BC Supreme Court judge strikes down law that prohibits Doctor assisted suicide

[Bertuzzi Babe]

Report the messages and get him banned. It means I'll lose the over/under on him but that stuff just isn't acceptable.

[Drybone]

Federal government to appeal B.C. court decision on assisted suicide

By Tara Carman, Vancouver Sun July 13, 2012 11:10 AM

The federal government will appeal the B.C. Supreme Court decision striking down the legal ban on physician-assisted suicide, the Department of Justice announced Friday.

Ottawa's position is that the law exists to protect those who are most vulnerable, such as the sick, the elderly, and those with disabilities. The Supreme Court of Canada acknowledged the state interest in protecting human life by upholding the current law in the 1993 case of B.C. resident Sue Rodriguez, the federal Justice Department said in a statement.

B.C. Supreme Court Justice Lynne Smith ruled on June 15 that the current law violates the constitutional rights of the three plaintiffs who led the legal challenge, one of whom is terminally ill.

In the ruling, Smith granted Gloria Taylor a constitutional exemption permitting her the option of a physician-assisted death under a number of conditions.

The judge found that "palliative care cannot relieve all suffering" and accepted that legal end-of-life practices allow doctors to withhold life-sustaining treatment and administer palliative sedation to the point of hastening death.

But the federal government is challenging that ruling.

"The government is of the view that the Criminal Code provisions that prohibit medical professionals, or anyone else, from counselling or providing assistance in a suicide, are constitutionally valid," the statement said.

"The government also objects to the lower court's decision to grant a 'constitutional exemption' resembling a regulatory framework for assisted suicide."

The federal government will argue its case before the B.C. Court of Appeal at a future date, the statement said.

The Justice Department also noted that parliamentarians voted in April 2010 not to change the current law and called physician-assisted suicide "an emotional and divisive issue for many Canadians."

tcarman@vancouversun.com

© Copyright © The Vancouver Sun

http://www.vancouver...0314/story.html

It didn't take very long for Harper's Tory government to step in and interfere with our province's internal matter, did it?

[Bertuzzi Babe]

Federal government to appeal B.C. court decision on assisted suicide

By Tara Carman, Vancouver Sun July 13, 2012 11:10 AM

The federal government will appeal the B.C. Supreme Court decision striking down the legal ban on physician-assisted suicide, the Department of Justice announced Friday.

Ottawa's position is that the law exists to protect those who are most vulnerable, such as the sick, the elderly, and those with disabilities. The Supreme Court of Canada acknowledged the state interest in protecting human life by upholding the current law in the 1993 case of B.C. resident Sue Rodriguez, the federal Justice Department said in a statement.

B.C. Supreme Court Justice Lynne Smith ruled on June 15 that the current law violates the constitutional rights of the three plaintiffs who led the legal challenge, one of whom is terminally ill.

In the ruling, Smith granted Gloria Taylor a constitutional exemption permitting her the option of a physician-assisted death under a number of conditions.

The judge found that "palliative care cannot relieve all suffering" and accepted that legal end-of-life practices allow doctors to withhold life-sustaining treatment and administer palliative sedation to the point of hastening death.

But the federal government is challenging that ruling.

"The government is of the view that the Criminal Code provisions that prohibit medical professionals, or anyone else, from counselling or providing assistance in a suicide, are constitutionally valid," the statement said.

"The government also objects to the lower court's decision to grant a 'constitutional exemption' resembling a regulatory framework for assisted suicide."

The federal government will argue its case before the B.C. Court of Appeal at a future date, the statement said.

The Justice Department also noted that parliamentarians voted in April 2010 not to change the current law and called physician-assisted suicide "an emotional and divisive issue for many Canadians."

tcarman@vancouversun.com

© Copyright © The Vancouver Sun

http://www.vancouver...0314/story.html

It didn't take very long for Harper's Tory government to step in and interfere with our province's internal matter, did it?

[Sharpshooter]

On it's way.

Sorry about the over/under EOTM but the best before date expired.....

He seems to think deleting the convo thread means all those comments just disappear!

T'isn't so, Tommy, boy.

[Bertuzzi Babe]

There was a pool?!?

