Euthanasia Q&A: Where the Supreme Court’s Decision Leaves Canada

18 Feb 2015 Euthanasia Q&A: Where the Supreme Court’s Decision Leaves Canada

Important Update: After publishing this article, the authors regretted what was written and penned the following letter to the editor:

 

Dear Editor,
 
In our recent article explaining the Carter Supreme Court decision on euthanasia and assisted suicide, we too quickly suggested that the use of Section 33 of the Charter (the notwithstanding clause) was not a long-term or realistic solution for this government to use. By adding specific ideas for what a new law could look like (a law which would allow for assisted suicide in limited circumstances, as required by the Supreme Court), we also created the impression that such a law is justifiable for this government to pursue. We apologize for the lack of principle and clarity.
 
The reality is that Parliament has the means to uphold the current law which bans all assisted suicide and euthanasia, as long as it has the courage to make use of Section 33 of the Charter. This is the very reason why such a section was added to our constitution – to give authority to Parliament to make law in spite of what the Supreme Court determines to be appropriate.  As such, it should do so. Lives are at stake. The fact that this particular option – use of the notwithstanding clause – has to be renewed by future governments every five years does make defending life more challenging, but it does not make it impossible. If a future government choses to not renew the use of Section 33 to uphold life, that would be its responsibility, not the current government’s. The same could be said of any legislation.
 
This government has the ability to prohibit euthanasia and assisted suicide, and it should do so. If it is intent on crossing the sacred line of an absolute prohibition on allowing some people to kill other people, we can share our concerns but also legitimately suggest ideas for how to restrict the evil as much as possible. Suggestions for how to reduce the number of deaths are not inappropriate. And if we are living in a land where euthanasia is already legal, helping the government restrict it is laudable (similar to abortion today). But we aren’t there yet. We can encourage this government to do the right thing and uphold the sixth commandment.
 
We have since published a policy report on this matter, available at . We encourage Clarion readers to pray for our federal government as they wrestle with what to do about this issue.
 
Mark Penninga and André Schutten
ARPA Canada
 

The following article was written for the Clarion magazine in response to the Supreme Court of Canada’s ruling in Carter v. Canada.

By Mark Penninga & André Schutten

On February 6, Canada’s Supreme Court released a decision which struck down Canada’s laws against physician-assisted suicide. It required that physician-assisted suicide be permitted for competent adults who clearly consent to their own death and have an irremediable medical condition that causes enduring and intolerable suffering. That may sound like strict parameters, but the reality is that these qualifications are subjective and tens of thousands of people could qualify today. Parliament has been given just one year to come up with a law to regulate this new paradigm before the judgment takes effect.

We have every reason to be concerned about this decision and the growing idolatry of self in Canada. At the same time, we find our enduring strength in God, the Foundation that does not crumble when times become difficult. God calls His children to faithfully uphold His Word and Truth regardless of how much our society spurns it. More than ever, the light of the Gospel will stand out in a land that is increasingly darkening. 

The following questions and answers are meant to offer guidance, direction, and even some hope in response to this latest legal development on this issue. We welcome interaction and further questions, either directly to us or via letters to the editor.

How did this case come about? Didn’t the Supreme Court and Parliament already address this issue?

In 1993, the Supreme Court narrowly decided (in a 5 – 4 ruling) that Sue Rodriguez could not have a doctor end her life because the right to make decisions for oneself (autonomy) cannot be used to trump the sanctity of life itself. Since that decision, Canada’s Parliament has dealt with the same issue at least five times and each time voted against the legalization of euthanasia or assisted suicide.

However, the Supreme Court recently determined that it is okay for courts to revisit previously decided issues if there are “new circumstances” to warrant overturning prior decisions. As such, in 2011, a BC Supreme Court judge decided to hear a case which challenged the same assisted suicide laws that Sue Rodriguez had challenged only 18 years earlier. In 2012 that judge ruled that the criminal prohibition against physician-assisted suicide was indeed unconstitutional, even though the Supreme Court had said less than two decades earlier that the law was constitutional. Her decision was appealed to the Supreme Court of Canada, which basically agreed with her entire ruling.

