A Right to Euthanasia?

This article was originally published by Public Discourse on October 16, 2014

For both principled and practical reasons, the Supreme Court of Canada should maintain the country’s legal ban on euthanasia and physician-assisted suicide.

John Keown

By John Keown

Yesterday, the Supreme Court of Canada heard oral argument in a landmark case. Its decision will have ramifications south of the border and well beyond.

The question in Carter v. Attorney General of Canada is whether there is a right under the Canadian Charter of Rights and Freedoms to voluntary, active euthanasia (VAE) and physician-assisted suicide (PAS). Do patients have a right to lethal injections and lethal prescriptions? The case is largely a rerun of Rodriguez v. British Columbia, a 1993 case in which the Canadian Supreme Court held (5-4) that there is no right to physician-assisted suicide under the Charter.

In Carter, the trial judge in British Columbia, Justice Lynn Smith, decided that she was entitled to reopen the question. Why? Because she thought the “proportionality” test in Canadian constitutional law had changed and because of the empirical evidence that has emerged from the Netherlands and Belgium (which permit VAE) and from Oregon (which permits PAS).

She concluded, in light of that evidence, that the risks of decriminalization “can be very largely avoided through carefully-designed, well-monitored safeguards,” and that a complete ban on VAE and PAS was disproportionate. She judged that in order to protect the vulnerable it was disproportionate to ban VAE and PAS for everyone, and that the blanket ban infringed sections 7 and 15 of the Charter.

The Attorney General of Canada appealed. British Columbia’s Court of Appeal rejected Justice Smith’s view that the proportionality test had changed, and held that she was therefore bound by Rodriguez. The plaintiffs appealed to the Supreme Court.

The Supreme Court should dismiss the appeal and uphold Canada’s ban on euthanasia and physician-assisted suicide. Leaving aside the proportionality test, on which the Court of Appeal based its decision, there are at least four grave flaws in Justice Smith’s judgment.

Marc Kajouji becomes a suicide prevention advocate after his sister, Nadia, dies by assisted suicide.

By Alex Schadenberg

Executive Director - Euthanasia Prevention Coalition

Yesterday, an former from Minnesota, was found guilty of attempting to assist the suicide of Canadian teen, Nadia Kajouji in 2008. Today is world suicide prevention day.

Marc Kajouji, who has become a suicide prevention advocate with the suicide prevention group Your Life Counts responded to the Ottawa Citizen concerning the conviction of William Melchert-Dinkel that:

“It doesn’t change anything, I still have lost my sister, but at least there’s some sort of followup and a way to highlight the issue because there isn’t a voice for the 4,000 other families in Canada that go through this, (suicide)”

Marc Kajouji

Marc Kajouji told the Ottawa Citizen that he isn't seeking justice for Nadia's death but rather a change to the system:

“It’s tough, because I wish there were better checks and balances in the system such as the medicine she was on, the different things the school could have done, or the privacy act, or Internet regulations, so I don’t direct it at any one person or outlet,” he said. “I do feel that it’s an overall umbrella of an issue that needs to be addressed.”

Kajouji is waiting for Nadia's case to effect Canadian law. The Ottawa Citizen reported:

“(Motion 388) was ‘Nadia’s Law’ that was passed unanimously in the House of Commons and it’s just sitting on a shelf collecting dust,”

Albrecht with Kajouji

Motion 388 passed unanimously in the House of Commons on November 18, 2009. It was introduced in Parliament by Harold Albrecht MP. The Ottawa Citizen article stated:

The motion was to frame the euthanasia and assisted suicide debate by making sure the federal government clarified Section 241 of the Criminal Code, which outlaws counselling or aiding suicide, to apply to online predators looking to encourage or assist suicide.

Section 241 of the Criminal Code, Canada's assisted suicide act, is being challenged in the courts by the euthanasia lobby. In June 2012, Justice Lynn Smith, of the BC court, struck down Section 241 as unconstitutional. In October 2013, the BC Court of Appeal overturned Justice Smith's flawed decision and on October 15, 2014 the Supreme Court of Canada will hear the challenge to Section 241 and the Criminal Code provisions that protect Canadians from euthanasia.

If the Supreme Court of Canada strikes down Canada's assisted suicide laws, then any protection in law for teenagers like Nadia Kajouji will also be removed. Canada's assisted suicide laws equally protect all Canadians from others who would aid, counsel or encourage a vulnerable person to suicide.

An Associated Press article, stated that:

Evidence in the case showed Melchert-Dinkel was obsessed with suicide and sought out depressed people online. He posed as a suicidal female nurse, feigning compassion and offering step-by-step instructions on how they could kill themselves. He acknowledged participating in online chats about suicide with up to 20 people and entering into fake suicide pacts with about 10, five of whom he believed killed themselves.

Nadia Kajouji

Melchert-Dinkel wanted to watch Nadia Kajouji commit suicide on front of her webcam.

The Euthanasia Prevention Coalition is intervening at the Supreme Court of Canada on October 15 in the assisted suicide/euthanasia case (Carter case). EPC is urging the Supreme Court to uphold the laws protecting people from euthanasia and assisted suicide.

Québec should be aware of euthanasia.

Margaret Somerville

The following article was written by Margaret Somerville and published by Mercatornet on February 18, 2014.

By Margaret Somerville

Bill 52, which defines euthanasia as palliative care and proposes adding it to end-of-life decision-making options, could be voted on later this month by the Quebec Legislative Assembly. And the Supreme Court of Canada has just given leave to appeal the Carter case, which involves a challenge to the constitutionality of the Criminal Code’s prohibition of assisted suicide.

