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Seales’ Declarations

Seales sought two declarations regarding criminal law, and two declarations of inconsistency between the Crime Act and the NZBoRA:

1. Administered aid in dying is not unlawful under section 160 of the Crimes Act in circumstances where the Court is satisfied that the plaintiff is a competent adult who:
   • clearly consents to the administered aid in dying; and
   • has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness
2. Facilitated aid in dying is not prohibited by section 179 of the Crimes Act in circumstances where the Court is satisfied that the plaintiff is a competent adult who:
   • Act clearly consents to the facilitated aid in dying; and
   • has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness

The declarations of inconsistency that Seales sought were that:

1. Section 160 of the Crimes Act is inconsistent with sections 8 and 9 of the NZBORA, to the extent that administered aid in dying is unlawful under section 160 for a competent adult who:
   • clearly consents to the administered aid in dying; and
   • has a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.
2. Section 179 of the Crimes Act is inconsistent with sections 8 and 9 of the NZBORA, to the extent that it prohibits facilitated aid in dying for a competent adult who:
   • clearly consents to the facilitated aid in dying; and
   • has a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.

These declarations sought by Seales were to the effect of allowing her to commit physician assisted suicide. The declarations sought with regards to the New Zealand Bill of Rights Act (NZBoRA) were inspired by Carter v Canada, and the crippling condition that Seales found herself suffering from. These sections provide a barrier to euthanasia in New Zealand which closely resembled that of pre-Carter Canada.

Her reasoning was twofold: First, that she was under the constant worry that her inevitable and impending death would be slow, unpleasant, painful or undignified. She saw this as contrary to the way in which she lived her life, and she did not wish to be put through this. Secondly, she worried that this would put her in a position where she felt compelled to take her own life prior to the point that she would desire.

Judgement

Justice Collins set out a number of reasons why he could not accept these declarations, but he also acknowledged a number of things that Seales and her counsel were putting forward that were both accurate and persuasive. It was accepted that a change in the law could lead to a reduction in the number of suicides that take place in New Zealand. New Zealand currently has a very high suicide rate when compared to other developed countries, and taking a step in the direction of legalisation of euthanasia can help reduce this. This would act twofold, both by giving a more controlled and monitored way of ending a life, but also to reduce the number of people who take their own lives after the realization that they may end up in a position like Seales, with an impending loss of autonomy and dignity.

It was explained in the affidavit of Dr Reagan in this case that in his experience the option for aid in dying was beneficial for both patients and families of those suffering. The option of having this process available to you if you find yourself in a situation where a painful death is inevitable is said to help patients feel like there is a retention of some form of autonomy or control over their lives, while allowing them to live life with their families rather than feeling like they are forced to take it prematurely so as to avoid possible suffering in the future. This right to autonomy and dignity is one that is fundamental to the Law, and a basic principle of many jurisdictions and has been highlighted as a fundamental right in the European Court of Human Rights.

Despite this, Collins J declined to grant any of the declarations sought.

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Human Rights Discussions

This case brought forward some very heated Human Rights arguments, particularly those surrounding the right to life or the right not to be deprived of life, and the right not to be subject to torture or cruel treatment.

The right to life, or not to be deprived of life, is one of the most fundamental rights as per Blackstone. The differences between the Canadian charter and the NZBoRA begin to show here, as the relevant section of the Canadian Charter, section 7, is broader than section 8 of the NZBoRA. This lead to a determination that in the interaction of the Canadian Charter and their Crimes ‘Act’, there was the ability for a competent adult to consent to the termination of their life, so long as they are under the influence of a grievous and irremediable medical condition that causes intolerable and enduring suffering. In New Zealand, using this reasoning, it was to be discussed as to whether this was the case.

