Physician-assisted death will now be legal in Canada, courtesy of the Supreme Court of Canada. This new state of affairs is what polls show Canadians want, what some patients desire, and what the Harper government opposed, with its strong social conservative core.
It was also the right decision, given that life, liberty and security of the person, principles enshrined in the Charter of Rights and Freedoms, pointed to physician-assisted death with appropriate safeguards around the practice. It was also highly probable the decision would go this way, in that Chief Justice Beverley McLachlin favoured physician-assisted suicide in a minority dissent in 1993 and now offers strong intellectual leadership on today's court.
Harper government opposition has now been bowled over by a court in a unanimous decision that overturned that split decision in 1993 against physician-assisted death. It will be now be up to the medical profession, hospital boards, and the federal and provincial governments to figure out the details of how such deaths should occur. The court gave these institutions a year to implement its ruling.
The majority of countries, including all the big Western European countries and the United States, do not allow physician-assisted suicide. No matter. The court preferred the handful of countries in the vanguard of allowing the practice: Belgium, the Netherlands, Luxembourg, Switzerland and Colombia. Canada will now join them.
If international evidence offers any guide, the number of assisted-suicide deaths will be small relative to the total number of people who die each year. The countries that allow the practice have surrounded it with safeguards, as the Supreme Court recommended on Friday.
The Supreme Court did its best, without prescribing details, to set parameters for physician-assisted death, saying it could only be administered to a "competent adult person" who "clearly consents to the termination of life" and has a "grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual."
The application of these words will now fall to individual patients, the families, doctors and hospitals. It may take some considerable time for the rules and practices surrounding physician-assisted suicide to congeal across the country, but there will be no turning back from this decision. Those who suffer from incurable diseases of all kinds and who are approaching death – multiple sclerosis, cancer, Parkinson's disease, ALS – will have choices before them that were never legal before.
The court in this ruling reflected, as courts sometimes do, the drift in public opinion. It took note of failed legislative attempts to change the Criminal Code provisions against assisted suicide. It referred indirectly to changes in public opinion. It put both developments together – what it called the "matrix of legislative and social facts" – to justify how it managed in this decision to overturn its 1993 one against physician-assisted suicide.
This Supreme Court is now on a roll, overturning some of its own previous decisions (as in this case), striking down labour laws (recent cases involving public sector right to strike and the RCMP to organize a union), rebuffing proposed criminal law and constitutional changes (to the Senate), pushing way past the boundaries (established by its own previous decisions) on aboriginal rights, and generally leaving legislatures in many policy areas as afterthoughts or non-participants.
Indeed, it is rather striking how little heed this court gives to elected bodies, brandishing the Charter as an interpretive sword to remake Canadian law and change Canadian practices. Mind you, sometimes the court acts, as in this case, because elected officials are afraid to enter the minefields surrounding difficult moral questions.
In every important recent case involving the federal government, its arguments have been rejected. Even though the majority of the judges were appointed by the Harper government, the court consistently seems little impressed by federal arguments.
The Harper government is on a long losing streak before the court, which might have something to do with the government's ideology, and with its disregard for the previously established practice whereby proposed laws are vetted inside the government for their impact on the Charter of Rights and Freedoms. The losing streak portends the possibility that the party will use attacks against the court – an "elitist" institution if ever one existed – to mobilize further its base to vote and give money.