Much ink has already been spilled on the pro– and anti-euthanasia arguments relevant to these initiatives, but there has been little discussion in the public square on the content of the “life concepts” that are informing this debate.

Justice Lynn Smith, the trial judge in the Carter case in the British Columbia Supreme Court, refers to seven of them: the right to life; respect for life; preservation of life; protection of life; sanctity of life; inviolability of life; and quality of life. These concepts are all related and some are often used interchangeably, but insights can be gained by examining her approach to each of them and their interaction with individuals’ right to autonomy.

BC Court of Appeal upholds protections in law from euthanasia and assisted suicide. The Supreme Court of Canada is next.

By Alex Schadenberg, executive director - Euthanasia Prevention Coalition.

On Thursday, October 10; the British Columbia (BC) Court of Appeal upheld Canada’s laws prohibiting euthanasia and assisted suicide, in a 2 to 1 decision by overturneding the disturbing lower court decision in 2012 by Justice Smith in the Carter case.

The Euthanasia Prevention Coalition (EPC), who intervened in the Carter case, applauded the BC Court of Appeal decision by stating:

“EPC is pleased that the Court has followed the lead of Canadian Parliament, the Supreme Court of Canada, and of the majority of Parliaments and Supreme Courts around the world in finding that the prohibitions against assisted suicide represent an important protection against abuse of vulnerable people.”

The Carter case, was launched by the family of Kay Carter, a woman who died by assisted suicide in 2010 in Switzerland. The Carter family claimed that Kay was denied the “right” to die with dignity in Canada and her family were forced to break the law by assisting her travel to Switzerland for suicide. The BC Civil Liberties Association represented the Carter family.

On June 15, 2012, Justice Smith wrongly decided that Canada’s assisted suicide law was unconstitutional. Smith found that people with disabilities who are unable to kill themselves by suicide without assistance were discriminated by the law. 

Smith also decided that “safeguards” can effectively protect vulnerable people. Smith gave parliament one year to pass a law allowing assisted suicide and a limited form of euthanasia in Canada.

Fortunately, the federal government appealed the decision of Justice Smith to the BC Court of Appeal.

The BC Court of Appeal found that Smith did not have the right to strike down Canada’s assisted suicide law and that she made several errors and incorrect assumptions in her decision.

The BC Court of Appeal stated that Smith was wrong when she found that the circumstances had sufficiently changed since 1993, giving her the right to strike down the 1993 Rodriguez decision.

In 1993, the Supreme Court of Canada upheld Canada’s assisted suicide law in the Rodriguez case, a case that was based on Sue Rodriguez. Rodriguez, who was living with ALS, petitioned the courts to grant her the right to die by assisted suicide.

The BC Court of Appeal also found that Smith was wrong when she assumed that the Rodriguez decision did not consider certain constitutional analysis. The BC Court of Appeal concluded that only the Supreme Court of Canada has the right to overturn its decisions.

The BC Court of Appeal decision challenged Smith’s assertion that Canada’s assisted suicide law discriminates against people with disabilities. The majority stated that:

“those who have only a limited ability to enjoy life are not less alive and have no less a right to life, than able-bodied and fully competent persons.

EPC was pleased that the BC Court of Appeal recognized that Canada’s laws prohibiting assisted suicide meet the legislative objective that is grounded in respect for and the desire to protect human life and the current assisted suicide law is rationally connected to its purpose.

The BC Court of Appeal also acknowledged that parliament had recently considered a bill (Bill C-384) that would have legalized euthanasia and assisted suicide in Canada. On April 21, 2010, parliament overwhelmingly defeated Bill C-384 by a vote of 228 to 59.

The BC Civil Liberties Association announced that it will appeal the BC Court of Appeal decision to the Supreme Court of Canada.

The Euthanasia Prevention Coalition (EPC) will seek to intervene, if the Supreme Court of Canada decides to hear the Carter case.

Laws that prohibit euthanasia and/or assisted suicide provide equal protection in law for all people and uphold the safety of all people, in every life conditions, from having their life taken from them.

Dr. Will Johnston, the EPC - BC chair talks about the Carter Case after the BC Court of Appeal overturned the lower court decision by upholding Canada's laws protecting Canadians from euthanasia and assisted suicide. 
http://www.youtube.com/watch?v=CfoA71TGTf0&feature=youtu.be

Links to other similar articles.
EPC applauds BC Court of Appeal ruling  in assisted suicide case.
Irish Supreme Court upholds protections in law from assisted suicide using similar evidence as in the Carter case.
EPC wants BC Court of Appeal to reverse errors by the lower court in Carter case.

An analysis of the Nicklinson euthanasia decision by the British Court of Appeal.

Alex Schadenberg

By Alex Schadenberg

International Chair - Euthanasia Prevention Coalition

On July 31, 2013, the Court of Appeal (Civil Division) in Britain decided in the Nicklinson case that no exception would be created to the homicide (euthanasia) or assisted suicide Acts, that no defense of “necessity” exists within the homicide or assisted suicide Acts, and that only parliament can decide to change the law in relation to euthanasia and/or assisted suicide. The court did decide in a limited manner in favour of 'Martin' by deciding that the Director of Public Prosecutions is to provide further clarification concerning the assisted suicide prosecution guidelines.

The first two plaintiffs in the case involve Tony Nicklinson (deceased) represented by his wife Jane Nicklinson and Paul Lamb. Both plaintiffs asked the court to create an exception to the Homicide Act to allow someone to cause their death (euthanasia). They argued that there is a defense of “necessity” that allows the court to create an exception to murder and thus legalize euthanasia in the UK.

