JT to Whip Assisted Suicide Vote

dre · February 24, 2016

So when you boil it all down, if no new laws are enacted you could seek PAD so long as the restrictions of the SCC are met.

Yes by taking a case to the superior court against your provincial government.

Smallc · February 24, 2016

Iv already explained why this is wrong and how the SCOC does a lot more than strike down laws. Whether the government writes a new statute or not this ruling will be adopted by the entire judicial system and the ruling does not just strike down the law is lays out the circumstances in which physician assisted suicide would be legal, and upholds Quebecs law even though it conflicts with the federal ban.

If nothing is written, their ceases to be a law. Courts of course will follow the higher courts decision, but that's not the same as a new law being formed. There is no law come June 7th.

Smallc · February 24, 2016

Yes by taking a case to the superior court against your provincial government.

There would be no need to do that as no law would exist.

dre · February 24, 2016

There would be no need to do that as no law would exist.

Yes there would, and that's exactly the remedy that the ruling lays out. Just because the federal ban is struck down does not mean each province will adopt laws similar to Quebec's, and no physician is going to provide this service without direction from the provincial government and their medical associations, and licencing authorities.

A patient seeking this remedy outside of Quebec will be told that there is no system in place for the hospital or clinic to provide this service. This will set the stage for a case in superior court.

Smallc · February 24, 2016

A patient seeking this remedy outside of Quebec will be told that there is no system in place for the hospital or clinic to provide this service. This will set the stage for a case in superior court.

That's mostly supposition on your part. Most people would do what you're saying, as otherwise, they'd risk other charges. That's not necessarily true of everyone. That's why we need a system in place. I don't care if it's federal or provincial.

dre · February 24, 2016

That's why we need a system in place.

Agreed. Doctors need to be trained on how to provide this service, which methods to use, who qualifies, who is allowed to actually "push the button", etc etc.

The_Squid · February 25, 2016

Several sources have been cited to say that the SCC does NOT create laws.

Those who think they do, please provide a cite for your claim.

cybercoma · February 25, 2016

Actually after the now 4 month extension, if no new law is enacted, technically the old one would go back into force. However any attempt to charge under it would likely be thrown out due to the previous SCC finding on violation of sect.7 of the charter, and the restrictions of the previous finding would stand.

The old one does not go back into force, since it was found unconstitutional. How the hell does an unconstitutional law go back into effect?

Topaz · February 25, 2016

Since abortion is legal in Canada, then the CHOICE for a Canadian DYING should have the same law,and the decision made by the Canadian dying. As far as disability, I think the parents,and the person should have the choice.

On Guard for Thee · February 25, 2016

The old one does not go back into force, since it was found unconstitutional. How the hell does an unconstitutional law go back into effect?

The Carter 2015 scc findings would stand is what I mean.

dre · February 25, 2016

Several sources have been cited to say that the SCC does NOT create laws.

Those who think they do, please provide a cite for your claim.

This argument is a case of semantics. The SCOC can make whatever rulings they want, and those ruling become part of the Canadian legal system and will be enforced by the courts. They become case law. Now these ruling and precedents are supposed to be based on statutes and in this case the statutory origin is the charter. But the ruling sets a number of different precedents such and restrictions on who would be eligible for AS, etc, and none of this stuff is even mentioned in the charter. They have made judgement calls on what they think the "spirit" of the charter is.

Even though these are not statutes, in practical terms this is new law. Critics call it "legislating from the bench", but I personally think its a necessary function of the court.

cybercoma · February 25, 2016

The SCOC can make whatever rulings they want

No they can't. They can only interpret the charter and constitution.

those ruling become part of the Canadian legal system and will be enforced by the courts.

Courts don't enforce laws. They apply and interpret them. Police enforce laws.

The rulings do not create any new laws. They provide interpretations of existing laws or in the case of the Supreme Court overturn laws that have no legal validity against the charter and constitution.

If a law is unconstitutional, it can no longer be enforced. There is no new law to take it's place until legislators create one.

They become case law.

