On June 15, British Columbia Supreme Court Justice Lynn Smith said that the Criminal Code prohibitions on euthanasia and assisted suicide were unconstitutional, finding that they “unjustifiably infringe the equality rights” of one of plaintiffs in the case, Gloria Taylor, who has Lou Gehrig’s disease and wants assistance to end her own life. Justice Smith also said the prohibitions unjustifiably violate the life, liberty and security of Lee Carter and Hollis Johnson because they could face criminal charges after they helped Kay Carter, their mother and mother-in-law respectively, get to a Swiss assisted-suicide facility in 2010.
Smith noted in her 395-page decision that suicide is not outlawed by the Criminal Code and thus prohibitions against assisting suicide create an undue burden on those with disabilities or who are seriously ill and cannot kill themselves. She said, “The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent and who wish to have some control over their circumstances at the end of their lives.”
The Euthanasia Prevention Coalition issued a statement saying that Smith got it backwards. “The Carter decision stated that prohibiting assisted suicide is an infringement upon the right to life, liberty, and security of the person, for people with disabilities,” the EPC observed. “In fact, the opposite is true. Legalizing euthanasia and assisted suicide will result in persons with disabilities losing their right to life, liberty, and security of the person.”
Margaret Dore, a lawyer and president of Choice is an Illusion, an anti-euthanasia group in Washington, where physician-assisted suicide is legal, said Smith’s decision was perverse. Dore said, “the opinion bases the plaintiff’s ‘right to die’ on her ‘right to life’ in the Canadian Charter of Rights and Freedoms. These are opposite concepts.”
Disabilities activist Steve Passmore also opposed the decision. He said Smith’s decision was not merely wrong, it was “the opposite of reality.” Passmore, who has Cerebral Palsy, said, “My experience as a person with a visible disability is that people do not treat me with equality value and acceptance.”
Smith has stayed the decision for one year to give time for Parliament to draft a new law in accordance with her decision. She also exempted Gloria Taylor from the stay so she can proceed to find assistance to be killed. Smith said that if Taylor provides a written request and her doctor says she is terminally ill and provides documentation for the medication he plans to use to kill her, she may petition the B.C. Supreme Court for an order that “a physician may legally provide Ms. Taylor with a physician-assisted death at the time of her choosing.”
The federal government may appeal the decision and most legal experts expect the case to proceed to the British Columbia Court of Appeal and then the Supreme Court of Canada.
In an urgent video message, Campaign Life Coalition national president Jim Hughes called upon the federal Justice Minister Rob Nicholson to “immediately appeal this lower court decision in order to retain our laws against these forms of homicide” and urged the federal government to make it clear to the courts that it would invoke the notwithstanding clause of the Charter to over-rule judge-made law.
Hughes said that legalizing euthanasia would give doctors a “license to kill” and “create a duty to die for vulnerable persons.” Smith claimed she found “no evidence of inordinate impact on vulnerable populations.” Both the EPC and Passmore said studies show euthanasia will expand to include evermore vulnerable individuals. Passmore added, “I am convinced that if euthanasia becomes accepted by society, that over a short period of time the attitudes will go from voluntary euthanasia for people who are suffering to euthanasia to end the lives of the sufferer.”
The EPC observed that, “Canada prohibited capital punishment based on the possibility that the death of an innocent person may occur,” yet “euthanasia and assisted suicide may result in the deaths of people without request or consent.” Therefore, “Canada needs to continue prohibiting euthanasia and assisted suicide.”The media reaction has been mixed. The Vancouver Province editorialized against the decision. They said, “Canada must retain its absolute prohibition on the killing of others if we are to continue to be a nation that values life.”
The Globe and Mail and Toronto Star began beating the drum for a parliamentary debate to address the issue of euthanasia and physician-assisted suicide. Star columnist Chantal Hebert wrote that Smith’s decision “
may spell the beginning of the end of that collegial conspiracy of parliamentary silence.”
But as Schadenberg noted, Parliament has not been silent on the issue. In April 2010, Parliament defeated Bill C-384, a private members bill that would have legalized euthanasia and doctors-assisted suicide, 228-59. Schadenberg said “judges should respect the role of Parliament,” and added that it was dealt with just two years ago. He said Smith’s decision “is fundamentally at odds with the will of Parliament as expressed just months ago and is fundamentally anti-democratic.”
Schadenberg has said that after the Francine Lalonde’s private member’s bill lost by a four-to-one margin in 2010, the euthanasia lobby has taken their battle to the courts. The B.C. Civil Liberties Association launched the suit on behalf of the family of Kay Carter in April 2011, claiming the Criminal Code provisions violated the constitutional right to die, which Schadenberg notes appears nowhere in the Charter of Rights.
REAL Women of Canada issued a press release noting that the judge in the case, Justice Lynn Smith was formerly president of the legal arm LEAF, the Women’s Legal Education and Action Fund, a feminist organization. REAL Women’s president, Cecilia Forsyth, said that considering the judge’s radical background, the decision was “not surprising” because Smith was “blinded by her ideological beliefs.” Forsyth added: “Entirely consistent with her liberal ideology, she struck down the restraints placed on the protection of the lives of vulnerable patients.”
REAL Women noted that in 1991, Smith was lead litigator on behalf of LEAF when they defended two midwives, Mary Sullivan and Gloria Lemay, prosecuted for criminal negligence for their part in the death of a baby who died during delivery. As LEAF’s lawyer, she claimed the “foetus was not a ‘person’,” under the Charter.