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Four Takeaways from the Carter v. Canada Assisted Suicide Case

By Faye Sonier

Last week, the British Columbia Court of Appeal (BCCA) released its decision in the Carter v. Canada case. The BCCA upheld Canada’s ban on assisted suicide.

The Carter case was launched in 2011 by a few individuals and groups who wanted to see assisted suicide legalized in Canada. At the trial level, the B.C. Supreme Court, Justice Lynn Smith ruled in their favour and found that assisted suicide should be legalized in certain circumstances.

Her ruling overturned a decision by Canada’s highest court, the Supreme Court of Canada (SCC). In Rodriguez v. British Columbia, the SCC ruled in 1993 that Canada’s prohibition of assisted suicide was constitutional and acceptable. Justice Smith’s ruling was shocking because, as lawyers and most Canadians know, it’s no small thing for a lower court judge to overturn a binding decision from Canada’s highest court. In fact, it’s mostly unprecedented, for the reasons I’ll explain below.

Justice Smith justified her reversal in law by arguing that some technical points in some legal tests had changed since 1993 and that new expert evidence on the practice of physician-assisted suicide was now available; and, therefore she could revisit the SCC’s decision which upheld the ban on assisted suicide.

She held that the Criminal Code’s prohibition on assisted suicide violated the Canadian Charter of Rights and Freedom’s right to life because some people with disabilities might kill themselves earlier than they would if they had access to assisted suicide. Justice Smith also found that the prohibition violated equality rights because it discriminated against persons with physical disabilities who might be unable to commit suicide without assistance, unlike persons without disabilities who could arguably kill themselves if they want to, as suicide itself is not illegal in Canada.  Accordingly, she concluded the government should be required to provide a means to assist those who want to commit suicide but are physically unable to do so.

Justice Smith’s decision was appealed to the BCCA.  In a split 2-1 majority decision, the BCCA overturned Justice Smith’s decision and upheld the legal principles the SCC set out in the 1993 Rodriguez decision. In short, the BCCA found themselves and Justice Smith to be bound by the legal precedent set out in Rodriguez; that the ‘right to life’ principle is the same today as it was 20 years ago; that there is no right to be killed in Canada; and, that we can’t easily dismiss the concerns of those who believe that the legalization of assisted suicide would be damaging to our society.

The following are the four main takeaways from the BCCA’s decision in Carter.

1. Higher court decisions are binding

There is a legal principle in law called stare decisis. Our entire court system is built on this principle. It means that lower courts must be bound by the decisions and legal principles issued by higher courts. The reason for this is consistency and fairness in the application of the law – it is to ensure that consistent decisions are rendered across jurisdictions, so citizens can know what consequences to expect if a law is broken or be able to anticipate how a legal dispute will be resolved. As noted by Chief Justice Finch in the decision, the principle of stare decisis exists to ensure that “similar cases are decided similarly.” Decisions that ignore higher court precedent create confusion and muddy the legal waters on settled points of law.

Justice Smith gave her reasons, as explained above, for revisiting Rodriguez and overturning the law. The BCCA rejected these reasons and found that she was bound by the SCC’s decision, and that the Criminal Code prohibitions against assisted suicide remain constitutional. The BCCA found, contrary to what Justice Smith ruled, that either some legal tests had not changed sufficiently to justify revisiting Rodriguez, or those that had been varied over the years did not change the fundamental requirement of broadly evaluating “the rationality... [of] the law in question.”

To further drive this point home, the BCCA stated that “the focus for purposes of stare decisis should be on what was decided, not how it was decided or how the result was described.”

2. The 'right to life' is the same today as it was 20 years ago

While Justice Smith sought to broaden the definition of the Charter ‘right to life’ to essentially include a right to dictate the manner of one’s death, the BCCA determined that the SCC’s statement in Rodriguez on the matter was clear. The “sanctity of life” principle excludes “freedom of choice in the self-infliction of death.”

The BCCA found that the SCC in Rodriguez had sufficiently considered whether the prohibition on assisted suicide violated the right to life. Considerations such as a person’s autonomy, dignity or decision-making are protected by other Charter provisions. The Charter protection to the right to life must remain specific in order to protect the vulnerable.

