On May 7, 2012, the Montana Board of Medical Examiners voted to postpone consideration of whether Position Statement No. 20 should be vacated.[1] Position Statement No. 20 concerns "aid in dying," a euphemism for assisted suicide and euthanasia.[2] The reasons given for the delay included "to allow additional time for public input."[3]
On July 6, 2012, Montanans Against Assisted Suicide filed additional "public input" including a letter and a legal memorandum titled: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law."[4] The letter requested twenty minutes oral argument.[5]
On July 20, 2012, the Board held the postponed hearing. The Board acknowledged that it had received the above documents and also acknowledged the presence of Cory Swanson, attorney for Montanans Against Assisted Suicide. The Board did not allow Mr. Swanson to speak.
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Sunday, July 22, 2012
Saturday, July 21, 2012
Melchert-Dinkel Decision
The syllabus from the decision affirming Melchert-Dinkel's conviction is set forth below. To view the entire decision, click here.
"1. Minnesota Statutes section 609.215, subdivision 1, which criminalizes advising, encouraging, or assisting another to commit suicide, is not unconstitutionally overbroad under the First Amendment.
2. The First Amendment does not bar the state from prosecuting a person for advising, encouraging, or assisting another to commit suicide by sending coercive messages to suicide-contemplating Internet users instructing them how to kill themselves and coaxing them to do so."
"1. Minnesota Statutes section 609.215, subdivision 1, which criminalizes advising, encouraging, or assisting another to commit suicide, is not unconstitutionally overbroad under the First Amendment.
2. The First Amendment does not bar the state from prosecuting a person for advising, encouraging, or assisting another to commit suicide by sending coercive messages to suicide-contemplating Internet users instructing them how to kill themselves and coaxing them to do so."
Tuesday, July 17, 2012
Melchert-Dinkel Assisted-Suicide Conviction Upheld!
http://minnesota.publicradio.org/display/web/2012/07/17/news/melchert-dinkel-aiding-suicide-conviction/
Appeals Court upholds nurse's aiding suicide conviction
by Amy Forliti, Associated Press
MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the convictions of a former nurse who scanned online chat rooms for suicidal people then, feigning compassion, gave a British man and a young woman in Canada instructions on how to kill themselves.
William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was morally wrong but argued he had merely exercised his right to free speech and that the Minnesota law used to convict him in 2011 of aiding suicide was unconstitutional.
The appeals court disagreed, saying the First Amendment does not bar the state from prosecuting someone for "instructing (suicidal people on) how to kill themselves and coaxing them to do so."
Melchert-Dinkel's attorney, Terry Watkins, was not immediately available for comment.
Court documents show Melchert-Dinkel searched online for depressed people then, posing as a female nurse, offered step-by-step instructions on how they could kill themselves.
Melchert-Dinkel was convicted last year of two counts of aiding suicide in the deaths of 32-year-old Mark Drybrough, of Coventry, England, who hanged himself in 2005; and 18-year-old Nadia Kajouji, of Brampton, Ontario, who jumped into a frozen river in 2008.
He was sentenced to more than six years in prison but the terms of his parole meant he would only be imprisoned for about a year. His sentence was postponed pending his appeal, but at the time of sentencing, he was told that if his convictions were upheld, he'd have seven days to report to jail.
In arguing to overturn the conviction, Watkins said his client didn't talk anyone into suicide but instead offered emotional support to two people who had already decided to take their lives.
Assistant Rice County Attorney Benjamin Bejar had argued that Melchert-Dinkel wasn't advocating suicide in general, but had a targeted plan to lure people to kill themselves. Prosecutors have said he convinced his victims to do something they might not have done without him.
Bejar said Tuesday that prosecutors were pleased with the decision.
In a statement read at his sentencing last year, Melchert-Dinkel said he was sorry for his role in the suicides and that he realized he had rejected a unique opportunity to talk his victims out of killing themselves.
Melchert-Dinkel's nursing license was revoked in 2009
Appeals Court upholds nurse's aiding suicide conviction
by Amy Forliti, Associated Press
July 17, 2012
[To view other information/trial court documents, click here]
MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the convictions of a former nurse who scanned online chat rooms for suicidal people then, feigning compassion, gave a British man and a young woman in Canada instructions on how to kill themselves.
William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was morally wrong but argued he had merely exercised his right to free speech and that the Minnesota law used to convict him in 2011 of aiding suicide was unconstitutional.
The appeals court disagreed, saying the First Amendment does not bar the state from prosecuting someone for "instructing (suicidal people on) how to kill themselves and coaxing them to do so."
