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Carter, Charter, and Magna CartaCarter, Charter, and Magna Carta

Carter, Charter, and Magna Carta

In striking down laws against physician-assisted suicide, the Supreme Court of Canada used the Charter of Rights to eviscerate 800 years of legal wisdom first captured in the Great Charter—or Magna Carta—and based on the immutable link between God and the rule of law.

André Schutten
10 minute read

In 1956, Lord Denning, arguably the greatest English jurist of the past 800 years, described the Magna Carta as "the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot."

In most history classes, the Magna Carta has become a symbol of the struggle between those in power and the equalizing force of the law. It stands for the rule of law: that all men must be treated fairly and not arbitrarily, and that no one is above the law, including the king.

Popular history misses the fact that the Magna Carta is first and foremost a religious document. A simple reading of the opening lines confirms that the Great Charter of 1215 doesn't start with barons, individual liberties or the issue of who holds what power. It begins with concern for the "health of the soul" of the king, the "honour of God" and the "exaltation of the Holy Church."

And the very first clause of the Magna Carta matches the very first clause of Canada's Charter of Rights and Freedoms: the protection of religious freedom. The Magna Carta opens thus:

"… First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired."

While much of this historic document has since been replaced or repealed by subsequent laws, the ancient Carta has enduring value. In particular, one clause stands out. Clause 40 (the numbers were added centuries later by Lord Blackstone) states:

"To no one will we sell, to no one deny or delay right or justice."

This clause is an expression of the principle of equality before the law, cemented into Canada's constitution in 1982 in section 15(1) of the Charter, which reads:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…."

In the recent Supreme Court of Canada ruling on assisted suicide, the Court sidestepped the issue of equality. The appellants, in their successful bid to strike down Canada's absolute prohibition on assisted suicide, argued not only that the prohibition violated the right to life, liberty and security of the person (protected under section 7 of the Charter) but also that it violated the section 15 equality rights of people with severe disabilities. The Supreme Court justices limited their analysis to section 7, stating briefly that having "concluded that the prohibition… violates s. 7, it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter."

By sidestepping the question of equal protection of the law, Canada's top court abandoned a principle enshrined some 800 years ago.

I have a cousin named James. James is a stand-up comedian of sorts. While he has full mental capabilities, he is bound to a wheelchair. James was born with a physical disability called spinal muscular atrophy, a condition that leaves him totally incapable of self-care. He is fed through a feeding tube and recently had a tracheostomy tube inserted to help him breathe. He frequently gets sick, and has been hospitalized many times. On some of those instances, the doctors have asked James' parents, "Are you sure you really want to do all this? Are these operations really worth it?" Even before euthanasia and assisted suicide were legalized, some lives were seen as not worth living.

When public policy embraces assisted suicide and euthanasia, it abandons James and others like him by eroding their fundamental right to life. To put it in terms of clause 40 of the Magna Carta, the Supreme Court of Canada has "denied or delayed right or justice" to James and others similarly situated.

If we, as a Canadian people, accept the Court's proposition that physician-assisted suicide and euthanasia should be legal in certain circumstances, we abandon Canadians with severe disabilities or limitations to a different standard of protection under the law. We elevate the rights of autonomy and choice (in particular, a choice in how to die, not just when to die) of some over and above the right to life of others.

But how? How does legalizing euthanasia and assisted suicide do this?

With the exception of anarchists, we all believe that there is a role for the State. And if there is just one job for the State, it is to protect the life of innocent citizens from other individuals. That's what this debate is about. It's not about autonomy or freedom or owning your own body. This is about permitting in law some people to kill other people and how that policy has inherent risks that put vulnerable lives in jeopardy, in particular the lives of people like James.

Let's do a thought experiment to demonstrate how their right to life is undermined.

Consider who the prosecution's main witness is in the criminal trial of someone charged with an interpersonal crime (e.g., theft, rape, assault). Rule of thumb: the chief witness is the victim. And who is the prosecutor's main witness in a homicide trial? Again, it's the victim. What's the problem? The witness is rather unresponsive when called to the stand in the homicide trial.