The right to life must be “regarded in the existential sense” with a “deep intrinsic value of its own.” If the right to life was broadened to include such things as the enjoyment of “cultural and spiritual experiences,” “remembering the past,” or “forming friendships,” as Chief Justice Finch suggests in his dissenting decision, it could serve to limit the application of the right to life of those who cannot engage in those pursuits. As stated in the majority BCCA decision,

Those who have only limited ability to enjoy those blessings are no less “alive”, and have no less a right to “life”, than persons who are able-bodied and fully competent. If “life” were regarded as incorporating various qualities which some persons enjoy and others do not, the protection of the Charter would be expanded far beyond what the law can ‘guarantee’, while conversely, a slippery slope would open up for those who are unable to enjoy the blessings described by the Chief Justice.

What the BCCA did in its decision was confirm that the Charter right to life remains consistent and means the same thing today as it meant 20 years ago, when the Rodriguez decision was rendered. This is good news for those who are concerned that legal protections for the sick and vulnerable could be watered down. The BCCA quoted a powerful portion of another decision in which a court stated that “[i]t is not appropriate for an external decision maker to apply his standards of what constitutes a livable life and exercise the right to impose death if that standard is not met in his estimation.” The right to life applies to all Canadians equally, regardless of their abilities or disabilities.

3. Concerns about the damaging effects of decriminalization cannot be brushed aside

In stark contrast to the opinions issued by many pro-assisted suicide or pro-euthanasia groups, the BCCA found there is not “a clear consensus of public or learned opinion on the wisdom of permitting physician-assisted suicide.” This opinion, in fact, echoes much of Justice Smith’s earlier ruling, though she thought safeguards could be put in place to safely allow physician-assisted suicide.

The BCCA went on to list the bodies that support prohibitions on the practices, including the Canadian Medical Association (CMA), the World Medical Association, and the medical associations of the U.S.A., the U.K., New Zealand and Australia. The BCCA also quoted from a CMA policy paper, which raised serious concerns about decriminalization:

If euthanasia or assisted suicide or both are permitted for competent, suffering, terminally ill patients, there may be legal challenges, based on the Canadian Charter of Rights and Freedoms, to extend these practices to others who are not competent, suffering or terminally ill. Such extension is the “slippery slope” that many fear.

The BCCA did recall strong language from the Rodriguez decision where the SCC stated that whether or not there is consensus on these issues, “human life must be respected and we must be careful not to undermine the institutions that protect it.” Concerns over the consequences of decriminalizing assisted suicide cannot be simply brushed aside.

4. Discussing a possible exemption to the ban on assisted suicide

At the very end of its majority decision, the BCCA discussed what a potentially constitutional exemption to the ban on assisted suicide could include. It noted that the minority in Rodriguez had also discussed the possibility.

The BCCA stated that if its decision was appealed to the SCC and the SCC chose to reconsider Rodriguez that the SCC is encouraged to consider an exemption that would be “an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals,” rather than striking down the ban on assisted suicide altogether.

This was proposed as the BCCA was “not confident that a fully rounded, well balanced alternative policy, with comprehensive public support, would or could be developed in the time-frame of any of the suspensions of declaration of invalidity.” The BCCA was concerned about the potential negative consequences should the ban be struck down before an alternative policy regulating assisted suicide could be put into place by Parliament.

Given that the purpose of the ban on assisted suicide is to protect the vulnerable, the BCCA suggested that

[l]ifting the prohibition for those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process, might not undermine the legislative intention.

The BCCA suggested that if a constitutional exemption was permitted by the SCC, it should not be on the conditions suggested by Justice Smith, but should include court approval for each assisted suicide request in order to add an extra safeguard to the process.

This part of the decision is what is called obiter dicta, a Latin term which means “said in passing.” It is an explanation or a statement that is not essential to the decision being rendered and does not bind other courts. It is simply a suggestion for the SCC to consider, should the case be heard by that bench.

