Assisted Suicide – Legal Analysis

September 24, 2015

Dear Parliamentarians and Candidates for Parliament,

Although you are busy with this election campaign, we respectfully request that you take a moment to consider an important development that will require the attention of the new Parliamentarians this fall and winter.

As you are aware, in February the Supreme Court of Canada (SCC) struck down Canada’s laws against assisted suicide and gave Parliament 12 months to enact new legislation. Since then only two serious options have been raised by all sides of the issue: either follow the Supreme Court’s directive and pass a law that allows assisted suicide or invoke section 33 of the Charter of Rights and Freedoms (the “notwithstanding clause”) to continue to prohibit assisted suicide.

After extensive legal research, we respectfully submit that a third option is possible. Parliament has the means to continue to protect human life and prohibit assisted suicide without invoking section 33 of the Charter.

So how can Parliament prohibit assisted suicide without using the notwithstanding clause? The short answer is that Parliament can pass a new law that explicitly states a purpose that is broader than merely protecting vulnerable people. The SCC thought that the objective of the criminal prohibition on assisted suicide was very narrow. It ruled that the objective was merely to protect vulnerable persons from being induced to commit suicide at a moment of weakness. The Court thought that the objective was not to protect life broadly speaking, or even to prevent suicide. This distinction effectively determined the outcome of the case.

Since not every person who wishes to commit suicide is vulnerable, the Court reasoned, it follows that the limitation on individual rights is, at least in some cases, not connected to the law’s objective of protecting vulnerable persons. Consequently, the absolute prohibition was found to deprive some persons of their section 7 rights in a manner that did not accord with the principles of fundamental justice. The prohibition was “overbroad” and therefore violated section 7.

The SCC found further that the violation of section 7 was not justified under section 1 of the Charter. The law did not minimally impair the claimants’ section 7 rights because a complete prohibition was found to be broader than necessary to achieve the government’s objective of protecting the vulnerable. A complete prohibition was unnecessary, they reasoned, because the government could depend on physicians to determine whether or not someone seeking assisted suicide was actually vulnerable or subject to undue pressure to end his or her life.

But what if the purpose or objective of the assisted suicide law was actually much broader than the SCC thought? If so, Parliament has opportunity now to clarify.

Parliament can enact a complete prohibition on assisted suicide, without relying on the notwithstanding clause, by explicitly stating in a new law that the purpose of the prohibition is broader than merely protecting vulnerable persons. The objective of the existing law was a matter of debate and the Court’s conclusion about its objective in Carter was not the only possible interpretation or even the most reasonable. Note, however, that the SCC acknowledges that it is Parliament’s objective, embodied in the text of the legislation enacted by it, that is in question in the Charter’s section 7 analysis. Parliament is fully within its rights to clarify things for the court; Parliament can communicate its broader objective to the courts through the text of a new law.

We respectfully urge Parliament to seize this opportunity to pass a new law which maintains and enforces the longstanding common law principle of the inviolability of life by prohibiting assisted suicide and euthanasia as acts that are intrinsically morally and legally wrong. We have a draft law to this effect, attached to this letter. We also urge Parliament to make it a priority to ensure that palliative care services are available widely across Canada. As a nation we can put far more effort into caring rather than killing.

In 1993, Justice Sopinka, after noting that both the British House of Lords and the Law Reform Commission of Canada were against legalizing the practice of assisted suicide, stated:

The basis for this refusal is twofold it seems — first, the active participation by one individual in the death of another is intrinsically morally and legally wrong, and second, there is no certainty that abuses can be prevented by anything less than a complete prohibition.

Read ARPA’s policy report for evidence and further details of both reasons for prohibiting assisted suicide.

You can find further information about our “third option” in this piece published recently in the National Post, written by a lawyer whom ARPA retained to provide independent legal advice on possible Parliamentary responses to the Carter v Canada ruling. A detailed, 12-page legal analysis defending this proposal is also available at www.ARPACanada.ca.

In addition to this research, ARPA has compiled a lengthy policy and legal analysis of what a restrictive assisted suicide regime could look like in Canada. Yet we remain convinced that this is not the road Canada should be going down. Now is the time to do the right thing.

We are available to assist MPs and other government officials with further research and assistance. ARPA has an office close to Parliament and would be happy to meet with you and your staff after the election to discuss this further.

Thank you for taking the time to consider this important matter.

Sincerely,

André Schutten, Legal Counsel

Mark Penninga, Executive Director

Association for Reformed Political Action (ARPA) Canada