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The Difficult Discussion of Physician-Assisted Suicide Continues

We have blogged previously about Quebec’s “Dying with Dignity Act” here and here, which provides for “palliative terminal sedation” – a form of medically-assisted suicide which is available only in certain prescribed circumstances.

We questioned whether the Act accords with s. 241(b) of the Criminal Code, which prohibits assisted suicide. The constitutionality of that section of the Criminal Code was upheld in Rodriguez v. British Columbia (Attorney General), but not without a strong dissent.

Both Quebec’s Act and the constitutionality of s. 241(b) of the Criminal Code are now before the courts: a charter challenge has been commenced in Quebec by groups who argue that Quebec’s Act runs afoul of section s. 241(b), and on October 15, 2014, the Supreme Court of Canada will revisit the issues considered in Rodriguez v. British Columbia (Attorney General) in Lee Carter, et al. v. Attorney General of Canada, et al.

Canada is, of course, not alone in grappling with the issue of end-of-life decisions. In the U.S., the Supreme Court of the United States decision Vacco v. Quill, 521 US 793 (1997) held that the Constitution does not protect the right to die. However, Oregon’s “Death with Dignity Act” permits doctors to prescribe drugs for the purpose of assisted suicide of terminally ill people. In the 2006 Gonzales v. Oregon decision, the United States Supreme Court held that doctors in Oregon could not be prosecuted under the Controlled Substances Act for complying with Oregon’s Act. In effect, the Gonzales decision upheld the ability to die with physicians’ assistance in Oregon.

Now, a 29 year-old with terminal brain cancer has very publicly moved from California to Oregon, to die in a manner of her choosing, with the help of a physician. Her actions have brought the issue of end-of-life decision-making into the news, prompting New York Times Columnist, Ross Douthat, to raise interesting questions about the tensions between society’s vehement support of some forms of autonomy (for example, female reproductive rights) and the comparably quiet acquiescence with others (physician-assisted suicide).

Against this backdrop, the SCC’s decision in Lee Carter will garner a great deal of attention. If the applicants in that case are correct, times have changed since Rodriguez v. British Columbia (Attorney General); the legal analysis for Charter challenges has changed, as have palliative care regimes, which routinely include withdrawal of feeding tubes and life supportmeasures that bring about the end of life and are no longer considered to be separate and distinct from physician-assisted suicide. In other words, the infringement prescribed by s. 241(b) of the Criminal Code upon our section 7 rights may no longer be justifiable. If it is, the rationale will certainly be different now than it was in 1993 in Rodriguez v. British Columbia (Attorney General).

The SCC hearing of Lee Carter will be webcast – you can watch it live online here.




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