A setback for dying with dignity in Canada

The Supreme Court of British Columbia’s decision to strike down Canada’s ban on assisted suicide was reversed by the BC Court of Appeal yesterday.

The decision represents a disappointing delay for advocates of compassionate deaths in Canada, which have been fighting for a reversal to the ban for decades.

The latest case came after Gloria Taylor fought for the right to choose how to end her life. She had been suffering from ALS and wanted the option on how to die. She died from natural causes after winning a constitutional exemption from the Supreme Court of BC last year.

Yesterday’s ruling was a split 2-1 decision, with Chief Justice Finch dissenting.

The lower court’s decision was based on an overwhelming amount of evidence demonstrating that legalized assisted suicide regimes can provide a safe means to allow competent adults to end their life when faced with a terminal illness. The majority and dissent in the appeal does not dispute this evidence and the decision to overturn the decision rested on whether the court had the authority to overturn the Supreme Court of Canada’s earlier Rodriguez decision.

Rodriguez was the first major test of assisted suicide under the Canadian Charter of Rights and Freedoms. The court split 5-4 over the decision, with the minority (which includes current Supreme Court of Canada Chief Justice McLachlin) arguing that a constitutional exemption or new law should be created to permit a physician-assisted suicide regime in the Canadian medical system.

All judges in this appeal found that the BC Supreme Court decision over-reached, although Chief Justice Finch did agree with the lower courts arguments regarding the right to life, which had not been included in the Rodriguez decision.

What I find interesting about the majority’s decision is that they recognize that this will likely end up in the Supreme Court of Canada again, where the authority to overturn Rodriguez lies. They therefore outline a potential Remedy to provide “an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals. [326].”

Unlike most regimes, the majority argues that those seeking to end their life should have to appear before a judge. They argue that:

[335] … We are not satisfied that the bare requirement of two medical opinions and a request from the patient is sufficient to satisfactorily establish a free will, or to demonstrate the absence of subtle or overt pressures, to choose the route of physician-assisted suicide. At the least, a court of law, unencumbered by previous judicial direction, accustomed to assessing issues of consent and influence, and with a perspective outside the (often overstressed) health care regime, should in our view be required to assess individual cases.

Given that the justice system is frequently more “overstressed” and less (financially) accessible than Canada’ health care system, this requirement strikes me as a bit odd. Nevertheless, this section is relatively moot for now and I guess is mostly provided as free advice to the Supreme Court of Canada, which is under no obligation to take it.

The majority decision concludes:

[352] We return, then, to our comprehensive conclusion. In our respectful view, any review of the substantive Charter challenges, and the granting of comprehensive or limited relief from the effects of the law, are beyond the proper role of the court below and of this court. If the constitutional validity of s. 241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so.

So the ball is tossed up to Canada’s chief justices. Given the incredible legal legwork done by the BC Civil Liberties Association and Dying With Dignity, I think they stand a reasonable chance. Unfortunately, legal battles like this are costly, so please consider supporting them in their fight.