[Drybone]

I really hope the findings will stand in the Supreme Court. I wonder how long it will take to make it before oral arguments.

[LostViking]

I agree with the ruling, but hope they use good judgement before assisting in suicide.

The reason I say that is because my grandmother was recently in the hospital for a hip replacement, after the surgery they wanted her to go into a transition home at UBC for a few weeks while she recuperated. Problem was, they asked her about it immediately after the surgery, while she was still under the anesthetic. Now my grandmother hasn't experienced any mental degradation and has full mental capacity to make decisions, but I'll point out she did transfer power of attorney to the family in the event of emergency.

She really didn't understand what they were asking, and thought they were trying to force her into a retirement home, and became very upset and refused to go. Family was called, but since my parents (who held power of attorney) were on vacation and couldn't be reached, my sister (being geographically the closest) was contacted. Now my sister is pretty weak-willed (cannot deal with emotionally difficult situations and has mental health issues), and as soon as my grandmother said she wasn't going to UBC and wanted to go back to her home, my sister caved and agreed.

So my grandmother was sent home dreadfully early, got a really bad infection and nearly died because of it, she ended up back in the hospital a couple days later. She realized after a day of rest that she had misunderstood the situation and should have gone to the transit house, but by that time the infection had occurred and the damage was done.

From the hospital viewpoint they had asked the patient, and then further had confirmed the decision with the family, they had done their due diligence and didn't feel responsible at all. They ignored completely the fact that my grandmother was in no mental condition to make decisions while on anesthetic and that my sister is useless is these matters (and also didn't have legal authority to make that decision). No one bothered to double check anything, and legally I am the one who has power of attorney in my parent's absence, yet I was never contacted once.

So I would just hope they don't treat assisted suicide the same way they treated this situation. I felt they really dropped the ball, but they quoted me something about procedure being followed and really didn't seem to care at all. I'm guessing they are just far too overworked to spend the proper time on these sorts of things, they have to have a decision and move on to the next patient, no time for deliberation.

Edit: I will also add my grandmother became very depressed in the hospital, and stated numerous times should would rather just die. Once her infection cleared up and she was getting better, she admitted she was just being difficult and was glad to be back home and out and about again. Sometimes it may be difficult to judge if someone really wants to die or is just proliferating a defeatist attitude. I hope they have good people to make that call.

[Bertuzzi Babe]

I agree with the ruling, but hope they use good judgement before assisting in suicide.

The reason I say that is because my grandmother was recently in the hospital for a hip replacement, after the surgery they wanted her to go into a transition home at UBC for a few weeks while she recuperated. Problem was, they asked her about it immediately after the surgery, while she was still under the anesthetic. Now my grandmother hasn't experienced any mental degradation and has full mental capacity to make decisions, but I'll point out she did transfer power of attorney to the family in the event of emergency.

She really didn't understand what they were asking, and thought they were trying to force her into a retirement home, and became very upset and refused to go. Family was called, but since my parents (who held power of attorney) were on vacation and couldn't be reached, my sister (being geographically the closest) was contacted. Now my sister is pretty weak-willed (cannot deal with emotionally difficult situations and has mental health issues), and as soon as my grandmother said she wasn't going to UBC and wanted to go back to her home, my sister caved and agreed.

So my grandmother was sent home dreadfully early, got a really bad infection and nearly died because of it, she ended up back in the hospital a couple days later. She realized after a day of rest that she had misunderstood the situation and should have gone to the transit house, but by that time the infection had occurred and the damage was done.

From the hospital viewpoint they had asked the patient, and then further had confirmed the decision with the family, they had done their due diligence and didn't feel responsible at all. They ignored completely the fact that my grandmother was in no mental condition to make decisions while on anesthetic and that my sister is useless is these matters (and also didn't have legal authority to make that decision). No one bothered to double check anything, and legally I am the one who has power of attorney in my parent's absence, yet I was never contacted once.

So I would just hope they don't treat assisted suicide the same way they treated this situation. I felt they really dropped the ball, but they quoted me something about procedure being followed and really didn't seem to care at all. I'm guessing they are just far too overworked to spend the proper time on these sorts of things, they have to have a decision and move on to the next patient, no time for deliberation.

