Thursday, January 19, 2012

Euthanasia and Assisted Suicide – Canadian Update – The battle is in the courts.

By Alex Schadenberg,
Executive Director - Euthanasia Prevention Coalition

On April 21, 2010, Bill C-384, a bill that would have legalized euthanasia and assisted suicide in Canada, was resoundingly defeated in parliament by a vote of 228 to 59. Many Canadians wrote letters or signed post-cards to Members of Parliament urging them to vote against Bill C-384 and to maintain the protections in law from euthanasia and assisted suicide.

The euthanasia lobby in Canada reacted to their massive defeat in parliament by turning their attention to the courts.

In February 2011, the Farewell Foundation, a group in British Columbia that exists to aid their members suicides, launched a case in the BC Court to challenge the constitutional validity of Canada’s assisted suicide act. The Farewell Foundation case was challenging a ruling by the BC Registrar of Companies who denied the Farewell Foundation corporate status. The law does not permit organizations that exist solely to break the law to given corporate status.

In early April 2011, the Farewell Foundation launched a second case in the BC Court that stated that the laws that protect Canadians from assisted suicide are unconstitutional. The Farewell Foundation stated that five of their members wished to die by assisted suicide and the law unconstitutionally infringed upon their “right to die” by assisted suicide.

BC Supreme Court Justice, Lynn Smith, was assigned to the Farewell Foundation case.

In late April 2011, the BC Civil Liberties Association (BCCLA) launched the Carter case to overturn the laws protecting Canadians from euthanasia and assisted suicide. The BCCLA representing the Carter family, stated that the rights of Kay Carter were infringed upon because she had to go to Switzerland to die by assisted suicide. The BCCLA also stated that the Carter family broke the assisted suicide law, by arranging and bringing their mother, Kay, to die by assisted suicide in Switzerland.

The BCCLA, in Carter, did not limit their challenge to the assisted suicide statutes of the Criminal Code. The definitions used in the case includes a challenge to the laws that protect Canadians from euthanasia.

Justice Smith asked to have the Farewell Foundation case and the Carter case heard together. At a pre-trial hearing Justice Smith indicated that the Carter case would be heard but the case lacked urgency, since Kay Carter had already died in Switzerland and the Carter family had not been prosecuted for their part in their mother’s death.

In response to Justice Smith stating that the Carter case lacked urgency, on June 28, the BCCLA amended their notice of claim by adding Gloria Taylor, a woman who is living with ALS.

On August 3, Justice Smith accepted the amended notice of claim. Due to the health condition of Gloria Taylor, Smith decided to fast-track the Carter case. At the same time Smith questioned the relevancy of the Farewell Foundation case and a few weeks later she rejected the Farewell Foundation case, while encouraging the Farewell Foundation to intervene in the Carter case.

The Euthanasia Prevention Coalition (EPC) and EPC – BC received intervener standing in the Carter case. EPC asked to intervene and to have the right to introduce evidence in the court. The court granted EPC and EPC – BC intervener standing but denied them the right to call evidence.

In early November, the Leblanc case was filed by lawyer René Duval in Trois-Rivières Quebec. Duval seeks to have Canada’s assisted suicide law declared unconstitutional on behalf of his client, Ginette Leblanc, who lives with ALS. The Leblanc case is written in a tighter manner by limiting its challenge to the assisted suicide act and not challenging the law pertaining to euthanasia.

The Carter case was heard from November 14 to December 16 in a Vancouver courtroom. The intervention by EPC and EPC - BC was heard by Justice Smith on December 14.

The Carter case is difficult to define because the BCCLA, on behalf of the Carter family and Gloria Taylor, made it appear that they were seeking to legalize assisted suicide but in fact they were seeking a wider decision that would grant the plaintiffs euthanasia and assisted suicide.

The Carter case also included within the Notice of Claim language that might become the framework for a law that allows the direct and intentional killing of people by euthanasia or assisted suicide.

This framework in the Carter case does not restrict the acts of euthanasia or assisted suicide to physicians. Carter defines who carries out the acts as: a person acting “under the general supervision of a medical practitioner.” Family members or other care-givers may be able to act under the general supervision of a medical practitioner. Therefore a family member could cause the death under the language in the Carter case.

