Featured Image

February 11, 2015 (LifeSiteNews.com) — Last week, the Supreme Court of Canada unanimously decided to strike down Canada’s criminal prohibition on physician-assisted suicide. The constitutional challenge launched by Gloria Taylor and Lee Carter and supported by the B.C. Civil Liberties Association (BCCLA) against the prohibition of assisted suicide was heard by Canada’s top court on October 15. Less than four months later, the nine judges have tossed the ball into Parliament’s court, giving it 12 months to legislate restrictions if it so chooses.

The Court decided to side-step the section 15 equality arguments made by the appellants by focusing on section 7 instead (thus leaving any new restrictions open to a section 15 challenge in the near future).  However, the idea of equal access to suicide still animates the judgment. Since suicide is not illegal and since an absolute ban on assisted suicide might possibly prompt some people to commit suicide prematurely, the Court reasoned at paragraph 58 that not providing equal access to suicide at a later point in life resulted in an unconstitutional infringement on the appellants’ right to life.

This line of reasoning misunderstands the purpose of decriminalizing suicide. That move was made to reduce distress in the lives of those who no longer saw the point in living. It was meant to remove barriers to getting help in order to prevent suicide. It did not change suicide into a public good, a benefit in law that must be equally available to everyone who wants it.

The right to the equal benefit of the law ought to be found in having equal access to a robust protection of life by the State, not in equal access to suicide at a time of one’s own choosing. The Court recognized the tension between individual interests and the public good at paragraph 95. Section 7 guarantees that the life of every Canadian be protected. But in a self-created catch-22, by striking down the absolute ban on assisted suicide (a move justified on account of the right to life) the Court has now undermined the right to life of many other Canadians with severe disabilities or illnesses.

If there is one role for the State, it is to protect the lives of citizens from other people. An argument in favour of assisted suicide undermines this critical responsibility.

In a criminal trial, who is the prosecutor’s main witness? As a rule of thumb, the key witness is the victim. The same is true in a homicide trial. What’s the problem? The witness is rather unresponsive when called to the stand. Unlike the alleged victims in the Jian Ghomeshi trial, the prosecutor cannot ask the complainants to clarify whether consent was given. 

Where the criminal law is changed such that some people are allowed to kill other people, the burden now shifts to the State to prove, beyond a reasonable doubt, that in fact the person killed did not consent to being killed. Common sense dictates that those who are disabled are the most likely to be assumed to have consented to die (thus creating reasonable doubt), whereas strong and healthy people won’t be at risk of suffering that same assumption. 

What does this mean in effect? When an absolute ban on killing people is removed from the law, Canadians with severe disabilities, as a class of people, are provided less protection and benefit of the law vis-à-vis the homicide provisions in the Criminal Code.

In a homicide trial, a jury of 12 will be less likely to find someone guilty of murder for killing a severely disabled person if our courts say that it’s legal to do so as long as the killed person consented. Just think of the Robert Latimer case: even though euthanasia was illegal at the time, a jury still initially found him not guilty of murder for intentionally killing his severely disabled daughter.

The Supreme Court agreed with the trial judge that “the risks inherent in permitting physician-assisted death can be identified and very substantially minimized.” 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 Supreme Court doesn’t agree.

André Schutten, Hon.B.A., LL.B., LL.M., is a  lawyer with the Association for Reformed Political Action (ARPA) Canada, an intervener in the Carter case.