Melchert-Dinkel's attorney, Terry Watkins, was not immediately available for comment.
Court documents show Melchert-Dinkel searched online for depressed people then, posing as a female nurse, offered step-by-step instructions on how they could kill themselves.
Melchert-Dinkel was convicted last year of two counts of aiding suicide in the deaths of 32-year-old Mark Drybrough, of Coventry, England, who hanged himself in 2005; and 18-year-old Nadia Kajouji, of Brampton, Ontario, who jumped into a frozen river in 2008.
He was sentenced to more than six years in prison but the terms of his parole meant he would only be imprisoned for about a year. His sentence was postponed pending his appeal, but at the time of sentencing, he was told that if his convictions were upheld, he'd have seven days to report to jail.
In arguing to overturn the conviction, Watkins said his client didn't talk anyone into suicide but instead offered emotional support to two people who had already decided to take their lives.
Assistant Rice County Attorney Benjamin Bejar had argued that Melchert-Dinkel wasn't advocating suicide in general, but had a targeted plan to lure people to kill themselves. Prosecutors have said he convinced his victims to do something they might not have done without him.
Bejar said Tuesday that prosecutors were pleased with the decision.
In a statement read at his sentencing last year, Melchert-Dinkel said he was sorry for his role in the suicides and that he realized he had rejected a unique opportunity to talk his victims out of killing themselves.
Melchert-Dinkel's nursing license was revoked in 2009
Tuesday, July 10, 2012
Canada: What about the right to cry for help?
http://www.montrealgazette.com/news/about+right+help/6907100/story.html
It has taken me a long time to read through the nearly 400 pages of the June 15 decision of the British Columbia Supreme Court on the issue of assisted suicide. I found reading it to be like a journey to a dark place, full of raw emotions.
The long and the short of the reasons for judgment issued by Justice Lynn Smith is that legal provisions in Canada prohibiting assisted suicide law are unconstitutional because they impede disabled people’s rights to life, liberty and security of the person.
The judge believes that having a disability or degenerative illness is a rational reason to want to die, and that those of us with disabilities should be helped to die if we can’t do it neatly or efficiently ourselves.
Justice Smith doesn’t appear to believe that people with disabilities and terminal illness are ever coerced, persuaded, bullied, tricked or otherwise induced to end our lives prematurely. She believes those researchers who contend there have been no problems in jurisdictions where assisted suicide is legal, and she rejects evidence suggesting there have been problems.
She writes: “It is unethical to refuse to relieve the suffering of a patient who requests and requires such relief, simply in order to protect other hypothetical patients from hypothetical harm.”
I’ll have to mention that to some of my hypothetical friends who say they have been pressured by doctors, nurses and social workers to hypothetically “pull the plug.”
The same goes for all those folks who succumbed to the pressure; I guess they’re only hypothetically dead.
By Amy E. Hasbrouck
The long and the short of the reasons for judgment issued by Justice Lynn Smith is that legal provisions in Canada prohibiting assisted suicide law are unconstitutional because they impede disabled people’s rights to life, liberty and security of the person.
The judge believes that having a disability or degenerative illness is a rational reason to want to die, and that those of us with disabilities should be helped to die if we can’t do it neatly or efficiently ourselves.
Justice Smith doesn’t appear to believe that people with disabilities and terminal illness are ever coerced, persuaded, bullied, tricked or otherwise induced to end our lives prematurely. She believes those researchers who contend there have been no problems in jurisdictions where assisted suicide is legal, and she rejects evidence suggesting there have been problems.
She writes: “It is unethical to refuse to relieve the suffering of a patient who requests and requires such relief, simply in order to protect other hypothetical patients from hypothetical harm.”
I’ll have to mention that to some of my hypothetical friends who say they have been pressured by doctors, nurses and social workers to hypothetically “pull the plug.”
The same goes for all those folks who succumbed to the pressure; I guess they’re only hypothetically dead.
Sunday, July 8, 2012
Montanans Against Assisted Suicide Pushes Legal Challenge Forward
By Margaret Dore
July 6, 2012, Montanans Against Assisted Suicide (MAAS) filed documents with the Montana Medical Examiner Board for the purpose of vacating Position Statement No. 20, titled "Physician Aid in Dying." The documents filed included: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law," which states:
"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."
To view the above document in its entirety, read the text below or click here to read the hard copy filed with the Board. Other documents filed with the Board included a cover letter and a proposed order.
The Text:
1. On March 16, 2012, the Board adopted a revised version of Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]
2. The term, “aid in dying,” means assisted suicide and euthanasia.[2]
3. On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.” Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]
4. Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4] In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5]
5. In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]
6. The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7] These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8] These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.
7. Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board. With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.” Position Statement 20 is null and void.
"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."
To view the above document in its entirety, read the text below or click here to read the hard copy filed with the Board. Other documents filed with the Board included a cover letter and a proposed order.
The Text:
1. On March 16, 2012, the Board adopted a revised version of Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]
2. The term, “aid in dying,” means assisted suicide and euthanasia.[2]
3. On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.” Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]
4. Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4] In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5]
5. In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]
6. The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7] These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8] These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.
7. Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board. With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.” Position Statement 20 is null and void.
8. The Board’s lack of authority is a lack of subject matter jurisdiction and requires Position Statement No. 20 to be vacated to the extent that it purports to legalize “aid in dying” and/or refers to “aid in dying” as an “end-of-life” matter.
9. Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]
10. Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment. § 2-4-302(4), MCA states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shallschedule an oral hearing.” (Emphasis added). A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.” In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11] The Board knew of “widespread citizen interest” as a matter of law. The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public. For this reason also, the statement is null and void.
11. Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.” This is the function of the Legislature, not the Board. Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).
12. Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).
13. For the above reasons, Position Statement No. 20 is null and void as a matter of law. It must be vacated and removed from the Board’s website."
[2] Model Aid-in-Dying Act, § 1-102(3), atwww.uiowa.edu/~sfklaw/euthan.html Note the letters “euthan” in the link.
[3] See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available athttp://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), athttp://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available athttp://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.
[4] Id.
[5] See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”). (Attached hereto at B-1 to B-3). [To view, click here]
[6] See Detailed bill information page, attached hereto at B-4. [To view, click here]
[7] For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10. A copy of the Act and other statutes are attached thereto at A-1 through A-28
[8] Id.
[9] See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above]
[10] § 2-4-102(12)(a).
[11] Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45. [To view citations, use links at note 7, above]
9. Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]
10. Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment. § 2-4-302(4), MCA states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shallschedule an oral hearing.” (Emphasis added). A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.” In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11] The Board knew of “widespread citizen interest” as a matter of law. The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public. For this reason also, the statement is null and void.
11. Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.” This is the function of the Legislature, not the Board. Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).
12. Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).
13. For the above reasons, Position Statement No. 20 is null and void as a matter of law. It must be vacated and removed from the Board’s website."
* * *
[1] The revised statement [titled Physician Aid in Dying] says: "The Montana Board of Medical Examiners has been asked if it will discipline physicians for participating in aid-in-dying. This statement reflects the Board’s position on this controversial question. [paragraph break] The Board recognizes that its mission is to protect the citizens of Montana against the unprofessional, improper, unauthorized and unqualified practice of medicine by ensuring that its licensees are competent professionals. 37-3-101, MCA. In all matters of medical practice, including end-of-life matters, physicians are held to professional standards. If the Board receives a complaint related to physician aid-in-dying, it will evaluate the complaint on its individual merits and will consider, as it would any other medical procedure or intervention, whether the physician engaged in unprofessional conduct as defined by the Board’s laws and rules pertinent to the Board." [To view the statement of the Board's website, click here.] [2] Model Aid-in-Dying Act, § 1-102(3), atwww.uiowa.edu/~sfklaw/euthan.html Note the letters “euthan” in the link.
[3] See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available athttp://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), athttp://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available athttp://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.
[4] Id.
[5] See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”). (Attached hereto at B-1 to B-3). [To view, click here]
[6] See Detailed bill information page, attached hereto at B-4. [To view, click here]
[7] For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10. A copy of the Act and other statutes are attached thereto at A-1 through A-28
[8] Id.
[9] See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above]
[10] § 2-4-102(12)(a).
[11] Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45. [To view citations, use links at note 7, above]
Sunday, July 1, 2012
False & Misleading "Aid in dying" Letter
Below, a letter to physicians responding to a prior "false and misleading" letter claiming that assisted suicide is legal in Montana. To see a hard copy of this letter as sent, click here.
Dear Physician:
I represent Montanans Against Assisted Suicide & For Living with Dignity. You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012. The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009. This is untrue. I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.
Dear Physician:
I represent Montanans Against Assisted Suicide & For Living with Dignity. You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012. The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009. This is untrue. I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.
Friday, June 29, 2012
"Especially if older people have money or real estate, our laws against assisted suicide are there to protect them"
Editor,
the Times:
I see that this greatly affects the way the parent feels as they grow older. They feel as if the family wants them to die so they can have their money. Some express the pain that they feel when they see loved ones discussing their money as if they have already passed away.
If assisted suicide was legal, some older people would feel the need to say yes - to die - because they are given the message that they are a burden to their family. Some of these older people can be easily convinced and put their trust fully in their caregivers and families.
