Essay on Assisted Suicide in Canada

In 1972, the federal government abolished the section in the CCC that criminalized the act of suicide. Still, the act of aiding and abetting an individual to commit suicide was an indictable offense under section 241(b) of the CCC, thus criminalizing assisted death (Carter v. Canada 2015, para. 5). In addition, under section 14 of the CCC, individuals were also not permitted to seek assistance in committing suicide, or grant permission and/or consent for the same. These provisions of the CCC were challenged in 1993 in Rodriguez v. British Columbia, when Rodriguez, an individual who was suffering from ALS, challenged section 241(b) of the CCC on the basis that it violated section 7, section 12, and section 15 of the CCRF. In a 5-4 verdict, the Supreme Court of British Columbia ruled that the proscription of assisted death in the attested sections of the CCC did not violate the cited sections in the CCRF. Writing for the majority, Justice Sopinka found that while there was a relevant connection to section 7 of the Charter about the proscription of assisted death, in the sense that the criminalization of assisted death impacted the autonomy of affected individuals and caused them both physical and psychological pain, the attested sections of the CCC did not infringe any principles of fundamental justice as outlined in section 7 (Butler and Tiedemann 2015, 6). Justice Sopinka noted that even if the supposed provisions of the CCC were to violate section 15, the violation would be saved under section 1 of the Charter, as the objectives of the provisions were pressing and substantial, rational, and proportionate to the objective (Butler and Tiedemann 2015, 6).

While the case of Rodriguez concluded in 1993, the provisions of the CCC were once again attested by Gloria Taylor in 2009, a woman who was also suffering from ALS. The BCCLA and two other individuals, Lee Carter and Hollis Johnson, also joined Taylor’s application. While the former was a civil rights group, interested in advocating for patients’ rights and health policy, the latter joined the case due to fear of being indicted under section 241(b) of the CCC for helping Lee Carter’s mother in seeking assisted death in Switzerland (Carter v. Canada 2015, para. 11). In the year of 2011, BCCLA filed a suit with the Supreme Court of British Columbia (SCBC) by challenging provisions 241(b) and 14 of the CCC, asserting that the sections of the CCC cited violated sections 7 and 15 of the Charter. The Court ruled in favor of BCCLA, noting that the provisions of the CCC cited, violated section 7 of the Charter as the proscription of assisted death forced patients who were in a competent state of mind to live a life of suffering due to their degenerative and incurable disease (Carter v. Canada 2015, para. 30). The Court noted that such a violation was not saved under section 1 of the Charter (Carter v. Canada 2015, para. 31). Nonetheless, the federal government appealed the court’s ruling to the Court of Appeal for British Columbia (CABC), which overturned the initial decision, reasoning that the SCBC was bound by stare decisis to follow the decision in Rodriguez. In turn, the BCCLA appealed the case to the Supreme Court of Canada.

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Arguments for Decriminalization of Assisted Suicide:

Section 7 – Violation of Right to Life:

The proscription of assisted death has incentivized, and in some cases, forced adults with progressive illnesses to take their own lives prematurely (Carter v. Canada 2012, 299). Ms. Taylor argued that while she would love to spend the remaining time that she has left with her family and her granddaughters, before seeking assisted death when her disease progresses, she won’t be able to do so due to the criminalization of assisted death. (Carter v. Canada 2015, para. 12). As such, she reasoned that the only two choices that were available to her were to either take her own life while she was still physically able to do so or die a sufferable and slow death (Carter v. Canada 2015, para. 13).

Aside from Ms. Taylor, other individuals also attested to being put in a position where they considered taking their lives prematurely before their illnesses progressed to a point where they were physically no longer able to. Several individuals declared that had assisted death had been decriminalized and made accessible, many of their loved ones would still be alive today as they would not have chosen to die prematurely (Carter v. Canada 2015, para. 15). One individual stated that “I was going to blow my head off. I have a gun and I seriously considered doing it” (Carter v. Canada 2015, para. 15). Another individual stated that the orthodox methods of committing suicide, such as overdosing on drugs or slitting one’s wrists, all required her to terminate her life while she was still “able-bodied and capable of taking [her] life, well ahead of when [she] need to leave this life” (Carter v. Canada 2015, para. 15).

