Courting trouble

By 
  • June 1, 2011

Last year Parliament overwhelmingly rejected a private member’s bill introduced by former Bloc MP Francine Lalonde that would have amended the Criminal Code to legalize euthanasia and assisted suicide. That should have been the end of the story, or at least the end of a chapter until either the government or a private member put the issue back before Parliament. But Canadian law on this contentious issue is again under threat, but this time MPs have no say in the matter.

It shouldn’t be that way, of course. Canadians elect Members of Parliament to make laws. But much the way on-demand abortion was legalized in 1988, Canadian law on end-of-life decisions will be made by judges if proponents of euthanasia and assisted suicide succeed in cases currently before the courts.

The first challenge is from a Vancouver woman who helped her terminally ill, 89-year-old mother commit suicide in Switzerland, where assisted suicide is legal. Lee Carter admits she abetted her mother’s death. That would mean she broke Canadian law that prohibits a person from aiding, encouraging or counselling another’s suicide, or intentionally causing a death. But backed by the B.C. Civil Liberties Association, she has asserted in B.C. Supreme Court that the Criminal Code is unconstitutional.

The second case involves doctors who have gone to Ontario Superior Court to challenge a lower court ruling requiring them to obtain consent before ending life support of a comatose patient. They argue that although consent is needed to treat a patient, no consent should be necessary to end treatment when a doctor determines care is futile. In other words, the decision to disconnect life-support apparatus should be the sole right of a doctor, not the family or even a hospital panel.

Both cases seem headed for the Supreme Court, and both have the potential to set regrettable precedents. They pose the greatest threat to Canadian respect-for-life laws since Sue Rodriguez lost a contentious 5-4 Supreme Court decision in 1993 to legalize assisted suicide. But much has changed since then. Canada’s assisted suicide and euthanasia lobby has been emboldened by gains in other countries. Also, eight of nine Supreme Court judges have changed in the past 18 years. The holdover is  Beverly McLachlin, who wrote the dissenting opinion in the Rodriguez case and is now chief justice.

When the Supreme Court sided with Henry Morgentaler and struck down Canada’s abortion laws in 1988, it was expected Parliament would draft new abortion legislation to conform with the Charter. But successive governments failed in that task and today there is no will in Ottawa to keep trying.

That means the Supreme Court decision of 1988 is the law of the land. With respect to euthanasia and assisted suicide, history may be repeating. And that is troubling indeed.

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