What exactly did the Court decide?

The Court decided that section 14 and 241(b) of the Criminal Code are now invalid “to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Section 14 banned the ability to consent to death and section 241(b) stated that “everyone who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”

So what are Parliament’s options now?

Parliament has 12 months to act before the Supreme Court judgment takes effect. If Parliament chooses to do nothing, or if it is simply unable to pass a law within a year, then Canada will be left with no restrictions on euthanasia and assisted suicide beyond what is stipulated in this court decision (as quoted in the answer above). This is similar to what happened when Canada’s abortion laws were struck down in 1988. In some ways it is even worse, because at that time there were still some policies in place that regulated abortion. We have no policies in place to regulate physician-assisted suicide.

Another option is that Parliament could make use of section 33 of the Charter (called the notwithstanding clause). This would require the passing of an Act where Parliament states that, “notwithstanding” the court’s decision, the law against assisted suicide will remain. Although this sounds great, the reality is that this could change with a subsequent vote (e.g. with a new party in office) and must be revalidated with a new vote every five years anyway. Using the notwithstanding clause will simply kick the ball down the road; it’s not a long-term solution. Furthermore, no federal government has ever exercised this power, and the current Justice Minister has already indicated he won’t either. In other words, it simply isn’t a realistic answer.

A third option is for Parliament to do as the Court recommends and come up with a new law that permits physician-assisted suicide, but restricts it in some ways.

What kind of restrictions could be included if Parliament drafted a law?

As Reformed believers, we understand that perfection will never be found through law, or that law will ever eliminate evil. However, we also believe that the law can be used to restrain evil. That is one of the good purposes for which God instituted civil government. Our task then is to encourage Parliament to pass a law that restricts the evil of assisted suicide to the greatest extent possible, thus protecting the maximum number of vulnerable people.

We would consider advocating for the following restrictions:

  1. Require a panel made up of two doctors and one judge to determine eligibility of assisted suicide. This protects against rogue doctors who might liberally approve assisted suicide and also makes the final determination both a legal and a medical one;
  2. Require terminal illness to be a necessary condition. This prevents assisted suicide for anyone who may be suffering but is not near death.
  3. Require contemporaneous consent of a competent adult to ensure that consent is given at the exact time of death. This protects people who are otherwise incapacitated who may have indicated consent to death earlier in life, but where no confirmation is possible at the present time.
  4. Related to the foregoing, we must require the videotaping of the entire procedure: initial request for assisted suicide, the discussions with doctors, the panel hearing, the lethal injection and the pronouncement of death. Video evidence is required to ensure that consent is robust and present throughout the entire process. Some studies suggest that many people, the moment before a suicide attempt, will have hesitations, second thoughts or regrets. Video evidence would help ensure consent is present throughout the entire process, that no undue influence or pressure is exerted on the patient, that other options are presented properly to the patient, and that no doctor kills a patient who indicates hesitation at the last moment.
  5. Physician-assisted suicide must be done by a physician. Some jurisdictions allow nurses, or even anyone with “medical training” to perform assisted suicide. This restriction limits the availability of the procedure.
  6. Assisted suicide should only be available for those who are otherwise physically unable to take their own life. This limits the normalization of allowing some people to kill other people.
  7. All terms in the new law must be very carefully and fully defined. Because the Supreme Court’s ruling is so vague and subjective, definitions are going to be very important. For example, “suffering” should not include psychological suffering.
  8. Conscience rights must be fully and robustly protected. No physician should be made to perform or refer for assisted suicide.
  9. Finally, and very importantly, a legalized assisted-suicide regime must include a robust, national palliative care strategy. Palliative care is holistic: it is not just pharmaceutical assistance, but also includes emotional, spiritual, and communal assistance. Palliative care should include at-home care, incorporating care through family, religious communities, etc. This approach lowers the financial burden on the State, while at the same time addressing what most people at end of life desire most – companionship, relationship, and meaningful interaction on an emotional, personal and spiritual level. Palliative care answers the deepest needs of those contemplating suicide. Interestingly, most people at end of life are not afraid of pain or suffering. Most are afraid of either being a burden or of being alone. We have to address these concerns as well as concerns about pain and suffering. Palliative care must continue to be researched and developed by our healthcare system and must be presented by physicians to their patients each and every time a request for assisted suicide is made.

