One of the most glaring examples of why judges should not change a law in accordance with their own policy preferences, contrary to a law passed by Parliament, is the decision of the Supreme Court of Canada on assisted suicide (Carter vs Canada Attorney General, February 2015).
In this decision, the Supreme Court overturned the law that has stood for centuries prohibiting assisted suicide. In doing so, the court ignored its own 1993 decision on the issue. In the case of Sue Rodriguez, the court upheld the prohibition of this procedure.
The Supreme Court changed its previous decision by ignoring the established legal doctrine of stare decisis, which requires courts be bound by their previous decisions. They ignored precedent, they argued, because society has evolved so that it now accepts assisted suicide. (The purpose of stare decisis is to provide consistency, dependability, and stability in the law.)
The court also rejected the justifiable concerns that vulnerable people, such as the mentally ill, minors, and the aged, would be unable to protect themselves from pressure to end their lives. The court’s response to this concern was that “properly designed and administered safeguards would protect such vulnerable people from abuse and error”. In the course of its judgement the court referred to other jurisdictions that had permitted physician assisted suicide, which had provided “a body of evidence” indicating the effective use of safeguards to protect the vulnerable. However, countries such as Belgium and the Netherlands, that have implemented legislation that allows physician assisted suicide, have provided a dubious and extremely problematic record about the value of any safeguards.
The Result of the Carter Case
The Carter decision by the Supreme Court of Canada has dramatically changed our country. No longer is assisting in the death of another person a criminal offence, but, instead, has become, according to the media and other progressives, a “blessing”, releasing patients from the inconvenience of living and suffering. Thus, in these nearly four short years since the law was changed (June 2016), the procedure of medically assisted suicide has been normalized and become a “right” for patients and a mandatory procedure for physicians to provide, regardless of any conscientious objection they may have.
Consequently, rather than assisted suicide being an exception, as touted by the court, it has now become common practice to end many lives, rather than treating a patient’s illness. For example, a man in British Columbia was granted assisted suicide for the reason that he was depressed. In Quebec, three individuals were granted assisted suicide because they had fractured hips. According to the Fourth Interim Report on Medical Assistance in Dying, released by Health Canada on April 25, 2019, there were 6700 assisted deaths as of October 31, 2018. This data however, is incomplete as Quebec and the three territories did not provide full information to Health Canada. An accurate number of assisted suicide deaths, as of December 31, 2018 is 7949. Nearly all of these assisted deaths were euthanasia (by lethal injection) rather than by self-administered death (suicide). According to an analysis in Quebec, between April 1, 2017 and March 31, 2018, there were 142 deaths that did not fit the criteria set by the law. In 67 of these cases, the physician did not provide the procedural safeguards or provide the required information to determine if the assisted suicide complied with the law.
Assisted suicide law is out of control in Canada and is a disaster for the dignity of life.
Summary of the Miscalculations by the Judges in Their Assisted Suicide Decision
The Supreme Court judges’ decision, to change the law on assisted suicides in accordance with their own policy preference, was based on several serious miscalculations:
- The court did not have sufficient information or understanding of assisted suicides that were occurring in other jurisdictions. The court based its decisions on the false belief that these laws were working satisfactorily.
- The judges believed that their decision to permit assisted suicide would not lead down a slippery slope to an expansion of the law and would only be applied in exceptional cases. The law has now been normalized as a “right” for patients.
- The judges’ opinion that society had “evolved” to accept the concept of assisted suicide was misplaced. It was their decision on assisted suicide that has directly led to the changing of Canadian values and ethics on the issue. This is because the law is a teacher, and forms the consciences of many people. Many believe that what is legal is acceptable and as a result, they participate in such activities as assisted suicide, which they would not have considered doing before it was legalized.
- The court miscalculated that coercion or errors in applying the assisted suicide law could be avoided by a system of careful safeguards. Even the very limited safeguards that were put in place when the law was passed in 2016 have now been eliminated by other judges, and also by physicians who, in practice, ignore restrictions and have not been charged for failure to comply with the law.
- The judges blatantly stated in their judgement that “nothing in the decision would compel physicians to provide assistance in dying”. Conscientious objection by physicians has been overturned by the courts, which demand that physicians must refer patients for this procedure. This referring of patients makes them participants in a wrongful act. Provincial funding agencies are now ordering government financed institutions, providing palliative care, to include assisted suicide among their services. (See story in this issue on the BC government imposing assisted suicide on a hospice in Ladner, BC)
Judges Ill-suited to make Public Policy
This tragedy of the assisted suicide law has occurred because judges mistakenly believed that somehow they were superior to the public, and were justified in changing the law and thereby Canada’s social, political and cultural values in accordance with their own policy preferences.
Judges, however, have no special or esoteric knowledge or ability to make decisions on public policy. Charter of Rights cases are based only on the narrow arguments of the litigants, which are all too frequently based on the wishful thinking of individuals or organizations that have the financial clout to initiate costly litigation. Neither do judges have the advantages of Parliament to make policy decisions, such as access to research facilities. As a result, they do not have all the facts on an issue. They do not have the luxury of time to consider decisions thoroughly or access to the practical experience and views of the public on issues that are increasingly complex, socially and scientifically. Simply put, judges are incompetent to make policy decisions because they do not have the background and understanding to make public policy decisions which deeply affect the lives of Canadians.
Why are Canadians placing their destiny in the hands of nine appointed individuals who, instead of objectively interpreting the law, as they are supposed to do, are using their position to arrogantly change our laws according to their own perspective?
Judges should be restrained from carrying out their arrogant belief that they are capable of making policy decisions. They are not.