Canadians with disabilities are disproportionately dying by MAiD.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Alexander Raikin

Alexander Raikin is a visiting fellow in Bioethics at the Ethics and Public Policy Center. Raikin, who has been published by multiple journals and news agencies. Raikin published this research article examining how Canada's euthanasia law violates the Carter Supreme Court decision which led to the legalization of euthanasia in Canada. (Link to this research article)

The question that Raikin answers concerns the impact of euthanasia on the lives of Canadians with disabilities. The lower court and the Supreme Court of Canada (Carter decision) insisted that legalizing euthanasia would not create a greater risk for people with disabilities. Raikin writes: 

In 2012, Justice Lynn Smith of the British Columbia Supreme Court concluded in Carter v Canada (Attorney General) that an appropriately safeguarded physician-assisted dying program could be adopted in Canada without creating a “heightened risk” or an “inordinate” impact on vulnerable groups, such as persons with disabilities. On appeal, in 2015, the Supreme Court of Canada affirmed Justice Smith’s reasoning, based on the trial judge’s review of evidence from international jurisdictions with assisted dying programs. The Supreme Court upheld the trial judge’s ruling, which struck down the prohibitions against assisted suicide and euthanasia in the Criminal Code, resulting in the decriminalization of assisted dying in Canada.

A few years after legalizing euthanasia (Bill C-14) the Truchon decision came down from Justice Baudoin, (Quebec Superior Court) extended euthanasia to people who are not terminally ill based on the Supreme Court Carter decision that assured Canadians that euthanasia would not disproportionately affect people with disabilities.

In contrast to the insistence of the courts, Raikin explains how legalizing euthanasia has disproportionately affected people with disabilities. Raikin writes:

The national and provincial MAiD data support the findings from chart reviews of MAiD deaths, which is that those who died from MAiD were more likely to have been living with a disability than those who did not die from MAiD, even though both groups had similar medical conditions and experienced diminished capability. In other words, the evidence indicates that MAiD is increasingly driven by disability status, rather than by underlying illness.

Raikin explains the data:

Health Canada’s data demonstrate that people with physical disabilities are overrepresented in MAiD deaths when compared to the expectations established in Carter. From 2019 to 2023, 42 percent of all MAiD deaths involved people who required disability services, including over 1,017 people who required but did not receive these services. During this period, the type of person who was most likely to die from MAiD was one who required disability supports or who had an unknown disability status. Moreover, nationwide in some years, and in Ontario in 2023 (the only data point in Ontario), people with disabilities were the most likely type of person to die from MAiD.

The Health Canada report of 2023 indicates that, of those persons with disabilities who did not receive disability supports before their MAiD deaths, in five cases care was not accessible, in 158 cases care was accessible, and in 259 cases it was unknown if care was accessible. These data confirm that MAiD providers in Canada have indeed euthanized disabled patients who needed disability supports and were unable to access them. The data also show that a large number of MAiD deaths occurred even when the provider did not know if disability supports were available, despite the legal requirement to inform MAiD applicants of available disability support services. The adequacy of these disability supports is not assessed, however, in any of these metrics, and therefore these data should be understood as highly limited and partial in regards to gauging access to disability supports.

There is more information in Raikin's research study (Link).

Another question that Raikin investigates is euthanasia for people with mental illness. Euthanasia solely based on mental illness or for non-terminal conditions was already happening before Bill C-7 was passed in March 2021. Raikin explains:

Evidence of overrepresentation of depression in MAiD cases comes from a retrospective chart review of all MAiD requests at a single tertiary care centre in Toronto between June 2016 and April 2019. The review found “high rates of psychiatric comorbidity among requesters of medical assistance in dying,” though unlike in the Ganzini study, most of these requests ended in MAiD. Of the 155 patients requesting, sixty (39 percent) had a documented psychiatric comorbidity (most commonly depression); 117 patients in total received MAiD. Moreover, these sixty patients had a statistically indistinguishable rate of eligibility compared to patients without a psychiatric illness (p=0.363). Compared to the Ganzini findings, patients with a psychiatric comorbidity were much more likely to have requested MAiD than those without a psychiatric comorbidity.

Euthanasia for people who are not terminally ill increased after Bill C-7, which extended euthanasia to people who are not terminally ill, increased. Raikin explains: 

As Canada left behind the initial safeguards that restricted MAiD to those who were terminally ill, the number of MAiD deaths of non-terminally ill persons began moving steeply upward. The 2021 expansion to non-terminally ill and disabled persons led to 223 MAiD deaths for non-terminally ill persons in 2021, 463 deaths in 2022, and 622 deaths in 2023. In 2027, Canada will expand MAiD to permit access by reason of mental illness alone, portending further increase in the numbers of non-terminally ill persons seeking state-administered death.

