Guest blogger: Geoffrey Trotter, lawyer for the EFC in Carter v. Canada
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My submissions will respond to your Lordship’s [Chief Justice Finch] point yesterday that given the Court’s duty to give meaning to all of the language in the Charter of Rights and Freedoms, including the word “life” in s. 7, you “would like to know what life means”; and to respond to your Ladyship’s [Justice Saunders] questions from this morning as to whether the prohibition against assisted suicide, in addition to being a pragmatic one, is also value-driven. I will first address those questions on the authorities, and then circle back to your Lordship’s related question about whether a pulse or a brain wave is “life” in the Charter sense.
A – In the submission of The Evangelical Fellowship of Canada, the fulcrum of analysis in this case needs to be that the sanctity of human life is itself a core Charter value which rightly informs the criminal law. It is by upholding the sanctity of life that the complementary Charter value of human dignity is enhanced and protected. In this regard I am drawing primarily from paragraphs 3-19 of the EFC’s factum.
1. The English word for suicide is derived from the Latin which literally means “self-killing.” The term ‘physician-assisted suicide’, then, can only mean the killing of patients by their doctors. Our criminal law has always prohibited people from consenting to their own killing; and prohibited people from taking the lives of others. The EFC submits that the Charter is entirely supportive of, not contradictory to, the prohibitions which are attacked in this case.
2. Indeed, the Supreme Court of Canada affirmed in the Rodriguez decision at paragraph 125 that “the sanctity of life … is one of the three Charter values protected by s. 7”, and affirmed at paragraph 129 that in Canadian law, “human life is sacred or inviolable” in, as the court stated, a “non-religious sense”. Similarly, the court described the objective at paragraph 186 as “the desire to protect human life, a fundamental Charter value.”
3. It is legally and ethically sound for this court to affirm the non-sectarian consensus articulated by the Law Reform Commission of Canada in the quotations in the the EFC’s factum – that is,
i. that the sanctity of human life means that life merits special protection,
ii. that life is a sacred trust rather than a mere right to be contracted away or waived, and
iii. that the Criminal Code should continue to prohibit people from consenting to being killed.
That is what the Supreme Court of Canada concluded in Rodriguez after undertaking a comprehensive historical, legislative, and policy analysis.
The consensus regarding the sanctity of human life has been repeatedly affirmed since Rodriguez by the only elected representatives with constitutional jurisdiction over the matter – that is, by Parliament. The majority committee opinion in the June 1995 Senate report recommended that the prohibition remain in place because “They feel that legalizing assisted suicide could undermine respect for life which they believe is the most universally accepted value in society … that transcends individual, religious or diverse cultural values…”
Various Parliamentary committees and government departments have been working on suicide prevention initiatives in recent years. Last year, the Federal Framework for Suicide Prevention Act passed in the House of Commons by a vote of 285 in favour and only three opposed.
B – It is in light of the bedrock principle of the sanctity of human life that a related Charter value, human dignity, must be understood (and here I am drawing from paragraphs 20-24 of the EFC’s factum). Canadian and international law understands human dignity not to mean an absolute right to do as one wishes. Rather, as cited in our factum, the legal concept of human dignity has been elucidated in accordance with the historical and philosophical context of the Charter and means “inherent dignity” (indeed, the SCC reiterated this phrase in last month’s Whatcott decision at paragraph 66). Similarly, the preamble to the Universal Declaration of Human Rights directly links the terms “inherent dignity” with “inalienable rights.” Inherent dignity, by definition, is shared by all Canadians, disabled and able-bodied alike, simply by virtue of each of us having life. Intentional killing is a direct affront to that life.
C – Section 7 of the Charter is on its face a life-affirming right. In Rodriguez, the Supreme Court of Canada stated that “liberty and security of the person … cannot be divorced from the sanctity of life”, and at paragraph 129 that “security of the person, by its nature, cannot encompass a right to take action that will end one’s life as security of the person is intrinsically concerned with the well-being of the living person.
In the Polygamy Reference, the court held that there is no such thing as “good polygamy.” Similarly, EFC submits that there is no such thing as a ‘good killing’. No Canadian is better off dead than alive.
Thus, ‘death with dignity,’ properly understood, means to live one’s remaining life with the inherent dignity of a human person, with such assistance as modern medicine can provide, and the option to decline unwanted ‘heroic measures’. The path to death may at times be very difficult, but the EFC rejects the notion that anyone’s inherent human dignity is ever enhanced by having their life cut short.
And that is the nettle which the Respondents [Carter, et al.] fail to grasp in this case. There can be no ‘assisted suicide’ without another moral agent – another person – committing the act of killing, and the state being complicit in that act. As the Law Reform Commission succinctly stated, this would “indirectly condone murder…”
No Canadian has the right to be killed. There is no such right because it runs headlong into the Charter values of the sanctity of human life and inherent human dignity.
To return to your Lordship’s question about whether a brain wave or a pulse is a “life” in this sense, I make two points:
i. First, the issue does not arise in this appeal. The relief sought by the Respondents is only in respect of competent adults who personally request physician-assisted death. These are not people in a persistent vegetative state. They are people aware of themselves and their situation; with ongoing relationships with their loved ones and communities; their own interests and passions.
ii. And, more fundamentally, no matter how many of their former abilities a person has lost, they remain a human being with the same inherent dignity as able-bodied Canadians; and, their life has the same sanctity.
Ms. Nygard [legal counsel for the Attorney General of Canada] quoted earlier from the Latimer decision at paragraph 40 to the effect that, “It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide,” even for someone like Tracey Latimer with incurable chronic pain. In the immediately preceding paragraph, the Court stated that Robert Latimer “had at least one reasonable legal alternative (to killing his daughter): he could have struggled on, with what was unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as possible.”
That is the promise and the challenge before us as a society: not to try to make the problem disappear by making the person disappear, but to respond to the unquestionably difficult realities of both disability and dying by caring for these people to minimize their physical, and psychological, suffering as much as possible, and to help them live full, satisfying, and meaningful lives. If one of us feels a loss of dignity, the rest of us, and the State, need to affirm through our words, our actions, and our laws that we see in that person the same inherent dignity as resides in all human beings. We need to help them live.
The EFC submits that killing is never the antidote for what is difficult about dying, and asks this court to affirm the Charter values of the sanctity of human life and inherent human dignity, and to allow the Appeal.