Reply #50: as I understand it [View All]

[iverglas]

In at least some US states, *attempting* suicide is illegal. (Not much point in suicide being illegal. ;) )

It is argued that this is the only way to get some people the psychological or medical help they need. But the criminal law is the biggest club a society has, and is simply not the appropriate tool for getting people help. Mental health statutes and procedures are the way to do that.

Assisting suicide is still illegal in Canada. The Sue Rodriguez case, decided by the Supreme Court in 1993, upheld that law.
http://scc.lexum.umontreal.ca/en/1993/1993rcs3-519/1993rcs3-519.html
It was a 5-4 decision. Ultimately, Rodriguez did commit suicide, with assistance, probably from the NDP member of Parliament who had long advocated for her and her cause. Whether the decision would be different 15 or 20 years later, don't know.

The Court's reasoning is interesting in the abortion context, as another example of how an interference in the exercise of fundamental rights can (or can't, depending on whether one finds those reasons persuasive) be justified. Interesting how the "sanctity of life" is used to prevent people from choosing how to live their own lives, and how the majority's subsequent yammering about respecting "human life" sounds so much like the anti-choice chorus, and serves the same purpose.

(summary of majority reasons)
The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7.

Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241(b), which is a sufficient interaction with the justice system to engage the provisions of s. 7, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.

... To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241(b) therefore does not infringe s. 7 of the Charter. ...

(summary of L'Heureux-Dubé/McLachlin dissent)
Section 241(b) of the Code is not justified under s. 1 of the Charter. The practical objective of s. 241(b) is to eliminate the fear of lawful assisted suicide's being abused and resulting in the killing of persons not truly and willingly consenting to death. However, neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor the fear that consent to death may not in fact be given voluntarily, is sufficient to override appellant's entitlement under s. 7 to end her life in the manner and at the time of her choosing. The safeguards in the existing provisions of the Criminal Code largely meet the concerns about consent. The Code provisions, supplemented, by way of remedy, by a stipulation requiring a court order to permit the assistance of suicide in a particular case only when the judge is satisfied that the consent is freely given, will ensure that only those who truly desire to bring their lives to an end obtain assistance.

(summary of Lamer dissent)
Section 241(b) of the Code is not justifiable under s. 1 of the Charter. While the objective of protecting vulnerable persons from being pressured or coerced into committing suicide is sufficiently important to warrant overriding a constitutional right, s. 241(b) fails to meet the proportionality test. The prohibition of assisted suicide is rationally connected to the legislative objective, but the means chosen to carry out the objective do not impair the appellant's equality rights as little as reasonably possible. The vulnerable are effectively protected under s. 241(b) but the section is over‑inclusive. Those who are not vulnerable or do not wish the state's protection are also brought within the operation of s. 241(b) solely as a result of a physical disability. An absolute prohibition that is indifferent to the individual or the circumstances cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible. The fear that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others does not justify the over‑inclusive reach of s. 241(b).

(summary of Cory dissent -- he focused on the discriminatory aspect of the law)
Section 7 of the Charter, which grants Canadians a constitutional right to life, liberty and the security of the person, is a provision which emphasizes the innate dignity of human existence. Dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity.

There is no difference between permitting a patient of sound mind to choose death with dignity by refusing treatment and permitting a patient of sound mind who is terminally ill to choose death with dignity by terminating life preserving treatment, even if, because of incapacity, that step has to be physically taken by another on her instructions. Nor is there any reason for failing to extend that same permission so that a terminally ill patient facing death may put an end to her life through the intermediary of another. Since the right to choose death is open to patients who are not physically handicapped, there is no reason for denying that choice to those that are. This choice for a terminally ill patient would be subject to conditions. With those conditions in place, s. 7 of the Charter can be applied to enable a court to grant the relief proposed by Lamer C.J.

The majority's concerns are all very well, but Sue Rodriguez (who had ALH, Lou Gehrig's disease) was not "vulnerable" in the sense meant by the Court. She was intelligent, articulate and aware, and had access to all of the supports she needed for living/dying with the disease.

"Innate dignity of human existence", or "sanctity of human life"? And interesting and important shift of focus.

Interesting to note the Court's breakdown in Rodriguez
(5-4 to uphold):
La Forest, Sopinka, Gonthier, Iacobucci and Major JJ. -- upheld the prohibition on assisted suicide
Lamer C.J. and L'Heureux‑Dubé, Cory and McLachlin JJ -- dissented

In the Morgentaler decision striking down the restrictive abortion law five years earler
(5-4 to strike down):
Dickson C.J. and Beetz, Estey, Lamer, and Wilson JJ. -- struck down the prohibition on abortion
McIntyre and La Forest JJ. -- dissented

The Court's composition had changed so much in 5 years that little comparison remains, but of the two judges who sat on both cases:

La Forest: strike down abortion prohibition, uphold assisted suicide prohibition
Lamer: strike down abortion prohibition, strike down assisted suicide prohibition

They are both men. Of the female judges:

L'Heureux-Dubé: strike down assisted suicide prohibition
McLachlin (now Chief Justice): strike down assisted suicide prohibition
Wilson (first female SCC judge): strike down abortion prohibition

A very small sample to draw any conclusions from, but interesting.