Yes and this is used to guide decisions by judges in other cases. However, when the SCC overturns a statute, it is no longer enforceable. It ceases to exist, which is why they suspend their decisions on occasion to avoid creating a legal vacuum. This is to give legislators the necessary time to draft new legislation to take the place of the old legislation. A similar thing happened with prostitution. When a law is overturned by the Supreme Court, it doesn't create a new law or new guidelines for judges. It rules that the challenged law is no longer valid. Doctors will no longer be able to be charged for assisted suicide because the existing legislation was deemed unconstitutional. With no new legislation to take its place, there's no law to enforce. Police do not arrest you on case law. They arrest you on statutory offences. Those offences no longer exist when those statutes are overturned. So we don't make it to the legal decision stage in the courts where judges apply case law. It can't even get there because there's no longer a law to enforce. Edited February 25, 2016 by cybercoma

dre · February 25, 2016

No they can't. They can only interpret the charter and constitution.

That's what they are supposed to do yes, but since they are at the top of the judicial pyramid and there's no further level of appeal, in practice they can do what they want. An example is the restrictions in the ruling... "Grievous and irreparable". Those are judgement calls that you aren't going to find in the charter or any other statute. Its just how the justices agreed it should be.

Courts don't enforce laws. They apply and interpret them. Police enforce laws.

That's incorrect. The court can impose orders, issue arrest warrants, and impose monetary damages.

Here's how the the Canadian Judges Association describes it.

http://www.cscja-acjcs.ca/role_of_courts-en.asp?l=4

The justice system is the mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes and to test and enforce laws in a fair and rational manner.

Police do not arrest you on case law. They arrest you on statutory offences. Those offences no longer exist when those statutes are overturned.

Ever heard of a bench warrant? The police will arrest you any time the courts tell them to. Case-Law is applied and enforced once someone with standing brings a case before the courts.

When a law is overturned by the Supreme Court, it doesn't create a new law or new guidelines for judges.

The courts didn't just overturn the law. Read the ruling. The ruling includes conditions under which assisted suicide would be legal, and yes... the courts WILL adopt those parts of the ruling.

So we don't make it to the legal decision stage in the courts where judges apply case law. It can't even get there because there's no longer a law to enforce.

That isn't correct either. Once the ruling takes effect someone seeking assisted suicide can show up at the hospital and ask to get killed and they will be told "nope sorry... we don't do that". Doctors wont perform that service without guidance from their medical association, licencing authority and the provincial government. A process will have to be worked out first, and doctors will need to be trained.

So that person will have to take the case to the superior court and try to win an order. Also there are other entities which may have standing to bring a case. The provincial government, the medical association, a family member that thinks the person is not competent, or even someone holding an uninsured loan or mortgage on this person.

There's a bunch of different ways for this to come before the courts, and the SCOC ruling actually lays out the process.

Edited February 25, 2016 by dre

On Guard for Thee · February 25, 2016

Specifically par.127 of Carter v Canada 2015.

scribblet · February 27, 2016

The Council of Canadians has given their opinion on the Liberal report on physician-assisted suicide. Of note, is its assessment which demonstrates where the PMO's thinking on the topic of PAS departs from the Supreme Court's "Carter" decision creating the right to doctor-assisted suicide.
http://www.ccdonline.ca/en/humanrights/endoflife/SJCPAD-25feb2016

TimG · February 27, 2016

The Council of Canadians has given their opinion on the Liberal report on physician-assisted suicide.

I see they think advanced directives go against the SCC ruling. They are wrong. The court explicitly referenced the problem created by wasting illnesses which take a long time to kill but make it impossible for an individual to commit suicide themselves. This leaves them no option but to commit suicide long before the illness progresses far enough. The SCC said the law denied had the effect of denying these people the right to life in the sense that they wanted to lie longer than they did but we denied that opportunity because of the law. The only way to address the needs of such people is with advance directives.

dre · February 28, 2016

They are wrong. The court explicitly referenced the problem created by wasting illnesses which take a long time to kill but make it impossible for an individual to commit suicide themselves.