While the BCCA’s decision covers much more ground, the four takeaways above reflect topics that may be of most interest to those concerned with the efforts currently being made in Canada to decriminalize assisted suicide. For more information on this case, visit


The Uncaged Christian Lawyer: Debating a Christian Law School with Clayton Ruby

I’m writing this while on VIA Rail to Toronto. After Wednesday’s debate about whether a Canadian Christian university can establish a law school with Clayton Ruby on Q with Jian Ghomeshi, I find myself a Christian out in public with an old Johnny Cash song running through my head – “I’m gonna break my rusty cage …”

For years now, I’ve been encouraging Christians not to feel trapped in a stained glass closet as our response to some aggressively expressed anti-religious attitudes in contemporary Canadian culture. If we feel so trapped, I’ve said, it is our decision to come out of that closet and declare our identity has its foundations in Christ in Whom “we live and move and have our being.”

But some of Clayton’s words – spoken by a self-described constitutional lawyer who started practising law when I was in grade 5 – left me feeling more like there was an effort to place me in a cage.

Clayton repeatedly made his point that in Canada “we have the highest respect for everyone’s religion as long as religion is in the area of worship…. But when it comes to action, then the limits of freedom of expression are met.” In the same breath he also advocated that gays and lesbians have to be free to express their sexual orientation in action, or their freedom is being constrained.

And here I confess, until Wednesday morning Clayton was “Mr. Ruby” to me; an influential historic legal figure who has held some significant positions of responsibility in our profession. Now, he’s just another lawyer demonstrating his bias through a willingness to pull quotes out of context from Supreme Court of Canada decisions to make his point.

In Clayton’s opinion, establishing a law school that would have a clear religious orientation should not be permitted.

Here’s confession number two. I have my own bias. In my opinion, there is neither Constitutional nor legal bar to establishing the school. Trinity Western University (TWU) is a private university that has met the academic and operational requirements of the Government of British Columbia to function as a Canadian university and, provided it meets the academic and operational requirements set out by the Federation of Law Societies, should be able to establish a law school – entirely at its own risk as there are no public funds involved.

TWU has successfully established schools of education, nursing and business among its 42 undergraduate and 16 graduate programs, with graduates (who are in high demand) required to comply with the professional codes of conduct of teachers, nursing and business associations, etc. It successfully secured the right to educate in a Christian university in compliance with professional standards in a 2001 decision of the Supreme Court of Canada. To me, as a practicing lawyer, it is professional arrogance to suggest that “the law” should bar training in a Christian environment when we have practice qualification examinations and a code of conduct that govern our profession in similar manner.

Clayton threw out that he couldn’t find law schools in the Bible. I note here that the first five books of the Bible are often referenced as “the Law,” as in “the Law and the Prophets” (Old Testament);  and, that the entire book of Proverbs in the Bible is about the pursuit of wisdom. That’s why we have elementary schools, secondary schools and universities. They were originally established by the Church to facilitate the pursuit of wisdom. The environment for post-secondary education was intended to be Christian – as Canada’s contemporary 3 dozen or so Christian colleges and universities still attest – but there was no bar to attendance for those willing to accept the on campus standards; something which has been attested to in regard to TWU by gay and other non-Christian graduates and students.

The framers of our Constitution recognized and listed “freedom of religion” as a fundamental freedom for all Canadians. The Supreme Court of Canada has, from its first comments on this section of the Canadian Charter of Rights and Freedoms, asserted the importance of both belief and practice, including to “declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.” That quote, from 1985 in the R v Big M Drug Mart case, is still regarded as the court’s definitive statement on freedom of religion.

The Supreme Court has repeatedly affirmed this understanding. It has also affirmed religion as a recognized part of basic human identity – including the right not to believe – which informs our minds, character and behaviour.

The Court has soundly rejected contemporary efforts to redefine the concept of tolerance in a way that would result in the marginalization of religiously informed thought, reasoning, instruction or public engagement. And, it has repeatedly affirmed that concept to acknowledge the space that exists for religion and the religiously informed life in all of Canadian society.

At one point in our on-air conversation, Clayton referred to religious belief as “stupid,” although noting people have a right to believe what they want to believe. For me this was a remark intended to confine Christians to a lesser place in Canadian society, the intellectual equivalent of encouraging that Christians, and other people whose life and intellect is informed by our faith, be placed in cages that exclude us from engaging in public or public careers. It’s an old, failed argument and the cages it attempts to create are weak and rusted.

