Whose body is this? Well, as it turns out, it’s yours. Friday’s judgment of the Supreme Court of Canada in Carter vs. Canada is a landmark moment for Canadian law, a sea-change in how we understand death as part of life.
It is also a moment for remembering that behind all these stories of law are real and brave people: Kay Carter, Gloria Taylor, Sue Rodriguez.
The case was brought before the high court by the B.C. Civil Liberties Association on behalf of Kay Carter and Gloria Taylor, both of whom died after the legal battle started. Both had degenerative diseases and sought the right to have a physician help them die.
A lawyer speaking for Carter and Taylor argued that they faced discrimination because their physical disabilities didn’t allow them to commit suicide the way able-bodied people could.
Carter travelled to Switzerland, where assisted suicide is legal, and died there. Taylor died of amyotrophic lateral sclerosis in 2012.
In a unanimous decision, the Supreme Court has decided that the long-standing prohibition against doctor-assisted suicide is unconstitutional. The current provisions in the Criminal Code infringe the rights of competent adults, who clearly consent to termination of life, and who live with a grievous and irremediable medical conditions to life, liberty and security of the person, and it does that in a way that is not in accordance with the basic principles of our justice system.
The law is overbroad; an absolute prohibition on physician-assisted death cannot be justified in our particular free and democratic society.
The trial judge accepted that Taylor was competent, fully informed and free from coercion or duress. The Supreme Court of Canada agreed. A law aimed to protect vulnerable persons limited her rights to end her life in the manner she would choose. A blanket prohibition brings more under the law’s ambit than the Constitution permits.
And the judgment gives us some direction about what should happen now.
The law is declared unconstitutional, but Parliament, the provinces and medical associations across the country are given one year to develop a law that can afford people who meet the standard the possibility of a physician-assisted death, should they so choose.
There will be lots of commentary, parsing of all the directions the judgment has gone, with huge concerns, for many, about what happens next.
I am struck by the deference accorded by the Supreme Court of Canada to the meticulous decision of the trial judge, Lynn Smith — and the question of how it matters who our judges are.
But for this moment, it is time to sit with the huge reality that for many people who have suffered unnecessarily at the end of their lives, there might now be more choice.
Some will take that choice, many will not. But to not have the law be the impediment means that adults with irremediable illnesses can deal with those difficult decisions with their family, friends, health-care professionals and within their own faiths.
Perhaps just knowing there is choice will offer peace. It is a gracious and compassionate approach to law and, I would argue, the embodiment of what it means to live in a free and democratic society.
Gillian Calder is an associate professor in the University of Victoria’s faculty of law.
