By Alex Schadenberg, executive director
Euthanasia Prevention Coalition
The lawyers for the Government of Canada have submitted their reasons for appealing the decision by Justice Smith in BC.
On June 15, Justice Smith decided in the Carter case that Canada’s assisted suicide law was unconstitutional, that euthanasia needed to be legalized for limited circumstances, that Gloria Taylor, one of the plaintiffs could have a constitutional exemption to euthanasia and assisted suicide and she ordered parliament to legalize euthanasia and assisted suicide by June 15, 2013.
The federal government appealed the extreme decision by Justice Smith and this week they released their arguments for the appeal.
The Canadian Press reported:
Legalizing doctor-assisted suicide would demean the value of life and could lead vulnerable people to take drastic steps in “moments of weakness,” the federal government argues in its appeal of a court decision that struck down the ban on the practice.
Ottawa is defending the law that prohibits assisted suicide as it appeals a decision from a British Columbia court, which concluded it is unconstitutional to prevent the sick and dying from asking a doctor to help them end their lives.
The government argues in court documents that allowing any form of assisted suicide creates the possibility that people with disabilities, the elderly and the terminally ill could be coerced to end their lives or do so in moments of depression and despair, even if better days may be ahead.
“It [the current law’s purpose] is to protect the vulnerable, who might be induced in moments of weakness to commit suicide,” the government says in a 54-page legal argument filed with the B.C. Court of Appeal.
“And it is a reflection of the state’s policy that the inherent value of all human life should not be depreciated by allowing one person to take another’s life … It also discourages everyone, even the terminally ill, from choosing death over life.”
The case was launched by several plaintiffs in B.C. [British Columbia], including Gloria Taylor, an ALS patient who won an immediate exemption from the law. Ms. Taylor died earlier this month without resorting to assisted suicide.
The debate is likely destined for the Supreme Court of Canada, which last examined this country’s assisted-suicide ban in 1993, when it upheld the law in a case involving Sue Rodriguez. Ms. Rodriguez died with the help of a doctor the following year.
The federal government argues the top court’s ruling in the Rodriguez case was final and says the B.C. Supreme Court had no right to attempt to overrule that decision.
In the B.C. case [Gloria Taylor], the judge concluded the law must allow physician-assisted suicide in cases involving patients who are diagnosed with a serious illness or disability and who are experiencing “intolerable” physical or psychological suffering with no chance of improvement.
The decision said patients in such scenarios must personally request physician-assisted death, must be free from coercion and cannot be clinically depressed.
The federal government argues the decision ignored evidence, presented at trial, that indicated safeguards in jurisdictions that allow assisted suicide are often not followed, including a number of cases in which patients were killed without their request. Some studies have concluded there is simply not enough evidence to conclude whether safeguards have worked.
The government says it can be virtually impossible to determine whether a patient is making a rational decision and is not suffering from depression or other cognitive problems.
Nor can physicians and patients be sure the patient wouldn’t change his or her mind if given more time to consider their decision, the government says.
Given that uncertainty, the government argues it is reasonable to assume legalizing assisted suicide would be harmful, and because of that, the courts should leave it to Parliament to decide such a sensitive and emotionally fraught issue.
In the two decades since the Rodriguez case, Parliament has examined the issue several times. In each instance, MPs [Members of Parliament] opted to keep the status quo – most recently in April 2010, when a private member’s bill to legalize assisted suicide was defeated 228-59.
“On each of those occasions, Parliament concluded that the risks inherent in physician-assisted suicide and euthanasia are too great,” the federal government says in its legal argument.
“Parliament does what it effectively can, within its constitutional authority, to prevent and discourage all suicides.”
Despite the B.C. decision, the law against assisted suicide remains in effect. The B.C. court’s judgment was suspended while the case is before the Appeal Court.
Ms. Taylor was given an immediate constitutional exemption from the law, briefly making her the only person in Canada who could have legally sought doctor-assisted suicide.
The federal government asked the Appeal Court to overturn that exemption, but the court refused in a decision released in August.
Ms. Taylor died suddenly earlier this month due to a severe infection resulting from a perforated colon.
The B.C. case has helped fuel debate about assisted suicide across Canada.
The comments by the lawyers for the Government of Canada are correct. Justice Smith seemed to ignore the facts and the conclusions from the Belgium study “Physician assisted deaths under the euthanasia law in Belgium: a population-based survey” which found that 32% of all euthanasia deaths in the Flanders region of Belgium were done without explicit request.
The same study also found that euthanasia without explicit request were usually done to people who were over the age of 80, who did not have cancer, and who were usually incompetent to make decisions. The study concluded that this demographic fit the description of a vulnerable patient group at risk of life ending without request.
Another Belgium study found that nurses were actually euthanizing their patients, sometimes without request, which is all illegal but still occurring in Belgium.
Editor’s note. This appeared on Mr. Schadenberg’s blog.