10/28/2013 05:00 EDT | Updated 01/23/2014 06:58 EST

Assisted suicide laws need updating, says former Supreme Court justice

A former Supreme Court of Canada justice is adding his voice to those calling on the federal government to modernize the law on assisted suicide.

"They know that it's an issue of public concern. Debate it in the House. Have a vote. I mean, what's Parliament for?" says former Justice Jack Major.

“If this is a touchy subject, do they just sit back and let the court decide, then say, ‘This judicial activism has to stop?’”

Major was sitting on the Supreme Court bench 20 years ago, when Sue Rodriguez brought her fight for her right to die to the highest court in the land.

Rodriguez, who was diagnosed with the terminal disease amyotrophic lateral sclerosis (ALS) in 1991, argued she had a constitutional right to doctor-assisted suicide.

"I don't think any of the nine judges had anything but sympathy for this woman," recalls Major. Under the Criminal Code of Canada, assisted suicide is punishable by a maximum sentence of 14 years in prison.

Major says the judges wrestled long and hard with the Rodriguez case. "Some of my former colleagues may have thought one way one day and a different way the next day... [but] you can't sit on the fence forever," he says.

In the end, Major sided with a narrow majority of judges, 5-4, upholding the law that bans assisted suicide. Assisted suicide, the majority found, violates the sanctity of life, and could lead to vulnerable people dying prematurely – a concern repeatedly expressed by disability groups.

Still, Major says implicit in the Rodriguez decision was a message to update the law.

"I understand why politicians don't want to touch it – because if they introduce a bill to change it, they lose the votes of those opposed. If they do nothing, they lose votes of those in favour,” says Major. “They've chosen to do nothing.”

Re-opening the debate

Since 1993, nine different MPs have attempted to reintroduce assisted suicide into the national consciousness with private member's bills. In 2010, Bloc Quebecois MP Francine Lalonde – who suffered from cancer – watched her private member's bill get defeated 228-59 in the House.

Both Justice Minister Peter MacKay and Health Minister Rona Ambrose have said that that vote settled the issue, and that the federal government has no intention of re-opening the assisted suicide debate.

Gloria Taylor – another B.C. woman suffering from ALS – launched her case in 2011, requesting permission for a doctor to end her life before she became incapacitated.

Taylor won a landmark victory at trial, which held she had a constitutional right to obtain assistance to end her life, but died of a severe infection not long after. The B.C. Court of Appeal recently overturned that decision, stating the issue had been resolved in the Rodriguez case.

"The societal consequences of permitting physician-assisted suicide in Canada – and indeed enshrining it as a constitutional right – are a matter of serious concern to many Canadians," wrote Madam Justices Mary Newbury and Mary Saunders. "No consensus on the subject is apparent, even among ethicists or medical practitioners."

Taylor's lawyers intend to appeal to the Supreme Court of Canada, but the soonest it would likely be before the court is next spring.

Joel Bakan, a constitutional law professor at the University of British Columbia, sees Taylor's case as an opportunity to take a new look at old opinions.

"The Supreme Court of Canada is not bound by its previous decisions," argues Bakan. "What's changed over the last 20 years is we've actually got some jurisdictions in the U.S. and Europe that have developed fairly detailed, well-thought-out, evidence-based approaches to ensure that allowing a right to assisted suicide does not lead to abuse."

Eight jurisdictions around the world have legalized assisted suicide or euthanasia – four in Europe, four in the U.S.

Former Justice Major suggests the federal government could put the polarizing debate to rest in Canada, by simply decriminalizing assisted suicide.

"They just have to repeal the Criminal Code section. They don't have to do anything else," says Major, acknowledging an important next step would be to put safeguards in place that protect the vulnerable.