The Case of Carter Versus Canada - Report Example

INTRODUCTION: Euthanasia is a concept that means assisted suicide. Laws in Canada are able to make a distinction between passive Euthanasia, and active euthanasia. Passive euthanasia refers to the withdrawal of substances that have the capability of preserving life, and this includes food and water. Active euthanasia on the other hand involves killing an individual purposefully, with the intention of relieving the pain that he or she is suffering from1. In Canada, it is legal for a medical practitioner to engage in passive euthanasia. However, active euthanasia is prohibited, and it is viewed as murder. In the year 2015, the Supreme Court was able to make a landmark decision, regarding this concept of Euthanasia, or assisted suicide. This was in the case of Carter vs. Canada. Under this case, the Supreme Court was able to strike down, the legal provisions that prohibited the commission of assisted suicide in Canada. This therefore means that, as from the year 2016, assisted suicide in Canada will be legal. This is because this decision will begin to be implemented in the year 2015. Since the year 1972, suicide has never been illegal in Canada. However, suicide that has been assisted by a physician has been made illegal in Canada. Section (241b) of the Canadian criminal code denotes that anyone, who assists an individual to commit suicide, is guilty of a criminal offence, and he or she can be imprisoned for a maximum of fourteen years. Through this law, we are able to denote that suicide that has been assisted by a physician or any other person is considered to be a criminal offence, and it is equated to murder, though to a lesser extent. In the year 2012, the highest court in British Columbia was able to strike down these provisions, on a constitutional basis2. This was applicable to people who were severely injured, and had the capability of giving consent (Thompson, 2015, p. 61). In making a ruling against these provisions, the court denoted that these laws were infringing upon s 15 and 7 of the charter, and hence they were unconstitutional, in prohibiting physician assisted euthanasia, under a context of a positive physician-patient relationship. In analyzing section 241 (b) of the code, the court was able to denote that these laws were very unfair to people suffering from disability, and this is because it had a disproportionate effect on the objectives, that it had aimed at accomplishing3. The attorney general appealed against this decision, arguing that it is legal to prohibit assisted suicide, and its aim was to protect the people of Canada, and this includes the elderly people, the disabled, and people who are vulnerable Furthermore, the attorney general argued that prohibiting assisted suicide was a fact that was recognized in 1993 case involving Rodriguez, hence there was no need of striking down the laws. In the year 2010, parliament was able to vote, for purposes of maintaining section 241 (b) of the criminal code, however, this was frustrated in the 2015 case of Carter vs. Canada. This paper is an analysis of thee position of thee courts, in regard to this position. THE SHIFT IN THE COURTS POSITION: Canada has experienced two major cases, involving assisted suicide. One case occurred in 1993, between Rodriguez vs. the Attorney General of Canada. In this case, the court ruled in support of the prohibition of assisted suicide in Canada. However, it is important to denote that the court found out that, section 241 (b) of the criminal code was a violation of section 7 of the Canadian charter4. That is in regards to the appellant’s security, liberty, and right to life. However, in supporting section 241 (b) of the law, the court denoted that it was promoting the fundamental principle of natural justice. Through this analysis, we are able to find out that in supporting the prohibition of assisted suicide, the court was guided by the principles of natural justice, and not the Canadian Charter. One of the principles of natural justice is a right to life, and nobody has the duty or responsibility of taking this right away. Even if it is to the benefit of the person being assisted to commit suicide. Furthermore, section 7 guarantees this right to life, but it is not adequate enough, hence there is a need of introducing other legislations that can be used for purposes of protecting the lives of the vulnerable people. It is further important to explain that the courts also analyzed section 15 of the Canadian charter, in regard to the equality of the rights. The courts denoted that the blanket prohibition of assisted suicide was able to violate the principles of equality of rights, when it came to the prohibition of assisted suicide. This is basically because, it was illegal for assisted suicide to occur, but it was not illegal for an individual to actually commit suicide. Therefore, by looking at this provision, it is possible to denote that there was un-equality in the application of the law, hence breaching the provisions of section 15 of the Canadian Charter. However, in arriving at their decision, the Supreme Court relied on section 1 of the Canadian Charter. According to section 1, an individual would enjoy some rights and freedoms that are outline in the charter, only to a specific reasonable limit. This limit must be prescribed by the law, and it must be justified, in a democratic and free society. This is an indication that the courts were denoting that assisted suicide was not justified, mainly because it had an effect of taking the life of an individual. Even if the person under consideration was suffering and in heavy pain, and hence assisted suicide could help relieve the pain. The decision by the Court in Carter vs. Canada completely changed this ruling. This is because the court was able to rule out section 241 (b) of the criminal code as illegal, and unconstitutional. Through this ruling, the courts allowed physicians and other professionals to carry out assisted suicide in certain circumstances. In analyzing this case, the Supreme Court was concerned with two major issues5. The first issue is on whether the prevention of a physician to carry out assisted suicide was a violation of section 241 (b) of the criminal code, under