The role of judges is prima facie to interpret the law; however, in the area human rights the judge becomes the arbitrator. In the area of suicide, the competing issues at play are: i) the state’s obligation to prevent death and harm to its citizenry; and ii) the right of the individual to choose their time to die (Orfali, 2011). The primary decision maker is not the judge, in life and death situations; rather it is the choice of the individual (i.e. the right to die with dignity) (Orfali, 2011). This is the argument that was presented by Sue Rodriguez and the other individuals who have gone to the Supreme Court (Orfali, 2011).
There are fears that if such a right was embraced that there would be misuse by relatives (Orfali, 2011). Such an argument is misplaced, because judges and tribunals make such decisions in Oregon (Picket, 2008). Thus, judges are simply a safeguarding mechanism, in order to ensure that the individual is making a rationale and independent choice to die (Picket, 2008; Orfali, 2011). This means that the ultimate choice is in the hands of the competent individual.
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"Who Should Create The Laws?".
The right to commit suicide, as identified above, should be the right of the individual. Intervention by the legal system with respect to life and death decisions should be limited when the individual is competent. The English case of Ms B v An NHS Hospital Trust 1 FLR 1090 held that the competent person has the right to refuse lifesaving treatment, which means that she was allowed to commit suicide. The only time intervention is allowed is if the individual is not competent to make a decision (i.e. mental impairment directly affects the rationalised right to choose life or death) (Rabone & Anor v Pennine Care NHS Trust [2012] UKSC 2).
Nevertheless, the right to choose death is lost if assistance is required (R (on the Application of Tony Nicklinson v Ministry of Justice) [2012] EWHC 2381 (Admin)). This is because public policy intervenes, because the individual may be subjected to pressure. Thus, on assisted the English approach mirrors the Canadian rationale in Rodriguez v. The Attorney General of Canada [1994] 2 LRC 136.
Assisted suicide should be decriminalized, because the continuation of pain and torture indicated by the claimants in Rodriguez and Carter v. Canada (Attorney General) [2012] BCSC 886 (Gloria Taylor Case) is inhumane and degrading. The right for such competent and rationale persons to choose to die, even with the help, should be allowed (Orfali, 2011). In order for the law to ensure that there is a free choice, the law should play a safeguarding role. In Oregon, there is a required procedure present, in order for an act of assisted suicide to be legal (Picket, 2008). A similar approach should be followed in Canada.
Compassionate homicide cases occur due to the deficiencies in the legal system with respect to assisted suicide. This means that legislating assisted suicide is necessary. However, until such a legal change is embraced, there should be empathy within the legal system towards certain forms of compassionate homicide cases. The conviction in R. v. Latimer (2001) SCC 1 S.C.R. 3 is probably correct, because a 12 year old is not old enough to express a wish to die. However, a similar set of facts applied to the adult may have a different outcome. Leniency should occur when there is a competent adult wanting to commit suicide with the help due to physical incapability. Nevertheless, a case such as R. v. Latimer must be prevented, because the choice of a child cannot be ascertained.