Jian Ghomeshi was a great host and moderator; challenging us both with questions from his own research on the topic and holding a neutral position in his statements.

Ultimately, the decision of the Federation of Law Societies is also a neutral one. The Federation isn’t asked to decide based on my feelings or Clayton’s. Its decision is simply about the law and academic standards.

So what do I do with my feelings from a 20 minute debate? Besides blogging (and trying not to weigh you down with a bunch of Supreme Court decisions), I’m gonna break my rusty cage


Euthanasia — a ‘settled’ issue still up for debate

Originally published at The National Post Holy Post on October 10, 2013.

The Government of Quebec is wrapping up public hearings on what may decide whether June 12, 2013 becomes a forgotten date, or one that lives on in infamy. It was on that date that Quebec’s health minister introduced pro-euthanasia legislation designed to plunge both province and nation into debate over the limits of personal autonomy and the meaning of healthcare. All this less than five years after Bloc Quebecois’ Member of Parliament Francine Lalonde’s third failed attempt to have euthanasia and assisted suicide legalized in Canada. It was soundly defeated 228 to 59 in the House of Commons.

The subject of the hearings is Bill 52, An Act respecting end-of-life care, which is neither about care nor confined to considerations at end-of-life. In the course of seeking to legislate on both, L’Assemblée nationale defines neither well.

First, it creates the new term “medical aid in dying,” a euphemism for physician administered lethal injection. This is known as euthanasia, categorized under the Criminal Code as murder. In short, provincial government spin-doctors are seeking to authorize medical professionals to step outside the Criminal Code prohibition on murder in order to kill patients if a doctor agrees with the patient — or the patient’s care giver — that the patient’s life is not worth living. How is this care?

At best this is a grievously misdirected compassion that suggests killing as the remedy to what is hard about dying, or worse still, the cure to what is hard about life. Some have suggested that this is one answer to a system in crisis because of an aging population and rising healthcare costs.

Intentional killing is anathema to the Charter of Rights and Freedoms value of the sanctity of life and the related Charter value of human dignity — both described and upheld by the Supreme Court of Canada in the Rodriguez (assisted suicide) and Latimer (murder for compassionate reasons is still murder) decisions — and stands contrary to the societal condemnation expressed in the Criminal Code. There is no exception granted for intentional killing by request of one person to another as there is no legal recognition of the concept of consensual murder.

Second, the administration of “medical aid in dying” — in my opinion it is entirely appropriate that the Government of Quebec and others are using the acronym MAD — is not confined to those in pain on a hospital bed at the end of life.

The regulatory frameworks for administering MAD are the same ones that have proven uncontrollable in the few jurisdictions on planet Earth that have thought they had established the workable solution to the problem with this “end-of-life care” proposal.

It takes some digging through other pieces of Quebec law to secure the definitions for the eligibility requirements for MAD.

One must be 18 years of age or older and capable of giving consent. Please note that in addition to this young age, the patient’s care giver is authorized to provide consent.

The patient must suffer from an incurable serious illness with an irreversible decline in capability and constant physical or psychological pain.

This seems solid until one realizes that only the age for consent is actually defined. An incurable serious illness could include disability or mental illness, such as depression. An irreversible decline in capability could mean the illness, in the opinion of the patient (or their care giver) and doctor won’t get better; for example the early stages of dementia or multiple sclerosis.  These requirements are met simply by the administering physician being satisfied that the appropriate life or death conditions have been met in her opinion, including mandatory reporting by any physician asked to administer MAD who is unprepared to do so.

The bill further directs that every health and social service institution designated under the legislation, including religious institutions, must have a policy for “end-of-life care” that complies with the guidelines, regulations and legislation referenced in Bill 52 – including the administering and reporting of “terminal palliative sedation” (using pain relief treatment to end the patient’s life) and the provision of “medical aid in dying.” This “service” may also be offered in private health facilities or in the patient’s home by physicians and accredited nurses.

When we’re sick we go to the doctor — Quebeckers included — and we expect help to get better. In the Netherlands and Belgium, which have their own MAD regimes, it is now reported that outcomes from a visit to the doctor may include legal euthanasia (following patient decision after conversation with a doctor) or involuntary euthanasia (following doctor decision after conversation with a patient).

