Questions remain as debate begins on assisted suicide.

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

Hugh Scher

As Parliament considers the implications of the landmark Supreme Court decision striking down the ban on assisted suicide, it must consider implementing the “notwithstanding clause” if it intends to protect vulnerable Canadians, says Toronto human rights and constitutional lawyer Hugh Scher.

The high court weighed in on the controversial topic in its much-anticipated ruling Feb. 6, which addressed a constitutional challenge to Canada’s assisted suicide law heard Oct. 15, 2014. It struck down the ban on providing a doctor-assisted suicide to mentally competent people experiencing an "irremediable'' condition, illness or disability and who are experiencing subjectively intolerable physical or psychological suffering.

The SCC gave Parliament one year to change the law so the present ban on assisted suicide remains in place.

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 Euthanasia Prevention Coalition, represented by Scher, intervened in the case throughout, in Carter v. Canada (Attorney General), 2015 SCC 5; Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII).

While the Supreme Court matter has concluded, Canadians are now faced with a new chapter full of questions and concerns related to the incoming law, says Scher.

“Given that the Supreme Court appears to be opening up the idea of euthanasia and assisted suicide, the question remains as to whether or not any level of safeguards can be implemented to prevent abuses,” Scher tells AdvocateDaily.com. 

“Many groups are urging the federal government to implement the notwithstanding clause, which enables the government to override a court ruling – including a Supreme Court ruling – under the Charter of Rights and Freedoms in circumstances where Parliament is of the view that the court ruling effectively undermines a substantive policy objective that is considered of paramount concern to Parliament.  

“I can see no more significant concern for Parliament than the preservation and protection of life and protection against abuse of the vulnerable,” Scher says.

The Supreme Court weighed in on 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 a British Columbia woman with ALS could not have a doctor assist her to commit suicide. The majority ruled the prohibition on doctor-assisted suicide didn't violate Rodriguez's 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.

“If Parliament is to act and impose restrictions, limitations and so-called safeguards to attempt to protect Canadians and prevent abuses, then it must be afforded a level of sovereignty and independence to do its own investigation and to implement measures that it believes are essential to meet that objective,” says Scher. 

“The suggestion is made by many that the Supreme Court ruling sets down a set of criteria that will ultimately be the end with respect to the circumstances of euthanasia or assisted suicide in Canada. The reality is that it’s hard to imagine under our constitutional model how those limits could be maintained without being extended,” he says. 

“The basis for the limits themselves are founded upon a perception of disability asrepresenting an undignified and devalued way of life. Each of the criteria set down by the court are based upon different elements of disability, whether it be the existence of an irremediable medical condition or disability, the existence of physical and psychological suffering which is often associated with certain disabilities, and even the question around competence and capacity to consent, which involves an assessment of the level of intellectual capacity, reasoning and voluntariness – all of which are assessed based onvarious degrees of ability or disability.”

Referring to A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, Scher says the criteria set out by the Supreme Court will almost certainly be challenged moving forward.

In A.C., says Scher, the Supreme Court extended the ability for minors to consent to or refuse medical treatment, even where that decision would result in the death of the minor.

“Given that decision, it is difficult – indeed, almost impossible – to understand how the same inevitable result would not occur with regard to euthanasia or assisted suicide.”

The same concern arises, says Scher, with regard to the application of these criteria relating to people with dementia, Alzheimer's, or other conditions involving significant mental health concerns.

“There will be a significant push to allow people, by advance directive, to effectively permit euthanasia or assisted suicide to be implemented without care or concern for any of the safeguards that either the court or the government may attempt to implement,” he says. 

“This would be completely contrary to the ruling of the court, which requires an assessment of capacity, consent and voluntariness at the time of the act. However, it appears that inevitably, this fundamental rule and safeguard will become eroded as the push continues to allow greater and greater personal autonomy. This creates a significant and inevitable risk to all Canadians.”

Further, “one might question the likely inability of any manner of safeguard to protect Canadians from potential abuse once euthanasia is legalized, and whether it is even worth the endeavour to attempt to spend the next year canvassing all so-called safeguards that ultimately are likely to fall by the wayside as the scope of people to whom euthanasia and assisted suicide is offered becomes wider and wider,” says Scher. Indeed, it appears evident that the need for safeguards is largely being pursued as a means to immunize and protect doctors from prosecution, rather than to protect vulnerable people.

Such challenges, says Scher, have “lead some to believe that the most philosophically consistent position is to maintain an outright ban of euthanasia and assisted suicide, recognizing the inability to regulate these practices by way of any manner of so-called safeguards without seeing the inevitable expansion to a wider and wider group of Canadians.

“Others have suggested perhaps the better alternative is to do away with any manner oflimitation and simply maintain a right to die for all Canadians, regardless of their circumstances. This would effectively treat all Canadians equally without differentiating based upon factors such as age or level of disability.”

The ideas reflect the most extreme positions on the issue, says Scher, but others including Scher feel that no middle ground exists.

“It will fall to Parliament to take hold of its Parliamentary sovereignty to create a complete ban on these practices by invoking the notwithstanding clause in the event that the government is to remain true to its core principles of the protection of the vulnerable and the preservation of life,” says Scher.

“In the event that the government is to attempt to seek out some middle ground catalogue of safeguards, this will inevitably require a commitment to universal palliative care as a basic human right across the country, a requirement for psychological assessment of capacity and voluntariness, and clear and accessible judicial oversight to determine whether the criteria put in place are actually being met and followed by those doctors charged with the responsibility to carry out the practice of killing patients.”

It will also be imperative, says Scher, 

“for Parliament to ensure that the conscience rights of doctors are respected across the country by not compelling physicians to engage in practices of euthanasia or referrals for euthanasia that they fundamentally believe to be contrary to their Hippocratic Oath, basic professional obligations and potentially their own religious beliefs.”

A failure to recognize and respect the rights of doctors to freely exercise their own conscience would create an imbalance relative to competing constitutional rights, says Scher.

“Such a process would create a hierarchy of constitutional rights that is disrespectful of our constitutional tradition and the requirement to balance competing values within our constitutional order,” says Scher.

As Canadians move forward in a post-Carter world, Scher says heated debates around assisted suicide aren’t likely to wane across the country.

The Euthanasia Prevention Coalition, represented by Scher, recently intervened in another high-profile case involving end-of-life care.

In Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII), the family of an 83-year-old woman with advanced Alzheimer’s disease sought an order requesting that she no longer be given nourishment or liquids by staff members at The Maplewood Seniors Care Society, where the woman resides.

The family stated it was their mother’s wish while she was mentally capable that she not be fed in her current condition, but the B.C. court sided with the care centre, ruling the woman is capable of making the decision to accept oral nutrition and hydration. The Supreme Court agreed, and the case was recently heard at the B.C. Court of Appeal, which upheld the lower court ruling and highlighted the serious concern about caregivers starving patients to death:

“I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes,” wrote Justice Mary Newbury. 

“It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not," says the decision.

Another recent case saw a Winnipeg man charged with criminal negligence causing death and failing to provide the necessaries of life after the death of his 89-year-old mother. The man, who is accused of leaving his fallen, elderly mother on the floor of her home where she then died, says she did not want to continue her life.

“We’re already seeing examples of what the next stage may look like as we consider cases where families move towards starving and dehydrating family members as an assertion of their claims to autonomy and choice,” says Scher. “I certainly hope our society has not devolved to the point where harmful acts of neglect that deprive others of the basic necessities of life can be considered proper or ethical care or medical treatment of Canadians.”