Humanist Perspectives: issue 191: Carter vs. Canada: The Supreme Court Deliberates Assisted Suicide

Carter vs. Canada: The Supreme Court Deliberates Assisted Suicide
by Simon Parcher

I

t is a tranquil morning in Ottawa on Wednesday, October 15, 2014, with just enough rain falling to require the use of an umbrella. To the west of the Parliament Buildings on a bluff high above the Ottawa River and set back from Wellington Street by an expanse of lawn, the Supreme Court of Canada Building dominates the landscape. On this day, its stately presence and majestic architecture will provide the setting for proceedings that will culminate in a momentous decision for all Canadians – one that is literally a matter of life and death.

...dozens lined up in the rain to get a public seat in the courtroom or to be part of the overflow crowd that watched the proceedings on closed circuit TV.

The country’s highest tribunal is about to hear oral arguments on the Carter vs. Canada case. The outcome of this case will determine whether or not the law banning physician-assisted suicide in Canada violates the constitutional rights of Canadians. This decision will impact not only Canadians, but set an example as a landmark ruling that will influence court decisions all around the world.

Several interest groups in support of striking down Canada’s law that criminalizes physician assisted suicide stood near the steps of the Supreme Court Building. A colorful display of umbrellas, placards and signage were in evidence as the demonstrators vied for the attention of onlookers and the media. Dying with Dignity Canada was perhaps the largest group present with signs saying, “My Life. My Right. My Choice.” and a large banner that read, “Why make people suffer when there is an alternative?” Individuals held up signs saying, “I’m a Canadian and I want a choice.” and “Allow me to choose.”

Further up on the Supreme Court steps, dozens lined up in the rain to get a public seat in the courtroom or to be part of the overflow crowd that watched the proceedings on closed circuit TV in the Grand Entrance Hall. Inside the doors there were another several dozen people waiting in an area that was cordoned off as security officials screened individuals before granting them further access. Members of the media with press passes were ushered past the waiting crowd.

The press had a visible presence in another cordoned off section of the Grand Entrance Hall. An impressive display of large TV cameras panned the activity in the Hall and microphones resembling a long row of artillery were standing at attention, side-by-side, as several interviews took place simultaneously. It seemed that all the major media outlets from across the country were present. There was also a press table inside the courtroom where media types were set up with their laptops. This location provided an excellent vantage point from which reporters from publications like the Globe and Mail, the Toronto Star, and this magazine, Humanist Perspectives, could observe and record the proceedings.

...current law forces some with incurable conditions, who might otherwise choose a later time for their death, to do so earlier than if they had had access to a properly regulated process of medical assistance.

These proceedings marked the second time in 21 years that the Supreme Court has considered whether a terminally ill person has a constitutional right to a doctor’s help to die. In 1993, Sue Rodriguez, suffering from ALS, asked the high court to allow her to have someone assist her to die. The court was sympathetic but ruled against her in a narrow 5-4 decision. This ruling upheld the Criminal Code’s ban on assisted suicide and euthanasia. Rodriguez still found a way to voluntarily end her life in 1994.

Since then, the Netherlands, Belgium, Luxembourg, five American states and the province of Quebec have passed laws allowing physician assisted suicide. In the interim, eight of the 1993 Canadian high court judges have retired. Only one of the original nine who deliberated the Rodriguez case, chief justice Beverley McLachlin, remains. She was one of the dissenting judges on that decision and found that the law banning assisted suicide was a Charter violation.

In the two decades since the Supreme Court denied Sue Rodriguez the right to doctor-assisted death, public opinion has shifted and the issue has gained new prominence. Baby boomers and their parents are approaching the later chapters of their lives and polls are suggesting mounting support for assisted suicide.

