Carter v Canada: Assisted Suicide Debate
Against Assisted Suicide
Karsten Erzinger (1L)
The issue of physician-assisted suicide is soon to be decided by the Supreme Court of Canada. While it is unclear how the SCC will rule on this matter, the current case has once again brought the question of physician-assisted suicide to the forefront of Canadian discourse. Should Canada legalize physician-assisted suicide? I submit to you that it should not.
In the Canadian context, proponents for legalizing physician-assisted suicide stress that if legalized, it would only be allowed in extreme cases: when the patient has consented and is physically unable to commit the act. If polling on this issue is to be believed, most Canadians generally support this position. Indeed, most people I’ve talked to about this stress that they only support physician-assisted suicide in extreme circumstances and believe the practice should be tightly regulated. This position sounds reasonable, but quickly becomes suspect when you consider that regulations are (a) not always followed and (b) not set in stone.
In fact, it only takes a cursory internet search to unearth many examples of regulations being ignored or abused in countries that have legalized assisted suicide and/or euthanasia. For example, according to a survey of Belgian nurses, almost half of those who have participated in assisted suicide or euthanasia procedures have taken part in “terminations without consent,” in direct violation of Belgian regulations. Similar findings have been also reported in the Netherlands. That’s not to say that this would be the result should Canada allow physician assisted suicide, but we shouldn’t fool ourselves into thinking that some vague notions of “regulations” will ultimately prevent abuse from occurring.
Even if we only open the door a crack by legalizing physician-assisted suicide in rare circumstances, it only takes a court challenge or a change in government to kick that door wide open. If you think not, just take a look at the jurisdictions that allow physician-assisted suicide. Almost all of them also allow euthanasia for all sorts of reasons, including the killing of newborns who have “defects” – a situation where consent of the patient is impossible.
This is precisely the problem that could develop if we allow the door to be opened. We may legalize it only for specific circumstances, but the court or a new government could quickly remove those restrictions and widen access to it. This danger would have profound implications not only for how we as a society value life, but also for those most vulnerable in our society. This is something the respondent’s factum to the SCC in the Carter case speaks very clearly on: “The preservation of life and the protection of vulnerable people – the poor, the elderly, people with disabilities – are social interests of the highest order. An absolute prohibition sends the message that all lives are valued and worthy of protection from those who subtly encourage vulnerable people to terminate their lives.” Hopefully, the Supreme Court of Canada agrees and keeps the door firmly closed on this issue.
Hailee Barber (1L)
Carter v Canada, currently on appeal at the Supreme Court of Canada, addresses the legality of assisted suicide. The case adds to last year’s highly publicized stories of Brittany Maynard in Oregon, and Gillian Bennett in British Columbia. These women fought for changes to the laws surrounding assisted suicide, and ultimately ended their lives due to terminal illness. I respect their fight. However, I am against the legalization of assisted suicide because I believe that it will endanger vulnerable individuals’ right to life.
I used to work at a long-term care facility where many residents would have been candidates for assisted suicide. These people suffered from MS and dementia, or were bedridden due to other terminal illnesses. I’m sure they all had bad days where they felt that life was not worth living. However, I know that they also had good days. Unfortunately, the good days were often discounted by family members and staff. I heard many comments that certain terminally ill residents no longer had any quality of life, and would be better off if they simply passed away.
Perhaps, on bad days, the terminally ill individuals would have agreed. What concerns me is that, with the legalization of assisted suicide, the terminally ill might become quicker to discount their good days, as societal beliefs begin to mirror the comments of the caretakers and family members who say they have no quality of life left. I feel that, inevitably, some more vulnerable individuals would begin choosing assisted suicide not because it’s what they want, but because it’s what they feel pressured and obligated to do. That is not a choice made freely. That is a vulnerable individual’s right to life being threatened by the opinions and pressures of society.
For Assisted Suicide
Sam Alzaman (2L)
More than 20 years have passed since the Supreme Court of Canada (SCC) rendered its decision in Rodriguez v British Columbia ( 3 SCR 519). The Criminal Code prohibition against physician-assisted suicide was upheld under s 1 of the Charter. The 5-4 decision included the dissent of Justice McLachlin, as she then was.
Much has changed since 1993. Recent polls have even suggested that upwards of 80% of Canadians support the proposition, that when patients are terminal and being caused unbearable suffering that physicians should be permitted to assist with the extreme measure.
