Carter v. Canada Moot Flashcards
BACKGROUND FACTS OF THE CASE
- Plaintiffs: Gloria Taylor, Lee Carter, Hollies Johnson, and Dr. William Shoicet enlisted help of BCCLA
- Brought claim before BC Supreme Court challenging constitutionality of S.241
- 241 was struck down, Canada appealed on ground of upholding R. v. Rodrigues decision and won at the Appeal Court of BC
- Carter appealed to SCC
CENTRAL LEGAL ISSUE
The central legal issue in this case is whether Section 241 of the Criminal Code of Canada violates the rights guaranteed in Section 7 and 15 of the Canadian Charter of Rights and Freedoms?
POSITION
The respondent’s position is that Section 241 of the Criminal Code of Canada is constitutional and should be upheld.
- Purpose of the Law
a. Respect Sanctity of Life
- Human life itself has immeasurable worth.
- philosopher Immanuel Kant said in his ultimate moral principle that, “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.”
- This means that since human beings can be seen as rational agents (they have goals, desires, and the ability to think critically), they have an inherent value and intrinsic worth (dignity), unlike material objects that are seen to have no value.
- YHs, striking down Section 241 of the Criminal Code would give doctors the power to take away human life, and therefore decriminalize suicide, and death in general.
- power would devalue human life itself, and lead to all of society having less respect for the value of life.
- Purpose of the Law
b. Preserve Human Life
- law was designed to preserve life, which is something Canada believes in on a national level.
- Right to life is guaranteed in S.7 of the CCRF
- ideal of preserving human life can also be seen in Hippocratic Oath, which is an oath traditionally recited by physicians upon entering the medical practice.
- classic version states, “I will give no deadly medicine to anyone if asked, nor suggest such counsel.”
- Section 241 of the Criminal Code is a reflection of this statement, and aims to ensure doctors make sound moral choices.
- Physicians who perform assisted suicide violate not only the law, but the Hippocratic Oath as well.
- Purpose of the Law
c. Safeguard the Vulnerable
According to government statistics, 70% of elder abusers are people whom the abused depends on. Your Honours, one of the most important purposes of this law is to safeguard the vulnerable, specifically elderly people, from people who do not have their best interests in mind. If there was no law against assisted suicide, elder abusers could take advantage of elders and coerce them into suicide. One example of gross elder abuse is the death of Victorino Noval at Kaiser Permanente in Riverside, California, a state where physician-assisted suicide is illegal. Two of his daughters had him terminally extubated without proper consultation with his Power of Attorney (his son, Henry Noval) in order to gain aces to their multi-million dollar inheritances, even though Mr. Noval was not terminally ill and was able-minded and bodied. Had physician-assisted suicide been legal, the plaintiff would not have been able to prosecute the daughters and doctors for their wrongdoings. In Canada, Section 241 aims to prevent the abuse of the vulnerable. If it is struck down, it could lead to able-minded people like Mr. Noval being taken advantage of with irreversible consequences.
- Purpose of the Law
d. Protect the Mentally Ill
Another purpose of Section 241 of the Criminal Code is to ensure that emotionally or mentally unstable people do not request suicide at a time of weakness, or due to pressure from family, friends, or their conscience. According to the Canadian Legal Information Institute’s (CanLii) Carter v Canada record, “The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily.” This excerpt shows that the law has an important purpose of protecting the vulnerable and is not overbroad because it applies equally to everyone (Rule of Law).
- The Law Is Working
a. Preserving Life
It is often a cry for help when a patient requests physician-assisted suicide. In countries/states where it has been legalized, many studies have found that “immeasurable pain” is not the biggest reason for assisted suicide. For example, in the state of Oregon, the three most frequently mentioned end-of-life concerns in 2014 were: “loss of autonomy (91.4%), decreasing ability to participate in activities that made life enjoyable (86.7%), and loss of dignity (71.4%).” The purpose of assisted suicide is to relieve immeasurable and intolerable suffering from patients, and this above example shows that assisted suicide is not being used for it’s true purpose. Your Honours, if it were to be legalized, it would lead to many other problems that would outweigh the benefits of the procedure.
- The Law Is Working
b. Disability is Not Loss of Dignity
Disabling factors of terminal diseases, including limited motor functions, incontinence, and loss of control of the body are commonly seen as factors that reduce one’s dignity. Your Honours, my friends will argue that Section 241 should be struck down because it causes a loss of dignity in terminally ill patients. It is simple to understand why the two are often related in a society that values physical ability and stigmatizes physical impairments. However, these disabilities are not directly correlated with losing dignity. Disabled people can still live meaningful and happy lives. It is suggested that disabilities have become accepted as justification for assisted suicide. Section 241 of the Criminal Code is working because it is preventing disabled people from committing suicide out of the notion that they are less valuable members of society.
