Category: Legal Commentary

A tour of Carter v. Canada

Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia.

Abstract

A British Columbia Supreme Court Justice has struck down Canada’s absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. It pertains only to cases of physician-assisted suicide or homicide. She has suspended the ruling for a year to give the government time to decide how to respond, but, in the meantime, has ruled that a physician may help one of the plaintiffs to commit suicide or provide her with therapeutic homicide. The government of Canada has filed notice of appeal.

The trajectory of the trial was determined by the unchallenged fundamental premise that suicide can be a rational and moral act, and that the sole purpose of the law against assisted suicide is to prevent suicides by vulnerable people in moments of weakness, who might be tempted to commit suicide that is not rational and moral. The only issue was whether or not safeguards could be designed to permit legitimate access to assisted suicide, while preventing the vulnerable from accessing it in moments of weakness.

It was not thought reasonable to demand that a system of safeguards be 100% effective. A different standard was required. The standard chosen was the current regime of end-of-life practices, since the outcome of a mistake in this regime (‘death before one’s time’) is the same as the outcome of a mistake in regulating assisted suicide.

Patient safety in end-of-life care is currently ensured by the principle of informed consent, assessment of patient competence, and the use of legal substitute decision-makers for incompetent patients. Since these measures are considered sufficient for the purposes of withholding, withdrawing or refusing treatment, it was decided that they should be sufficient for the regulation of assisted suicide for competent adults. The burden of proof was on the defendant governments to prove that this could not be done. The text of the ruling indicates that they provided evidence of risk, but failed to prove that safeguards cannot be effective.

Madam Justice Smith does not rely on any part of the ethical discussion in Part VII of the ruling in reaching her conclusion about the constitutional validity of the law against assisted suicide. The discussion of ethics in Part VII is a judicial soliloquy that is likely to capture the attention of readers, but it is likely to distract them from the pith and core of the judgement and contribute to rather than minimize confusion and controversy.

In legal argument, keeping prudent silence about morality, philosophy or religion does not produce a morally neutral judicial forum. It simply allows dominant moral or philosophical beliefs to set the parameters for argument and adjudication. However, in the case of conscientious objection to participation in assisted suicide or therapeutic homicide, an appeal to freedom of conscience or religion must make direct reference to the beliefs of the objector about the moral nature of the act to which he objects.

[Full Commentary Text]

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