An argument in favour of euthanasia based upon the right to life may seem counterintuitive, however this argument is based on the proposition that the lack of any euthanasia services available to Seales was actively encouraging her to actively take her own life while she still has the autonomy and ability to do so. This has its grounding in section 8 of the NZBoRA. It was held by Collins J that as he had come to the conclusion that the Crimes Act was to be interpreted in a way in which consent was no defence to assisting suicide, this had the effect of possibly forcing Seales to take her own life. This acted to engage section 8. However, when section 8 is engaged it only guarantees that the state will deprive someone of, or interfere with, their life on ground established by law, and this interference must be consistent with the fundamental principles of justice. These fundamental principles are outlined in Carter v Canada. These are:

• Arbitrariness – Where there is no rational connection between the objective and the law
• Overbreadth or overly broad – Where the law goes further than necessary, breaching in a way that has no bearing on the objective of the law
• Gross disproportionality – Where the impact of the restriction is highly disproportionate to the purpose of the law

When determining ‘Arbitrariness’, we look to Chaoulli v Quebec. It was set out that a law can be found to be arbitrary where it bears no relation to, or is inconsistent with, the objective that it pursues. In order not to be found to be arbitrary, the limit on life or liberty requires both a theoretical connection to the purpose of the legislation and a real connection on the facts. Collins J determined that the purpose of the relevant sections of the Crimes Act in New Zealand were created with the purpose to protect all life, it could not be found to be arbitrary, thus Seales rights were not found to be limited arbitrarily.

When concerning ‘Overbreadth’ or whether the legislation was 'overly broad' as Collins J put it, the question is not whether Parliament had chosen the least restrictive means, but rather whether the chosen means infringe life, liberty, or security that has no connection with the crime or offence. In Carter, it was held that the prohibition on suicide was overly broad, as the law went beyond what the Courts thought that Parliament had intended. Here in Seales, Collins held that he was not able to read section 179 of the Crimes Act in the same way as the Canadian equivalent, and thus there was no overreaching to be found.

Finally, concerning ‘Gross disproportionality’, it asks whether the legislation goes beyond what would be considered within the norms accepted by the society that the legislation is found within. This was first referred to in R v Malmo-Levine as a fundamental principle of justice. This standard is also set out in Canada v Bedford as one of legislative responses that are so extreme as to be disproportionate to any legitimate government interest. It was held in this case that section 179(b) did not meet this standard, as it achieved its 'fair and reasonable' objective of protecting all life.

Finally, there was discussion in this case surrounding the right not to be subject to torture or cruel treatment. It was posed by Seales and her counsel that failing to allow Seales the ability to end her life was subjecting her to cruel treatment through effectively forcing her to have to live through, what was agreed by a number of professionals, to be quite a painful and debilitating terminal illness. However, previously it had been held in R v Martin (No 3) that section 8 of the NZBoRA cannot be used to affirm the right to be assisted to commit suicide. This previous judgment, coupled with the fact that it had been established by scholars that for a state’s actions to amount to ‘treatment’ there must be some positive action by the state or some exercise of state control over an individual, meant that the final argument made by Seales gave way. An argument made to help understand this is that of a heroin addict under the effects of drug control legislation. This may cause them pain and suffering due to withdrawals, but they are not considered subject to ‘treatment’ by the state. This is something that the House of Lords, the European Court of Human Rights and the Supreme Court of Canada all also agree upon.

Despite all this, the denial of the availability of euthanasia is where New Zealand legislation begins to fall short of other jurisdictions. The European Court of Human Rights and the Supreme Court of Canada have all held that the prohibition on assisting another’s suicide is considered legalized in some form, acting to promote euthanasia in their respective areas of jurisdiction. And even the House of Lords in Pretty v United Kingdom have made steps towards the legalization of this procedure, setting out that despite this being Parliament’s job, there was a consideration needed by Parliament in order to be able to establish the legality of this matter. If the UK was to go as far as to legislate for euthanasia, it would leave New Zealand some distance behind in terms of caring for those with terminal illnesses, and should certainly be a topic of discussion that Parliament must consider.