If you think the same won’t happen here, or what happens in Quebec stays in Quebec, you could not only be wrong but dead wrong.

Don Hutchinson is Vice-President and General Legal Counsel with The Evangelical Fellowship of Canada. The EFC has produced the discussion paper Quebec’s Bill 52: Euphemisms for Euthanasia.


Media Release: The EFC Exposes Ethical and Constitutional Dangers of Quebec Euthanasia Bill

OTTAWA – The Evangelical Fellowship of Canada (EFC) today released a detailed analysis of Bill 52, a provincial bill which would permit euthanasia in Quebec. In the paper, Quebec’s Bill 52: Euphemisms for Euthanasia, the EFC recommends that the elected members of Quebec’s Assemblée nationale act to stop the proposed legislation.

 “The Government of Quebec is proposing to head down a treacherous path by trying to redefine generally and medically accepted definitions in an effort to legitimize a prohibited act, a physician or nurse ending the life of a patient,” explains EFC Vice-President and General Legal Counsel Don Hutchinson. “Bill 52 euphemistically uses the term ‘medical aid in dying’ but the description provided for the term aligns with the World Health Organization and Canadian Medical Association definitions of ‘euthanasia,’ which is a medically and legally prohibited act in Canada.”

“Canada’s Constitution is clear,” states EFC Legal Counsel Faye Sonier. “The federal government has jurisdiction over criminal matters, and the provinces have jurisdiction over health-care matters. The Criminal Code prohibits euthanasia, and this prohibition has been confirmed by our highest court on more than one occasion as a legitimate exercise of federal power. The Government of Quebec ignores that legal reality with Bill 52.

“In the Bill, the Quebec government simply replaces the word ‘euthanasia’' with a new term, ‘medical aid in dying’ – mandated for use in hospitals, nursing homes and other health-care facilities – in an attempt to reframe the issue as a health-care matter, and therefore move the act of euthanasia under provincial rather than the federal criminal jurisdiction,” continues Sonier.

“Federal politicians have repeatedly rejected similar attempts to legalize euthanasia,” says Hutchinson. “When MP Francine Lalonde of the Bloc Québécois attempted to pass federal legislation to remove criminal prohibitions against euthanasia in 2008, that Bill was defeated 228 to 59 in the House of Commons. Quebec’s new bill is simply an unconstitutional attempt to legalize a criminal action that could not be decriminalized through the proper democratic or legal channels.”

“We’re concerned about the impact on our laws, our medical system and ultimately on some of our country’s most vulnerable citizens,” says Hutchinson. In the small number of countries where these practices have been legalized, there are well documented reports of people being euthanized without their consent.

“The so-called safeguards are failing in every one of those jurisdictions,” says Hutchinson. “People report they are afraid to leave loved ones alone in the hospital. Is that really what we want for Canadians?”

“The EFC recommends the Government of Quebec withdraw the bill, or the members of the Assemblée nationale act to defeat the bill or stymie it by not bringing it to a vote.

“If the Government of Quebec proceeds with this initiative,” he says, “it may well be perceived as provoking a response from the federal government which, within its constitutional and Supreme Court of Canada affirmed authority over Canada’s criminal laws, has determined euthanasia is illegal.”

“Our paper explains some of the potential actions passing this bill might incite; and we expect neither the people of Quebec nor the Government of Canada have the desire to engage in the expensive constitutional battle that would likely result.”

Download a free copy of the EFC report at Quebec's Bill 52 - Euphemisms for Euthanasia.



The Joyce Arthur Defamation Suit and the Tactic of Being Vague

By Faye Sonier

Yesterday, the Vancouver and Burnaby Crisis Pregnancy Centres (CPCs) announced that they would not appeal the court’s decision in a defamation suit they had launched against pro-choice activist Joyce Arthur. These two CPCs, like many across Canada, offer women, couples and families free assistance, such as maternity and baby clothes, childbirth classes and information on pregnancy options.

In 2009, Arthur wrote a report for the now-defunct Pro-Choice Action Network (“Pro-CAN”) entitled Exposing Crisis Pregnancy Centres in British Columbia. With the help of government funding via a Status of Women Canada grant of $27,400 and the proposed research goal of “expos[ing] the anti-woman and anti-feminist agenda of CPCs,” Arthur eventually issued her assessment of CPCs. Her report claimed, in short, that CPCs employ unethical tactics and strategies that hurt and deceive women.