Among other issues, Raikin examined the data concerning euthanasia based on "feeling like a burden." Raikin writes:

While the true number of socially vulnerable persons choosing to die through MAiD in Canada is unknowable without a rigorous review process, the current data paint a dismal image (figure 4). The expectation that most patients who feel themselves a burden to others would be prevented from accessing MAiD did not materialize in Canada—and even the initial optimistic data from Oregon (on which Carter was based) have degraded over time.

According to MAiD providers in 2023, the suffering of almost half their MAiD recipients included the perception of being a burden on others, 10 percent more than the previous year. Because of the nature of the reporting mechanism, we do not know whether this suffering primarily drove the request or was but one contributing factor. Yet federal data reveal that, according to MAiD providers, more than 38 percent of their patients who received MAiD from 2019 to 2023 voiced concerns that they felt like a burden. Such data imply that Canadian physicians are not reluctant to provide MAiD for suffering that includes social vulnerability.

The concern around euthanasia for loneliness is important. Raikin reports that 22% of all euthanasia deaths in 2023 were related to loneliness:

In 2023, however, MAiD providers reported to Health Canada that 22 percent of their patients chose death because of “isolation and loneliness,” up by 5 percent over the previous year. This is a marked increase, but despite the public nature of these data, it does not appear to elicit concern from Health Canada or other government entities.

These data suggest that not only do MAiD providers know that their patients perceive themselves to be a burden or socially isolated but that these same providers may believe these factors are not an obstacle for MAiD access and are potentially even qualifying reasons for MAiD. Notably, clinicians in charge of Vancouver Coastal Health’s assisted-dying team have told patients with chronic pain conditions that choosing to die from MAiD because of feeling like a burden to loved ones can be considered an “expression of love.” While social isolation is not a medical reason for requesting MAiD, the data indicate that it is an important factor within MAiD requests.

There is a concern that people with neurological conditions who are unable to consent would be killed by euthanasia. The Carter court case suggested that this problem could be avoided in Canada. 

Euthanasia for people who cannot consent is legal, happening and increasing. Raikin explains:

Canada has already expanded MAiD to include patients unable to consent to MAiD at the time of their death, through the 2021 provision for a waiver of final consent. In Quebec, the provincial government has now gone much further, having sent an order barring prosecutors from launching criminal investigations into physicians who violate the criminal law by administering euthanasia to patients who have made an advance request for MAiD. The “slippery slope” warning that was rejected in Carter has proved prescient.

Health Canada’s annual reports also show that MAiD deaths of persons with dementia have increased dramatically in Canada. The number of MAiD deaths with a neurological condition as a qualifying factor has more than tripled in number from 2019 to 2023, and increased from 10.4 percent to 14.9 percent of all MAiD deaths.96 In 2022, dementia deaths were 9 percent of neurological MAiD deaths or 150 cases. In 2023, the number of MAiD deaths of persons with dementia increased to 241, which included 106 deaths in which dementia was the sole underlying condition.

Raikin's study to proves that outcome of legalizing euthanasia contrasts greatly with the position of the Supreme Court of Canada (Carter decision) and the lower court decision by Justice Lynn Smith. This is an important study because it begins to create the evidence that will be necessary for overturning Carter but it also undermines the acceptance of Carter in other jurisdictions.

Raikin concludes: 

The data are clear: Since MAiD eligibility has become increasingly broad in Canada, it has increasingly and disproportionately affected Canadians with disabilities.

This report compared MAiD’s impact on people living with disabilities with the findings made by Justice Smith in Carter and upheld by the Supreme Court. Further analysis of the disproportionate impact of MAiD on seniors, the poor, and other vulnerable groups also warrants attention, but is beyond the scope of this report.

This report’s findings are contrary to the assumptions by Canadian courts and the claims frequently made by cabinet ministers and Parliament. It corroborates, instead, concerns shared previously and repeatedly by disability activists and groups, including testimony ultimately rejected by the Supreme Court in Carter.

The death of disabled persons is not a rare or incidental effect of Canada’s legalized euthanasia program; instead, disability is a remarkably common characteristic among those who access MAiD. The average natural life expectancy of MAiD patients belies the claim that assisted suicide is restricted to those whose death is “imminent,” and MAiD’s reach is not limited to those who are terminally ill. Those seeking MAiD do not encounter a consistently “rigorous standard of scrutiny” that prevents most requests from ending in death. Specialist screenings for depression do not appear to have materialized, even at the very start of the MAiD program. Persons with neurological conditions are seeking death in high numbers compared to the expectations established in Carter. And the socially isolated, far from being protected, are instead being approved for MAiD at high—and increasing—rates.

Previous articles concerning research by Alexander Raikin (Articles Link).

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.