Canadian Supreme Court refuses to endorse equal protection of the law for all

"Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in basic attitude, basic in the euthanasia movement, that there is such a thing as a life not worthy to be lived." (Dr. Leo Alexander, medical advisor at the Nuremburg trials NEJM July 1949) 

Friday 6th February, Ottawa Canada. The full bench of the Supreme Court of Canada, in the long running case of Carter vs Canada, returned a unanimous decision on appeal that strikes at the heart of the fundamental protections of life, particularly for people in the community whom, for whatever reason are already socially devalued.

The Court has directed the Ottawa Government to deal with their judgement by way of legislation within 12 months.

Head of the Euthanasia Prevention Coalition, Alex Schadenberg said today that, 'The Supreme Court is naïve to think that assisted suicide will not be abused, when abuse already occurs.'

'Parliament must first use the notwithstanding clause to continue to equally protect every Canadian. Then Parliament and Provincial governments must commit to: improving access to end-of-life care, create awareness to change social attitudes towards the lives of people with disabilities and the reality of elder abuse, and to focus on effective suicide prevention strategies to provide the care that Canadians require and deserve.'

Note: the 'notwithstanding clause' is the common name given to Section 33 of the Canadian Charter of Rights and Freedoms which allows, under certain conditions, the various Canadian Parliaments to overrule the courts decisions in relation to charter rights and charter rights themselves. While the Courts are the natural arbiter on Charter Rights and Freedoms, the parliaments have a reserved right following full debate to override a decision.

The constitutional case, first brought to Canadian Courts by the British Columbia Civil Liberties Union in 2011 revolved around a woman named Gloria Taylor; an MND (ALS) sufferer who claimed that the law infringed upon her charter rights to be assisted to end her own life. It echoed almost precisely an earlier case, Rodriguez vs Canada (1993) which decided that the state's obligation to protect the vulnerable outweighed an individual's rights to request assisted suicide.

From the Carter ruling:

Criminal Code provisions "unjustifiable infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who 1) clearly consents to the termination of life 2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition."

This phraseology is eerily similar to the laws in Belgium and in The Netherlands and, as experience has shown, is wide open to a myriad of abuses and to wider interpretation.

Hugh Scher, EPC's legal counsel (who has represented EPC at Court throughout this case) clarifies what this decision means:

"Today's ruling is the first time that any Supreme Court has struck down an absolute prohibition against assisted suicide. Such prohibitions represent the norm and not the exception in countries around the world including Australia, the U.K., Ireland, Scotland, France and in most states in the U.S.A.

"Only eight jurisdictions in the world permit assisted suicide or euthanasia. In those jurisdictions, governments have made a clear policy choice and have supported that choice with tailored measures and laws," says Scher. "The court's decision to impose this policy choice on Parliament is a concerning blow to the sovereignty of Parliament.

"Today's court decision imposes on Parliament which has clearly chosen not to legalize euthanasia or assisted suicide, despite 30 years of study, to introduce measures to attempt to protect vulnerable people, measures that have failed miserably elsewhere once the genie of intentional killing is out of the bottle and permissible," he says.

The Court also observed:

"The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly." And,

"Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable."

This is a highly problematic interpretation of the 'right to life' because it suggests that its relationship to the law is limited to only to an action and not an in-action. It denies the universal nature of the right and also the inalienability of this right which itself has broader implications than what the Court suggests. Moreover, it attributes to the prohibition on euthanasia and assisted suicide a sinister motive, a force majeure in relation to some people who are suffering. This is patently ridiculous.

In what seems to be a matter of judicial overreach, the Court also made comments seemingly designed to influence the Quebec Courts who are currently hearing an appeal to overturn the Quebec assisted suicide laws passed last year by stealth under the provinces shared powers in relation to health.

The Court said the prohibition on assisted suicide "is a valid exercise of federal criminal law power and it does not impair the protected core of provincial jurisdiction over health." and

"Health is an area of concurrent jurisdiction, which suggests that aspects of physician-assisted dying maybe be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation."

In 2014 when the Canadian Attorney General, The Hon Rob Nicholson on behalf of the Ottawa Government appealed against a lower court decision in favour of Carter by Justice Lynn Smith, he observed:

"The Government is of the view that the Criminal Code provisions that prohibit medical professionals, or anyone else, from counselling or providing assistance in a suicide, are constitutionally valid.

"The Government also objects to the lower court's decision to grant a "constitutional exemption" resembling a regulatory framework for assisted suicide.

"The laws surrounding euthanasia and assisted suicide exist to protect all Canadians, including those who are most vulnerable, such as people who are sick or elderly or people with disabilities. The Supreme Court of Canada acknowledged the state interest in protecting human life and upheld the constitutionality of the existing legislation in Rodriguez (1993)."

In addition to condemning this decision today, organisations opposing euthanasia & assisted suicide are renewing their calls for universally available, quality palliative care to be made available in Canada. Reflecting on the poor state of Canada's palliative care services, Hugh Scher observed:

"Nobody should be forced to suffer to death or kill themselves, but those should not be the policy choices Canadians are left with," he said.

Returning to the opening quote from Leo Alexander, this decision may one day be seen in hindsight as the 'subtle beginnings' of some further slide away from the notion of the universal and inalienable right to life. Major cultural shifts such as this are far from subtle in our view at this point in time.

That it may, one day, be seen as a 'subtle beginning' now depends almost entirely on the resolve of the Ottawa Government.

YOu can read the full text of the judgement HERE