sections, 7 of the Charter, and section 15. In arguing a case in support of the right to physician assisted suicide, Carter denoted that, prohibiting a physician top assist a patient from dying, would violate the rights of the patient, in accordance to section 7 of the charter, which are the rights of security, life, and liberty. This is only if the patient under consideration suffers from too much pain, arising from a disease or medical condition that cannot be cured (Cherny, 2015, p. 17). Through this assertion, Carter was denoting that when an individual is suffering from a medical condition that cannot be cured, and he is in too much pain, then it is the duty of the state to protect that person, by assisting him or her to commit suicide. Failure to carry out this objective, then the state has failed to protect the life, liberty and security of the person under consideration. Another claim, advanced by the applicant, is on the issue of equal treatment, by the law, as contained in section 15 of the Canadian Charter. By carefully analyzing these claims brought about by the appellants, it is possible to denote that the Supreme Court was right, by asserting that section 241 (b) was a breach of section 7 of the Canadian charter. This is basically because an individual, who is suffering and is in pain, has his life in danger, and this person is not secure nor is he or she safe6. A physician assisted suicide would therefore play an important role in promoting the security of the patient. Furthermore, by assisting the patient to die, then the pain that he or she is suffering from has been relieved (Birnbacher and Edgar, 2008, p. 33). This means that the physician, through the state, has managed to protect the security of the individual, as contained in section 7 of the charter. In fact, while coming up with a ruling, the Supreme Court denoted that it is a crime to provide assistance to a person, in his or her bid to end their lives. The results of this, is that an individual cannot seek the assistance of a physician to end his or her life, and this may result to living a life of intolerable, severe pain and suffering7. Through this message, the court was able to recognize the fact that section 241 was unfair to a patient who is suffering from a severe disease or illness; hence there is a need of changing the law for purposes of assisting these people to end their lives, in certain circumstances that is acceptable within a democratic and free society. The court further denotes that the choices an individual feels, that are brought about by the law, are two, and they are very cruel. The first choice is that an individual has the freedom of taking his own life, when it is premature. This is cruel and unacceptable. The second choice is for an individual to suffer from the disease, and die a natural death. This is very cruel, mainly because of the suffering and pain that the person may be experiencing, could be intolerable, and unacceptable. By striking down the law, through this context, then the courts would be playing the role of an activist. This is mainly because it is not using a legal justification to strike down the law, but it is basing its decision on the social and health reasons of striking down the law. However, this was not the case, mainly because the courts was using both the social, health and legal reasons in striking down section 241 (b) of the law. For instance, the court was able to find that section 241 (b) was illegal, and it was a violation of section 7 of the Canadian charter. Furthermore, the court denoted that this violation could not pass the tests as outlined in section 1 of the Canadian charter. Furthermore, in defending their decision on whether the case can be revisited, the Supreme Court denoted that it was possible to revisit the case if a new issue arises, or if there is a change in the circumstance surrounding the debate, which has the capability of ultimately changing the outcome of the case. In the view of the Supreme Court, these conditions were met, and this is because the case was able to bring out a different legal issue, in relation to section 7 of the Canadian charter. Furthermore, in making a ruling on whether it had the jurisdiction to hear the case, the court relied on the common law doctrine established by Canada vs. Bedford, which denoted that a judge may reconsider the decision of a higher court, only if a new issue come into place, and it was fundamental enough to shift the debates of the case. Therefore, the court was able to find out that the legal issues raised in this case, were different from the legal issues raised in the case of Rodriguez (1993). Based on these factors, it is possible to denote that the Supreme Court was not acting as an activist, but was using the law in coming up with a ruling in the case of Carter vs. Canada. Conclusion: In conclusion, this case is an example of a judicial review, mainly because it is able to strike down a law or policy that is initiated by the legislature. In coming up with a ruling, the Supreme Court was able to consider the legal, social, and health factors surrounding the issue, and hence coming up with a decision. For instance, in coming up with a ruling, the Supreme Court denoted that s 241 (b) of the criminal code was a violation of section 7 of the Canadian charter, hence it was unconstitutional. Bibliography: Top of Form Birnbacher, Dieter, and Edgar Dahl. 2008. Giving death a helping hand: physician-assisted suicide and public policy : an international perspective. [Dordrecht]: Springer. Top of Form Cherny, Nathan. 2015. Oxford textbook of palliative medicine. [Place of publication not identified]: Oxford Univ Press. Top of Form Manfredi, Christopher P., and James B. Kelly. 2009. Contested constitutionalism reflections on the Canadian Charter of Rights and Freedoms. Vancouver: UBC Press.Bottom of Form Bottom of Form Top of Form Somerville, Margaret A. 2001. Death talk: the case against euthanasia and physician-assisted suicide. Montreal, Quebec: McGill-Queens University Press. Bottom of Form Sumner, L. W. 2011. Assisted death: a study in ethics and law. Oxford: Oxford University Press. Bottom of Form Top of Form Thompson, Valerie D. 2015. Health and health care delivery in Canada. Bottom of Form Read More