Should we really be promoting or encouraging laws which still allow human beings to be killed?

In Romans 13 we read that God gives our civil governments (both law makers and judges) the responsibility of administering public justice. In this Supreme Court decision, our judges have spurned this responsibility and are condoning killing, which violates the sixth commandment. All Christians should agree that this is wrong. The question is where to go from here. Canada, as a nation, is both secular and pluralist and has little regard for God’s law. What can we do?

Christians can respond in one of two ways. We can wash our hands clean and walk away from the political/legal realm. Our political efforts can be reduced to standing on the sidelines and criticizing, since the country’s decisions will continue to be disappointing. Alternatively, and what we propose to be the better option, Christians can do what we can to limit the evil, in the context in which God has put us. This requires us to acknowledge that our civil government (both legislature and judiciary) will one day be made accountable for this evil. But this also requires us to do whatever we can to restrict this evil as much as possible. As we have outlined in detail elsewhere, and as Dr. Cornelis Van Dam explains in his book God & Government: Biblical Principles for Today, saving some lives is not compromising. We may not like the secular context we find ourselves in, but it is not that different from where God’s people have found themselves ever since the fall into sin. God’s calling for us remains – do justice, love mercy, walk humbly with our God. 

What would be the benefits/drawbacks of passing the legislation either before or after the election?

If new legislation is introduced but not passed before an election, the process would have to be completely restarted in a new Parliament after the election. An election is expected in October, which means that there is only a couple of months after the election and after a new Parliament is formed to come up with a new law in time to meet this deadline. That is not enough time for a comprehensive law to work its way through Parliament. The clock is ticking.

As such, it is imperative that this current government pass legislation quickly, before an election. If that is not possible or does not happen, we will intensely advocate for the use of the notwithstanding clause to buy more time to properly pass a robust, restrictive law.

Besides prayer, which we must do, what practical steps can we take to help?

First of all, we phrased this question purposefully so that we can point out that prayer is practical! Prayer is not purely “spiritual”; we know that God listens to our prayers and acts on them. We have seen God’s rich blessings overflow in response to prayer on many different political issues in this country. And without faithful prayer we will never see positive change.

That being said, we pray and work, ora et labora. From a political perspective, we encourage our readers to use ARPA Canada’s Easymail technology to send an email to your MP and to the Justice Minister, encouraging them to draft and pass new legislation soon. Even better, follow up on your letter with a phone call to both offices, and ask if they have read it and whether they have a response. You can also send a letter to the editor of your local paper, calling for new law restricting this evil to the greatest extent possible.

We also encourage you to continue to educate yourself on the dangers of legalizing euthanasia. We have found, time and time again, that when regular folks hear a reasoned explanation for why assisted suicide and euthanasia are dangerous for a society, they have second thoughts about their support for it. Our jobs as Christians in Canadian society is to educate our neighbours, friends and co-workers about what legalizing assisted suicide means for vulnerable Canadians. You can find lots of resources, videos and editorials on our website: ARPACanada.ca (If you don’t have internet, you can call us and we can mail you some: 1-866-691-2772.)

There may come a day when we have very little influence in the political or legal realm with this matter. But even then the church can do much. The second greatest commandment is to love our neighbour. Canada is full of neighbours who are increasingly lonely and feel like a burden on society. The Gospel of hope is exactly what they need, and we have the opportunity to share it. The church can make it more of a priority to share the Good News with our increasingly broken society. We don’t have to go overseas to offer relief – we can also do it in the old age home down the street.  God can use disappointing decisions like our Supreme Court’s ruling to bring the Good News to many more people.


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