The third plaintiff, ‘Martin,’ was seeking death by assisted suicide. 'Martin' may be planning to go to Switzerland to die by assisted suicide at the Dignitas suicide clinic. He sought a further clarification to the assisted suicide prosecution guidelines to assure a person who accompanies him to Switzerland for assisted suicide would not be prosecuted.

The interveners in the case were: the Ministry of Justice, the Director of Public Prosecutions, the Attorney General, the Care Not Killing Alliance, the British Humanist Association, and A Primary Care Trust.

The Appeals Court decided:

In our view, this submission that the common law should recognise a defence of necessity to apply to certain cases of euthanasia is wholly unsustainable for a variety of reasons. (section 54)

1. It cannot be held that the values of autonomy and dignity supercede the sanctity of human life (section 54). 

2. There is no right to suicide. The law provides immunity for those who kill themselves but does not confer a right to suicide. If there is no right to kill yourself, then there is no right to have someone assist you to die or to kill you (section 55). 

3. It is not appropriate for the court to fashion a defense of necessity in such a complex and controversial field; this is a matter for parliament (section 56).

Parliament

The court agreed, (in section 60), that only the parliament has the power to change the law:

Parliament as the conscience of the nation is the appropriate constitutional forum, not judges who might be influenced by their own particular moral perspectives; the judicial process which has to focus on the particular facts and circumstances before the court is not one which is suited to enabling the judges to deal competently with the range of conflicting considerations and procedural requirements which a proper regulation of the field may require; and there is a danger that any particular judicial decision, influenced perhaps by particular sympathy for an individual claimant, may have unforeseen consequences, creating an unfortunate precedent binding in other contexts.

The plaintiffs argued that there is no distinction between withholding or withdrawing treatment that is certain to cause death and actively causing death. They argued that since it is lawful to withhold or withdraw medical treatment, when death is certain, then it should also be lawful to intentionally cause the death of the same person. The court disagreed with the plaintiffs and responded in section 61:

“However, these judges recognised that this is a distinction deeply rooted in English law…  Moreover, as we have seen, not everyone considers that the distinction is irrational and unjustified.”

The court expressed their decision, (in section 66) with the following quote:

First, as we have noted, there is no right - let alone a fundamental right - to commit suicide, and the right to assist someone to do so cannot place the party providing assistance in a stronger position than the party committing suicide. Second, section 2(2) of the Suicide Act is not ambiguous, nor is it cast in general terms. There is no scope for giving it a limited interpretation. There is no conceivable risk that Parliament may not have understood the full implications of a blanket ban, or that the problems of those unable to commit suicide have passed unnoticed in the democratic process. On the contrary, Parliament fully understood what a blanket ban meant and why they were imposing it. They have on numerous occasions considered specific proposals for change but have so far chosen not to accede to them. The principle of legality can gain no hold here. This difficulty alone is in our view decisive of this submission. If a defence of necessity cannot be fashioned for assisted suicide, it certainly cannot for euthanasia.

The court examined the question of the current prohibition on euthanasia and assisted suicide in the UK. The court states in section 74:

"a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person... 

and it added that it could not constitute legal justification for someone else to bring about that person's death.”

Considering the purpose of a blanket ban to euthanasia and assisted suicide the court recognized in section 74 the potential threat to vulnerable people by stating:

"We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life." 

 It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.

The court therefore agreed with the previous decision, by the House of Lords in Purdy, that a blanket ban was “amply justified” and proportionate.

In section 78 the court outlines its concern related to the possible threat to vulnerable people if euthanasia and/or assisted suicide were legalized. The court stated:

“The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. 

Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures."

After deciding that the blanket ban on assisted suicide is justified the court considered the question that “Martin” placed before the court, that being the level of clarity that the assisted suicide prosecution guidelines provide.

The court considered the House of Lords decision in Purdy, a case that sought to clarify if a person who travels with someone to Switzerland for assisted suicide would be prosecuted. In response to the Purdy decision, the Director of Public Prosecutions published prosecution guidelines with respect to assisted suicide.

In assessing the prosecution guidelines, the court examined what they referred to as: 

Class 1 cases: A person with emotional connections with nothing to gain travels with the person to Switzerland for assisted suicide.Class 2 cases:  A Person with no emotional connections who assist a person to commit suicide or go to Switzerland for assisted suicide with some financial or other gain.

The court assessed the prosecution guidelines and determines in section (138) that:

“a person who is considering providing assistance to a victim to commit suicide is able to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of providing such assistance.”

The court then, in section 140 determines that Class 1 cases are sufficiently defined and limits the requirement to clarify the prosecution guidelines to Class 2 cases.

The Lord Chief Justice dissented on the decision to require the Director of Public Prosecutions to provide further clarity on the assisted suicide prosecution guidelines. Chief Justice Toulson argued that further clarity in the prosecution guidelines might cross the constitutional boundary, whereby the prosecution guidelines become similar to legislation.

The Director of Public Prosecutions has informed the court that he would be appealing this part of the decision to the Supreme Court.

The court concluded there full decision by stating in section 149:

We would therefore dismiss the appeals of Mrs Nicklinson and Paul Lamb. We would uphold Martin's complaint that the Policy of the DPP fails to provide sufficient clarity as to the DPP's prosecution Policy with respect to those persons who fall into what we have termed the class 2 category.