The latest challenge to the law banning assisted suicide was launched on behalf of two BC women, Kay Carter and Gloria Taylor, who have both since died. The BC Supreme Court struck down the law making assisted suicide illegal in 2012. The BC Court of Appeal reversed that decision last year, ruling that only the Supreme Court of Canada could overturn its 1993 Rodriguez decision. Kay Carter’s daughter and the BC Civil Liberties Association have appealed this case to the Supreme Court. Once again, four years after Kay Carter’s eventual assisted suicide death in Switzerland in 2010, the Supreme Court of Canada will deliberate whether to support or strike down the law prohibiting physician-assisted death.

The Main Courtroom of the Supreme Court measures about forty feet by fifty feet and has black walnut walls between shallow rectangular columns. Six windows, three on each side of the room, rise from waist-height up to the twentfive-foot ceiling. In the center of the room are about thirty tables and red leather chairs for the legal counsel for the appellant, the respondent and the intervenors (parties who have been added to the litigation). Along one side of the room is a long wooden desk with more red leather chairs for the press reporters. There is a similar setup on the other side for the court reporters. At the back is bench seating to accommodate about eighty observers. The courtroom is filled to capacity. The nine justices enter the room, take their seats on schedule at 9:00 a.m. and proceedings began.

First up to speak was Joseph Arvay, the lawyer arguing on behalf of the BC Civil Liberties Association and Lee Carter. He said a blanket prohibition is creating back alleys for assisted suicide where people buy turkey bags they then fill with helium or order drugs from Thailand or Mexico that can leave them brain damaged and even worse off. Lee Carter had to take her 89-year-old disabled mother Kay Carter to Switzerland for an assisted death. He referred to disabled organizations that oppose assisted suicide as “arrogant” for attempting to deny to suffering people the way out they seek.

In Canada, suicide is not a crime, but assisted suicide is. Arvay argued that the current law forces some with incurable conditions, who might otherwise choose a later time for their death, to do so earlier than if they had had access to a properly regulated process of medical assistance.

“This law is unconstitutional,” Arvay said. He argued that the law making it a crime for people to seek doctor-assisted suicide contravenes the equality rights under the Charter of Rights and Freedoms because it denies physically disabled people who are unable to end their lives without assistance the ability to do what able-bodied people can do.

Arvay himself is a paraplegic as the result of an accident. He believes the most vociferous opposition to decriminalizing assisted suicide comes from some church groups and disabled organizations. “To the church groups we simply say that we respect your religious views but they cannot, in this secular society, trump our client’s constitutional rights and no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so,” he explained. “I would be the very last person to ever suggest that one is “better off dead” than being disabled,” he assured the court.

Arvay remarked that it is patronizing, and repeated that it is arrogant, for some disabled groups to impose their beliefs about how much suffering is acceptable on others because suffering is very personal and subjective. He claimed the high court should uphold a BC court’s 2012 decision striking down the current law as unconstitutional.

In that trial, Justice Lynn Smith found that the criminal ban on assisted suicide is excessive. She felt a process could be created to safely allow disabled or terminally ill adults facing unbearable suffering to end their lives with medical assistance. She dismissed any notion of a “slippery slope” to euthanasia and said risks could be mitigated. This was to address the fear expressed by disabled groups that some disabled people would choose death due to temporary depression or have the decision for an assisted dying made by other people.

Justice Moldaver asked Mr. Arvay to define what Justice Smith meant when she said risks can be “substantially minimized” in a system that allows assisted suicide. “Is that 85 per cent minimized?” He asked whether that would mean letting 15 per cent die when they should not.

Arvay responded that it is similar to the standard used in criminal law to decide guilt or innocence beyond a reasonable doubt. He said Justice Smith concluded the risk could be brought down to almost zero. He said that if the current law is struck down there will be no rush to the doctors. He said, “No one wants to die for no reason and doctors wish to save lives.”

Arvay concluded by saying any law that criminalizes a decision to die by assisted suicide is arbitrary, over-reaching, grossly disproportionate, and can’t be justified. He claimed, that “it causes people to take their lives prematurely,” and suggested the high court did not do a full analysis when it decided the case of Sue Rodriguez in 1993.