While Rodriguez remains the law in Canada, it is important to note that Quebec has already legislated on the issue. Quebec’s new law is expected to come into force in 2015. The law, which is written directly into health care legislation, permits people with a terminal illness that is causing unbearable suffering to ask a physician to administer a lethal dose of medication. Other countries have taken a similar approach, allowing assisted suicide in extreme cases where patients are terminal and the pain and suffering is an affront to human dignity.
Opponents of physician-assisted suicide argue this will lead to a slippery slope. Issues arise where people are not terminal, or where suffering more closely resembles a substantial decrease in quality of life than unbearable pain; admittedly, this is extremely subjective. Also, people might opt for assisted suicide to save family members expensive lifelong care, time of care and, in some cases, be coerced by family members.
In 1993, when Rodriguez was being decided, the push for countries to regulate and decriminalize the issue in favour of assisted suicide had begun to trend. As such, the SCC did not have the benefit of seeing the outcomes in many of these countries. This data, which does not support the slippery slope argument, forms part of the new evidence that permitted Carter to be heard in BC. This, along with new views emerging in medicine and palliative care, support the arguments for assisted suicide.
The British Columbia Civil Liberties Association argues the best protection for Canadians is regulation, not criminalization. I wholly concur. Data from countries that have regulated the issue is now available. There has been no indication that people are being coerced to end their lives by family members, nor is there any indication that individuals are electing to do so without all the information.
Conclusions that were once considered to be imperative to upholding the law appear to be easily remedied by effective regulation. Tribunals with doctors, informed consent, and medical criteria will be a must for meaningful regulation. In essence, a system with effective safeguards can curtail any apprehensions we might have.
Furthermore, it remains important to avoid the deeply emotional aspects the issue brings to light. Most who have seen friends and family go through the horrific ordeal of lifelong suffering see that there should be some relief for patients. Why shouldn’t a person be allowed to choose to end their life if there is no chance of recovery? Should society and the government have the right to force people to suffer unbearably for years, even decades? These are the questions that must be answered by the SCC.
Section 241(b) of the Criminal Code states that everyone who “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to a prison term not exceeding fourteen years. The Supreme Court of Canada (SCC) will determine the legality of this provision in Carter v Canada (Carter).
Section 241(b) infringes the Charter rights of physically disabled individuals. Specifically, s 241(b) violates the s 15 right to equality. Section 241(b) creates a distinction based on the enumerated ground of physical disability, and this distinction results in discrimination. That is, physically disabled individuals are denied the assistance of a physician if they wish to commit suicide; for these individuals, the assistance of a physician is the only way they can commit suicide. In contrast, able-bodied individuals face “no legal impediment” to committing suicide (2013 BCCA 435).
This distinction creates a disadvantage, by perpetuating prejudice and stereotypes about physically disabled individuals. In particular, it promotes the view that physically disabled individuals need protection from themselves. This patronizing view assumes that physically disabled individuals are not capable of making free and rational choices. Further, physically disabled individuals are depicted as victims that lack agency rather than a diverse group of human beings with varying abilities and experiences. In short, s 241(b) violates the right to equality under s 15.
This violation is not saved under s 1 because it is not minimally impairing. As mentioned, the absolute prohibition against physician-assisted suicide treats all physically disabled individuals as vulnerable and denies them the right to make their own choices. In addition to making grand generalizations about physically disabled individuals, this absolute prohibition does not impair their rights in the least intrusive way possible.
As an alternative to this overly broad law, the government could enact regulations that would fulfil its goal of protecting vulnerable individuals. The trial judge, in the BCSC decision of Carter, identified some of these safeguards; these safeguards include “having properly qualified and experienced physicians assess the competence of patients seeking physician-assisted dying; identifying inappropriate influences on a person’s decision through a capacity assessment; and by assessing informed consent in a manner similar to how such assessments are made in the context of patients refusing medical treatment” (2012 BCSC 886).
Opponents of physician-assisted suicide allege these safeguards will not prevent abuse. They refer to situations in which a physician ends a patient’s life without obtaining the required consent. That is known as non-voluntary euthanasia, a matter distinct from physician-assisted suicide.
Non-voluntary euthanasia is not the question before the SCC. The question is whether the Charter rights of physically disabled individuals are being infringed, and the answer to that is undoubtedly yes.