Dr Andrew Fergusson

The Dr. Andrew Fergusson of the Care Not Killing Alliance responded to the decision of the Court of Appeal with the following statement:

 The judgment comprehensively and completely dismissed these appeals, which sought to alter legislation covering murder. 

"All three judges strongly rejected the notion that 'necessity' should be a defence in euthanasia cases, saying this was not compatible with English Law. Further, the blanket prohibition on assisted suicide in the UK is not contrary to Article 8 of the European Convention on Human Rights." 

"The judges, the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Dyson and Lord Justice Elias, recognised that changing the laws on murder and suicide are matters for Parliament alone. They acknowledged that these issues had been debated by Parliament frequently in recent years." 

"And they confirmed the simple truth that the current law exists to protect the vulnerable and those without a voice: disabled people, terminally ill people and elderly people, who might otherwise feel pressured into ending their lives."  

"Two of the three judges concluded that the DPP should issue some very minor clarification to the prosecution guidelines covering assisted suicide for 'class two cases' requiring the involvement of a health professional. We were persuaded by the dissenting opinion from the UK's most senior judge that change was unnecessary and unhelpful, but, importantly, this clarification does not change the current law."

The Nicklinson decision establishes strong precedents, in Common Law, for the Supreme Court of Canada to overturn the Carter decision by Justice Smith in British Columbia Canada.

Smith decided that the court could decide public policy on euthanasia and assisted suicide even though the Canadian parliament had recently considered the issue of euthanasia and assisted suicide when it defeated Bill 384 by a vote of 228 to 59 in April 2010.

This court decision found that parliament has the sole right to make laws related to important public issues such as euthanasia and assisted suicide.

Smith decided that there is no ethical difference between withdrawing treatment with the likelihood that death will occur and intentionally causing death by deliberate means.

This court decision found that the difference between killing and letting die is a well established common law principle.

Smith decided that since suicide was not illegal therefore assisted suicide should also not be illegal.

This court found that there is no right to suicide and therefore no right to euthanasia or assisted suicide.

Smith decided that since some people are incapable of committing suicide or dying by assisted suicide, therefore a limited form of euthanasia should be legal.

 This court found that since there is not right to kill yourself therefore there cannot be a right to have someone else kill you.

It is interesting that Robert Latimer argued that he had a 'defense of necessity' when he killed his daughter Tracy in 1993. The Supreme Court of Canada also rejected this argument.

This decision by the Court of Appeal in Britain is the second recent common law decision in the past few months to come to a similar conclusion. Recently the Irish Supreme Court made a similar decision in the Fleming decision.

I expect that the Nicklinson decision by the Court of Appeal in Britain will be appealed to the Supreme Court. We already know that the Director of Public Prosecutions is appealing the 'Martin' part of the decision.

I also expect that the Nicklinson decision will be considered when the Supreme Court of Canada hears the appeal of the Carter case.

Link to the legal decision.

Links to other recent similar articles:
- British Court of Appeal upholds lower court ruling protecting people from euthanasia.
- Irish Supreme Court upholds protections in law from assisted suicide.
- UK lower court rejects euthanasia cases, Nicklinson case.
- Responding to the disturbing decision by Justice Smith in the Carter case.

Why the BC Court of Appeal should overturn BC Court ruling on assisted suicide.

The following article was written by Derek Miedema and published by the Institute for Marriage and Family.

Why the BC Court of Appeal should overturn BC Court ruling.

Derek Miedema

By Derek Miedema - June 19, 2013

While Quebec is busy legalizing euthanasia, the B.C Court of Appeal could decide by month’s end to force federal politicians to make it legal across Canada.

The British Columbia Supreme Court overturned Canada’s law against euthananasia last June through the ruling in Carter versus Canada. This ruling also gave Gloria Taylor, living with ALS, the right to have a doctor help her kill herself before any laws changed.

The case landed in the B.C. Court of Appeal, where a decision is due any day now. While we don’t know how it will go, we can hope that British Columbia will learn from the Irish example.

Just this past April, the Supreme Court of Ireland upheld their law banning assisted suicide.

The case presented to Irish courts was closely modeled after the case in B.C.

The B.C. court had heard evidence of abuses where euthanasia and/or assisted suicide are legal. These included thousands of people killed without their consent in the Netherlands.

The court was told there was no evidence of vulnerable people being endangered by Dutch law. Note that killing infants without their consent is legal in Holland.

Despite this, Justice Lynn Smith of B.C. concluded that: 

“In my view, the evidence supports the conclusion that the risks of harm in a regime that permits physician-assisted death can be greatly minimized.”

She decided that the plaintiff’s right to life included a right to assisted suicide.

The case was promptly appealed.

In the meantime, pro-legalization forces in Ireland modeled their case on the Canadian one, putting forth similar evidence.

However, after hearing that evidence, the Irish judges decided to uphold their law.  This happened first in the Irish High Court, and then was repeated in the Irish Supreme Court.

Explicit disagreement with the B.C. Supreme Court

The Irish High Court found Justice Smith’s dismissal of a slippery slope “too sanguine”.

They wrote: 

“…the fact such a strikingly high level of legally assisted deaths without explicit request occurs in countries such as Belgium, Netherlands and Switzerland without any obvious official or even popular concern speaks for itself as to the risks involved in any such liberalisation.”

The Irish Supreme Court viewed the Canadian decision as an outlier. “…It is not consistent with many judgments from supreme and constitutional courts of other nations.”

They concluded, contrary to Justice Smith, that the right to life afforded in their constitution “does not import a right to die.”

As hard as the lawyers argued that the Canadian case should be its guide, the Irish courts viewed it as a breach of international standards, not as the new common wisdom.

