The safety of Canadians of utmost concern as SCC rules on assisted suicide.

This article was published by Advocate Daily on February 4, 2015.

Hugh Scher

In releasing its much-anticipated ruling on assisted suicide on Friday, the Supreme Court is expected to clarify its stance on protecting Canadians from the risks of serious abuse, along with answering the larger question of Parliament’s role in such debates, says Toronto human rights and constitutional lawyer Hugh Scher.

A hearing at the high court on Oct. 15, 2014 addressed a constitutional challenge to Canada’s assisted suicide law to determine whether it should be upheld, struck down or modified.

The Supreme Court to release assisted suicide decision on Friday.

The Euthanasia Prevention Coalition (EPC), represented by Scher, has been granted leave to intervene in the case – Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII)

The case began with a lawsuit filed by the British Columbia Civil Liberties Association in 2011, seeking to allow assisted suicide and euthanasia under certain circumstances.

The Supreme Court determined the matter in its previous 5-4 decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, 1993 CanLII 75 (SCC), where the court found s. 241 was not infringing on certain rights under the Canadian Charter of Rights and Freedoms, or that any such infringements were justified as there was no halfway measure that could meet Parliament’s legitimate objective to protect the vulnerable and promote life.

The coalition’s position is that the court should maintain its ruling in Rodriguez, says Scher.

“The Supreme Court has been asked to delve into a matter that is clearly the job of Parliament to do,” Scher tells AdvocateDaily.com. “A decision to strike down the assisted suicide law would strike a serious blow to Parliamentary sovereignty and to basic principles of democracy by effectively overriding the will of Parliament as it has been expressed consistently over the past 30 years with respect to the issue of assisted suicide and euthanasia.”

A decision to reverse the Supreme Court's earlier finding in Rodriguez – that legal prohibitions against assisted suicide are necessary to protect society’s most vulnerable and to prevent against abuse – would fly in the face of the court's own previous conclusion, says Scher, who will share his insights on the issue at an upcoming Canadian Bar Association event.

Scher is speaking at the association’s annual Mid-Winter meeting in Fredericton, N.B. where he will take part in a panel discussion entitled: “No legal principle can avoid every ethical dilemma: Medical/Legal Developments in End of Life Decisions." The event runs from from 1:30 – 4:30 p.m. on Feb. 7.

“Reviews of other jurisdictions such as Belgium and the Netherlands suggest that regimes of legalized euthanasia and assisted suicide have been universally unsuccessful in preventing non-consensual deaths, deaths without request, or in enforcing clear violations of the law, whether they be failure on the part of doctors to report (47 per cent in Belgium), death without request or consent (32 per cent in Belgium), and the abject failure to prosecute violators of the law,” says Scher.

“For example, not one single physician has been prosecuted under the Belgian law despite these concerning statistics,” he adds, noting there has also been an increase in the rates of suicide and assisted suicide in those jurisdictions where euthanasia or assisted suicide have been legalized.

“A decision from the Supreme Court that preserves the life and equality interests of people with disabilities and seniors is essential,” says Scher. “Whatever decision the court makes is sure to create as many questions as it answers, and is certain to throw the issue back into the lap of Parliament to address in order to either reinstate an absolute prohibition or to develop safeguards that can provide a certain level of protection to those Canadians most vulnerable to the risks of legalized assisted suicides.”

Scher says, “A decision to strike down the law would severely miss the mark in promoting dignity and equality in the lives of Canada's most vulnerable people. We must make significant efforts to ensure that every Canadian has access to quality palliative and end-of-life care, social inclusion and community supports throughout and particularly near the end of life. Our failure to do so represents a failure of society to protect its most sacred trust to all Canadians, particularly Canada's most vulnerable people.”