Supreme Court strikes down assisted suicide law

This article was originally published by Advocate Daily.

Hugh Scher

The Supreme Court of Canada has unanimously struck down the country’s assisted suicide law in a ruling that puts at risk the safety of Canadians and creates more questions than answers, says Toronto human rights and constitutional lawyer Hugh Scher.

“A decision to strike down the laws that prevent euthanasia and assisted suicide before steps are taken that would ensure access to quality end-of-life care as a basic human right in this country is a significant departure from basic Canadian values that uphold and maintain the safety and security of Canadians,” says Scher.

The high court weighed in on the hotly debated topic in its much-anticipated ruling today, which addressed a constitutional challenge to Canada’s assisted suicide law heard Oct. 15, 2014.

“The Supreme Court's decision to strike down laws against assisted suicide creates more questions than answers, and will inevitably result in increased risk to vulnerable Canadians in securing access to health care that would support and prolong their lives in circumstances where those lives are viewed as lacking sufficient quality in the eyes of doctors or family members,” Scher tells AdvocateDaily.com.

People will now be required to justify receiving treatments that will help to keep them alive, says Scher.

The case began with a lawsuit filed by the British Columbia Civil Liberties Association in 2011, seeking to allow assisted suicide and euthanasia under certain circumstances.

The Euthanasia Prevention Coalition, represented by Scher, intervened in the case throughout, in Carter v. Canada (Attorney General), 2015 SCC 5; Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII).

The Supreme Court determined the matter in its previous 5-4 decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, 1993 CanLII 75 (SCC), where the court found s. 241 was not infringing on certain rights under the Canadian Charter of Rights and Freedoms, or that any such infringements were justified as there was no halfway measure that could meet Parliament’s legitimate objective to protect the vulnerable and promote life.

“The Supreme Court's decision to strike down the law creates a vacuum of regulation relative to any so-called safeguards to prevent against non-consensual death, deaths without request or death to vulnerable Canadians under the current regime,” Scher says. “Parliament has made its intentions clear that an absolute legal prohibition against assisted suicide and euthanasia is essential not only to its national suicide prevention strategy, but also to prevent the intentional killing of patients by doctors.”

Today’s ruling is the first time that any Supreme Court has struck down an absolute prohibition against assisted suicide. Such prohibitions represent the norm and not the exception in countries around the world including Australia, the U.K., Ireland, Scotland, France and in most states in the U.S.A., says Scher.

"Only eight jurisdictions in the world permit assisted suicide or euthanasia. In those jurisdictions, governments have made a clear policy choice and have supported that choice with tailored measures and laws," says Scher. "The court’s decision to impose this policy choice on Parliament is a concerning blow to the sovereignty of Parliament.

“Today’s court decision imposes on Parliament which has clearly chosen not to legalize euthanasia or assisted suicide, despite 30 years of study, to introduce measures to attempt to protect vulnerable people, measures that have failed miserably elsewhere once the genie of intentional killing is out of the bottle and permissible,” he says.

Indeed, Quebec has already introduced a law to legalize euthanasia as health care in that province. The law is presently under challenge in the Quebec Supreme Court and not operational, adds Scher.

“Reviews of other jurisdictions such as Belgium and the Netherlands suggest that regimes of legalized euthanasia and assisted suicide have been universally unsuccessful in preventing non-consensual deaths, deaths without request, or in enforcing clear violations of the law, whether they be failure on the part of doctors to report (47 per cent in Belgium), death without request or consent (32 per cent in Belgium), and the abject failure to prosecute violators of the law,” says Scher.

“Not a single physician has been prosecuted under the Belgian law despite these concerning statistics,” he adds, noting there has also been an increase in the rates of suicide and assisted suicide in those jurisdictions where euthanasia or assisted suicide have been legalized, particularly in Oregon.

“We must make significant efforts to ensure that every Canadian has access to quality palliative and end-of-life care and community supports throughout and particularly near the end of life. Our failure to do so represents a failure of society to protect its most sacred trust to all Canadians,” says Scher.

Scher will appear as an expert at a Canadian Bar Association panel on the topic of end-of-life decisions. Speaking at the association’s annual Mid-Winter meeting in Fredericton, Scher will take part in an expert panel discussion entitled: “No legal principle can avoid every ethical dilemma: Medical/Legal Developments in End of Life Decisions." The event runs from from 1:30 – 4:30 p.m. on Feb. 7.