Does the right to life include the right to die?  

In Canada, Justice Lynn Smith blazed a new trail in deciding it does. In Ireland the answer was no because the justices recognized that suicide itself is not a right in Irish law.

The Irish High Court considered the issue of deaths without consent to be an important one. Are even a few such deaths acceptable or are they evidence of deadly abuse?

The fact that the Irish Supreme Court came to the opposite conclusion as Justice Smith shows that there is reason for the B.C. Court of Appeal to quash her decision. 

“[M]any elderly people in the Netherlands are so fearful of euthanasia that they carry cards around with them saying that they do not want it,” according to a statement in the British House of Lords.

If the B.C. Court of Appeal doesn’t overturn Justice Smith’s decision, the Canadian market for such cards could heat up.

Irish Supreme Court upholds protections in law from assisted suicide with similar evidence as in the Carter case.

By Alex Schadenberg

The recent Irish Supreme Court Fleming decision is significant to all Canadians. 

The seven Justices of the Irish Supreme Court examined similar evidence as Justice Smith and the BC Court of Appeal have considered in the Carter case and they decided that Marie Fleming did not have a right to assisted suicide and that the law did not infringe upon her equality rights based on her disability.

The Irish Supreme Court did a thorough review.

In Fleming, the Irish Supreme Court examined the Rodriquez decision by the Supreme Court of Canada, the Glucksberg decision from the Supreme Court of the United States, the Pretty decision from the House of Lords in the UK and the Carter decision from British Columbia Canada. They then analyzed the issue of assisted suicide in relation to the Irish Constitution.

When examining the Rodriguez decision the Irish Supreme Court quoted Sopinka who stated for the majority that:

“The distinction between withdrawing treatment upon a patient’s request…and assisted suicide…has been criticized as resting on a legal fiction - that is, the distinction between active and passive forms of treatment. The criticism is based on the fact that the withdrawal of life supportive measures is done with the knowledge that death will ensue, just as is assisting suicide, and that death does in fact ensue as a result of the action taken […] 

Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient's instructions to discontinue treatment. […] The doctor is therefore not required to make a choice which will result in the patient's death as he would be if he chose to assist a suicide or to perform active euthanasia. 

The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment. […] However, the distinction drawn here is one based on intention-in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.”

The Supreme Court of Canada in Rodriguez accepted that there is a difference between withholding or withdrawing medical treatment and palliative care as compared to euthanasia and assisted suicide.

The Irish Supreme Court noted that in Glucksberg, the US Supreme Court examined the Common Law history concerning Assisted Suicide and the US Supreme Court concluded that:

"the nation’s history, legal traditions and practices did not support such a right (assisted suicide)"

The House of Lords (UK) Pretty decision:

rejected the argument that s.2 (1) of the Act of 1961 discriminated against those who can not, as a result of incapacity, take their own lives without the assistance of another. As the law creates no right to commit suicide, it was held that this argument was based on a “misconception.” Further, the House of Lords held that, as the criminal provision applies to all persons equally, the provision could not be found to be objectionably discriminatory.

The House of Lords was saying that since there is no right to suicide in the UK that there is also no right to assisted suicide.

The three judge panel from the Irish Lower Court rejected the decisions of Justice Smith in Carter. The Irish Supreme Court, in their decision, simply recognized that the decision by Justice Smith was a trial court decision in British Columbia. The Carter decision has been appealed to the BC Court of Appeal, where the appeal was heard (March 18 - 22, 2013) and that the decision of the BC Court of Appeal will likely be appealed to the Supreme Court of Canada.

The Irish Court then made its decision.
1. They stated that all laws that were made by the Oireachtas (parliament) were considered constitutional unless it is proven otherwise.
2. There is no "right to suicide" that can be found in the Irish constitution, therefore there is no "right to assisted suicide." A right to assisted suicide needed to be found somewhere else.
3. The lawyers for Fleming argued that since Irish citizens have the right to refuse medical treatment, even if death occurs, that in the same way she had a right to assisted suicide. The Irish Supreme Court decided:

The right to life extended to a right to die a natural death or let nature take its course. While at the extremity of any principle distinctions may be fine, nevertheless a competent patient who refuses treatment is making a decision as to how to live the reminder of his or her life even when death results. That case did not decide, therefore, that there was a right to terminate life or a right to have it terminated.

4. The lawyers for Fleming argued that Article 40.3.2 concerning the right to life, also concerns a right to die. The court found that:

"no person has a right to have his or her life terminated."

5. The lawyers for Fleming argued that the values of autonomy, dignity and self-determination in relation to other Irish court decisions also mean't that there was a right to assisted suicide. The Irish Supreme Court decided:

"Thus, insofar as the Constitution, in the rights it guarantees, embodies the values of autonomy and dignity and more importantly the rights in which they find expression, do not extend to a right of assisted suicide. Accordingly the Court concludes that there is no constitutional right which the State, including the courts, must protect and vindicate, either to commit suicide, or to arrange for the termination of one’s life at a time of one’s choosing."

6. The lawyers for Fleming argued that since able bodied people are able to commit suicide then the law prohibiting assisted suicide was a form of discrimination for people with disabilities. In their decision the Irish Supreme Court looked at other decisions, they examined the decision by Justice Smith in the Carter decision in Canada. Justice Smith found that the law protecting people from assisted suicide did discriminate against people with disabilities. The Irish Supreme Court decided that the law:

"is neutral on its face; it applies equally to everybody. ... Any person, without any distinction, who aids, abets, counsels or procures another person to commit suicide, commits an offence. It is not possible for anyone to complain of unequal treatment on the ground that he or she will commit a criminal act by assisting the suicide of another person."

