Assisted Suicide -- What Next?

Article excerpt

Over the past few weeks, the topic of assisted suicide has been front and centre in Canadian news: from the Province of Quebec debating Bill 52, to discussions between heath ministers, to Dr. Donald Low's poignant and compelling video plea for legalization and now the decision from the B.C. Court of Appeal in Carter v. Attorney General, overturning the trial decision in Carter and maintaining the legal status quo established by the Supreme Court of Canada in the 1993 Sue Rodriguez case.

The Appeal Court decision found the lower court was bound by the Supreme Court's decision in Rodriguez. Accordingly, the Supreme Court alone can judicially revisit the issue of the constitutionality of the prohibition of assisted suicide in Canada.

In all likelihood, the Carter case will be appealed to our highest court for judicial reconsideration of whether assisted suicide is to be "enshrined" as a constitutional right. A spectrum of legal players is now engaged and it finally seems like a conversation can begin in earnest. However, there will still be no easy solutions.

A telephone survey conducted by Forum Research in June 2012 asked 1,165 randomly selected Canadian residents over the age of 18 whether they were "in favour or opposed to making physician-assisted suicide legal in Canada for the terminally ill." Some 68 per cent responded in favour. While this information demonstrates public support for physician-assisted suicide, it provides scarce insight into Canadians' understanding of exactly what is physician-assisted suicide.

Notwithstanding that the B.C. Supreme Court could not depart from the Rodriguez precedent, the trial court nonetheless provided a judicial interpretation that a constitutionally sound Canadian assisted-death model could not be limited to physician-assisted suicide (prescribing lethal medication for self-administration) for the terminally ill patient. The model would also need to legalize euthanasia (administration of a lethal substance by a physician) and be extended to people in a state of advanced weakening capacities and whose serious illness or disability showed no hope of improvement. Proceeding then with a U.S.-type model such as that established in Oregon, Washington or Vermont (physician-assisted suicide for those with six months or less to live) would likely be subject to constitutional challenges in Canada.

The Switzerland assisted-suicide model has also been pre-emptively dismissed in certain Canadian legal circles. In the Swiss scheme, assisted individuals do not require a medical illness and assisters do not need to be physicians.

Because of this, the B.C. Supreme Court paid little attention to the Switzerland model, but Canadians frequently refer to it. The overall point to be taken here is there can exist a very significant disconnect between the analytical machinations of courts and the public's understanding.

The Quebec National Assembly is considering Bill 52, which would allow for "medical aid in dying," and includes euthanasia for patients suffering from an incurable serious illness and in an "advanced state of irreversible decline in capability. …