CONVERTING THE 'RIGHT TO LIFE' TO THE 'RIGHT TO PHYSICIAN-ASSISTED SUICIDE AND EUTHANASIA': AN ANALYSIS OF CARTER V CANADA (ATTORNEY GENERAL), SUPREME COURT OF CANADA.
In its landmark decision Carter v Canada (Attorney General), the Supreme Court of Canada ruled that the criminal prohibition on physician-assisted suicide and euthanasia for certain persons in certain circumstances violated their rights to life, liberty, and security of the person in sec. 7 of the Canadian Charter of Rights and Freedoms and thus was unconstitutional. The Supreme Court in effect overruled its earlier decision, Rodriguez v British Columbia (Attorney General), which upheld the prohibition as constitutionally valid, on the basis of changes in Charter jurisprudence and in the social facts since Rodriguez was decided. We argue that the Supreme Court's Carter decision shows conceptual disagreements with its Rodriguez decision concerning the nature and scope of the sec. 7-protected interests and the accompanying principles of fundamental justice. Not only do these conceptual differences have little to do with the changes that the Court in Carter invoked for 'revisiting' Rodriguez, the Court's articulation of the sec. 7 interests, particularly the right to life, and the principles of fundamental justice, especially the principle of over breadth, are problematic on their own terms. Furthermore, the way in which the Court dealt with evidence regarding abuses in permissive jurisdictions is also subject to criticism. We recommend that if, as now seems inevitable, legislation is introduced, it should mandate that assisted suicide and euthanasia be performed by specially licensed non-medical personnel and only on the authorization of a Superior Court judge. We also reject the key recommendations recently issued by the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying.
Faculty of Law, McGill University, Montreal, Canada.
Benny
B
Chan
Samuel Gale Professor of Law, McGill University, Montreal, Canada H3A 1W9 Professor, Faculty of Medicine, McGill University, Montreal, Canada H3A 1W9 Founding Director, Centre for Medicine, Ethics and Law, McGill University, 3690 Peel Street, Room 201, Montreal, Canada H3A 1W9 margaret.somerville@mcgill.ca.
Margaret
M
Somerville
D002170:Canada; D005065:Euthanasia; D006801:Humans; D033241:Lawyers; D026684:Personal Autonomy; D012297:Right to Die; D017236:Suicide, Assisted; D026712:Value of Life
Euthanasia; Individual autonomy; Medical ethics; Physician-assisted suicide; Right to life; Rights to liberty and security of the person; Suffering and the law