OTTAWA—The so-called “right to die” was back on Canada’s conscience Wednesday as the Supreme Court confronted the question of whether a ban on assisted suicide protects or violates the fundamental rights of Canadians.
Those arguing for a change in the law say public opinion has shifted dramatically in the more than 20 years since Sue Rodriguez became a household name by taking her fight for a medically assisted death to the top court.
In 1993, the nine-justice panel was split; Wednesday’s submissions made it clear that the issue remains as divisive as ever for medical practitioners, religious groups, and even advocates for the rights of the disabled.
Two different groups representing Canadians with disabilities appeared before the court, arguing opposite sides of the case.
The justices were sensitive to the resulting tension, as well as the notion that any one group—including the government—can claim to speak for what anyone wants or needs.
During submissions from one of the government lawyers, both Chief Justice Beverley McLachlin and Justice Rosie Abella interrupted to take issue with the language being used to describe the people at the heart of the case.
To say all disabled people “need protection, a leg up, different treatment—to treat them all the same—seems to be rather a stereotypical thing,” McLachlin said.
The justices are considering whether the ban violates the Charter of Rights and Freedoms, in part because while able-bodied Canadians can take their own lives, someone physically incapable of doing so would need help—and the helper would face legal repercussions.
Some disabled people adapt better than others and simply wouldn’t seek to end their own lives, given the right, acknowledged Joseph Arvay, the lead lawyer for the appellants and himself a paraplegic.
“I say—and with the greatest respect I say—it is wrong, indeed it is arrogant of those disabled people to impose their views of what suffering is acceptable and tolerable for others,” he said.
“Suffering is a very personal, subjective and contextual concept.”
At one point, government lawyer Donnaree Nygard argued that even the most seriously disabled people have “options” for ending their lives.
“There are options for ending life open to everyone, even the most severely disabled—and that is not to say that they are easy or comfortable options,” Nygard said.
“The refusal of nutrition and hydration is neither easy or comfortable, but the so-called usual means of suicide are also not easy or comfortable…. What they want is not access to assistance for the usual means of suicide, what they want is—in their own words—a better choice.”
Justice Rosalie Abella interjected: “They want access to the right that persons who are not disabled have to decide when to end their suffering,” she said.
“They want access to a medicalized suicide,” Nygard replied.
“Because they can’t do it the way somebody who is not disabled can,” Abella said.
The panel also raised the issue of who ought to have the right to an assisted death. Justice Michael Moldaver wondered about diseases which may not have a cure now, but could in the future. Justice Rosalie Abella asked whether someone’s right ought to be limited by the illness itself.
“Assisted dying should only be allowed in the most serious cases and not just because somebody wants to; it’s because their condition is not going to get any better,” Arvay said.
Though the plaintiffs argue it would be up to Parliament to determine the extent of a law allowing assisted death, they provided some conditions: the person would have to be a competent adult, acting voluntarily, and with an incurable medical condition that causes profound suffering.
It’s up to the courts to compel them to act, Arvay said.
In 1993, the Supreme Court ruled in a 5-4 decision that where assisted death is concerned, certain rights enshrined in the Charter of Rights and Freedoms are trumped by the principles of fundamental justice.
Since then, several private member’s bills on assisted suicide have come before Parliament but have failed to pass. Quebec adopted right-to-die legislation earlier this year.
Despite that, little else has changed, the government argued. There is no new case law, no new legal perspectives, nor any new facts, said Robert Frater, the government’s lead lawyer.
“Our position is straightforward: Rodriguez is still good law,” he told the court.
“Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair,” the court’s decision at the time said.
In the original B.C. lower court ruling that prompted the Supreme Court case, the judge explored a number of ways in which things have changed since Rodriguez—including the availability of care for patients nearing death.
But that can’t be a consideration here, Frater said.
“It would be an indictment of the health system if you decided that because palliation was not available to everyone, you had to find a right to assisted suicide,” Frater said.
“That’s a legal system gone awry in my submission.”
***
Some of what was said Wednesday as the Supreme Court of Canada heard arguments about the prohibition on assisted suicide:
“The problem with the present situation right now is we have the proverbial back alleys where people have to go out and buy these turkey bags that they fill with helium in order to die, or they have to order drugs from Thailand or Mexico, which if they don’t work they leave them brain damaged and worse off. What we want is to have this be as a purely medicalized sort of procedure.”—Joseph Arvay, lead lawyer for the plaintiffs.
“There has not only been a fundamental change in the parameters of the debate since the Rodriguez case, but it is our clients that revived a debate that’s been dormant for 20 years, and what a debate it has been. We say this is the case that quite simply needed to be heard, whatever the outcome—and, of course, we hope we will have persuaded you that there is only one right outcome.”—Arvay.
“Our position is straightforward: Rodriguez is still good law. The twin objectives of the legislation … are as vital today as they were 21 years ago.”—Robert Frater, lawyer for the Attorney General of Canada.
“In my respectful submission, it would be an indictment of the health system if you decided that because palliation was not available to everyone you had to find a right to assisted suicide. That’s a legal system gone awry in my submission.”—Frater.
“Once it’s accepted that an element of personal autonomy includes the right to decide how and when to end your own life, the right necessarily includes the right to seek assistance. And why do I say that? Because when you look at this issue in Morgentaler, the right to abortion recognized there included the right to assistance in obtaining that abortion. In Insite, the right to a safe injection site recognized the right to assistance in that regard.”—Christopher Bredt, Canadian Civil Liberties Association.
“Our laws and our health care system are committed to protecting life. Striking down the ban on assisted suicide will erode this basic trust.”—Statement from Bruce Clemenger, president of the Evangelical Fellowship of Canada.
“Since euthanasia and assisted dying are illegal, we continue to advise our members not to participate in these activities. Ultimately, however, we recognize that this is a societal issue and that it is society that will ultimately decide what will take place.” Statement from Dr. Chris Simpson, president of the Canadian Medical Association.