Nope it just has to be a "grievous and irremediable” medical condition. In some cases those people might be able to find a way to kill themselves, but the ruling paves the way for a physician to help. That certainly applies to all terminal patients and palliative patients. Any legislation by federal or provincial governments will eventually be tested by the courts once someone thinks they should qualify but are told they don't.

It will be interesting to see what happens when double amputees and paraplegics that aren't terminal or in pain end up before the courts.

Edited February 28, 2016 by dre

Big Guy · February 28, 2016

Nope it just has to be a "grievous and irremediable” medical condition. In some cases those people might be able to find a way to kill themselves, but the ruling paves the way for a physician to help. That certainly applies to all terminal patients and palliative patients. Any legislation by federal or provincial governments will eventually be tested by the courts once someone thinks they should qualify but are told they don't.

It will be interesting to see what happens when double amputees and paraplegics that aren't terminal or in pain end up before the courts.

I would assume that the only reason that a paraplegic or double amputee would be before a court would be that they are physically incapable of killing themselves but are unable to do so. I would suggest that to be in real pain.

ParkdaleCon · February 28, 2016

Its a Liberal government, its a fallacy that they allow their MPs to be more autonomous than a Conservative government, in recent times, they have been far worse.

Smallc · February 28, 2016

In recent times, they haven't been in government.

dre · February 28, 2016

I would assume that the only reason that a paraplegic or double amputee would be before a court would be that they are physically incapable of killing themselves but are unable to do so. I would suggest that to be in real pain.

Not at all. Plenty of them are physically able to kill themselves. Wheel yourself in front of a train! But even for someone that's able to do so physician assisted suicide would be a much better option for a whole lot of reasons... No chance of failure with the right procedure... No pain. No big mess on the railroad tracks... No getting found hanging from a rope, or in a bathtub full of blood, or with your head blown of.

Killing yourself doesnt work very well...

According to the American Association of Suicidology (based on a SAMHSA study)1, there are 25 attempts at suicide for every one success. The WHO estimates that globally there are at least 20 suicide attempts for every success.

Big Guy · February 28, 2016

Not at all. Plenty of them are physically able to kill themselves. Wheel yourself in front of a train! But even for someone that's able to do so physician assisted suicide would be a much better option for a whole lot of reasons... No chance of failure with the right procedure... No pain. No big mess on the railroad tracks... No getting found hanging from a rope, or in a bathtub full of blood, or with your head blown of.

Killing yourself doesnt work very well...

I disagree but cannot speak from experience. There are numerous web sites that will give you instructions on how to guarantee success if you are really serious - but I will not go there.

dre · February 28, 2016

I disagree but cannot speak from experience. There are numerous web sites that will give you instructions on how to guarantee success if you are really serious - but I will not go there.

Half the human race is barely capable of completing menial tasks... Never mind researching and properly executing their own death. Like I said, only 1 in over 20 attempts is successful.

TimG · February 28, 2016

Nope it just has to be a grievous and irremediable

Those are subjective terms that will be defined by the subject - not the courts.

I see nothing in the judgement talking about the fundamental right to control over oneself to suggest that the government has the right to deny someone who believes they are suffering from a "grievous and irremediable" condition access to assistance because the government decides it is not "grievous and irremediable" enough. Keep in mind that the right of a competent individual to decide their own treatment is enshrined in case law.

Edited February 28, 2016 by TimG

On Guard for Thee · February 28, 2016

Those are subjective terms that will be defined by the subject - not the courts.

I see nothing in the judgement talking about the fundamental right to control over oneself to suggest that the government has the right to deny someone who believes they are suffering from a "grievous and irremediable" condition access to assistance because the government decides it is not "grievous and irremediable" enough. Keep in mind that the right of a competent individual to decide their own treatment is enshrined in case law.

I don't think the government decides what is "grievous and irremediable" That is a task shared between the patient and their doctor, or, from what I hear from the LPC report, a panel of two doctors.