Unveiling the Strategy to Legitimize PAS in Canada

At a recent symposium on the “Ethical, Legal and Social Perspectives on Physician Assisted Suicide,” Jocelyn Downie, the director of the Health Law Institute at Dalhousie University, offered four suggestions to physician assisted suicide (PAS) advocates to ensure the legalization of PAS in Canada.  The following is a synopsis of Downie’s suggested actions:

1) Prosecutional Discretion -  reforming prosecutional guidelines.

2) Jury Nullification - this occurs when the evidence clearly demonstrates that a conviction is necessary, but the jury sees the law as wrong so refuses to convict.  Before the Supreme Court struck down the law on abortion in Canada in 1988, jurys consistently refused to convict Morgentaler even though the evidence clearly demonstrated his guilt.

3) Legislative Reform - changing the criminal code through the parliamentary process.  Downie admitted that the current political climate makes this option next to impossible at the moment, claiming that the Harper Conservatives have closed the door on any possibility of legislative reform.  She also claimed that recent pubic opinion polls on the issue have basically caused that same door to be firmly bolted shut.  However, Jocelyn did feel encouraged by the current situation in the senate.  Senators are allowed to introduce legislative reforms in the senate and since senators do not need to worry about voters and the majority of senators are liberal, a potential debate on PAS in the senate could take the pressure off members in the house who are sympathetic to PAS legislation.

4) A Charter Challenge - bringing forth a new charter challenge to section 241(b) of the criminal code.  Even though the Supreme Court has already ruled on a challenge to this section of the criminal code, it was argued that the Supreme Court has changed its mind in the past.  Downie explained that the circumstances surrounding the 1993 Supreme Court decision have drastically changed, arguing that currently there is widespread public support for PAS, the majority of physicians believe the law should be permissive, other countries now permit PAS and there is evidence that vulnerable persons are being protected in countries were PAS is currently permitted.  Jocelyn concluded by stating that advocates of PAS need a Rodriquez II.