This morning the Supreme Court of Canada rendered a disappointing decision in the euthanasia case. The constitutional challenge launched by Gloria Taylor and Lee Carter and supported by the B.C. Civil Liberties Association (BCCLA) against Canada’s criminal prohibitions of assisted suicide and euthanasia was heard by Canada’s top court on October 15. Less than four months later, the court unanimously decided to strike down the prohibition on physician assisted-suicide, giving Parliament 12 months to legislate restrictions if it so chooses. Here follow some initial reflections on the judgment. (You can read the actual judgment yourself here.)

 Reasons for overturning earlier precedent

In 1993, the Supreme Court ruled on the same issues in a case called Rodriguez, ruling in favour of an absolute ban on assisted suicide. If the law is already settled, then why did the Court hear this case again, and overrule their earlier decision?

The reasoning for overturning Rodriguez is two-fold:

• First, “the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez” (para. 46); and
• Second, “The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez… The evidence before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions [three factual findings of the Court in Rodriguez].” (para. 47).

Basically, the Court felt that the law and the facts changed since Rodriguez, and so the Court felt they were free to overturn the earlier decision. 

Right to Life – Individual vs Societal Interests

The Supreme Court ruled that the right to life in section 7 of the Charter is engaged when the prohibition against assisted suicide “had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so [later]” (para. 57). Note that the right to life is engaged only by the threat of death. The Court does not recognize a “right to die”. Rather, “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” (para. 62).

The section 7 analysis (the right to life, liberty and security of the person) focuses on the effects of the law on the individual (see para. 85). If the individual challenging the law can show that a law violates their life, liberty or security of the person in a way that is arbitrary, over-broad, or grossly disproportionate, then the court turns to the State and asks them to justify the law (under section 1 of the Charter). This is where considerations of broader society interests will come into play.

In this case, the court found that the absolute ban on assisted suicide was over broad (since some people were fully willing and able to consent to death and did not need the State’s protection). The court also found that the government could not justify such an absolute ban because it was not minimally impairing.

The Court recognized “in cases such as this where the competing societal interests are themselves protected under the Charter, a
restriction on section 7 rights may in the end be found to be proportionate to its objective.” (para. 95). This is a very important conclusion, though we don’t benefit from it in this judgment. It is important because the Court recognizes that the right to life is a right that all Canadians enjoy, and the protection of that right is shaken when an absolute ban on assisted suicide is struck down.

At para. 105, the Court admits that there are inherent risks in a non-absolute approach. The Court rules that risks to vulnerable people can be “very substantially reduced through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” Note well that they did not say that the inherent risks can be eliminated. Those supportive of euthanasia and assisted suicide admit implicitly that innocent people will die. For them, it’s simply a matter of balancing that risk.

When it comes to the right to life, a “substantially minimized risk” is an unacceptable risk. Innocent people will die and the State will be complicit in their deaths. We rush to help healthy people who express a desire to die by helping prevent their suicide. Now we contemplate rushing to help severely disabled people die by offering lethal injection. There is something fundamentally wrong with this social response to suffering and disability. Too bad the court doesn’t agree.

At least the Court is open to a very stringent, scrupulous system. While even such a system is not perfect, we must encourage Parliament to create such a “scrupulously monitored and enforced” system in order to protect as many people as we can.

Provincial jurisdiction and the role of the courts

At para. 53, the court rejects the argument that physician-assisted suicide is a health issue, and thus purely provincial jurisdiction. This will have an effect on the euthanasia law introduced in Quebec, though we don’t quite know to what extent the effect will be.

The Court seems confused (at para. 66) about the difference between medical decisions like palliative sedation and removal or refusal of medical treatment on one hand and with requesting physician-assisted death on the other. The two are fundamentally and morally different. The former allows “nature to take its course”, and the patient dies as a result of their illness. The latter requires the physician to kill the patient. That has always been understood to be murder.

Finally, the amount of deference to the trial judge is very big here. The Court ruled, “trial judge’s findings on social and legislative facts are entitled to the same degree of deference as any other factual findings.” And so even though there was conflicting evidence as to the efficacy of safeguards, the trial judge preferred one set of social-scientific facts over the other, and we are left with her findings as absolute truth. This is the inherent problem of social-scientific policy work by the Courts. Why should the trial judge’s findings of fact have much greater policy implications than the many different multi-party studies done by House of Commons committees? The single biggest role played in this entire saga was that of the trial judge.  

Silver linings

There are three silver linings in this judgment:

First, s. 241(a) is still good law – it was not struck down. It reads, “Every one who counsels a person to commit suicide (whether suicide ensues or not) is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” This section will have to be very carefully policed so that physicians and others are not counseling others to die.

Second, physician conscience rights are protected (para. 132). Doctors cannot be forced to participate in euthanasia.

Third, the qualitative approach to the right to life was rejected (para. 59) and the existential understanding of the right to life was upheld (though not as robustly as we would like – the court believes that a right to life can be waived) (para 63). For more on the existential understanding of the right to life, read ARPA Canada’s factum to the Court here.

Next steps

Though we recognize that the right to life has been fundamentally undermined, our job now is to ensure that we encourage Parliament to do exactly what the court has left open for them to do. That is, Parliament must design “a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” Parliament must act in the next 12 months. If Parliament does not act, the de facto result will be one of the most liberal euthanasia regimes in the world: no laws or rules governing physician-assisted suicide.

Together, let’s pray and work to protect the most vulnerable. And as we work to change and improve laws to restrict evil to the greatest extent possible, let the Church also work to show love and compassion and care to these same people, so that they are not drawn to death, but rather drawn to life.  

You can read our press release sent to the media following the decision by clicking here.