Rory Leishman:

On Dec. 19, a six-judge panel of the Supreme Judicial Court of Massachusetts unanimously affirmed in Kligler v. Massachusetts Attorney General that no person has a constitutional right to physician-assisted suicide. For the United States, this ruling was not unusual. In 10 states plus the District of Columbia, legislatures – not the courts — have legalized physician assisted suicide. However, in no state have the courts held that a physician has a constitutional right to an exemption from the general laws on murder, manslaughter or assisting in a suicide for the purpose of deliberately killing a suicidal patient upon request.

The issue was first argued before the Supreme Court of the United States in Washington v. Glucksberg, 1997. In this case, four physicians in the State of Washington asked the Court to declare that under the broad terms of the constitutional provision  no state shall “deprive any person of life, liberty or property without due process of law;” a mentally competent, terminally ill patient has a constitutional right to physician-assisted suicide.  

The U.S. Supreme Court unanimously rejected this novel argument. All nine judges agreed that “our Nation’s history, legal traditions, and practices demonstrate that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years.” Furthermore, the Court held that the state has a legitimate interest in banning physician-assisted suicide for the purposes of upholding “the medical profession’s integrity and ethics” and “protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives.”

In conclusion, the Court underlined that whenever asked to expand the scope of fundamental freedoms that are “outside the arena of public debate and legislative action,” we judges “must exercise the utmost care lest the liberty protected by (the Constitution) be subtly transformed into the policy preferences of the Members of this Court.”

In Kligler, the Supreme Judicial Court of Massachusetts followed the Glucksberg precedent set by the Supreme Court of the United States in 1997. There is not now, and never has been, any constitutional right to physician-assisted suicide in any state of the United States.

As for the Supreme Court of Canada, it first dealt with the issue of physician-assisted suicide in Rodrigues, 1993. In this case, a 42-year-old woman suffering from amyotrophic lateral sclerosis petitioned the Court to declare that the ban in the Criminal Code of Canada on assisting in a suicide violated her right to “life, liberty and security of the person” in section 7 of the Canadian Charter of Rights and Freedoms to the extent that the total ban deprived her of a right to commit suicide with the assistance of a physician.

In a five-to-four ruling, the Supreme Court of Canada rejected this argument, and rightly so. Having noted that physician-assisted suicide had been outlawed under the common law for centuries and prohibited by Parliament since the beginning of the Criminal Code, the Court held that a blanket ban on assisting in a suicide “fulfils the government’s objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.”  

Like Glucksberg, Rodrigues was a sound ruling grounded in the common law, the Criminal Code, and the original understanding of the Charter. According to the fundamental law of precedent, the Supreme Court of Canada and all lower Canadian courts are constitutionally obligated to stand by the ruling in Rodrigues in all similar cases.

Nonetheless, in Carter, 2015, the Supreme Court of Canada unanimously overturned Rodrigues. In the Court’s new, unprecedented, and entirely illegitimate ruling, the guarantee of the right to life in section 7 of the Charter grants competent, adult Canadians who are suffering from “a grievous and irremediable medical condition” the right to death by suicide with physician assistance.

As in Kligler, most judges in the United States abide by valid judicial precedents that conform to the original understanding of the law and the Constitution. In sorry contrast, most judges in Canada — including the great majority on our top courts — have no compunction about overturning valid precedents and invoking the Charter as a pretense for imposing their own policy preferences on everything from assisted suicide to the punishment of murderers. Just last May, the Supreme Court of Canada held in R. v. Bissonette that a lawful, life sentence without parole for convicts who have committed multiple, first-degree murders violates the ban on “cruel and unusual treatment or punishment” in section 12 of the Charter.

How long will Canadians put up with such blatant judicial subversion of democracy and the rule of law?