If assisted suicide were legal, then some would really not make the decision, but let someone else make the decision for them. How is this right?
Especially if older people have money or real estate, our laws against assisted suicide are there to protect them.
Changing the law to allow assisted suicide would violate their right to be protected in this way.
Arlena Vane Aldergrove
Thursday, June 21, 2012
Canada, Carter & Outrage!
"Canada will be known as the country where a Provincial Judge has more power than the Federal Government. "
* * *
Dear Ms. Kerry-Lynne Findlay MP,
* * *
Dear Ms. Kerry-Lynne Findlay MP,
I am angry and upset about Justice Lynn Smith's decision in the Carter case, giving Ms. Carter the "right" to assisted suicide/euthanasia.
This erroneous and presumptuous decision by Justice Smith is a guarantee of elder abuse unto death. We already have a problem with elder abuse in Canada. I witnessed this firsthand with my mother, when, after a mild stroke, the relative holding power of attorney decided my mother would have no treatment. I sat by my mother's bedside in a Nova Scotia nursing home, unable to do anything except hold her hand while she suffered for six days, before finally succumbing to dehydration and starvation. If Justice Smith's decision is allowed to stand, there will be no need for inconvenienced or greedy relatives to wait for even this questionable medical procedure of withholding treatment.
It appears that Justice Smith holds herself above the Government of Canada. She has given our elected representatives, such as yourself, a year to comply with her decision to allow people to "help" kill other Canadians. This is the right to commit homicide. The Federal Government of Canada decided many years ago that Canada would not kill convicted murderers, even if they want to die, but now Justice Smith had deemed that anyone in Canada can kill another person who allegedly asks to be killed.
MP Findlay, the "right" to kill someone is not a decision for a Provincial Court Justice to make. If Justice Smith's decision is upheld, Canada will be a place of supreme irony. We will have the distinction of protecting the lives of convicted murders, while allowing our vulnerable elders and others to be subject to human error or deliberate murder. We will also be, I believe, unique as a nation: Canada will be known as the country where a Provincial Judge has more power than the Federal Government.
I look forward to your response on this matter.
Thank you.
Yours truly,
Kate Kelly, B.A., B. Ed.
Sunday, June 17, 2012
The Carter Opinion: Unclear Legal Effect & Invalid Reasoning
By Margaret Dore
On June 15, 2012, Justice Lynn Smith of the BC Supreme Court issued an opinion purporting to legalize assisted suicide and euthanasia in Canada.[1] As discussed below, the legal effect of this opinion is unclear. The reasoning is also invalid.
A. Legal Effect
The opinion was the result of a summary trial in which both the Attorney General of Canada and the Attorney General of British Columbia argued that the court had no power to do anything other than dismiss the case. This was due to the Supreme Court of Canada's prior decision on similar facts (the Rodriguez case). The opinion states:
"They [Canada and British Columbia] say that it is not open to this Court to do anything other than dismiss the plaintiffs' claim."[2]
If Canada and British Columbia are correct, the opinion is nothing more than an advisory document. Unless and until this point is resolved, any person participating in a death under the opinion will remain at risk of criminal prosecution, civil lawsuits and/or professional discipline.
B. Invalid Reasoning
The opinion is also written in double-speak, which means to say one thing and to mean another, sometimes the opposite. Most centrally, the opinion bases the plaintiff's "right to die" on her "right to life" in the Canadian Charter of Rights and Freedoms.[3] These are opposite concepts.[4]
The opinion also argues that because Canadian law does not prohibit suicide as a crime, that commiting suicide is a right.[5] This claim ignores other Canadian law discouraging suicide. Indeed, a suicidal person can be committed against his or her will in order to prevent a suicide.[6] With suicide actively discouraged under the law, it cannot be said that the law somehow grants a right to commit suicide. Once again, the opinion's logic is flawed.
* * *
[1] To view the opinion, click here.
[2] Opinion, page 251, paragraph 891.
[3] Id., pages 365-8.
[4] See e.g., the opinion at 366, pargraph 1314, which states: "Canada argues that the right to life does not include the right to choose death. [Canada] submits that such an interpretation would directly contradict the plain and obvious meaning of a right to life and would mark a significant departure from existing Supreme Court of Canada jurisprudence."
[5] See e.g., the opinion at 10, pargraph 15: "The claim that the legislation infringes Ms. Taylor's equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option because s. 241(b) prohibits assisted suicide."
[6] See BC Mental Health Act, Part 3, Section 22 (allowing involuntary admissions "to prevent the person's or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others").
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