[Sharpshooter]

I agree with the ruling, but hope they use good judgement before assisting in suicide.

The reason I say that is because my grandmother was recently in the hospital for a hip replacement, after the surgery they wanted her to go into a transition home at UBC for a few weeks while she recuperated. Problem was, they asked her about it immediately after the surgery, while she was still under the anesthetic. Now my grandmother hasn't experienced any mental degradation and has full mental capacity to make decisions, but I'll point out she did transfer power of attorney to the family in the event of emergency.

She really didn't understand what they were asking, and thought they were trying to force her into a retirement home, and became very upset and refused to go. Family was called, but since my parents (who held power of attorney) were on vacation and couldn't be reached, my sister (being geographically the closest) was contacted. Now my sister is pretty weak-willed (cannot deal with emotionally difficult situations and has mental health issues), and as soon as my grandmother said she wasn't going to UBC and wanted to go back to her home, my sister caved and agreed.

So my grandmother was sent home dreadfully early, got a really bad infection and nearly died because of it, she ended up back in the hospital a couple days later. She realized after a day of rest that she had misunderstood the situation and should have gone to the transit house, but by that time the infection had occurred and the damage was done.

From the hospital viewpoint they had asked the patient, and then further had confirmed the decision with the family, they had done their due diligence and didn't feel responsible at all. They ignored completely the fact that my grandmother was in no mental condition to make decisions while on anesthetic and that my sister is useless is these matters (and also didn't have legal authority to make that decision). No one bothered to double check anything, and legally I am the one who has power of attorney in my parent's absence, yet I was never contacted once.

So I would just hope they don't treat assisted suicide the same way they treated this situation. I felt they really dropped the ball, but they quoted me something about procedure being followed and really didn't seem to care at all. I'm guessing they are just far too overworked to spend the proper time on these sorts of things, they have to have a decision and move on to the next patient, no time for deliberation.

Edit: I will also add my grandmother became very depressed in the hospital, and stated numerous times should would rather just die. Once her infection cleared up and she was getting better, she admitted she was just being difficult and was glad to be back home and out and about again. Sometimes it may be difficult to judge if someone really wants to die or is just proliferating a defeatist attitude. I hope they have good people to make that call.

[Drybone]

I agree with the ruling, but hope they use good judgement before assisting in suicide.

Edit: I will also add my grandmother became very depressed in the hospital, and stated numerous times should would rather just die. Once her infection cleared up and she was getting better, she admitted she was just being difficult and was glad to be back home and out and about again. Sometimes it may be difficult to judge if someone really wants to die or is just proliferating a defeatist attitude. I hope they have good people to make that call.

[Bertuzzi Babe]

Thanks for this. You clearly put a lot into it.

+1

I agree that on the surface its a great idea but I am definitely concerned with the patient being in a coma and the doctor having to make a judgement call on the chances of death or no quality of life .

I think we can hope that they do the best they can under difficult circumstances.

[Sharpshooter]

Thanks for this. You clearly put a lot into it.

+1

I agree that on the surface its a great idea but I am definitely concerned with the patient being in a coma and the doctor having to make a judgement call on the chances of death or no quality of life .

I think we can hope that they do the best they can under difficult circumstances.

[Wetcoaster]

A poster e-mailed me and asked me to post my take on this decision and the appeal.

By way of summary...

• IMHO Madame Justice Smith was wrong in law in her decision and disregarded the ruling Supreme Court of Canada precedent in the 1993 Sue Rodriguez case by performing a judicial two-step to try to avoid it. The BCCA is most likely to recognize this and overturn the decision.

• Philisophically I am in favour of physician assisted suicide but knowing lawyers as well as I do, I fear the slippery slope if the prohibition on assisted suicide is removed, regardless of any regulatory regime being put in place.

• IMHO this is not a matter for the courts as this in most assuredly not amenable to judicial lawmaking and only Parliament should be making laws in this area.

There is an old legal maxim that applies in this area.

"This is one of those unfortunate cases...in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced.

Hard cases, it has frequently been observed, are apt to introduce bad law.

"

~ per Baron Rolfe in Winterbottom v Wright (1842) 10 M&W 109.