Since the report was garnering more internet attention than it deserves, the Vancouver and Burnaby CPCs launched a defamation suit against Arthur and Pro-CAN in hopes that the court would order Arthur to withdraw or correct her report. Strategically, and given the great costs of litigation these days, the CPCs and their lawyer carefully chose the allegations made in the report that they deemed most defamatory but also simple enough to disprove in court.

These allegations included that "CPCs use graphic videos and pictures to shock and horrify young women about abortion", that "CPCs ... won't say upfront they are religious, and will lie about being religiously-affiliated to get a woman into the centre", and that they "provide misinformation about abortion and its risks" and "break confidentiality."

Unfortunately the court found that the report was so unclear in its attributions of wrong-doing that a reasonable person reading the report wouldn’t necessarily think that the Vancouver and Burnaby CPCs were guilty of committing those particular ethical breaches. As the judge ruled, “it is difficult to say that the ‘deceptive’ tactics reflect personally on the plaintiffs. The impugned statements do not have any specificity; the Report describes the tactics in broad generalizations.”

In fact, in her gleeful recounting of the case, Arthur concedes that that was her legal strategy in the defamation suit. Her strategy amounted to arguing “that the report did not specifically say that the two plaintiff CPCs used any of the described tactics…”

So in the end, Arthur conceded in her legal submissions that she didn’t say that those CPCs engaged in the alleged behaviours. The CPCs are free to continue doing their good work and, as they announced yesterday, they will release a report rebutting Arthur’s claims. They’ll set the record straight.

So no harm, no foul, right?

Not necessarily. When people Google certain city names plus keywords such as “Crisis Pregnancy Centres,” Arthur’s report is one of the first documents to pop up in the search results. This negatively affects people’s understanding of Canadian CPCs.

And Arthur’s report is still one of the only “reviews” of CPCs in Canada. Apparently some people are using this poorly crafted report, which fails to meet, in my opinion, some of the most basic academic research standards, as an authoritative source on Canadian CPCs.

In one section of her report, where many of the damaging allegations are made, Arthur opens the section by stating that the “following activities and strategies are common to many or most CPCs throughout North America.” By being so vague and unspecific, it seems she can make appalling allegations, but still be largely protected from being sued for defamation. Conveniently, many of those allegations aren’t supported by a single footnote or source.

And keep in mind, that these allegations are made within a report entitled Exposing Crisis Pregnancy Centres in British Columbia, where that title appears on the top of each page of the report, wherein the stated goal of the report is to “find out what these centres were doing and saying to women in B.C., and whether they were engaging in deceptive or harmful practices,” and where the appendix lists only B.C. CPCs. I think the average reader would likely assume that the allegations made within the report apply to B.C. CPCs, and likely to the two CPCs which launched the suit against Arthur.

This report is hugely damaging to CPCs in B.C., as well as the rest of Canada. I understand why the CPCs are not pursuing the suit further. Given how unspecific Arthur was in her allegations, an appeal of the decision would be a tough, uphill and costly legal battle. I like that the CPCs will issue a rebuttal of Arthur’s allegations. This is a reasoned response to a near impossible situation.

But I’m still frustrated. I’m frustrated that a poorly crafted, government funded report will tarnish the reputation of Canadian CPCs. Unlike Arthur’s shoddy research, CPCs are funded not by tax-payers but by private donors so centres can offer free services and resources to women and families facing unplanned or crisis pregnancies.

What can be done? A lot. As people like Arthur have recently and frequently stated, the “anti-choice,” or as we more appropriately call ourselves “pro-life,” movement is more active and sophisticated than ever before. We’re on it.

But for today, why don’t we take two minutes and simply write an email to our local CPCs to thank them for the life-saving, pro-woman work they do? Let them know that we stand with them and will continue to do so, even as the Arthurs of the world try to tarnish their labour of love.  Let them know that vague allegations cannot undo what daily, individualized and specific work they accomplish – helping one woman, one family, one child at a time.

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