Lessons on Life-Taking Legislation from Canada

In light of Canada’s radical decriminalisation of “medical assistance in dying”, what lessons should the UK learn? Samuel Basden, writing for CARE, takes a look.

On 17 June 2016, the Canadian Government’s assisted suicide Bill (C-14) – which allows Canadian patients to receive medically assisted suicide under conditions where death has become “reasonably foreseeable” – received Royal Assent and is now an Act of Parliament. This adds Canada to the short list of countries where euthanasia or assisted suicide is now legally practiced, including Switzerland, the Netherlands and Belgium, as well as a handful of US states such as Oregon, Washington, Vermont and California.

However, the addition of Canada to this list is noteworthy, not least because of the comparisons which can be made with the UK in terms of government structure, GDP, unemployment rate, life expectancy and a host of other factors. Throughout the judgment of the UK Supreme Court’s Nicklinson case, wherein the applicants sought to receive medically assisted suicide contrary to UK law, the Supreme Court Justices pulled large volumes of evidence, arguments and other materials (thirteen distinct references in total) from a nearly identical contemporary case in the Canadian Supreme Court titled Carter vs. Canada (Attorney General). In the end, the request was declined, however the UK Supreme Court did ask Parliament to consider reviewing its approach to assisted suicide. Both Lord Falconer of Thoroton and Rob Marris MP proposed Assisted Dying Bills in 2014-15. Each Bill fell. The Falconer Bill expired with the prorogation of Parliament, whereas the Marris Bill was thrown out at Second Reading on 12 September 2015 by 330 votes to 118, sending a clear signal that the UK wants to see vulnerable people cared for rather than killed.

In contrast, the Supreme Court of Canada ruling on the Carter case determined that “prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice”. Translation: euthanasia should be a free choice and the fact that it is illegal is therefore contrary to the Canadian Charter of Rights and Freedoms. They gave Canada’s Parliament twelve months to amend the divergence between the Charter and the Criminal Code before euthanasia would be functionally decriminalised. The 2015 Canadian General Election delayed legislation which was eventually proposed by the Liberal Government under the leadership of Prime Minister Justin Trudeau as Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts on 14 April 2016.

C-14’s approach to legalizing “assisted dying” in Canada follows (though is perhaps even worse than) the Belgian model, where one Canadian Medical Association Journal report revealed that as many as 32% of euthanised patients in 2007 had not provided consent for the procedure. Canadian Justice Minister Jody Wilson-Raybould reassured fellow MPs that C-14 “strikes the appropriate balance between the autonomy of the person who seeks medical assistance in dying… and the interests of vulnerable persons in need of protection”. However, Canada’s legal counsel with the Euthanasia Prevention Coalition, Hugh Scher, claims the legislation “is a Trojan horse that falsely claims to provide clear and effective guidelines… a perfect cover for murder”. Clauses include the protection of those who had “reasonable but mistaken belief” that the euthanised patient met the appropriate criteria – criteria which incorporates any adult in “an advanced state of irreversible decline in capability”whose condition “causes them enduring physical or psychological suffering”. Association for Reformed Political Action lawyer, Andre Schutten, claims that C-14 “will put the lives of vulnerable people at unacceptable risk, thus violating their constitutional right to equal protection of the law”. The Council of Canadians with Disabilities claimed “C-14 does not go far enough to protect vulnerable Canadians” partially due to the lack of safeguards, and also because those with disabilities may be pressured into euthanasia in order to avoid being falsely perceived as a burden to society.

The passing of this landmark legislation has not progressed without several politically concerning elements. First, the Supreme Court of Canada acted as a pseudo-legislator by applying a dynamic reinterpretation to Canada’s most unalterable, but “open textured” legal document, the Charter. Conversely, in 1993, during the similar Rodriguez v. British Columbia (Attorney General) case, the applicant was rejected on the basis that the Criminal Code prohibition on euthanasia was “grounded in the state interest in protecting life” in line with the Charter. Second, Bill C-14 received little time for debate or amendment in the House of Commons (six weeks) or the Senate (two weeks). This was in partially a result of the stringent requirements of the Supreme Court, combined with Parliament’s hesitance to address such a contentious issue prior to the election. Finally, the lack of effective safeguards in C-14, combined with an impending deadline of deregulation under the Supreme Court, left opponents to euthanasia trapped between an excessively permissive legislative regime and a regulatory void.

Canada’s dramatic steps towards euthanasia provide three major lessons for advocates of human dignity in the United Kingdom:

  1. Whether you agree with an activist judiciary style (wherein the Supreme Court is able to reinterpret legislation to contrive new meanings) or not, the reality is that the Canadian Supreme Court created the fertile ground in which Bill C-14 has flourished.  It therefore matters what goes on in our Courts. In the UK the Supreme Court’s suggestion that Parliament look again at the law on assisted suicide was as strong a course of action as they were willing to take at the time; however, there is no guarantee they will not go further should a new case be presented in the future.
  2. The voices of the vulnerable need to be heard. In places where Bills have failed, this has often been because the reality of the danger to vulnerable groups of people such as the elderly, disabled and isolated have been at the forefront of campaigns and at the forefront of parliamentarians’ minds. This was the case in the defeat of the Marris Bill in September 2015 and needs to remain so.
  3. Making laws well takes time. Regardless of the position one takes on the issue of assisted suicide or euthanasia, it is alarming that a law of such significance should be rushed through a legislature so hastily. Matters of life and death demand the full attention of parliamentarians and experts for more than a few short hours of debate. A 1993 a House of Lords Select Committee on Medical Ethics considered in depth the many facets of the debate on end of life issues and concluded the following: “it would be virtually impossible to ensure that all acts of euthanasia were truly voluntary and that any liberalisation of the law in the United Kingdom could not be abused.” This in-depth report remains a benchmark for consideration of such weighty issues and is in sharp contrast to the Canadian experience which time will surely reveal to have been a classic example of the maxim that hastily made law is usually bad law.

CARE continues to advocate against assisted suicide and euthanasia in the UK, seeking to protect and promote human dignity and the sanctity of life, and a society which focuses on caring rather than killing. The current law in the UK protects vulnerable people and there is no reason for it to be changed. The Canadian example, in this case, is not one worth following.

For more on CARE’s work on euthanasia and assisted suicide, click here.

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