The Carter case does not restrict acts of euthanasia or assisted suicide to people who are terminally ill. Carter states that eligibility for death should be based on people who are “grievously and irremediably ill.” Carter does not define the terms grievously or irremediatebly but provides these examples: “cancer, chronic renal failure and/or cardiac failure, and degenerative neurological diseases such as Huntington’s disease and multiple sclerosis.” The definition does not exclude people with chronic disabilities and it is not limited to terminal conditions.

John Coppard
John Coppard, from Victoria British Columbia, became involved with opposing assisted suicide for similar reasons. He stated in a letter to the editor:
“As a person who is “grievously and irremediably ill” with Grade IV brain cancer, I would be affected should this case succeed. Two and a half years after being given a 20 percent chance of surviving five years, I am doing very well on medication approved by Health Canada only a year ago, within a week of my cancer coming back.

Had I been given the legal choice of assisted suicide when I first received my terrible prognosis, or when my cancer returned, when I felt hopeless, I don’t know what I would have done.

Now I’m doing very well, thanks to medical advancements that are coming faster than at any time in our history. Our anti-assisted suicide laws protected me and gave me a chance for a long and happy life, just as they were intended to do.”
In the state of Oregon, where assisted suicide is legal, assisted suicide is limited to people with a terminal prognosis of having six months to live. Jeanette Hall, who lives in Oregon, had a terminal prognosis and she wanted to die by assisted suicide. Instead, her physician convinced her to accept further treatment for her cancer. Eleven years later she stated in a letter to the editor:
“I wanted to do what our [assisted suicide] law allowed, and I wanted my doctor to help me. Instead, he encouraged me not to give up, and ultimately I decided to fight my disease… If my doctor had believed in assisted suicide, I would be dead.”
Carter has now been argued before Justice Smith and we are waiting for her decision. Based on other decisions that Smith has made and her reputation as an activist judge, we are concerned about the potential of a bad decision by Smith.

If Smith decides, in some way, to legislate from the bench and to legalize euthanasia and/or assisted suicide, then the Attorney General of Canada will need to immediately appeal the decision to the British Columbia Court of Appeal. From their, the case will end-up at the Supreme Court of Canada.

On January 27, 2012; the preliminary hearings are starting in Trois-Rivières Quebec on the Leblanc case. The Leblanc case may be more dangerous than the Carter case because Leblanc limits its challenge to assisted suicide and it does not attempt to impose a wide-open regime of assisted suicide on Canada. If the judge in Quebec decides to overturn our assisted suicide law, then the case will need to also be appealed to the Court of Appeal.

Rene Duval, the lawyer representing Ginette Leblanc, hopes to have their case join the Carter case at the Supreme Court of Canada.

The difficulty with battling issues within the court is:
* It is very hard to predict what a Judge will decide.
* It is very expensive to hire lawyers and argue before the courts.
The Euthanasia Prevention Coalition (EPC) and EPC – BC co-intervened in the Carter case in British Columbia. EPC and Vivre dans la Dignité in Quebec are seeking to co-intervene in the Leblanc case in Quebec.

This is a very difficult undertaking and we will keep you up-to-date on the progress of these cases.

Meanwhile, you can make a difference by writing a hand-written letter to your Member of Parliament and the Hon Rob Nicholson, Attorney General, urging the Attorney General to immediately appeal any court decision that weakens our laws that protect us from euthanasia and assisted suicide.  Link to the information about the letter writing campaign.

The Euthanasia Prevention Coalition needs donations towards the cost of the court interventions. Link to donate.

1 comment:

Jack said...

Quebec is a "civil law" jurisdiction with it's own Charter of Rights and Freedoms. Section 1 guarantees life, and section 2 compels citizens to render aid (duty to rescue).

1. Every human being has a right to life

2. Every human being whose life is in peril has a right to assistance.

"Killing" obviously violates section 1.

Section 2 compels persons to render assistance to protect against "perils to life".

Purposeful killing is certainly a "peril to life".

To legalize euthanasia in Quebec, both sections of the Charter need to be struck down.