- The Law Is Working
c. Achieving Objective
In has been proven that there is a link between suicidal people and clinical depression. A person could easily become depressed or feel worthless if they are told they have a terminal illness and will eventually lose control of all bodily functions. A study done on the prevalence of the desire to die in terminally ill patients by The American Journal of Psychiatry found that 44.5% of patients wished death would come soon, but only 8.5% of these individuals had an extensive desire to die. Of the patients that expressed a desire to die, 58.8% of them were diagnosed with depressive syndromes. On the contrary, only 7.7% of patients without a desire to die were diagnosed with depressive syndromes. This means that many patients with a desire to die are affected with clinical depression, which is a treatable and non-terminal condition. It is clear that Section 241 is working because it is protecting the vulnerable, which is often the mentally ill, from committing suicide.
- The Law Is Working
d. Reasonable Limitation to Section 7
According to Section 1 of the Canadian Charter of Rights and Freedoms, no rights are absolute. The respondents rebut the statement that Section 241 of the Criminal Code is a violation of the rights guaranteed in Section 7 of the Charter, which include the rights to life, liberty, and security of the person. It is the respondent’s position that Section 241 is a reasonable limitation of Section 7 of the Charter. Your Honours, how can the government, on an institutional level, legalize death by unnatural causes when they guarantee the right to life? This is the basic purpose of Section 241 – to uphold the right of life. Without Section 241, a plethora of other problems could occur that would put citizens at harm.
- Negative consequences if the law is struck down
INTRO
Your Honours, on a balance of probabilities, striking down Section 241 would do more harm than good. It has a purpose and is currently fulfilling its purpose. Allowing physician-assisted suicide not only devalues human life itself, but it would lead to less focus on care for the terminally ill, and is unnecessary in many cases.
- Negative consequences if the law is struck down
a. Less Focus on Care of Terminally Ill
If assisted suicide were an option, healthcare providers would be less motivated to make a person’s last months of life fulfilling because death would be imminent anyways. In reality, there are many ways to make a person’s last months valuable. One of the most prevalent ones is palliative care, which is treatment that is aimed to reduce or alleviate pain and suffering without treating the underlying problem. It is person-centered, and focuses on individualized care as opposed to disease-specific care. It acknowledges spiritual, social, and family aspects and can have profound impacts on the health and well being of terminally ill patients. It is becoming better known, but it is estimated that only 16-30% of patients who need palliative care in Canada are receiving it. Implementing a national palliative care strategy would benefit our aging population, and make many terminally ill patients want to live longer, instead of wishing to end their life.
- Negative consequences if the law is struck down
b. Decriminalizes Suicide
At least 10 Canadians die from suicide every day, which adds up to almost 4000 people every year. In Canada, there is a stigma around suicide, and it is said to be a national problem. Many people argue Canada needs a national suicide prevention strategy, and the Canadian Association for Suicide Prevention (CASP) constructed the CASP Blueprint for a Canadian National Suicide Prevention Strategy in 2004. Yet, Canada wants to legalize physician-assisted suicide on an institutional level. This is completely contradictory to all of our suicide prevention measures. Why are we trying to save the lives of younger suicidal people, but if they are terminally ill, we are going to allow – even encourage – their death to come sooner? This is the true affront to human dignity. It devalues lives, and says some lives are more than others. We cannot allow citizens to accept these values because it is discriminatory towards the disabled. It means that the disabled will not be treated with the equality and without the discrimination guaranteed in section 15 of the Charter.
- Negative consequences if the law is struck down
c. Cost-Driven Treatment
The average cost of an assisted suicide treatment ranges from $35 - $100. The cost of life-saving or life-extending treatment for terminal patients can be thousands of dollars per month. Doctors or health insurance providers who are cost-conscious may be reluctant to provide expensive treatment for terminally ill patients. A good example of this is Barbara Wagner from Oregon. With lung cancer in remission, a doctor prescribed a life extending, $4000/month treatment, but her state-run Oregon Health Plan refused to cover the cost of the treatment. Instead, it informed her of her option of physician-assisted death, which would be covered. Barbara was not alone in her problem. Many other citizens have encountered the same problem with their state-run health plans. In fact, a study done in 1998 by Georgetown University’s Center for Clinical Bioethics found that there is a strong link between doctors pressured to cut costs and their willingness to prescribe lethal, but legal, drugs. Decriminalizing assisted suicide could have majorly detrimental effects on citizens who have managed health care plans. Overall, on a balance of probabilities, assisted suicide has the potential to cause more harm than good to terminally ill patients.
