How the law was changed

Ernest Hemingway famously wrote that one goes bankrupt in two ways: gradually, and then suddenly.

Euthanasia became legal in Canada in much the same way. Known as Medical Assistance in Dying, it has been available across the country since 2016. But the law which was passed by parliament that summer was only the end of the process, which was at first grinding along slowly, and then very quickly.

The story begins in the 1990s, when Sue Rodriguez, a 42-year-old mother with motor neurone disease launched a bid in the courts to overturn the law which forbade anyone helping her to kill herself. Her argument rested on two bits of legislation: the decriminalisation of suicide decades earlier and Canada’s Charter of Rights and Freedoms which enshrined equality for all, including the disabled. Her disability would soon rob her of the ability to end her own life, a de facto right held by every able-bodied Canadian, her lawyers argued. Thus it was discriminatory for the law to prohibit a doctor helping her to exercise her right to die by suicide.

The court ruled narrowly against her, but this did not quell the rumblings for change. Throughout the 1990s and 2000s Canada saw a string of difficult cases, including parents prosecuted for helping their disabled or ill children to die as well as more legal challenges from adults. Canadian politicians also regularly introduced private members’ bills into parliament which would legalise assisted suicide, although these never went very far.

In the middle of one of these sporadic debates in 2007, the ethics committee of the Canadian Medical Association (CMA) – which represents 70,000 doctors and medical students – reconsidered the issue but concluded their policy of opposition should remain unchanged: “Canadian physicians should not participate in euthanasia or assisted suicide.”

In 2010, a Quebec MP introduced her bill to legalise euthanasia for the third time. It was comprehensively defeated by 228 votes to 59 in Canada’s House of Commons.

Thus, a decade ago, Canada was in a very similar place to the UK today. There were sporadic legal and parliamentary skirmishes around assisted suicide and simmering social debate in the background. But no real progress towards the activists’ dream had been realised, the medical profession remained opposed and there did not appear to be a credible path to legalisation any time soon.

But then, everything changed with another court case. In 2011, the Civil Liberties Association in British Columbia began a fresh legal challenge in that province’s courts to the prohibition on assisting suicide. Among the plaintiffs were the family of Kay Carter, an 89-year old suffering from a degenerative spinal condition, who they had helped travel to the Dignitas clinic in Switzerland so she could end her own life one year earlier.

The other plaintiffs were a handful of Canadians with disabling diseases who all wished to be allowed to end their lives with the help of others, although none were terminally ill. Their arguments were trained on the Supreme Court’s decision in the Rodriguez case almost 20 years earlier.

The legal case they presented was paradoxically grounded in Canada’s constitutional protection of every citizen’s right to life. Under the current law, able-bodied people were at liberty to kill themselves should they wish to escape their suffering, the lawyers argued. But because the criminal code prohibited anyone assisting the suicide of another, if someone with a progressive condition wanted to end their suffering by dying they were forced to do it sooner rather than later. Thus their constitutional right to life was infringed by the criminal law making them kill themselves before they had been overcome by disease, lost their independence and actually wanted to die. Echoing Rodriguez, the plaintiffs also said their Charter rights to equality for disabled people were also infringed.

In 2012, the judges agreed and ruled the laws which made it illegal for a doctor to help a seriously ill patient to die were effectively unconstitutional. This ruling was suspended for one year to give the federal government time to rewrite the criminal code and thereby formally legalise assisted suicide.

The then-Conservative government in Ottawa immediately appealed the court’s ruling – noting Canada’s elected representatives had been asked the same question just two years earlier and voted overwhelmingly not to change the law.

A year later, British Columbia’s Court of Appeal overturned the judgement, noting the CMA was opposed to doctors taking part in assisted suicide. There was not, the judge wrote, “clear consensus of public or learned opinion on the wisdom of permitting physician-assisted suicide”. Yet in response, the CMA began a sea change. While recognising its membership was divided, it decided it nevertheless needed to help lead the societal debate underway. Meanwhile, the case was appealed again and bumped up to the Supreme Court, the final decision-makers.

In 2014, the CMA began a consultation, holding town hall meetings across Canada as well as hosting a website for doctors to register their thoughts. Although this process did highlight the deep differences of opinion among its members, the overall picture was clear: in an online survey 72% of doctors opposed physician-assisted suicide, compared to 26% who thought the policy should be revised. An earlier poll from 2011, before the current legal case, had suggested just 11% of Canadian doctors would take part in euthanasia or assisted suicide if it were legal.

Despite this evidence, the board of the CMA later that year switched its official stance to effective neutrality, stating it now believed doctors should “follow their conscience” when deciding whether or not to take part in state-sanctioned euthanasia. Critically, this new position liberated the respected body to take part in the Supreme Court case, including giving evidence about the lack of consensus within its membership on the question.

And fairly quickly, the CMA’s sense it had to be involved in the debate quickly morphed into something more. As Canada waited for the Supreme Court justices to rule, the president of the CMA said that should euthanasia be legalised its members must be front and centre in the drafting of new laws. What had started as an attempt to keep a foot on both sides was inching towards ensuring the body was on the right side of history should this momentous change come about.

The following year, the judges of the Supreme Court issued their verdict, in what has become known as Carter v Canada. This is the moment, just a handful of years after what had started as just another long-shot legal challenge, Canadians woke up to realise legal euthanasia was on its way.

The Carter decision declared the parts of Canada’s criminal code which forbade helping someone kill themselves were unconstitutional. The current law, the court ruled, left only a “cruel” choice: a patient “can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes”. In one fell swoop they struck down the laws which criminalised assisting suicide, if the individual was a competent adult with a “a grievous, irremediable condition” who had made a voluntary and persistent request to die.

Effectively, such patients now had the right to be killed by their doctor. This clearly went further than the British Columbia plaintiffs had actually asked for, as it made not just assisted suicide legal but also euthanasia; physicians would not just be prescribing lethal drugs but also personally administering the fatal injection themselves.

The federal government was told it had just 12 months (later extended to 18) to write and pass a law regulating the new right to die, before this novel interpretation of the Charter and criminal code came into force. The now Liberal government speedily did as it was told, and in the summer of 2016 introduced what they called Medical Assistance in Dying