Challenges to Canadian Law Against Euthanasia & Assisted Suicide - A History
Crimes against the person are charged and tried under the Criminal Code of Canada, which first came into effect in 1892 and was largely based off the Stephens Code of 1879 in the United Kingdom. One of these crimes that have been in the Criminal Code of Canada is euthanasia/assisted suicide as per Section 241 (b):
241. Everyone who
(a) counsels a person to commit suicide, or
(b) 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.
Over the years, this particular section of the Criminal Code of Canada has been challenged in various courts at various times with various arguments, with most of the cases originating after the passing of the Charter of Rights and Freedoms in 1982.
It has also been challenged in Parliament by private members bills which sought to legalize these forms of homicide. Fortunately the parliamentary challenges were defeated by Members of Parliament.
This article lays out the chronological progression of the various attempts to overthrow this Criminal Code provision which protects Canadians from euthanasia. It is laid out in two parts. Part 1 lists the court challenges against our anti-euthanasia law, up to the current day. Part 2 analyzes the failed attempts by Members of Parliament to legalize this form of homicide.
PART 1 – HISTORY OF COURT CHALLENGES
Sue Rodriguez v The Attorney General of Canada and the Attorney General of British Columbia
[1993] 3 SCR 519, 107 DLR (4th) 342, 1993 CanLII 75
In 1992 Sue Rodriguez was sadly diagnosed with Amyotrophic lateral sclerosis (ALS or "Lou Gehrig's disease") and in 1993 it was determined by her doctors that she would live less than one year. Given the grave situation before her, Ms. Rodriguez applied to the Supreme Court of British Columbia to strike down Section 241 (b) of the Criminal Code of Canada under Sections 7 (the right to "life, liberty, and security of the person”), 12 (protection against "cruel and unusual punishment") and 15(1) (“equality”) of the Charter of Rights and Freedoms. Her legal counsel argued that under these particular sections of the Charter of Rights and Freedoms, Section 241(b) was unconstitutional and should be stricken down by the Supreme Court of British Columbia.
Fortunately however, the Supreme Court of British Columbia dismissed her application and the Court of Appeals of British Columbia upheld the decision by the former court. Ms. Rodriguez then appealed to the Supreme Court of Canada against the Attorney General of Canada and the Attorney General of British Columbia, who agreed to hear the appeal.
On May 20, 1993, the Supreme Court of Canada heard the case and rendered its decision on September 30, 1993. In the decision given by the court, five justices (Sopinka, J., La Forest, Gonthier, Iacobucci and Major, JJ.) ruled against four justices writing three dissenting opinions (McLachlin J joined by L’Heureux-Dube J, Lamer CJ and Cory, J), thus defeating the plaintiff’s appeal to the Supreme Court of Canada. This set a precedent which, given the importance of the legal principle of Stare decisis (that courts should let past decisions stand), most observers believed this would forever more render unsuccessful, any future court challenges against prohibition of euthanasia/assisted suicide. After all, how could the Supreme Court possibly ignore its own past decision or the persuasive authority of that precedent, granted by Stare decisis?
In the majority decision, the authors found that the plaintiff’s appeal based on Section 7 of the Charter of Rights and Freedoms failed since the prohibition on ending one’s life did not violate the fundamentals of justice, since the long-standing prohibition reflected the fundamental values of society.
In regards to the appeal based upon Section 12 of the Charter of Rights and Freedoms, the majority of justices found that treatment did not fall under cruel and unusual punishment as found in Section 12.
Finally, in regards to the plaintiff’s appeal under Section 15(1) of the Charter of Rights and Freedoms, the majority of justices found that this appeal failed since Section 1 of the Charter of Rights and Freedoms overruled any violation (assuming that there were any) found under Section 15(1).
One of the dissenting justices was Beverly McLauchlin, who would go on to serve as the Chief Justice of the Supreme Court of Canada in the Carter v. Attorney General of Canada case.
Sadly, in 1994 Ms. Rodriguez ended her life with the assistance of an anonymous physician.
Robert William Latimer v Her Majesty the Queen
[2001] 1 S.C.R. 3; 2001 SCC 1 (CanLII); (2001), 193 D.L.R. (4th) 577; [2001] 6 W.W.R. 409; (2001), 150 C.C.C. (3d) 129; (2001), 39 C.R. (5th) 1; (2001), 80 C.R.R. (2d) 189; (2001), 203 Sask. R. 1
Less than a month after the rendering of the Rodriguez decision by the Supreme Court of Canada, the Latimers came home to their Saskatchewan homestead on October 24, 1993 to find that their daughter Tracy had died. Originally, Robert Latimer (the father of Tracy) had claimed that she had simply died in her sleep, however once he was confronted by the police after the autopsy had found fatally high traces of carbon monoxide in her blood, he admitted to putting her in his truck while attaching a hose to the exhaust pipe to kill her by carbon monoxide poisoning.
