Yesterday, an 81 year old man suffering from terminal cancer and in terrible pain that could not be relieved or mitigated was assisted in dying by his physician. This came one day after a judge ruled that the procedure could go ahead. This was the first individual, outside of Quebec, to use the Supreme Court ruling of last year to end his life.
Quebec and the Supreme Court have long been critical to changing the law to reflect the changing social mores of Canada. It was Quebec courts – or more specifically Quebec juries – that initially struck down the provisions of the Criminal Code prohibiting abortion. The Supreme Court ratified those decisions and when the Canadian Senate refused to pass new laws proposed by the Mulroney Conservative government, Canada became the first country in the world to have abortion a matter of public policy rather than of the law.
Once again it was case law from Quebec that led to the Supreme Court to strike down the criminal code provisions against physician assisted death and establishing the court-approval process in advance of a new law being passed by Parliament to regulate the process. This law is expected to pass (as required by the Court) by the end of June.
What is most striking about this decision is that it is a reversal of the decision the Court made twenty years ago in the Sue Rodriguez case. Then, in a split ruling, the Court ruled that assisted suicide would remain a crime and that those suffering an inevitable and painful demise had no recourse.
There are those who argue that this is a slippery slope and that it is immoral. There is no evidence for the former and the latter is a matter of debate – a debate that will undoubtedly occur in the House of Commons and the Senate. The government is likely to create a system of approval rife with safeguards and oversights. It is critical that the right to die remain an individual right – with decisions made solely by competent individuals free from family or institutional coercion.
The right to die decision – like the abortion one before it – was based in a legal argument that the law, including constitutional law, must evolve and may change as society changes. The Courts in Canada have not always been so liberal in their interpretation – we had to send a case to the Law Lords in London to recognize that women were persons back in the 1930s – but have grown more flexible when Canada adopted its new Constitution along with the Charter of Rights and Freedoms.
This is quite different from the debates that rage in the United States where some believe the Constitution should be interpreted as the founding fathers intended (though the same jurists made an exception for Second Amendment rights in the greatest example of judicial activism ever). They accept – barely – those amendments that outlawed slavery and gave women the vote, but otherwise want to lock America into a past that has long ceased to be relevant to most modern Americans.
Yet another reason I’m thankful for being born Canadian.
And that’s ten minutes, eh?