Legal issues around the beginning and end of life have a long history of intersecting with religious beliefs on those same fundamental topics. Longstanding debates about abortion and euthanasia involve questions about the limits of the law, and the signals sent by the legal system on these topics. This area came to the fore again yesterday with the decision of the Supreme Court of Canada in Carter v Canada, 2015 SCC 5 (6 Feb 2015), in which a unanimous 9-member bench ruled, on the basis of s 7 of the Canadian Charter of Rights and Freedoms, that Federal Canadian law prohibiting suicide was invalid to the extent that it prevented

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.

A previous SCC decision had ruled in 1993 that there was no such Charter right. But now the court has changed its mind. In other words, despite a clearly enunciated rule on this topic passed under the democratic process by the Federal Canadian Parliament, the 9 members of the Supreme Court have now decided that Parliament got it wrong.

There are two major problems with this decision. One is the way it was made, the other is the substance of the decision. (Apart from that, all was fine…) The way that it was made illustrates the legitimate concerns that many have had in Australia about a “Bill of Rights” which allows courts to immediately substitute their judgments on significant policy issues, for the judgments of elected Parliamentary representatives. I happen to think that there is a legitimate place for a Bill of Rights of some sort in the Australian context. However, if such a thing were to be introduced, it should follow the model of being an “advisory” jurisdiction under which the courts would flag an issue, but there would be no legal consequence until Parliament had chosen to respond.

The problems of the Canadian model, where the courts immediately over-ride Parliament, are apparent here. The Supreme Court, having said that the current Federal law is invalid under the Charter, then “suspends” its ruling for a year to allow Parliament to respond. Why? Because it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is “unendurable”? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things? (In a very brief comment at [132] the Court says that the rights of patients and physicians in this area “will need to be reconciled”.) But one might remark that if it would be inappropriate for the Supreme Court to sully its hands with the gruesome details of implementing a policy, there may be something to be said for the view that they are an inappropriate forum to be making binding pronouncements on such policy.

One feature of the Charter which is not often mentioned may provide a “fallback” position. Section 33, sometimes known as the “notwithstanding clause”, does allow a Canadian legislature to over-ride a court ruling on certain provisions of the Charter (including s 7, the “right to life”, which with extreme irony was the provision invoked here to support a “right to death”), so long as it does so explicitly. Press reports suggest that some are already arguing that this is a case where s 33 ought to be invoked.

Why is the substance of the decision questionable? The arguments about opening up the door to legalisation of suicide generally are fairly well known, as are the arguments against allowing open slather in assisted suicide. But briefly, the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life. Any provision which allows others to make decisions to end human life weakens that value in the community. While the criteria set down by the Supreme Court here sound plausible and reasonable, the problems lie both in the implementation and also in the future development of the law. The implementation issues arise because fallible human beings have to make these decisions, and in many cases they will be under pressure from others. Family members of a dying person may have their own reasons for showing that the person’s illness is sufficiently grave, and their pain sufficiently unendurable, for a physician to assist in death. In many cases someone who is so gravely ill will have impaired judgement, and these decisions will have to be made by others. And once a law like this is introduced, there is an observable tendency in jurisdictions around the world for the grounds on which these decisions are made to be broadened.

All these issues have been long debated, and will continue to be debated. Sadly, the Supreme Court of Canada has decided that it has much more wisdom on these matters than the legislators of Canada, and foreclosed a debate that should be had in full, and with all relevant interests being considered carefully.