It’s a paradox.
Your right to die is an affirmation of your right to live.
In a unanimous decision of astonishing clarity the Supreme Court of Canada (SCC) decided that the Criminal Code prohibition on physician-assisted dying violates your Charter rights to life, liberty and security.
Here’s how they did it.
Section 7: right to life, liberty and security
Those who are grievously and irremediably ill may take their own lives prematurely rather than risk of being incapable of ending their lives later when their suffering becomes intolerable.
This violates the right to life.
The prohibition on physician-assisted dying interferes with a person’s freedom to make fundamental personal choices concerning their bodies.
This violates their right to liberty.
Condemning a person to a state of intolerable suffering interferes with their right to control their “bodily integrity”.
This violates their right to security.
Consequently the Criminal Code prohibition on physician-assisted suicide violates a person’s Charter rights to life, liberty and security.
The SCC acknowledged that the state can interfere with a person’s life, liberty or security—in fact it does so all the time—but only if it does so without violating the principles of fundamental justice.
The principles of fundamental justice dictate that the state cannot enact laws that are arbitrary, overbroad or grossly disproportionate to their objective.
The objective of the prohibition on physician-assisted dying is to protect vulnerable people from being induced or pressured to commit suicide.
A total ban on physician-assisted dying is not arbitrary in that it achieves this objective, however it is overly broad because it catches everyone, the vulnerable and others who have a “considered, rational and persistent wish” to end their lives.
Having decided that the prohibition was overly broad, the SCC did not have to decide whether it was also grossly disproportionate (ie. was the suffering of those who wanted physician-assisted dying was out of proportion to the law’s objective of protecting the vulnerable).
Section 1: the notwithstanding clause
A law that violates section 7 and runs afoul of the principles of fundamental justice can be saved by the “notwithstanding clause” in section 1 of the Charter if the state can show that the public good justifies depriving an individual of life, liberty or security.
The state could satisfy this burden if it could show that an absolute ban on physician-assisted dying was the only way to protect the vulnerable.
This requires evidence that (1) physicians can’t assess a patient’s competence to give informed consent for medical treatment and (2) patients in permissive jurisdictions have been abused and their lives have been casually terminated.
The state provided anecdotal examples of abuse that were countered by anecdotal examples of systems that worked well.
The SCC relied on the evidence, not competing anecdotes. It accepted evidence that properly trained physicians can assess a patient’s competence to give informed consent and determine whether coercion or undue influence is at play. In fact physicians make such assessments today when patients refuse life-saving medical treatment.
The SCC concluded that the risks of physician-assisted dying can be managed by a carefully designed system of safeguards and an absolute ban was not necessary. As such the state could not invoke invoke the “notwithstanding clause” to save the absolute ban on physician-assisted dying.
The SCC concluded that physician-assisted dying was legal in cases where a competent adult person (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in his/her circumstances.
In reaching this decision the SCC confirmed that end-of-life decisions belong to the individual not the state.
This is as it should be.