I don't mean to be glib. Where the criminal law is changed such that some people are allowed to kill other people, it now becomes a burden for the State to prove beyond a reasonable doubt that, in fact, the person killed did not consent to be killed. Common sense, and the nature of the entire euthanasia debate, dictates that those who are disabled are the most likely to be assumed to want to die (creating reasonable doubt), whereas strong and healthy people won't be at risk of that same assumption.

In effect, this means that disabled Canadians, as a class of people, are provided less protection and benefit of the law vis-à-vis the homicide provisions in the Criminal Code than are able-bodied Canadians when an absolute ban on killing people is removed.

Here's the thought experiment: Imagine you are on a jury in a homicide trial, and I am the murder victim. Is there any reasonable doubt that I would not have consented to my death? Not likely. I'm happy, healthy, young, employed and have lots of friends on Facebook. Canadian Criminal Courts will not "deny or delay right or justice" for me.

Now, our illustrious Supreme Court has ruled that you can consent to die if — and that's a really big and telling if — you are suffering. Imagine that you're on a jury for a homicide and the victim is James. James, severely physically disabled, is still a competent adult. Do you think that a jury will find someone guilty of murder for killing a severely disabled person if we say that it's legal to do so as long as the "victim" consented to being killed? Now is there reasonable doubt? After all, you wouldn't want to live like James, so maybe… maybe James didn't want to live like James.

If we remove the absolute prohibition on some people killing other people, will the law protect James the same way that it protects me? In fact, without a reasonable likelihood of conviction, most prosecutors will not bother to proceed with prosecution at all.

Think of the Robert Latimer case. Euthanasia was illegal then and the jury still found him not guilty of murder for killing his daughter, Tracy, even though he admitted doing it! (This was later reversed on retrial.)

Legalizing euthanasia and assisted suicide creates a two-tiered justice system, with robust protection for the lives of able-bodied Canadians and weaker protection for the lives of Canadians with severe disabilities.

The Supreme Court, by undermining the equal benefit of the law in this way, has actually undone more of the Magna Carta than just the principle enshrined in clause 40. The Magna Carta stands for the rule of law, that no man, including the king, is above the law and that no man, however poor, is denied equal benefit of the law. The Supreme Court has undone that — some of Canada's most vulnerable will lose equal access to the protections of the Canadian Criminal Code.

While watching the drama of the Carter appeal unfold in Canada's hallowed Supreme Court, I was struck by the strategy of the B.C. Civil Liberties Association. Due to the reasoning in the Bedford prostitution decision in December 2013, the only thing they had to prove was that the absolute prohibition on assisted suicide undermined the right to life, liberty or security (i.e., autonomous choice) of just one person. If they could prove that, then the onus would shift to the State to justify this infringement under section 1 of the Charter. Section 1, after all, requires the State to meet the Charter test that a given law falls within "reasonable limits… as can be demonstrably justified in a free and democratic society."

Never, in the history of the Charter, has a section 7 violation been saved under section 1, which is why the B.C. Civil Liberties Association strategy worked. Throughout the decision, societal interests in preserving life and protecting vulnerable people are juxtaposed with the individual rights of the appellants. Both the trial court and the Supreme Court admitted that "the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully designed system imposing stringent limits that are scrupulously monitored and enforced."

Note well that the judges admit implicitly that innocent people will die. The risks are inherent, they say. But they can be minimized, though not eliminated.

For them, the risk to innocent lives simply needs to be balanced with the autonomous choice of others.

Two different standards emerged. A violation of the autonomy rights of just one person: totally unacceptable to the appellants. A violation or risk of innocent people dying: an acceptable risk in "balancing rights."

One of the intervenors, the Canadian Civil Liberties Association, also argued that the preservation of life does not trump personal autonomy. In effect, we saw the opposite argued: the right to autonomy trumps the right to life.