Section 7 – Violation of Right to Liberty and Security of Person:

The proscription of assisted death violating the autonomy of competent adults was another prevalent argument. Taylor describes how as her illness was progressing, she was in excruciating pain from muscle deterioration and needed support for everyday living tasks. She defined this as “an assault on her privacy, dignity, and self-esteem” (Carter v. Canada 2015, para. 12). She argued that she did not want to live “in a bedridden state, stripped of dignity and independence”. However, she was also against the other alternative, an “ugly death”, and a death that negates her life with excruciating pain, rather than concluding it (Carter v. Canada 2015, 12). She argued what she desired was “the legal right to die peacefully, at the time of [her] own choosing, in the embrace of [her] family and friends” (Carter v. Canada 2015, 12). However, given that this option was not available to her due to the criminalization of assisted death, she was left with two choices, both of which were cruel; end her life prematurely before her illness progresses to the point that she is no longer able to; or, relinquish her ability to choose the timing and the manner of her death (Carter v. Canada 2015, 12).

Section 15 Violation – Argument from Equality:

Lastly, the plaintiffs argued that the proscription of assisted death was also a violation of section 15 of the Charter (Buttler and Tiedemann 2015, 8). The plaintiffs reasoned that there was a disproportionate burden placed upon individuals with disabilities and progressive illnesses. They argued that while physically disabled individuals were able to commit suicide without any legal apprehensions, those with certain types of disabilities are not physically enabled to do the same. They also argued that it was legally impermissible for them to seek assistance in achieving the same, without endangering others getting indicted under the provisions of the CCC (Buttler and Tiedemann 2015, 8). This circumstance was prevalent in the case of Kay Carter. After being diagnosed with spinal stenosis in 2008, Kay Carter was unable to carry out any of her normal daily activities without assistance for under a year. As her condition deteriorated to the point that she had limited mobility and was suffering from chronic pain, she expressed her desire not to live the rest of her life lying on the bed as an “ironing board” (Carter v. Canada 2015, para. 17). She requested her daughter and her daughter’s husband, Lee Carter and Hollis Johnson, to help facilitate a move to Switzerland and to help her in arranging an assisted-death (Carter v. Canada 2015, para. 17). Despite being aware of the possible repercussions they could face, Ms. Carter and Mr. Johnson agreed in helping Kay. In 2010, the family traveled to Switzerland, where Ms. Carter attended a clinic funded by DIGNITAS (Carter v. Canada 2015, para. 17). Ms. Carter, surrounded by her family, passed within 20 minutes of taking a dosage of sodium pentobarbital.

Despite being successful in helping Ms. Carter’s mother access physician-assisted suicide, Ms. Carter and Mr. Johnson described the journey as both “stressful” and difficult” (Carter v. Canada 2015, para. 18). They reasoned that their whole journey had to be kept secretive, as any attention to their situation could have resulted in facing criminal charges. After returning to Canada, Ms. Carter and Mr. Johnson both joined Ms. Gloria’s pursuit of decriminalizing assisted death, as they reasoned that Ms. Carter’s mother should have been able to arrange a physician-assisted suicide in Canada, where she could have been surrounded by her loved ones, rather than going through a stressful and expensive journey surrounded by strangers (Carter v. Canada 2015, para. 18).

Arguments Against Decriminalization of Assisted Suicide:

Feasibility of Safeguards and the Possibility of a “Slippery Slope”:

Canada argued that there are major risks involved with the legalization of assisted death, one of which is endangering the lives of vulnerable individuals. Canada reasoned that multiple sources of error can result in a patient being “decisional vulnerable”, where even if death is not the best possible route medically, individuals will still choose death due to irrational decision-making (Carter v. Canada 2015, para. 114). As a result, Canada argued that given the extensiveness of the various sources of error one unintentionally engages in, it is impossible to establish a system of safeguards where vulnerable individuals will be protected against unwanted assisted death. In this sense, Canada argued that an absolute restriction of assisted death is required.

In addition, Canada also argued that decriminalization of assisted death can also lead to a “slippery slope”, in that consequently after legalization, there may be other Charter challenges for the legalization of assisted death for the mentally ill, incompetent individuals, or even children (Carter v. Canada 2012, 63). Professor Keown, a professor of law and a medical ethicist, argued that assisted death should not be permitted under any circumstance, given the fact that “it will be impossible to avoid abuse without a legal bright line prohibiting the intentional killing (the “practical slippery slope”) and extension of the circumstances in which assisted death is permitted (the “logical slippery slope”)” (Carter v. Canada 2012, 63). In another testimony, after examining several assisted death cases in Belgium, Professor Montero stated that there are several cases involving children and the mentally ill (Carter v. Canada 2015, para. 111). He states that “[once] euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions” (Carter v. Canada 2015, para. 111).

