Right-to-die law deadline extended
Top court agrees to consider exemptions while Ottawa gets more time to rewrite law
OTTAWA— Individuals like B.C.’s Elayne Shapray who want to choose the time of their death may now go to a court for permission to exercise a constitutional right to a doctor-assisted suicide while the federal government scrambles to get its legislative act together in the next four months.
Shapray, one of the original challengers, has waited three years while appeals were heard and decided. Though disappointed the criminal law’s validity has been extended for a brief period, she expressed deep relief Friday that individuals will have an option.
“For me, personally, it means I have the choice when enough is enough, I can make that choice,” she said in an interview with the Star.
In a deeply split 5-4 ruling Friday, the Supreme Court of Canada said the broad Criminal Code ban against physician-assisted suicide should stand for another four months to give Ottawa time to rewrite a law that judges found last year is unconstitutional.
But, in the meantime in Quebec, it will be mainly a matter between patients and doctors. Quebec doctors who aid patients to die will be exempt from criminal liability because that province has legislated a new end-of-life regime under health laws to protect vulnerable patients and physicians. Across Canada, and perhaps also in Quebec, those who meet broader criteria set out in the court’s 2014 judgment that declared a criminal ban against assisted suicide unconstitutional, may apply to superior courts for a personal exemption.
Ottawa will now have until June 6 to draft a new criminal regime. A parliamentary committee has been struck to begin that task.
The Supreme Court ruled last year that assisted suicide is constitutional, if it is under a physician’s care, for consenting adults who determine they cannot tolerate the physical or psychological suffering brought on by a severe, incurable illness, disease or disability. The court’s view is the right to die is a broad one, available in cases of major illness, disease or disability. The ruling said it is the patient who determines what level of physical or psychological suffering is intolerable; patients can’t be forced to take treatment. It was silent on the right of doctors to refuse to aid a suicide, leaving that up to legislators.
Shapray, 69, worked as a palliative care volunteer for about 15 years and has had multiple sclerosis for about 40. She is in a wheelchair and in constant pain.
“Right now, I need care 24 hours a day, I can’t do anything for myself, I have to be fed, dressed, changed, the phone held to my ear,” Shapray said.
Although she declined to discuss her own plans about whether and when she will seek a judge’s permission to end her life with her doctor’s help, “knowing that I have that choice has given me great peace of mind.”
“I saw how some people died hor- rible deaths, and I thought even then, in the ’80s and ’90s, why do people suffer horribly like this when the end is obvious, it’s going to happen. People choking to death . . . it’s something I thought about even before my MS became intolerable.”
Shapray acknowledged that going to court is an extra burden, but has spoken to a lawyer and doesn’t anticipate it will be too onerous. She has also spoken to two doctors who are prepared to assist patients like her, who in her affidavit to the high court said she is in constant pain and “a prisoner in my own body.”
The majority of judges took views like Shapray’s into account in Friday’s decision.
“In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter (the name of the 2014 ruling) . . . An exemption can mitigate the severe harm that may be occasioned to those adults . . . by making a remedy available now pending Parliament’s response,” said the majority of judges, who include Rosalie Abella, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté.
Their ruling said neither the federal government nor the groups that challenged the federal law opposed Quebec’s request for an exemption. But the judges said it should not be taken as a constitutional endorsement of the Quebec regime.
They said an extension of the law after last year’s finding that it was unconstitutional was an “extraordinary” step, but “the length of the interruption of work on a legislative response to the Court’s decision due to a federal election” was reason to allow more time.
Friday’s ruling shows the Supreme Court is more divided on the contentious issue than was revealed by last year’s unanimous decision to strike the criminal law.
Four judges — Chief Justice Beverley McLachlin, Thomas Cromwell, Michael Moldaver and Russell Brown — would not have allowed exemptions to Quebec or individuals in the interval while Ottawa rewrites the law.
The dissenting quartet insisted it should be up to legislators, not the courts, to respond to the “profound moral and ethical dimensions” of the complex issue, and to resolve the “overlapping federal and provincial legislative competence.”
“We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering,” the minority wrote. “That the legislative process needs more time is regrettable, but it does not undermine the point that it is the best way to address this issue.”
Ontario supported the federal bid for more time and said it, too, was drafting new medical guidelines in case the court didn’t agree.
The top court’s ruling comes as Quebec health-care authorities confirmed on Friday the first case of legal doctor-assisted death since the province’s groundbreaking law came into effect, the National Post reported. Two other cases were reported to have occurred this month.