A “right to life” is not a “duty to live”

Ottawa, Febuary 13, 2015 - On February 6, 2015, the Supreme Court of Canada released its unanimous ruling on physician-assisted death.  It specifically examined the Criminal Code of Canada provisions making it illegal for any person to assist in the suicide of another. Those provisions were introduced to respect life and protect the vulnerable from being induced to commit suicide at a time of weakness. But as a result of this ruling, in a year’s time, it will be legal for a physician to assist in the death of a competent adult person who clearly consents to the termination of life, and has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to that person in the circumstances of his or her condition.

The Supreme Court’s analysis focused on s.7 of the Charter of Rights and Freedoms, which protects the right to life, liberty and security of the person.

The right to life in s.7 is threatened where the law or government action imposes death or an increased risk of death on a person, directly or indirectly. The Court found that the blanket prohibition on assisting in suicide deprives some persons of life because they choose to take their own lives prematurely, out of fear they will be incapable of doing so later, when their suffering is intolerable.

The rights to liberty and security of the person include considerations of personal autonomy and quality of life. The Court observed that the law has long protected patient autonomy in medical decision-making. The blanket prohibition on assistance in suicide denies those with a grievous and irremediable medical condition the right to make decisions about their bodily integrity and medical care, which is an infringement of their liberty. Enduring intolerable suffering impinges on their security of the person.

As a result, the Supreme Court declared that the general prohibition on assisted suicide was unconstitutional since it was overbroad. The Court stated that nothing in its decision compels physicians to provide assistance in dying. Charter rights of patients and physicians will have to be balanced in the governmental and professional implementation of this ruling. The Court suspended the operation of its declaration for one year to allow the federal government to amend the Criminal Code to include an exception to the prohibition on assisted suicide: physician-assisted death in specific circumstances.

The federal government’s response waits to be seen. The federal government may study legislation that has already been drafted, such as Quebec’s Act Respecting End-of-Life Care and Senate Bill S-225.

In June 2014, Quebec passed a Bill about end-of-life care, which is expected to be brought into force in December 2015. The Bill contains detailed provisions about clinical aspects of end-of-life care, including palliative care and physician-assisted death, and administrative matters, like reporting to the College of Physicians of Quebec and to the legislature.

Senate Bill S-225 is championed by Senators Nancy Ruth and Larry Campbell, and is based on draft legislation proposed by MP Steven Fletcher. Bill S-255 amends Criminal Code sections 14 and 241(b) to allow physician-assisted death in certain circumstances.

If the federal government does not amend Criminal Code s. 241(b) by February 6, 2016, the law on physician-assisted death will be in a similar state as that of abortion in Canada: a legal procedure implemented by regulated health professionals in accordance with professional standards and ethics, and any relevant provincial or territorial law.

The CNPS will monitor developments and provide updates as they become available.