Impediment of Palliative Care:

The defendants further argued that legalization could potentially hinder the advancement of palliative care. Canada argued that if assisted death were to be criminalized, the attention of medical practitioners would be averted when it comes to providing therapeutic counseling. In addition, decriminalization would also raise misperceptions of palliative care, such that it concludes hastening death. Lastly, legalization could also result in a lack of funding for the development of palliative care, which would further weaken its progression (Carter v. Canada 2012, 163). The concern about the impediment of palliative care as a result of legalization was also reiterated by multiple medical experts. Dr. Pereira, a palliative care physician and professor at the University of Ottawa, declared that not only would there be a decrease in palliative care resources, but that legalization would also endanger the development and training of several palliative care practitioners (Carter v. Canada 2012, 163). Baroness Finlay, also a palliative care physician, argued that legalization of assisted death may lead to ignorance about the many positive aspects of palliative care, aspects of which patients may not even be aware (Carter v. Canada 2012, 164).

Physician-Patient Relationship:

The defendants further argued that the decriminalization of assisted death can have a major negative effect on the current relationship that exists between a physician and a patient (Carter v. Canada 2012, 173; Carter v. Canada 2015, para. 26). Ever since the existence of the Hippocratic Oath, an oath taken by physicians to always act in the betterment of their patients and to do their patients no harm, the primary objective of physicians has been to prolong the lives of their patient, alleviate discomfort, and to recuperate bodily functions (Carter v. Canada 2012, 172). However, according to Dr. Gallagher, a medical practitioner specializing in both palliative care and chronic pain, the legalization of assisted death, which would allow physicians to prescribe a legal dose to patients to end their lives, would be contrary to the primary goal of physicians and medicine (Carter v. Canada 2012, 172). She declared that the legalization of assisted death would severely jeopardize the current trust that exists between a physician and a patient, in that the notion of what a physician is and ought to be would drastically change. Similarly, Dr. Pereira reasoned that this change in a physician-patient relationship may also have severe consequences for palliative care, in that certain misperceptions about the practice may lead patients to wonder whether a doctor is prescribing them pain medications or a lethal injection (Carter v. Canada 2012, 172). As a result, due to these potential consequences, the defendants argued that to not jeopardize the current physician-patient relationship, it is essential to not legalize assisted death.

The decision of Supreme Court of Canada:

The SCC, in a landmark decision, ruled that provisions 241(b) and 14 of the CCC violated section 7 of the Charter. The SCC ruled that the right to life in section 7 was engaged in that in the fear of not being physically able to take their own life, the relevant provisions in the CCC forced competent adults to take their life prematurely (Carter v. Canada 2015, para. 57-58). It further reasoned that the right to life does not require an outright proscription of assisted death, as doing so would establish a “duty to live” rather than a “right to life” (Carter v. Canada 2015, para. 63). It reasoned that this line of argument would further bring into question the legality of withdrawing or refusing “life-saving and life-sustaining treatment” (Carter v. Canada 2015, para. 63). The Court reasoned that while the protection of the sanctity of life is essential, section 7 also includes the right to liberty and security of person, thus eliminating the notion that human life must be safeguarded at any means necessary (Carter v. Canada 2015, para. 63).

The Court ruled that the proscription of assisted death violated the right to liberty and the right to security of a person, in that it “prohibit[ed] physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering” (Carter v. Canada 2015, para. 68). The Court reasoned that the proscription deprives competent adults in making “fundamentally important and personal medical decision[s]” regarding their bodily integrity, which is central to their autonomy and dignity, thereby causing immense pain and psychological stress (Carter v. Canada 2015, para. 65-66). As such, by denying patients to request for assistance from a physician in dying, the law prevents competent individuals from making critical decisions about their medical care and bodily integrity, therefore violating the notion of liberty. As competent individuals, like Ms. Taylor, suffer in agony due to their degenerative disease because of the way the current law stands, this excruciating suffering infringes upon their security of person (Carter v. Canada 2015, para. 66)

After finding that the provisions in the CCC violated section 7, the Court also ruled that this violation was not saved by section 1 of the Charter. The Court reasoned that while the provisions were both pressing and substantive to the objection of the government, the outright proscription of assisted death did not minimally impair the rights of competent adults. The Court ruled that while the protection of vulnerable individuals is paramount, this objective can be achieved through restrictive safeguards, as evidenced by countries in which assisted death is legal (Carter v. Canada 2015, para. 106-107).