National Affairs Rory Leishman

It is, and always has been, a serious criminal offence in Canada for anyone to counsel or assist another person to commit suicide. Time and again, the advocates of euthanasia have vainly tried to get Parliament to change that law.

In the most recent attempt, former Bloc Quebecois MP Francine Lalonde introduced a private members’ bill into Parliament in 2009 that would have authorized any medical practitioner to kill or assist in killing a patient provided (1) the patient, while “appearing to be lucid,” has expressed in writing his or her “free and informed consent to opt to die” and (2) the patient is terminally ill or “continues, after trying or expressly refusing the appropriate treatments available, to experience physical or mental pain without any prospect of relief.”

Note the sweeping nature of these provisions: Under Lalonde’s bill, a physician would have been authorized to kill not just the terminally ill, but even a generally healthy patient who is morose, expressly refuses anti-depressant medications and wants to die.

Following a lively debate, the House of Commons rejected Lalonde’s bill by 228 to 59. In any genuine democracy, that would have settled the matter.

However, in Canada, Parliament and the provincial legislatures are no longer supreme within their spheres of constitutional jurisdiction. Time and again over the past 25 years, unelected judges have usurped the legislative powers of elected representatives under the pretense of upholding the Canadian Charter of Rights and Freedoms.

On August 3, Madam Justice Lynn Smith of the British Columbia Supreme Court did it again. She agreed to consider a submission by the British Columbia Civil Rights Association (BCCLA) to strike down the ban on physician-assisted suicide in section 241(b) of the Criminal Code.

Gloria Taylor, the principal plaintiff in this case, is a British Columbia woman afflicted with amyotrophic lateral sclerosis (ALS) – an incurable disease that causes progressively greater paralysis ending in death. In a filing on her behalf, the BCCLA argues that for grievously handicapped persons like Taylor who cannot commit suicide on their own, the state-imposed prohibition of physician-assisted suicide violates the right to life, liberty and security of the person and the right to the equal benefit of the law as guaranteed in sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Smith should have summarily rejected this far-fetched argument inasmuch as it has already been considered and rejected by the Supreme Court of Canada in the 1993 case of Sue Rodriguez, a British Columbia woman who was likewise afflicted with ALS. In a five-to-four ruling in Rodriguez, the Court held that the blanket ban on physician-assisted suicide in section 241(b) does not violate the Charter.

In reasons for the majority, Mr. Justice John Sopinka flatly rejected the absurd notion that the right to life guaranteed in section 7 of the Charter confers upon the handicapped a right to death by physician-assisted suicide. He explained that the blanket ban on assisted suicide in section 241(b) of the Criminal Code “has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. The purpose 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.”

Sopinka emphasized: “This is not only a policy of the state, however, but is part of our fundamental conception of the sanctity of human life.” Quite so.

Prior to enactment of the Charter, the Rodriguez ruling would have settled the law on physician-assisted suicide. Today, that is not the case. Over the past 25 years, judicial activists on the Supreme Court of Canada have taken to flouting valid precedents and changing the law to conform to their personal policy preferences.

Chief Justice Beverley McLachlin was one of the four dissenters in Rodriguez who alleged that handicapped Canadians have a Charter right to assistance in committing suicide. If the Taylor case ends up in the Supreme Court of Canada, will the majority of the Court strike yet another blow at the sanctity of human life by reversing Rodriguez and quashing the ban on physician-assisted suicide?

That, alas, is all too likely.