In this case the hard case of Gloria Taylor has moved Madame Justice Smith to make bad law.

Madame Justice Smith whom I have known for 30 years (and for whom I have the greatest respect) got this decision wrong. I am in favour of judicial activism where there is a clear Charter breach but this is not one of those situations. This is a policy choice for Parliament to make and not for the judiciary to intervene.

I have read her decision carefully and re-read that of the SCC in Rodriguez - IMHO she put an interpretation upon Rodriguez that does not hold up under scrutiny. Her decision relies upon S. 15 of the Charter and she says that the SCC did not fully consider the equality argument in Rodriguez (they did and the majority rejected it while two judges adopted it as the basis for their minority dissenting opinion) and that Section 1 interpretation has changed since Rodriguez (it has but not to the extent sufficient to differentiate the two decisions.)

You should also read the SCC decision in Rodriguez that is a binding precedent for a lower court judge such as Madame Justice Smith.

And IMHO Madame Justice Smith made bad law in her decision.

The highest court in the land has ruled the Criminal Code provision prohibiting assisted suicide is constitutional (Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519).

On 21 April 2010 in a free vote in a minority Parliament MPs voted overwhelmingly 258 - 59 against amending the Criminal Code to allow physician assisted suicide

http://www.cbc.ca/ne...-bill-vote.html See Parliamentary Background Paper No. 2010-68-E Euthanasia and Assisted Suicide in Canada (Revised 3 December 2010) http://www.parl.gc.c.../2010-68-e.htm.

The Canadian Medical Association opposes physician assisted suicide per CMA POLICY

EUTHANASIA AND ASSISTED SUICIDE (UPDATE 2007)

http://policybase.cm...pdf/PD07-01.pdf

The courts should only intervene and displace Parliament's judgment when a law is unconstitutional, otherwise they must defer to the legislature as in this case.

The various arguments pro and con were surveyed in the 1993 Supreme Court of Canada case Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 http://scc.lexum.org...93scr3-519.html

The case examined the constitutionality of the Criminal Code prohibition on assisted suicide (Section 241( of the CCC) and in a 5-4 decision upheld the section as constitutional although there were three separate minority opinions.

Per the case headnote...

The majority (La Forest, Sopinka, Gonthier, Iacobucci and Major JJ):

The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7.

Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241(

, which is a sufficient interaction with the justice system to engage the provisions of s. 7, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.

The expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to review the common law and the legislative history of the offence in question and, in particular, the rationale behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie it. It is also appropriate to consider the state interest. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7.

Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code. The long‑standing blanket prohibition in s. 241(

, which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This state policy is part of our fundamental conception of the sanctity of life. A blanket prohibition on assisted suicide similar to that in s. 241(

also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. These societies, including Canada, recognize and generally apply the principle of the sanctity of life subject to narrow exceptions where notions of personal autonomy and dignity must prevail.

Distinctions between passive and active forms of intervention in the dying process continue to be drawn and assisted suicide in situations such as the appellant's is prohibited with few exceptions. No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241(

therefore does not infringe s. 7 of the Charter.

As well, s. 241(

of the Code does not infringe s. 12 of the Charter. The appellant is not subjected by the state to any form of cruel and unusual treatment or punishment. Even assuming that "treatment" within the meaning of s. 12 may include that imposed by the state in contexts other than penal or quasi‑penal, a mere prohibition by the state on certain action cannot constitute "treatment" under s. 12. There must be some more active state process in operation, involving an exercise of state control over the individual, whether it be positive action, inaction or prohibition. To hold that the criminal prohibition in s. 241(

, without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of being "subjected to . . . treatment" by the state.

The problem as noted is what about non-competent persons? Who gets to decide? This is the "slippery slope" feared by the Supreme Court of Canada, Members of Parliament and the Canadian Medical Association.

This was the issue in the Robert Latimer case - R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1 http://scc.lexum.org...1/2001scc1.html

The Latimer case involves a profoundly handicapped child and when does a parent or caregiver have the right to terminate the child's life as a matter of claimed mercy and compassion. The case also involves the issue of mandatory minimum punishment for crimes such as murder.