Robert Latimer was charged and tried of murder to the first degree and was found guilty by a jury. The sentence rendered was life imprisonment with no chance of parole for 10 years. He appealed to the Saskatchewan Court of Appeal, which he lost. In February 1996, the Supreme Court of Canada agreed to hear his appeal, which they did in June 1996. In February 1997, the Supreme Court of Canada rendered their decision that the original Crown prosecutor in Saskatchewan had tampered with the jury and thus obstructing justice. The Court ruled that this caused a mistrial of Mr. Latimer and that a new trial would need to be heard.
In late 1997, the new jury found that Mr. Latimer was guilty of murder to the second degree and was sentenced to 10 years imprisonment. Mr. Latimer’s legal counsel argued that given the circumstances of the second-degree murder, that the 10 years prison sentence would be considered cruel and unusual punishment under Section 12 of the Charter of Rights and Freedoms. On December 1, 1997, the sentencing judge agreed and had shortened his sentence to two years less a day, with half being served in a minimum-security prison and the other half on his family farm under house arrest. It is worth noting that the minimum sentence for this crime was 10 years, as prescribed by the Criminal Code of Canada for those found guilty of murder in the second degree, and using the defence of necessity as Latimer claimed.
The Crown then appealed the sentencing ruling of two years less a day to the Supreme Court of Canada. The Supreme Court heard the case on June 14, 2000 and rendered its judgment on January 18, 2001.
On the plaintiff’s argument of Section 12 of the Criminal Code of Canada, the Supreme Court ruled unanimously that the plaintiff’s argument failed as the Court ruled on this question under the principle of mens rea (Latin for ‘a guilty mind’ meaning intent to commit the crime). Given that the plaintiff premeditated the crime and that the crime resulted in the most extreme possible scenario, the taking of an innocent life, the Court determined that any goodwill on behalf of the plaintiff to end the victim’s suffering was outweighed by the crime itself, that is, the taking of an innocent life.
On the plaintiff’s argument of the defence of necessity, the Court ruled that the defence of necessity can only be invoked where true involuntariness is present, as set out by precedent established previously by the Court. The plaintiff and his wife considered the ongoing surgeries of their daughter to be cruel and unnecessary for her. They also considered that a feeding tube, which would alleviate her pain in the administration of certain medications, would be intrusive. Under these premises, the plaintiff claimed the defence of necessity in his crime. The Court ruled that any ongoing surgeries and feeding tubes, even though they may cause some pain, were less than the deliberate taking of her life.
Mr. Latimer began serving his ten year sentence in 2001. In late 2007, he asked the Parole Board for day parole, but was denied when he did not show remorse for the decision to murder his daughter in the second degree. Eventually, through a series of appeals to the National Parole Board and the Federal Court of Canada, Mr. Latimer was granted day parole on December 6, 2010.
Carter v Attorney General of Canada
2015 SCC 5
In April 2011, the British Columbia Civil Liberties Association filed a lawsuit with the Supreme Court of British Columbia arguing that Sections 14 and 241 of the Criminal Code of Canada were unconstitutional under Sections 7 (the right to "life, liberty, and security of the person”) and 15 (equality) of the Charter of Rights and Freedoms. In June 2012, the Supreme Court of British Columbia ruled in favour of the plaintiff. The decision was subsequently appealed by the Attorney General of Canada to the Court of Appeal for British Columbia, who ruled in favour of the Attorney General of Canada and overruled the lower court’s decision by a two-to-one decision. The British Columbia Civil Liberties Association then appealed to the Supreme Court of Canada.
The Supreme Court of Canada heard the case on October 15, 2014 and rendered their decision on February 6, 2015. In a rare unanimous decision, they overturned their previous decision in Rodriguez v Attorney General of British Columbia and Attorney General of Canada in 1993, thus setting aside the principle of stare decisis. The Court ruled that Sections 14 and 241(b) of the Criminal Code of Canada were unconstitutional under Section 7 of the Charter of Rights and Freedoms. They furthermore ruled that Section 1 of the Charter did not override the violation of Section 7 of the Charter.
The decision legalized euthanasia and assisted suicide 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.”
The decision accepts that suffering can be either physical or psychological, meaning that people who live with chronic depression or even a disability that the person claims to have caused a form of psychological suffering, is indeed qualified to die by lethal injection.
