Reopening a subject that divided it 21 years ago, the Supreme Court of Canada has agreed to take another look at the right to an assisted suicide in a case expected to be heavily influenced by its ruling last month that struck down Canada's major prostitution laws.
Even the question at the heart is similar, legal observers say. If trying to commit suicide is not a crime, just as prostitution was not, can the government criminalize assisted suicide in a way that harms some vulnerable people? Chief Justice Beverley McLachlin concluded in the prostitution case that even the prospect of severe harm to one person would invalidate the laws against street soliciting, brothels and pimps.
The hearing, probably several months away, will focus on two B.C. women, 64-year-old Gloria Taylor, who had Lou Gehrig's disease, and 89-year-old Kathleen Carter, who had a degenerative spinal condition. Both are now dead. But unlike the situation in 1993, when the Supreme Court rejected the right to assisted suicide 5-4, the issue has become prominent on the political stage.
Several provincial health ministers have urged that it be taken up. And Quebec is proceeding with legislation to set the legal terms for euthanasia. On Thursday, a National Assembly committee completed clause- by-clause review of the bill. The National Assembly is expected to adopt it when the sitting resumes next month. As early as next year, mentally competent patients who are terminally ill and want to exercise their right to die will be allowed to proceed under medical and legal guidelines.
The province's junior health minister, Véronique Hivon, said it is time for other provinces to follow Quebec's lead in seeking compassion for terminally ill patients with debilitating and incurable diseases.
Justice Minister Peter MacKay said in a statement that Criminal Code provisions that prohibit assisted suicide and euthanasia "are in place to protect all persons, including those who are most vulnerable in our society." He added that in April, 2010, "a large majority of parliamentarians voted not to change these laws, which is an expression of democratic will on this topic."
In a 9-0 ruling defending the rights of prostitutes, the Supreme Court set down the rules for how and why courts can change their minds and overturn precedents.
If legal principles and society change over time, even lower courts may revisit precedents established by the Supreme Court, the judges ruled. Ruling on the Taylor and Carter case at the trial level, Justice Lynn Smith of the British Columbia Supreme Court set out in great detail all the ways in which the legal, social and medical context around assisted suicide has changed. And the Supreme Court ruled in the prostitution case that the findings of trial judges – such as Justice Smith – on "social facts" are to be respected by higher courts.
"Justice Smith's factual account is very strong, well-researched and analyzed. I expect it will be largely accepted and influential when the Supreme Court again considers this issue," UBC law professor Joel Bakan said.
Justice Smith, a former law dean at UBC, pointed to a body of evidence unavailable to the Supreme Court when it ruled against Sue Rodriguez, a woman dying of Lou Gehrig's disease, in 1993. It included evidence on the workings of "legal physician-assisted death" in Oregon, Washington, Belgium, Luxembourg and the Netherlands, and with assisted death in Switzerland. She concluded that the risks can be "very substantially minimized through a carefully designed system imposing stringent limits that are scrupulously monitored and enforced."
Still, there is a crucial difference between the assisted suicide and prostitution cases. In its prostitution laws, the government's purpose of protecting communities from nuisance was seen to be grossly outweighed by the risk of death to prostitutes caused by the laws. In criminalizing assisted suicide, the government's aim is to safeguard those who are weak and vulnerable to abuse, and to protect the sanctity of life.
"This is a really hard case, more difficult than [prostitution]," University of Ottawa law professor Vanessa MacDonnell said.
When the late justice John Sopinka, writing for the majority in the Rodriguez case, rejected the right to assisted suicide, he said no Western countries allowed it. He also said that, to the extent there is a social consensus, it supported the sanctity of life. As evidence, he cited Canada's ban on capital punishment. And he said that, under Section 7 of the Charter of Rights and Freedoms, which protects "life, liberty and security of the person," the government was on solid footing criminalizing assisted suicide.
But today, as set out in the prostitution case, the court's view of Section 7 stresses whether a law is broader than it needs to be – does the ban need to be absolute to accomplish its goals – and whether the purpose is outweighed by the effects, Prof. MacDonnell said.