Latimer was charged with first degree murder following the death of T, his 12‑year‑old daughter who had a severe form of cerebral palsy. T was quadriplegic and her physical condition rendered her immobile. She was said to have the mental capacity of a four‑month‑old baby, and could communicate only by means of facial expressions, laughter and crying. T was completely dependent on others for her care. She suffered five to six seizures daily, and it was thought that she experienced a great deal of pain. She had to be spoon‑fed, and her lack of nutrients caused weight loss. There was evidence that T could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered, but the accused and his wife rejected this option. After learning that the doctors wished to perform additional surgery, which he perceived as mutilation, the accused decided to take his daughter's life. He carried T to his pickup truck, seated her in the cab, and inserted a hose from the truck's exhaust pipe into the cab. T died from the carbon monoxide. The accused at first maintained that T had simply passed away in her sleep, but later confessed to having taken her life. The accused was found guilty of second degree murder and sentenced to life imprisonment without parole eligibility for 10 years; the Court of Appeal upheld the accused's conviction and sentence, but the Supreme Court of Canada ordered a new trial due to misconduct on the part of the police and Crown Counsel.

During the second trial defence counsel asked the trial judge for a ruling, in advance of his closing submissions, on whether the jury could consider the defence of necessity. The trial judge told counsel that he would rule on necessity after the closing submissions, and later ruled that the defence was not available. In the course of its deliberations, the jury sent the trial judge a note inquiring, in part, whether it could offer any input into sentencing. The trial judge told the jury it was not to concern itself with the penalty. He added: "it may be that later on, once you have reached a verdict, you – we will have some discussions about that". After the jury returned with a guilty verdict, the trial judge explained the mandatory minimum sentence of life imprisonment, and asked the jury whether it had any recommendation as to whether the ineligibility for parole should exceed the minimum period of 10 years. Some jury members appeared upset, according to the trial judge, and later sent a note asking him if they could recommend less than the 10‑year minimum. The trial judge explained that the Criminal Code provided only for a recommendation over the 10‑year minimum, but suggested that the jury could make any recommendation it liked. The jury recommended one year before parole eligibility. The trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the accused to one year of imprisonment and one year on probation. The Court of Appeal affirmed the conviction but reversed the sentence, imposing the mandatory minimum sentence of life imprisonment without parole eligibility for 10 years. On appeal to the Supreme Court of Canada the SCC was clear that its hands were tied and upheld the life sentence, with no possibility of parole for 10 years with great regret.

Robert Latimer was first turned down by the National Parole Board when he applied for a parole on the grounds he was risk to re-offend and showed no remorse for his crime. That decision was overturned on appeal and on December 6, 2010 was granted full parole. He is still fighting to have his case re-opened.

Like the Rodriguez case, the case of Robert Latimer shows that facts can make for very hard cases - and there are clearly competing societal interests at issue.

Rex Murphy of the CBC did an excellent opinion piece on the Latimer case titled 'Compassionate homicide': The law and Robert Latimer:

http://www.cbc.ca/ne...e-homicide.html

This is not something that a judge should be deciding but rather Parliament. The present law has already been declared constitutional by the Supreme Court of Canada so it is a matter for Parliament to change. Changing the law on assisted suicide may be doable (but IMHO should not be) but only if the appropriate legal safeguards are in place and that is not amenable to a judge made law. The problem that I have is that I am not sure it is possible to create a system that will build in the proper safeguards. It sort of reminds me of the NHL... Bettman tries to build an idiot-proof system and along come better idiots to get around it.

The SCC was clear in the Rodriguez decision that the current law is constitutional. The SCC ruled the criminal prohibition on assisting suicide in situations where a person is terminally ill and mentally competent but unable to commit suicide by him or herself, is not contrary to the principles of fundamental justice. To the extent that a consensus exists, Mr. Justice Sopinka noted, "it is that human life must be respected ...." To allow physician-assisted suicide, he observed, would erode the belief in the sanctity of human life and suggest that the state condones suicide.

In the Rodriguez case Justice Sopinka warned against this sort of judicial lawmaking in this area and raised what he felt were the following serious concerns.

