Canada's Supreme Court just announced that Canadians do not have a duty to live. Why do New Zealanders?
Let's say you are living in Canada. You are suffering from some nasty incurable disease that may or may not kill you, but certainly will give you a future of pain, indignity and despair. What are your options?
Well, one option is to soldier on through the travails of the illness until death takes you at its own time. A perfectly honourable, maybe even "courageous" choice. But let's say you don't want to do that. You think a life under the disease is worse than no life at all. So you want to end your suffering and gain a death on your own terms and by your own choosing.
In that case you can refuse to eat, drink or accept medical help and let your body slowly shut down over several days of quite excruciating pain. Or, if you are still mobile and dexterous enough, you can fashion your own means of death with pills/plastic bags/etc and hope that you get it right and don't end up in a brain damaged coma instead. What you couldn't legally do, however, was get the help of another person to provide you with, or even apply, the means of your death. In particular, you couldn't (legally) get a health professional who agreed that you ought to be given release from your pain and suffering to help you do so.
Until now, that is.
Because the Canadian Supreme Court, in a 9-0 decision issued in the name of "The Court" (thus giving it even greater authority), just announced that if and when you decide that you want to end your own life you have a right to receive assistance from a doctor. (Provided the doctor is willing to give that assistance, of course!) What is more, because the law that presently says everyone who aids or abets a person in committing suicide commits a crime that is punishable by jail time unjustifiably limits that right, it will cease to apply in a year's time:
insofar as [it prohibits] physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.
The one-year delay then allows Canada's Parliament to create new legislation that is consistent with the right the court identifies, if it wants to. Of course, Parliament could in theory use s.33 of the Charter to override the Court's decision and re-criminalise all forms of physician-assisted death. But it won't, because this power is never used (by Canada's federal Parliament, anyway). And Parliament also could choose to do nothing and leave the issue to be regulated solely by the medical profession through its own code of ethics. Which would be the cowards way out.
So that's great for Canada! What does it mean for us here in New Zealand, though? At one level nothing - Canadian law obviously doesn't apply to us. Which is lucky, otherwise pretending to be a witch would be illegal here. But at a deeper level it does have important implications.
Because here's what Canada's Charter of Rights and Freedoms says that every Canadian enjoys:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
And here's why the Supreme Court says that imposing criminal penalties on medical professionals who help another person who is suffering with no hope of remission from ending their own life breaches that right:
The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition [on doctor assisted death] deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.
Then consider the right that the New Zealand Bill of Rights Act guarantees to us all:
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
This section was deliberately lifted from the Canadian model. And so I'm going to go out on a (not very long) limb and say that if and when a New Zealand court were ever to look at this right in the context of New Zealand's criminal prohibition on "aid[ing] or abett[ing] any person in the commission of suicide", it also would conclude that this blanket prohibition unjustifiably limits an individual's right to life. The fact that Canada's highest court unanimously ruled that the model for our law has this meaning and effect is going to be so persuasive that a New Zealand court is near certain to do likewise.
But, and here's the big but, what does that prediction mean? Well, at one level it means that New Zealand's existing law imposes an unjustifiable limit on the individual rights of some members of our society (those with some nasty incurable disease that may or may not kill them, but certainly will give them a future of pain, indignity and despair). Obviously that's not a good look for our law.
On another level, however, this fact means nothing at all. For unlike Canada, our Bill of Rights Act does not allow a court to invalidate or "strike down" the law. So irrespective of what a judge (or panel of judges) may think of the criminal law's effect on rights, it stays on the books. Which makes taking the matter to court a bit of a waste of time, and instead throws it back into the legislative arena. If the unjustifiable limit that Canada's Supreme Court has identified is to be fixed here in New Zealand, the only people who can do so are the MPs in our Parliament.
Which is something that they seem deeply disinterested in doing for the moment. Although John Key (to his credit) has repeatedly voiced support for some reform to the law in this area, and voted in favour of it back in 2003, there seems little appetite to make it government policy. And late last year the only other vehicle for change, a members bill sponsored by Labour's Ian Lees-Galloway, got yanked from the ballot in order to spare his party any more controversies over social policy issues.
But while our current MPs may be too chicken to take the matter on, it's a change that is going to come. First, as the Canadian Supreme Court noted, the winds of change are beginning to blow internationally:
By 2010, however, eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia. The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. court. Colombia followed in 1997, after a decision of the constitutional The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009.
To this list we can add Vermont, whose state legislature enacted a law in 2013 that has legalized physician-assisted suicide for terminally ill patients who want to end their lives, and now (of course) Canada itself.
Second, demographics are on the side of this issue. By that I mean that we have an aging cohort of baby boomers who are used to getting what they want and don't like being told that they can't have it. So at some time in the future, some party or politician is going to see this issue as not only desirable in principle but also politically advantageous and make the change needed. There is, after all, only so long that a law some 80% of the population disagree with can remain in place.
It's just to bad that until that happens, any New Zealander suffering from some nasty incurable disease that may or may not kill you, but certainly will give you a future of pain, indignity and despair, will just have to take care of themselves.