The Irish Supreme Court conclusions:
1. "there is no constitutional right to commit suicide or to arrange for the determination of one’s life at a time of one’s choosing."
2. "As there is no right to commit suicide so issues, such as discrimination, do not arise; nor do values such as dignity, equality, or any other principle under the Constitution, apply to the situation"
3. "The Court rejects the submission that there exists a constitutional right for a limited class of persons, which would include the appellant. While it is clear that the appellant is in a most tragic situation, the Court has to find constitutional rights anchored in the Constitution."
4. "As the court finds the appellant has no constitutional right to commit suicide, and so no right to assistance in the commission of suicide, the issue of the proportionality of any restriction of such a right does not arise for determination in this case."
5. With respect to Article 2 of the European Convention the Court found:

“[Article 2] is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life… [It] cannot, without a distortion of language, be interpreted as conferring the diametrically opposing right, namely a right to die; nor can it create a right to self- determination in the sense of conferring on an individual the entitlement to choose death rather than life.” [Emphasis added.]

6. Based on the previous Pretty and Haas decisions concerning Article 8 of the European Convention the Irish Supreme Court no right to assisted suicide.

After considering similar evidence that was considered in the Carter case in Canada, the Irish Supreme Court decided that there is no right to assisted suicide, there is no descrimination to Fleming and that the right of the state to protect its citizens was constitutional and would be upheld.

It is also important to not that the Irish Court emphasized that this case wasn't only about Marie Fleming, as tragic as her condition is, but it is about everyone who would consider assisted suicide. 

It is expected that Fleming will appeal the decision to the European court.

Environics Research group poll: Canadian attitudes toward euthanasia and assisted suicide

The latest Environics Research group National Omnibus survey found that 55% of Canadians support the legalization of euthanasia while 63% support the legalization of assisted suicide. The national poll of 2008 adult Canadians was done in March 2013 and has a margin of error of 2.2% 19 times out of 20.

Similar to previous polls, this poll found that very few Canadians strongly support the legalization of euthanasia (18%) or assisted suicide (29%) with most of the support for euthanasia or assisted suicide falling within the "somewhat support" category. Most Canadians who somewhat supported euthanasia or assisted suicide "hesitantly" supported it.


The poll found that: Allophones, people over the age of 60, people with disabilities, and people in a lower income bracket were more likely to oppose the legalization of  euthanasia than support it.

The poll found that the strongest opposition to assisted suicide was among Allophones, people between 18 to 29, and people in a lower income bracket.

The greater question, which this poll did not ask, but previous polls did ask is - why do people support the legalization of euthanasia or assisted suicide?

A similar Environics Research group poll done in October 2011 found that:

* 66% of Canadians want the government to place a greater priority on improved access to palliative care. What was important about this result is that a majority of people in every region or political affiliation wanted the Provincial and Federal governments to place a greater priority on access to palliative care. 

* 76% of Canadians expressed concern that elderly persons in abusive situations would be pressured to consent to euthanasia. The Canadian government has made elder abuse prevention a national priority. The poll found that Canadians are concerned about elder abuse and that they recognize that people who are experiencing elder abuse are vulnerable to being pressured into consenting to euthanasia, if it were legal. It is interesting to note that Conservatives were more likely to be concerned about elder abuse than other political affiliations. 

* 74% of Canadians are concerned that, if legal, people with disabilities, people who are sick or elderly would be euthanized without consent.   

This recent Environics Research group poll found that support for euthanasia and assisted suicide is not increasing in Canada and it found that Canadians remain divided on the issues of euthanasia and assisted suicide.

In contrast to the court decision in British Columbia, there is no consensus supporting the legalization of euthanasia or assisted suicide in Canada.

For more information contact;
Alex Schadenberg
Phone: 1-877-439-3348 or 519-851-1434 (cell)
Email: info@epcc.ca

Link to a previous polls on euthanasia and assisted suicide.

Online euthanasia debate: Canadian Medical Association Journal

The following letters represent an online debate between Dr. Will Johnston, the Chair of the Euthanasia Prevention Coalition BC (EPC-BC) and Dr. Gregory Robinson a board member of Dying with Dignity Canada.

After reading these letters, you should write your own letter and submit it online.

The online debate began when Dr. Johnston responded to an article by Dr's Flegel and Fletcher entitled: Choosing when and how to die: Are we ready to perform Therapeutic Homicide that was published in the CMAJ on Dec 11, 2012. The first letter was titled: More on Assisted Suicide. Gregory Robinson then responded to Will Johnston with a letter titled: Assisted Dying in Canada. Will Johnston recently responded to Gregory Robinson with a letter titled: Re: Assisted Dying in Canada.

More On Assisted Suicide

Dr. Will Johnston

Dr Will Johnston - CMAJ Dec 11, 2012, EPC-BC (Chair)

I agree with Drs. Flegel and Fletcher that we must speak up now regarding assisted suicide and euthanasia.1

On June 15, 2012, in the Carter decision, a provincial judge rejected the Supreme Court’s Rodriguez precedent and purported to legalize assisted suicide and euthanasia throughout Canada.2 I am not a lawyer, but a plain reading of the decision reveals questionable assumptions and a lack of understanding of the needs of patients.