Striking down the prohibition on assisted suicide, he argued, would recognize a constitutional right to assisted suicide that went beyond that in any other western country and any legitimate proposals for reform. Moreover, it would extend beyond an individual claim made.

He also pointed out that the judicial regulatory model does not provide for safeguards of the type found in the Dutch guidelines or the reforms in the states of Washington and California. He noted proposed conditions for obtaining an order approving assisted suicide to be vague and in some cases unenforceable. He also felt that uncertainty would arise because the conditions were to serve only as guidelines; thus, individual judges would be left to decide upon any application for assisted suicide.

The courts should be wary (and they generally are) of usurping the proper function of the legislature.

In this case I have the greatest respect for Madame Justice Lynn Smith whom I have known for 30+ years but IMHO her decision is contrary to that of the SCC and she allowed her feelings of empathy and compassion for a particular person to override her legal reasoning.

For those who have not read the decision it is posted at the BC court website.

http://www.courts.go...012BCSC0886.htm

Madame Justice Smith performs a tricky judicial sleight of hand in trying to get around the SCC Rodriguez decision but IMHO it does not hold up under scrutiny. She says the SCC "in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez... (I decide otherwise based upon S. 15)".

There has been a modification of Section 1 analysis but not sufficient that would allow the SCC prior ruling in Rodriguez to be ignored.

If the Rodriguez decsion is to be reversed judicially it can only be done by the SCC itself, not a lower court.

There is another problem with the particular application of this ruling to Gloria Taylor. Madame Justice Lynn Smith ruled she was giving Taylor an "exceptional remedy of a constitutional exemption" while Parliament decides whether and how to respond to the declarations of constitutional invalidity. The SCC ruled in the James Latimer case (where he euthanized his profoundly disabled 13 year old daughter) that a constitutional exemption was not an available remedy in such cases.

And this matter came before Parliament less than 2 years ago and was overwhelmingly defeated in a free vote (no party whipping allowed) and that was in a minority Parliament so no whinging about Harper and the religious right wing. On 21 April 2010 Bill C-384 legalizing assisted suicide went down to a crushing defeat in the House of Commons by a vote of 228 to 59. Parliament has spoken on this issue and it is a matter properly within the purview of the legislature.

The Canadian Medical Association is opposed to physician assisted suicide and wrote in 2009 in response to Bill C-384, an Act to amend the Criminal Code (right to die with dignity):

"The CMA does not support euthanasia or assisted suicide and urges our members to uphold the principles of palliative care," President Anne Doig wrote in a letter to MP Francine Lalonde, author of Bill C-384, an Act to amend the Criminal Code (right to die with dignity). She also noted that "euthanasia and assisted suicide are opposed by almost every national medical association and prohibited by the law codes of almost all countries."

The "slippery slope" argument that was noted by the Supreme Court of Canada as a danger in the Rodriguez case. For the purposes of that case, Mr. Justice Sopinka assumed that Ms. Rodriguez’s equality rights under s. 15 of the Charter had been infringed. As a result, the principal question before him was whether the infringement could be saved by s. 1 of the Charter, which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Mr. Justice Sopinka concluded that the infringement under s 15 was justified under s. 1. The purpose of s. 241( , he noted, is to protect individuals from others who may wish to control their lives. To create an exception to the prohibition against assisted suicide for certain groups of persons would create an inequality and lend support to the notion that we are starting down the "slippery slope" toward full recognition of euthanasia. He considered the creation of safeguards to prevent abuse unsatisfactory and insufficient to calm fears of the likelihood of abuse. He was concerned that Section 15 of the Charter could be used to extend the "right to die" beyond any regulatory limits imposed. IMHO this is a valid concern.

