The Constitutionally Protected Right to Life (and Death) In Canada

By Kelly Kane

Canadians suffering from terminal illnesses or grievous, irremediable medical conditions now have a choice to end their lives with dignity before their terminal illnesses take over. On February 6, 2015, the Supreme Court of Canada overturned its prior ruling that made physician assisted dying a criminal, stating that such a ban violates the Canadian Charter of Rights and Freedoms.

 In 1993, the Court’s decision in Rodriguez v British Columbia (Attorney General) upheld a blanket prohibition on physician assisted death. There, Sue Rodriguez, a 42-year old woman suffering from amyotrophic lateral sclerosis (“ALS”), a rapidly progressive, fatal neurological disease,[1] wished to have a qualified physician help her end her life at the time of her choosing.[2] Ms. Rodrigues argued that the Criminal Sanctions associated with physician assisted suicide was invalid under the Canadian Charter of Rights and Freedoms (“the Charter”). Specifically, she claimed the ban violated Section 7 of the Charter, which provides that every person has the “right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[3] The court stated that it has a fundamental interest in protecting human life, and the criminal ban on physician assisted suicide protects the vulnerable, who “in a moment of weakness, might be persuaded to commit suicide.”[4] Ms. Rodrigues also made a compelling argument that a ban on physician assisted death violated section 12 of the Charter, which provides that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”[5] She argued that the ban on physician assisted death forces her to endure a prolonged period of suffering until her natural death occurs, or end her life on her own.[6] As persuasive as the argument is, the court stated that the prohibition of the action did not constitute treatment, and therefore didn’t violate the Charter.

The Supreme Court did not revisit the Rodriguez decision until 2015, when two women, Kay Carter and Gloria Taylor, had degenerative diseases and wanted the right to have a doctor assist them with dying before their diseases became unbearable.[7] The court overruled the Rodriguez decision, holding that prohibitions on physician assisted death unjustifiably infringed on section 7 of the Charter. The court stated that although the purpose of the ban was to protect the vulnerable from being induced to commit suicide at a time of weakness, the blanket prohibition is overbroad. [8] The court issued a declaration of invalidity, but gave the provincial and federal governments 12 months to draft new legislation.[9] The new Liberal government asked the court for an extension, so the ban on physician assisted dying was not officially lifted until June 6, 2016.[10] Canadian lawmakers passed legislation in late June, making Canada one of very few nations where physicians can help the those with terminal illness die.[11]

The legislation includes strict criteria. A patient must be eligible for government funded health care. This requirement prevents what is known as “suicide tourism,” as only Canadians and permanent residents may choose to end their life with the help of a physician.[12] A patient must be a competent adult 18 years of age or older, diagnosed with a serious, incurable disease, illness, or disability and is in an “advanced state of irreversible decline.”[13] Further, physicians who do not wish to provide end of life services are not forced to.[14]

A serious debate emerged about the requirement that natural death be “reasonably foreseeable,” as some lawmakers wanted broader eligibility requirements that included degenerative diseases.[15] However, a more broad requirement could mean that patients with any serious medical condition, such as a “’soldier with PTSD, a young person with a spinal cord injury, or a survivor whose memory is haunted with memories of sexual abuse’ could be eligible for a physician assisted death.”[16] As traumatic and painful these conditions are, a line needs to be drawn somewhere. The current legislation seems to create a proper balance between protecting the vulnerable and allowing those who are near the end of their lives the choice of dying with dignity. 

The ruling and recently enacted legislation come with religious and moral implications.  At the root of most religions is the belief that life is the most basic gift from God, and one should not intend to cause their own death as it is against God’s will. Physician assisted death also goes against the Hippocratic Oath, which requires physicians to state they will “neither give a deadly drug to anybody if asked for it.”[17]

Although the ruling is obviously controversial, 84% of Canadians support physician assisted suicide provided it has proper limitations. It is inappropriate to cast judgment on those who wish to end their lives before their terminal illness turns them into a shell of the human being they once were. The legislation provides Canadians their Constitutionally protected “right to life, liberty, and security of the person,” and the right to choose when to end their life when the hope of recovery is lost.

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[17] Ludwig Edelstein, The Hippocratic Oath 3 q7Av9hc#v=onepage&q=Ludwig%20Edelstein%2C%20The%20Hippocratic%20Oath%203%20(1943)&f=fals