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Right to life not the same as a duty to live: Harnett

The Supreme Court of Canada’s historic ruling to strike down the ban on physician-assisted death is an enormously important decision that will have sweeping implications, says Toronto criminal lawyer Aaron Harnett.

“The high court has found that the right to life is not the same as a duty to live – that’s the essence of the entire decision,” he tells AdvocateDaily.com. 

“What the SCC is really saying is that we have the right to make all sorts of decisions about how we want to live, and those decisions include refusing medical treatment that can save us and include the right to make decisions about how to end our lives when it is no longer tenable to keep living.”

Harnett says the decision seems to signify a “bit of a turn in the road” for a court that hasn’t always been consistent in its enthusiasm for dramatic endorsements of Charter values.

“I was surprised not only that they struck it down, but that they did so unanimously,” he says. 

Carter v. Canada arose when Gloria Taylor was diagnosed with amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness and degeneration. Taylor did “not want to die slowly, piece by piece” or “wracked with pain,” and brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code.

The high court, in a unanimous decision, agreed with her stance that prohibition in the Code violates the s.7ghts of adults who are suffering intolerably as a result of a grievous and irremediable medical condition and supported her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.

The court didn't agree that "the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot 'waive' their right to life. This would create a 'duty to live,' rather than a 'right to life,' and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment."

The court said that "by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person."

The decision also addressed the position of the Government of Canada and the "slippery slope."

"Logically speaking, there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying," states the decision. "The risks that Canada describes are already part and parcel of our medical system."

The decision overturns the top court's 1993 ruling in the case of Sue Rodriguez. At that time, the court recognized that the existing law infringed a person's rights, but was concerned that vulnerable persons could not be properly protected under physician-assisted suicide.

Harnett says the court emphasizes two important features of the case early in the judgment, including the suffering of Taylor and the applicants, as well as the dramatic shift in the popular landscape on this issue since Rodriguez, including how the manner in which the debate has really opened up in Canada.

“Those two elements at the beginning of the judgment really set the tone for what follows,” he says. 

The SCC ruling strikes down s. 241 (b) of the Criminal Code that says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14  says that no person may consent to death being inflicted on them. Together, these provisions prohibited assisted dying in Canada and the maximum sentence was 14 years in prison.

The court has given the federal government one year to draft new legislation or a new regulatory regime that will allow for medically assisted suicide.

Carter v. Canada really makes it clear that Charter values concerning how we choose to live our lives are going to be respected,” he says. “This is a decision that harkens back to the glory days of Charter jurisprudence and echoes the courageous voice of the court in Mortgentaler.”

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