The subjective language of the decision will lead to assisted death becoming the norm in similar situations that have led to such international concern in Belgium and the Netherlands
Also surprising was that the Court ruled that Parliament must come up with a law on the regulation of euthanasia within one year’s time from the date of the ruling.
PART 2 – HISTORY OF PARLIAMENTARY / LEGISLATIVE CHALLENGES
In addition to the various cases before the courts, there have also been attempts to amend the Criminal Code of Canada to allow for euthanasia and physician-assisted suicide in Parliament from both the House of Commons and the Senate.
In 1991, two private members’ bills were presented on the floor of the House of Commons, the first was Bill C-203, introduced by Progressive Conservative MP Robert Wenmen. This bill had the potential to introduce euthanasia into medical practice through its vague definitions. The bill died in committee.
Another bill in 1991 was introduced by Saskatchewan NDP MP Chris Axworthy, Bill C-261. If passed, this piece of legislation would legalize euthanasia and create some regulations around the administration of those being euthanized. The bill was eventually dropped from the Order Paper on October 24, 1991 upon second reading.
In 1994, British Columbia NDP MP, Svend Robinson, introduced Bill C-215 as a private members’ bill. This piece of legislation would allow physician-assisted suicide upon request of a terminally ill patient. The bill was dropped from the Order Paper in September 1994 as it was determined to be not votable.
There were also attempts to legalize euthanasia from the Senate as well. In 1997, Liberal Senator Sharon Carstairs (Manitoba) introduced Bill S-13, which would protect medical professionals from criminal liability in the administration of drugs to purposely end a patient’s life if they so freely requested. The bill died upon dissolution of Parliament due to the 1997 federal election.
Senator Carstairs introduced a second piece of legislation, Bill S-2, which passed first and second reading so that it could be referred to the Senate committee. The bill would allow for the administration of medicine to alleviate pain for a dying patient with the recognition that such administration of said medicine could potentially shorten the life of the patient. The bill would also legislate the right of refusal of medical treatment for patients. However, the bill would also allow for those mentally and physically disabled to communicate such a wish through other, non-written or non-verbal forms of communication. It was concerning amongst many Senators that such provisions within the bill could be abused by healthy relatives of a dying person in that state. The bill died in the committee due to dissolution of Parliament for the 2000 federal election.
Between 2005 and 2008, Bloc Quebecois MP Francine Lalonde introduced three pieces of legislation to legalize euthanasia. On June 25, 2005 Bill C-407 was introduced in the House of Commons, but died on the Order Paper when Parliament was dissolved for the 2006 general federal election.
Upon her re-election, she introduced Bill C-562 on June 12, 2008 in the House of Commons, which was essentially identical to the bill introduced in 2005. The bill died on the Order Paper due to the dissolution of Parliament for the 2008 general federal election. On May 13, 2009, Ms. Lalonde introduced Bill C-384, again being essentially the same as the other two previous bills. It reached second reading, and if passed, it would have given doctors permission to kill a wide range of Canadians including people who are seriously ill but not dying and who in fact, have a treatable condition. Doctors would also have been permitted to kill people suffering with treatable chronic depression. Fortunately, this deplorable bill was defeated on April 21, 2010 by a wide margin of 228 votes against to 59 votes in favour.
During 2014 pro-euthanasia MPs made a strong push with private members bills in the hope of influencing both the Supreme Court of Canada’s decision in the Taylor case, as well as to give the pro-suicide mainstream media more fodder to convince the public, through biased and selective reporting, that legalization would be good for society. On March 27, 2014, the Conservative MP Steven Fletcher, who is a quadriplegic, introduced his pro-euthanasia bill C-581 for first reading.
On December 2, 2014 two Canadian Senators, Liberal Senator Larry Campbell and the red Tory Senator Nancy Ruth, introduced Bill S-225 to legalize euthanasia. Both the Senate and House of Commons bills died with dissolution of Parliament before the 2015 Federal election.
Prime Minister Justin Trudeau’s Bill C-14 was introduced on April 14, 2016, less than two months before the Supreme Court’s imposed June 6 deadline. On June 16, 2016, the House of Commons voted 190 to 108 in favour of legalizing the killing of human life by euthanasia and assisted suicide. On June 17, the Senate passed the Liberal Government’s bill in a 44 to 28 vote, and a few hours later, it received royal assent and officially became law. The Liberal government has signaled that it plans to broaden it further, so as to permit the euthanasia of children and patients suffering from mental illness, likely in the next 2–5 years. Also, as predicted by anti-euthanasia experts, the pro-euthanasia lobby has already started to challenge the law through the courts.