Physician Assisted Suicide (PAS) in Canada:
The Carter v. Canada lawsuit
Part 7 of thirteen parts
2013-OCT-10: B.C. Court of Appeal's
ruling overturned lower court.
Assisted suicide to remain illegal.
Reasons for the
2013-OCT-10: The British Columbia Court of Appeal overturned the lower court's ruling in "Carter v. Canada:"
By a 2 to 1 vote, the Court of Appeal overturned the earlier decision in the case, dated 2012-JUN-15. It was issued by the Honourable Madam Justice Lynn Smith of the British Columbia Supreme Court. Her decision had recognized the right of individual Canadians to seek "Death with Dignity" through physician assisted suicide under controlled conditions.
The British Columbia Civil Liberties Association (BCCLA), who filed the Carter v. Canada case, commented on their web site:
"In a divided two-to-one decision, the BC Court of Appeal overturned the historic BC Supreme Court ruling. The majority of the court did not base its decision on the merits of the case. Instead, it decided that it could not reverse the Supreme Court of Canada’s 1993 decision in Rodriguez v. B.C., effectively leaving the case for the Supreme Court to sort out.
The Chief Justice of B.C. dissented, agreeing with the BCCLA that the laws were unconstitutional and that the evidence since Rodriguez shows that safeguards can be created to protect vulnerable individuals." 1
Webmaster's comment: [Alert: strong possibility of bias]:
By this decision, the British Columbia Court of Appeal preserved the status quo at the time. It continued the unequal treatment of three groups of Canadians who are in severe physical and/or emotional pain without any hope of relief:
- If they want to experience "dignity in dying" now, and are physically and mentally able to organize their own suicide, then they can legally commit suicide unaided.
- If they want the option of experiencing "dignity in dying" sometime in the future when they expect that their situation will become totally intolerable, then they are denied comfort now that would have come from the knowledge that they can have future assistance in dying even if they are unable to commit suicide by themsleves.
- If they cannot organize their own suicide now, then they are trapped in pain until their body gives up and they finally obtains relief in death.
When this decision was handed down, I was approaching my 78th birthday My number of years life expectancy probably was, and remains, in the single digits. Being an Agnostic, I do not expect to experience Heaven, Hell, or any other form of an afterlife. Thus, I do not fear death. I do not fear being dead.
Human life is finite in duration. IMHO, Intelligent life on Earth only became possible as a result of about 4 billion years of evolution. Without death, the most intelligent species of life on Earth would have remained a single-celled animal devoid of a brain and without consciousness. Death for humans remains a necessary part of life. Without death, homo sapiens wold never have developed, and I would never have been born.
But I greatly fear the process of dying in which there is the possibility that I will suffer from uncontrollable pain coupled with intolerable physical or mental degeneration to the point where I cannot organize my own suicide. That is truly terrifying. I was thus very discouraged by the decision of the BC Court of Appeal.
On the bright side, as far as I view the situation, Carter v. Canada was later appealed to the Supreme Court of Canada which reversed the decision of the British Columbia Court of Appeal on 2015-FEB-06, and instructed the Government of Canada to legalize physician assisted suicide (PAS).
2013-OCT-10: Reasons for the decision by the British Columbia
of Appeal against access to assisted suicide:
As noted above, the B.C. Court of Appeal ruled by a vote of 2 to 1 in favor of the status quo regarding suicide in Canada.
Committing suicide is not a crime in Canada.. Persons nearing the end of their life who are in agony due to physical or emotional pain, often wish to commit suicide. Many of them are unable to do it by themselves. Under the laws in Canada at the time, they were unable to obtain assistance from a physician or anyone else to help them "Die with Dignity". Helping another person to commit suicide has been a criminal act under Section 241(b) of the Criminal Code of Canada. It can result in a long prison sentence to the helper.
The majority of Justices on the three-judge panel of the Court of Appeal did not reach their ruling against PAS because they considered Section 241(b) to be constitutional. They did not base their decision on their belief that access to assisted suicide should be absolutely banned. Rather, they felt that they had no other option. This is because Carter v. Canada was essentially identical to an earlier case, Rodriguez v. British Columbia (Attorney General). On 1993-SEP-30, the Supreme Court of Canada heard that case and upheld the ban on assisted suicide by a vote of 5 to 4.
The plaintiff in the earlier case was Sue Rodriguez, a woman in British Columbia, Canada who was suffering from Amyotrophic Lateral Sclerosis (a.k.a. ALS or Lou Gehrig’s Disease). It is a progressive neurodegenerative disease that causes muscle weakness, and paralysis. Ultimately, it causes respiratory failure, and death by very slow asphyxiation. It is a horrible way to die. She was able to commit suicide on her own with the emotional support of an anonymous physician and her friend, Svend Robinson. Svend was a New Democratic Party Member of Parliament.
Since the two cases, about two decades apart, were essentially identical in scope, the majority on the B.C. Court of Appeal felt that they could not issue a ruling that overturned the earlier Supreme Court of Canada's ruling. The legal principle of "stare decisis" (Latin for "to stand by things decided") implies that a earlier decision normally has precedence over an identical or very similar new case.
Justice Mary Newbury wrote the majority decision, saying:
"In our respectful view, any review of the substantive Charter challenges, and the granting of comprehensive or limited relief from the effects of the law, are beyond the proper role of the court below [the B.C. Supreme Court] and of this court [the B.C. Court of Appeal.] If the constitutional validity of s. 241 of the Criminal Code is to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so. ... Notwithstanding the staunch submissions of the respondents, and those speaking in their support, for a fresh consideration of the issues unencumbered by Rodriguez, in our view Rodriguez must determine this appeal. On the jurisprudence as it now stands, only Parliament may relieve against s. 241."
Joseph Arvay, a lawyer for the plaintiffs, said:
The Court of Appeal decided that their hands were tied by the 20-year-old Rodriguez decision. We are prepared to go to the highest court in [the] land to resolve this issue because it is so critically important."
Alison Latimer, counsel for the British Columbia Civil Liberties Association -- the group that launched Carter v. Canada -- said that the Court of Appeal took a:
"... very cautious approach to stare decisis. ... If we obtain leave to appeal to the Supreme Court of Canada, they aren’t bound by their earlier decision." 1,2
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
"Carter v. Canada," British Columbia Civil Liberties Association, at: https://bccla.org/ [Text is in the section "Progress in the Courts" for "October 10, 2013".]
Glenn Kauth, "Assisted suicide case likely headed to Supreme Court," Canadian Lawyer & Law Times, 2013-OCT-10, at: http://www.canadianlawyermag.com/
Copyright © 2016, by Ontario Consultants on Religious Tolerance
Original posting: 2016-FEB-28
Latest update: 2016-FEB-28
Author: B.A. Robinson