The linchpin of the decision is that suicide is not illegal in Canada and is therefore a right.2 But Canadian laws strive to prevent suicide and even authorize forcible treatment for those who are suicidal. The judge in the Carter case admits that “suicide and attempts at suicide are serious public health problems that governments are trying to address.”2 Thus, the idea that suicide is a right that society must assist with, as long as it is not a crime, is confused.

The judge then declares that the law prohibiting assisted suicide discriminates against people who are too disabled to kill themselves. She also speculates that the law might prompt the plaintiff to commit suicide sooner, while able, which would shorten her life.2

This Orwellian reasoning, presuming a right to die based on the right to (unshortened) life, ignores the fact that anyone, including the plaintiff, who commits suicide will suffer from a shortened life. How many years of life would Canadians lose if a legal assisted suicide risk lurked constantly in home and hospital?

A friend of mine recently died from a brain tumour. He said that when he first received the diagnosis he might have opted for assisted suicide, had it been available. Two years later, he was an activist against legalization. In the last article he wrote, he states “[Canada’s] laws exist to protect me and people like me from abuse when we are at our lowest and most vulnerable.”3

As a family doctor, I see elder abuse. Sadly, a desire for money or an inheritance is often involved. Worse, the victims protect the predators. An older woman knew that her son was robbing her blind and lied to protect him. Why? Perhaps family loyalty, shame or fear that confronting the abuser would cost love and care.

Predators take their victims to the bank and to the lawyer for a new will. With legal assisted suicide, the next stop could be the doctor’s office for a lethal prescription. How are we going to detect victimization? A troubling survey,4one of several which uncovers nonconsented euthanasia deaths in foreign jurisdictions, failed to alarm the judge in Carter v. Canada.2

1. Flegel K, Fletcher J Choosing when and how to die: Are we ready to perform therapeutic homicide? CMAJ 2012;184:1227. FREE Full Text

2. Carter v. Canada (Attorney General), 2012 BCSC 886. No. S112688.

3. Coppard J. From Afghanistan to activist against assisted suicide: “These things are worth fighting for.” Vancouver (BC): Euthanasia Prevention Coalition; 2012. Available: www.epcbc.ca/2012/06/from-afghanistan-to-activist-against.html#more (accessed 2012 July 17).

4. Chambaere K, Bilsen J, Cohen J, et al . Physician-assisted deaths under the euthanasia law in Belgium: a population-based survey. CMAJ 2010182: 895–901.Abstract/FREE Full Text

Assisted Dying in Canada

Dr. Gregory A. Robinson - CMAJ Dec 24, 2012

Board member of Dying with Dignity Canada.

Dr. Gregory Robinson
Dying With Dignity

Response to Dr. Will Johnston MD - Letter to the CMAJ Dec. 11, 1012, page 2018. In his incendiary letter, Will Johnston cherry picks his facts and colours his comments to provide a stunningly false portrait of medically-assisted dying, or as the study he references calls it "therapeutic homicide". The use of language this inflammatory is surely our first clue that we are not reading something that is reasoned and rational.

Will Johnston notes that suicide is a major problem in our society. And I wholeheartedly agree. Of course suicide is a major public health problem. But that is not germane to this discussion. Advocates of the right to die with dignity deliberately distance themselves from the word suicide because it is simply not what we are talking about. Suicide is about individuals, generally suffering from mental health issues, who tragically cut their lives short. There is a world of difference between those tragic situations and those of individuals who face the prospect of horrific suffering at end of life and knowing they are going to die, who are simply asking for the right to humane assistance to die peacefully. Will paints an Orwellian picture of victims being taken to doctors offices where they are coerced to die against their will. Frankly I don't know of any physician - nor can I imagine one - who would be complicit in such an act. Peer reviewed studies show that the safeguards work, and reporting tells us that over two-thirds of requests for support in The Netherlands are declined. The picture Dr. Johnston paints is nothing but a caricature of the real situation where compassionate health care providers work with patients who are suffering greatly and asking for assistance to die as a very last resort. Publications which have purported to show shortcomings in other countries (1) have been shown to be seriously flawed and riddled with errors (2).

I find it in keeping with the rest of this letter that the well researched, well reasoned and well written decision of Justice Smith of the BC Supreme Court is summarily dismissed. After hearing expert testimony from Canada and around the world and seeing experts from both sides cross-examined, a process that did not go well for many of the crown's witnesses, Justice Smith was able to reach the carefully considered conclusion that she did. And she has clearly reached this decision after a careful and thoughtful weighing of the evidence - evidence and conclusions that she carefully lays out in her 300 page decision(3). Anyone who takes the trouble to read her careful decision with an open mind - which I encourage you to do - will undoubtedly reach the same conclusion.

How will these laws impact our profession? A fascinating study out of Oregon reports that nurses characterize doctors, 5 years after the Oregon's Death With Dignity Act was passed, as better on a number of fronts include more knowledgeable about pain medications, more competent in caring for hospice patients and more interested in caring for hospice patients(4).

There are those who worry about the adequacy of safeguards and the criteria for eligibility - and we should listen and ensure we address these concerns in any legislation that is written. But when we have someone such as Dr. Will who argues, as I have heard him publicly do, that there are no possible safeguards that we could put in place to make this process safe, then we know we have left reason behind and should be very wary of his words.

Gregory Robinson, MD MHSc CCFP FCFP FRCPC Board Member, Dying with Dignity Canada

(1) Pereira, Jose, Legalizing Euthanasia or Assisted Suicide, the illusion of safeguards and controls, Current Oncology, Volume 18, no 2, 2011.

(2) Downie, Jocelyn et al, Pereira's attack on legalizing euthanasia or assisted suicide: smoke and mirrors, Current Oncology, Volume 19, n0 3, 2012.

