Life, and death, with medical choice: How the Supreme Court of Canada got it right

February 13, 2015

By now you know that last Friday, the Supreme Court of Canada unanimously ruled that people living in Canada have the constitutional right to medical assistance in dying, if they so choose. It was a landmark decision and a landmark day, both long in the making.

We applaud this historic decision, and celebrate the many individuals and organizations that came together to make it happen. We’re also proud to be among them, having jointly intervened in Carter v. Canada with the HIV & AIDS Legal Clinic Ontario (HALCO).

This issue is a difficult one, and sometimes divisive. And so we wanted to tell you a bit more about the law itself, why we made the decision to intervene, and what the decision actually means moving forward. (We’ll keep it “legalese” light.)

The law: before and after

In Carter v. Canada, two specific parts of the Criminal Code of Canada were at issue. Section 14 says that nobody can consent to death inflicted upon them, and section 241(b) says that anyone who assists a person in committing suicide commits an indictable offence. Together, these two sections make it crime to assist someone in dying in a manner and a time of their choosing.

The February 6th decision struck down these sections of the Criminal Code because they violate the Canadian Charter of Rights and Freedoms. Specifically, they unjustly deprive people of their section 7 rights to life, liberty and security of the person – essentially, they deny fundamental life choices to people suffering with serious health conditions causing enduring suffering they find intolerable.

Strict parameters on who can choose medical assistance in dying were outlined by the Court.

Why did we intervene?

We intervened for two reasons.

First, while the issue before the court was specifically about the right to receive assistance, if needed, in controlling the time and manner of death, the larger principle at stake is that the law must respect and protect autonomy in all medical decision-making, throughout a person’s life. This principle has been central to the HIV movement from the outset.

Second, we argued that the law regarding medical decision-making, applicable to all, must not be determined by the beliefs of religious groups, particularly in ways that deny other people’s autonomy, strip them of dignity, and condemn them to pain and suffering they may choose to avoid.

From our perspective, this is important because it isn’t just people with disabilities whose autonomy is at stake if religious beliefs are allowed to influence the law of the land. Human rights more broadly could be jeopardized. We’re an organization committed to advancing both health and other human rights – of people living with HIV, women, LGBTI people, sex workers and others, including people with disabilities – so it was critical for us to raise this issue before the Court. This is especially true given the arguments being advanced by a number of evangelical groups seeking to uphold the criminal prohibition on assisted dying.

What happens now?

The federal government has 12 months to enact new criminal legislation – which would have to be Charter-compliant, of course – if they decide to replace the sections struck down in this important decision. But it’s not clear that there is any need for new legislation from the federal government. We know all too well how blunt an instrument the criminal law is, especially when trying to deal with something that is ultimately a matter of health care decision-making.

In the interim, the former law remains in place.

We maintain that medical choice throughout life, and not just at life’s end, is important. Instead of denying people’s autonomy by criminalizing assisted dying, any government that truly cares about human rights would enhance the autonomy of all Canadians, including those living with disabilities, by investing significantly in scaling up access to quality health care and social services, as well as end-of-life care.

The Supreme Court of Canada has affirmed dignity and autonomy. It’s a welcome decision, and we’re happy to have played a part in it.

This entry was posted in English, French, Our Work. Bookmark the permalink. Both comments and trackbacks are currently closed.