As noted on 21 April 2010 the House of Commons soundly rejected that bill that would have legalized physician-assisted suicide in an overwhelming vote of 228-59. MPs were concerned it would take the country down a "slippery slope" in which severely disabled or dying people could be euthanized without their consent. Also the concern is such measures could relieve the pressure on society to provide the level of social and health support required to make severely injured or ill patients want to live or fund palliative care.

http://www.cbc.ca/ne...-bill-vote.html

The Canadian Medical Association raises similar concerns in it policy - EUTHANASIA AND ASSISTED SUICIDE (UPDATE 2007)

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. Courts may be asked to hear cases involving euthanasia for incompetent patients on the basis of advance directives or requests from proxy decision makers. Such cases could involve neurologically impaired patients or newborns with severe congenital abnormalities. The "Groningen protocol," which sets out five criteria for the provision of euthanasia to incurably ill babies, was adopted in Holland. Psychiatrists recognize the possibility that a rational, otherwise well person may request suicide. Such a person could petition the courts for physician-assisted suicide.

http://policybase.cm...pdf/PD07-01.pdf

We don't need to speculate on the slippery slope. The Netherlands has already gone down this slippery slope and provided the statistics that should stop us going down the same path.

A 1973 court decision in the Netherlands started the process. Doctors and lawyers set strict guidelines to restrict when doctors could assist a terminally ill patient who wanted to commit suicide, and to protect a terminally ill patient who didn't want to be euthanized.

"In only 23 years, Dutch doctors have gone from being permitted to kill the terminally ill who ask for it, to killing the chronically ill who ask for it, to killing newborn babies in their cribs because they have birth defects, even though by definition they cannot ask for it. Dutch doctors also engage in involuntary euthanasia without significant legal consequence, even though such activity is officially prohibited," writes Wesley J. Smith in Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder

Madame Justice Smith should have borne these word in mind from SCC Justice (now Chief Justice) McLachlin when she wrote in a 1989 SCC case on the proper role of the judiciary in our system:

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.

There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.

Considerations such as these suggest that major revisions of the law are best left to the legislature. Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.

This is a matter for Parliament and not the Courts. T

he reason why you do not allow the judiciary to put in place what should be a regulatory regime is that unlike a legislature is that there is no viable compliance or enforcement mechanism able to be put in place by the courts - that is the province of the legislature. That is why the Supreme Court of Canada cautioned against the courts being involved in this fashion in the Rodriguez case.

Hope this sheds some light on the case and the appeal. Ciao.

[Bertuzzi Babe]

Thanks, WC! Nice to see you pop back in even if it's just for a drive-by!

[Sharpshooter]

Ah, Wetcoaster's post is like cool rain for those who thirst for a little reprieve from the heat of stupidity in an ignorant desert.

Thank you old man 'Wetter' for that.

[Jägermeister]

Like Westcoaster said, there is definitely a slippery slope when it comes to people who are incapable of making the decisions for themselves, and perhaps that subject could be touched on at a later point. However I hope one day a better system could be brought up allowing parents/guardians/spouses to be able to make the decision for the ones they care for.

As of now, I see no reason why somebody who is terminally ill, and is still at the point where they are of sound mental health, should not be given the option to assisted suicide when the pain begins to be too much for them to bare anymore. It is unfair for all parties involved to see somebody slowly deteriorating, who no longer has the will to live, being stuck in a hospital bed literally waiting to die for months, or even years on end.

I know if I was ever in that state, I would hope that I wouldn't have to succumb to waiting for my entire body to slowly shut down on me, and not being able to have any say in the matter.

Good ruling.

[Drybone]

Like Westcoaster said, there is definitely a slippery slope when it comes to people who are incapable of making the decisions for themselves, and perhaps that subject could be touched on at a later point. However I hope one day a better system could be brought up allowing parents/guardians/spouses to be able to make the decision for the ones they care for.

As of now, I see no reason why somebody who is terminally ill, and is still at the point where they are of sound mental health, should not be given the option to assisted suicide when the pain begins to be too much for them to bare anymore. It is unfair for all parties involved to see somebody slowly deteriorating, who no longer has the will to live, being stuck in a hospital bed literally waiting to die for months, or even years on end.

I know if I was ever in that state, I would hope that I wouldn't have to succumb to waiting for my entire body to slowly shut down on me, and not being able to have any say in the matter.

Good ruling.

[dajusta]

Very slippery slope if we allow people to choose their own deaths.

Emotions always gets the best of us, and do we normally make logical decisions when we are emotional?

We also open another dark path for circumstances where the victim is not capable of making that decision. Does the family make the decision? Won't it be a conflict of interest if the family benefits from the death?