(3) Carter v Canada (Attorney General) 2012 BCSC. Please contact info@dyingwithdignity.ca to request a link or pdf.

(4) Goy, Elizabeth R et al, Oregon hospice nurses and social workers' assessment of physician progress in palliative care over the past 5 years, Palliative and Supportive Care, 2003, Cambridge University Press, 215 - 219.

Re: Assisted Dying in Canada.

Dr. Will Johnston, CMAJ January 10, 2013

Dr. Will Johnston

Family Physician - UBC Family Practice Clinical Assistant Professor

I would like to thank Dr. Greg Robinson for his interest in my letter of Dec. 11, 2012, page 2018. His comments are a bit excited, and so I will begin by pointing out to the reader that "therapeutic homicide" was the phrase used in a CMAJ editorial a few months ago. [1] If Dr. Robinson finds that usage "inflammatory" perhaps he should take it up with Drs. Flegel and Fletcher, who wrote it, rather than concluding that he can't trust my reasoning any further because of it.

My letter [2], in reponse to that editorial about the Carter assisted suicide case, pointed out that far from the "right to suicide" declared by Justice Smith we have laws that struggle to deal with the suicide problem, and that concocting a "right to suicide" out of the Charter Section 7 "right to life" was not sound thinking. If you kill yourself, we call it suicide, and only "assistance in dying" if we are trying to spin the issue.

This spin is particularly misleading because assisted suicide and euthanasia as proposed by some "right to die" activists are not necessarily just about someone who is dying. Jocelyn Downie, the brains behind the pro-euthanasia strategy in Canada, put it this way in 2008: "[T]here are many individuals whose lives are no longer worth living to them who have not been diagnosed with a terminal illness.... There is no principled basis for excluding them from assisted suicide. "[3]

If we are not interested in the fate of each and every person who has died anywhere inside a regime of assisted suicide or euthanasia, we have abdicated our duty as physicians and citizens. It is irresponsible to wave off the thousands of unconsented deaths described objectively in Europe [4,5], as though they were just so much acceptable collateral damage in the quest for new social norms.

We should likewise be wary of bland reassurance arising out of the Oregon experience where there is no requirement for oversight at the time of lethal ingestion, no recording of disability status of the victims, and yearly destruction [6] of the application paperwork and death reports which rely on the recollections of the prescribing physician - who showed up for the death only 8 times in the 71 deaths under the Oregon Act in 2011. Only 1 of those 71 people was referred for formal psychiatric or psychological evaluation. [7] The operation of the Oregon Act is, if not shrouded in secrecy, deficient in transparency: even the police cannot find out if a particular death was an arranged suicide or who was present. [8]

If Dr. Robinson had the patience to read Justice Smith's judgment (which is not 300 pages as he reports but rather 395 pages long) he would have found her, toward the end, designing a suicide system with safeguards that would show the world how Canadians would avoid the mistakes of others. Sadly, after announcing that any acceptable assisted suicides would be "stringently limited", the judge offers eligibility criteria so subjective in nature as to open the field for further litigation and expansion, and authorizes the attending physician to misstate the cause on the death certificate to avoid mentioning assisted suicide.

This misrepresentation is at immediate odds with the sort of rigorous oversight which would be needed to minimize abuse. Our inaugural assisted suicide system appears to have been an instant failure of rigor and transparency.

Finally, Greg tells us that he is pleased to see that Oregon's assisted suicide laws have made doctors better at caring for hospice patients. In his referenced source [9] , nurses noticed some Oregon hospice care improvement (though more nurses thought physician comfort with opiate use had deteriorated) over a five year period during which there were surely similar improvements throughout the modern medical world.

Again, this is not about people who have to be dying - this is about you and me and our loved ones, and our skepticism about radical changes to health care that could see some Canadians steered not away from suicide but toward it. Parliament has rejected the idea as bad public policy, let us hope the courts soon reject it as bad law.

Will Johnston MD Vancouver
Chair, Euthanasia Prevention Coalition - BC.

[1] CMAJ August 7, 2012 vol. 184 no. 11 First published June 25, 2012, doi: 10.1503/cmaj.120961

[2] http://www.cmaj.ca/content/184/18/2018.1.full

[3] Downie, J and Bern, S, "Rodriguez Redux" (2008) 16 Health Law Journal 27 p 49

[4] Van Der Maas PJ, Van Delden JJ, Pijnenborg L, Looman CW. Euthanasia and other medical decisions concerning the end of life. Lancet. 1991 Sep 14;338(8768):669-74.

[5] Kenneth Chambaere, Johan Bilsen, Joachim Cohen, Bregje D. Onwuteaka-Philipsen, Freddy Mortier, and Luc Deliens ,Physician-assisted deaths under the euthanasia law in Belgium: a population-based survey CMAJ June 15, 2010 182:895-901; published ahead of print May 17, 2010, doi:10.1503/cmaj.091876

[6] http://www.choiceillusionoregon.org/p/oregon-data-access-retention.html

[7] See top of page 3 at: http://public.health.oregon.gov/ProviderPartnerResources/Evaluationresearch/deathwithdignityact/Pages/index.aspx

[8] http://www.choiceillusionoregon.org/p/oregon-data-access-retention.html

[9] Goy ER, Jackson A, Harvath T, Miller LL, Delorit MA, Ganzini L., Oregon hospice nurses and social workers' assessment of physician progress in palliative care over the past 5 years. Palliat Support Care. 2003 Sep;1(3):215-9.