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How to Legalize Medically Assisted Death in a Free and Democratic Society
Published online by Cambridge University Press: 02 June 2020
Abstract
In 2015, the Supreme Court of Canada struck down the criminal law prohibiting physician assisted death in Canada. In 2016, Parliament passed legislation to allow what it called ‘medical assistance in dying (MAID).’ The authors first describe the arguments the Court used to strike down the law, and then argue that MAID as legalized in Bill C-14 is based on principles that are incompatible with a free and democratic society, prohibits assistance in dying that should be permitted, and makes access to medically-assisted death unnecessarily difficult. They then propose a version of MAID legislation (‘Ideal MAID’) that gives proponents and opponents of MAID everything they can legitimately want, contend that it is the only way to legalize MAID that is compatible with a free and democratic society, and conclude that it is the way to legalize MAID in Canada and other similarly free and democratic societies.
Keywords
- Type
- Special Section: Death, Dilemmas, and Decisions
- Information
- Copyright
- © Cambridge University Press 2020
Footnotes
Acknowledgements: We thank Jenny Young for comments and discussion
References
Notes
1. Supreme Court of Canada. Supreme Court Judgments. Carter v. Canada (Attorney General) 2015 SCC 5, [2015] 1 S.C.R. 331; available at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do (last accessed 24 Oct 2019).
2. See note 1, Supreme Court of Canada 2015, at paragraph 127.
3. Government of Canada. Constitution Act, 1982; available at http://laws-lois.justice.gc.ca/eng/Const/page-15.html (last accessed 24 Oct 2019).
4. See note 1, Supreme Court of Canada 2015, at paragraph 23.
5. Supreme Court of British Columbia. Carter v. Canada (Attorney General), 2012 BCSC 886, 287 c.c.c. (3d) 1, at paragraphs 761–853.
6. See note 1, Supreme Court of Canada 2015, at paragraph 115.
7. See note 1, Supreme Court of Canada 2015, at paragraph 120.
8. House of Commons. Statues of Canada 2016. http://www.parl.ca/DocumentViewer/en/42-1/bill/C-14/royal-assent (last accessed 24 Oct 2019).
9. See note 8, Statutes of Canada 2016, at 241.2 (2)(a).
10. See note 8, Statutes of Canada 2016, at 241.2 (2)(c).
11. See note 8, Statutes of Canada 2016, at 241.2 (2)(b).
12. See note 8, Statutes of Canada 2016, at 241.2 (2)(d).
13. See note 8, Statutes of Canada 2016, at 241.2 (3).
14. Government of Canada. Department of Justice. Legislative Background: Medical Assistance in Dying (Bill C-14), at 6.
15. Canadian Medical Association. “Principles-based Recommendations for a Canadian Approach to Assisted Dying,” at paragraph 2.
16. Canadian Committee on Corrections. Basic principles and purposes of criminal justice. In: Report of the Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. Ottawa: The Queen’s Printer; 1969Google Scholar.
17. See note 8, Statutes of Canada 2016, at 241.2 (2)(b).
18. See note 8, Statutes of Canada 2016, at 241.2 (2)(d).
19. See note 5, Supreme Court of British Columbia 2012, at paragraph 436.
20. See note 5, Supreme Court of British Columbia 2012, at paragraph 454.
21. See note 5, Supreme Court of British Columbia 2012, at paragraphs 673–87.
22. See note 5, Supreme Court of British Columbia 2012, at paragraph 883.
23. As required by the Canadian Committee on Corrections. See note 16, Canadian Committee on Corrections 1969.
24. Williams, G.The Sanctity of Life and the Criminal Law. New York, NY: Alfred A. Knopf; 1957:339–40Google Scholar. Williams later comments that, alternatively, this onus could be reversed to require that it is up to the physician to show that the patient consented or (to accommodate nonvoluntary MAID we add) was a suitable candidate for MAID. James Rachels presents a version of this view in Rachels, J.The End of Life. Oxford: Oxford University Press; 1986:182–7Google Scholar.
25. Law Reform Commission of Canada, Report 20. Euthanasia, Aiding Suicide and Cessation of Treatment. Minister of Supply and Services Canada 1983:17.
26. See note 8, Statutes of Canada 2016, at section 9.1.