SCC assisted suicide ruling: What's at stake
Published Thursday, February 5, 2015 12:47PM EST
Last Updated Friday, February 6, 2015 6:39AM EST
The Supreme Court of Canada is set to rule Friday, on whether Canadians with terminal illnesses or unbearable suffering should have the right to seek assistance to die.
Here's an overview of what's at stake:
What was the main issue before the court?
At the heart of the case is whether section 241 of the Criminal Code, which makes it a criminal offence to aid and abet or "counsel" another person to commit suicide, should stand.
The Carter v. Canada case began with a British Columbia woman who suffered from spinal stenosis and wished to end her illness with medical help. Kay Carter eventually travelled to Switzerland and ended her life there, where assisted suicide is allowed.
With the help of the B.C. Civil Liberties Association, her family filed a lawsuit challenging the country's assisted suicide laws. Shortly after, terminally ill ALS patient Gloria Taylor asking to be added as a plaintiff. Taylor later died of an infection.
The B.C. Civil Liberties Association has continued the legal fight on both women's behalf, taking their cases to the Supreme Court. The high court has also heard from other right-to-die advocates, religious groups, groups representing the disabled, and those representing physicians. In all, 22 groups had their positions heard as official intervenors in the case.
What are the arguments on both sides?
The B.C. Civil Liberties Association argued before the Supreme Court in the fall that everyone should have the right to choose a dignified death and that the current laws inhibit the right of the terminally ill to die on their own terms. They also argued that suicide itself is not illegal, but the current law is unfair to terminally ill people who are disabled and do not have the means to take their own lives.
The federal government wants the court to uphold the law, arguing that all lives are valuable and need to be protected, and that the current law protects vulnerable people who may be coerced into terminating their lives.
What are the options before the court?
The justices could leave the law intact, but most don't see that option as likely. The court could also reinstate the original ruling and strike down the law and order it be amended to include provisions for those with terminal illnesses and sound mind who want to seek assistance to end their lives.
If they take the latter option, they would likely suspend their ruling to allow Parliament to write new laws on the issue, much as they did when they struck down Canada's prostitution laws.
The last time the issue of assisted suicide came before the courts, with the case of dying ALS patient Sue Roriguez in 1993, the court was deeply divided. Five of nine justices ruled in favour of maintaining the laws, but even the four judges who disagreed were divided as to why.
The only currently presiding judge who was on the panel in 1993, is Beverly McLachlin, the court's current chief justice. She dissented with the majority decision.
Won't the Supreme Court be repeating itself?
This case does effectively ask the court to revisit many the same fundamental questions that came up in 1993, but much has also changed in the last 20 years, and it appears the court agreed the issue was worth looking at again.
A major factor that appears to have changed is public opinion, with many recent polls suggesting the majority of Canadians are in favour of allowing doctor-assisted death. According to results of a survey commissioned by Dying With Dignity Canada and conducted by Ipsos Reid that were released last October, 84 per cent of Canadians support the right of a competent adult who is terminally ill, suffering unbearably and repeatedly asks for assistance to die to choose assisted death.
Since the Rodriguez case, there have been at least eight jurisdictions around the world that began allowing doctor-assisted suicide, including Belgium, the Netherlands, and the U.S. states of Washington and Oregon. Lawyers representing right-to-die groups argue that in those jurisdictions, the laws are working, though others would disagree.
In addition, several people with terminal illnesses have come forward to speak about wanting to be able to choose a quick death. They include not only Taylor and Carter, but also Canada's Dr. Donald Low and Californian Brittany Maynard, who both had terminal brain tumours.
Finally, what's also new is that Quebec has forced the courts to look at the issue of jurisdiction on matters of end-of-life care. The province argues that assisted death is really a health-care issue that thus falls under provincial jurisdiction. It went ahead this summer, passing right-to-die legislation that is now being challenged in court. Friday's Supreme Court decision could help answer the question of whether euthanasia and assisted suicide areunder provincial or federal jurisdiction.
Will this ruling settle the issue?
In a word, no. Even if the court decides to leave the legislation exactly as is, the debate about how to respect the rights of patients will continue among health care providers and the groups that represent them. The Canadian Medical Association has already prepared draft proposals for a "medical aid in dying" program.
But if the court strikes down the legislation, the matter will drop into the laps of Parliament, which may then have to grapple with other issues, including how to allow assisted suicide in certain cases while also protecting those who may be vulnerable to abuses.
Even if there is new legislation brought forward, there is a good chance that it will be challenged in the courts again, as many predict will happen with Canada's new prostitution laws.