’s way by such a law. Despite the overblown fears of the nay-sayers, however, there is very little evidence anywhere in the world, that assisted dying laws constitute a danger to the vulnerable. We should commend the Supreme Court of Canada for its courageous and reasonable decision to enable Canadians whose suffering is very great to receive the relief that is their due, under the law.