The issue of balancing communal goods and individual rights was already an issue at the time the Magna Carta was penned. As David Koyzis points out in the article "Magna Carta at 800":

"What Magna Carta and its successors could not do, however, was to stem the tide of an individualism which… envisioned political order as a product of a social contract among sovereign individuals. This has had two consequences. First, individualism identifies justice not with a divinely established norm for political life, but with satisfying the potentially shifting wills of citizens. Second, it makes it more difficult for governments to recognize that justice calls for protecting the rights of communities as well as of individuals.
—Capital Commentary

But the Carter decision tips the scales wildly out of balance in favour of autonomy and individualism. The individualism of the Magna Carta was tempered by the focus in its introductory clauses on the communal aspects of life: church, home and community. However, the Supreme Court gives mere lip service to the communal and societal interests, eloquently defended by counsel for the Government of Canada, before ruling in favour of individualism and figuratively throwing communities of vulnerable people under the bus.

More frustrating yet is the idea that assisted suicide is in any way autonomous. If I give you a gun and say "I consent to my death. I want you to end my life in 10 minutes," who has the power over my life? It's not me. And yet the Supreme Court, in paragraphs 64 to 69 of its judgment, speaks more than a dozen times of the choice and autonomy of the patient in choosing assisted death.

Striking down the absolute criminal prohibitions on assisted suicide and euthanasia are not at all about autonomy and are actually about something else — about taking the power over life from some and giving it to others. The change in the law is to protect the doctors, who have the final say over life, not the patients. And, as has been amply demonstrated in every other permissive jurisdiction in the world, the procedure is never limited to competent adult patients.

Human dignity is not first found in autonomous choices. Human dignity is found in human life. It is existential, meaning the dignity comes from simply being, simply existing, as a human. This understanding of human dignity is necessary for universal human rights and freedoms to function, to flourish and to be equally available to all.

So what should we make of our historic break with our 2,000-year history of moving away from the right to kill other people? Our universal human rights are based on a particular worldview, one that the drafters of the Magna Carta and political philosophers such as Immanuel Kant, John Locke and John Stewart Mill all took for granted. It was the Judeo-Christian worldview that moved us away from throwing infants off the cliffs in Sparta or abandoning the sick and disabled by the Tiber River in Rome.

The reason universal human rights should be recognized and can be an absolute standard to which all humans can appeal is because they have their foundation outside of us. In order for the Charter to work, in order for the fundamental freedoms to function and for equality rights to exist and to continue to exist, they require us to recognize that Canada, that our Constitution, that the law, is or must be founded upon principles that recognize the supremacy of God and the rule of law. Without that foundation, there is only us — lawyers and politicians and philosophers — to determine the law.

And if it's just us, there's nothing stopping another judge or panel of judges from ruling that maybe the homicide provisions in the Criminal Code should be interpreted in a more Orwellian fashion, that everyone is equal but some are just a little more equal than others.

When we encounter another person, we first see (or we ought to first see) not skin colour, not gender, not disability, not suffering, not imminent death. Rather, we see someone made in the image of our Maker, we see the Imago Dei. That's why each person has dignity, whether they recognize it or not, and that's why we must treat every human being with respect regardless of how sick they are, how disabled they are, or how much or how little they can function.

The drafters of the Magna Carta understood that and probably took it for granted. They based their claims and assertions on something more than their own power, authority or abilities. They looked to God first and to the Church second. They did not look first to themselves and their own strength.

In the Christian worldview, we all stand on equal ground before God. This is why, in How Now Shall We Live? Charles Colson opined, "Christianity has always provided not only a vigorous defence of human rights but also the sturdiest bulwark against tyranny."

An old maxim of English law is Saepe viatorium nova non vetus orbita fallit (Often it is the new road, not the old one, that deceives the traveller). Are we certain we want to walk down this new road of legalized death?

My submission is that the State cannot create unequal protections for human life by endorsing euthanasia and assisted suicide. To do so takes us back to a dark time not just 800 years ago but over 2,000 years ago. The Magna Carta signalled something better. Our Supreme Court has undone that.

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