Arvay’s arguments were followed by counsels for several intervenors who also argued in support of the appellants. These intervenors included the Attorney General of Quebec, the Alliance of People with Disabilities Who are Supporters of Dying with Dignity, the Canadian Unitarian Council, the Farewell Foundation for the Right to Die and the Canadian Medical Association.

It was now time for the respondent, the Attorney General of Canada, to make its case. The Attorney General was represented by two counsels: Robert Frader and Donnaree Nygard. They would defend the criminalizing of assisted suicide by saying it sought to protect disabled people from a “prevalent bias” that their lives have less value than those of other people. They urged the court to reject doctor-assisted death for the second time in 21 years.

Frader was first to present his submission and argued that the Rodriguez decision is still relevant because the protection of the vulnerable and the preservation of life are equally important today. Therefore the decision of the court should be the same as in 1993.

The government team addressed the fact that attempting suicide is no longer a criminal act while assisting a suicide remains a crime. Frader said attempted suicide was decriminalized because it was non-productive but this was not meant to encourage suicide and it remains vigorously discouraged. He said this case was, “trying to use the Charter to turn the object of the law on its head.”

...the government was questioned repeatedly from several of the judges, both liberal and conservative. They drilled Frader with astonished questions.

The BC Supreme Court Justice Lynn Smith found that other jurisdictions have safeguards that minimized the risks that vulnerable people will be pressured into accepting death. That conclusion, made after looking at all the evidence, gives the Supreme Court a reason to reverse its 1993 ruling. Frader maintained that Justice Smith had usurped the legislative role by her “forensic” examination of whether the safeguards work. He said the concerns of those supporting assisted suicide could be addressed by making palliative care and sedation universally available.

But the government was questioned repeatedly from several of the judges, both liberal and conservative. They drilled Frader with astonished questions.

“Justice Smith was just looking at the evidence and that’s what the evidence caused her to conclude. What’s legislative about that?” asked Justice Rothstein, one of the court’s more conservative members and one of the six appointed by Prime Minister Stephen Harper.

Justice LeBel added that there are many improvements to reducing risk since Rodriguez and that is a substantial difference. He said that reducing the issue to palliative care and sedation not being universally available “would be an indictment of the medical system.”

Another challenge for the federal government was to persuade the court that the “sanctity of life” arguments give it wide latitude and a basis from which to make policy. Chief Justice McLachlin and other judges seemed sympathetic to the notion that life’s sanctity is not an absolute, and must give way to other concepts, such as autonomy and dignity.

Frader eventually changed his approach and asked the court to look at the matter from the point of view of a vulnerable person. He asked “Why must I be put at risk so that others can terminate their lives early?” However, he did not explain how allowing assisted suicide for those who wanted it would put others at risk.

Now struggling to make an impression, Frader told of two 43-year-old Belgium male identical twins who were born deaf and were going blind. They had always been together and couldn’t bear the thought of not being able to see one another. Since assisted suicide has been legal in Belgium since 2002, the brothers asked to be euthanized and their wish was granted. Frader used this as an example of the slippery slope and how physician-assisted suicide was being extended to people who were not living in great physical pain and not terminally ill. Justice LeBel then asked, “If there is an aberration to a law, is that the way to measure the efficacy of that law?”

At this point Frader was becoming visibly flustered. It was evident that the case was not going well for him and the government. His face was red and his hair tousled. Even though assisted suicide has been legalized in several jurisdictions around the world since 1993, Frader ended his submission by stating that since Rodriguez, the consensus of the international high courts has not changed.

Next up for the government was Counsel Donnaree Nygard. Her arguments focused on the contention that the disabled would be put at risk by legalizing assisted suicide and that they need protection.

Chief Justice McLachlin interjected, “This is stereotypical and paints everyone with the same brush, especially when we say, ‘they need protection.’” Justice Rosalie Abella pointed out that not all disabled people want that protection.

According to an Ipsos-Reid poll [...] 84% of Canadians support medically assisted dying. Even more noteworthy is that it is supported by 80% of Christians, 89% of the disabled and 89% of health professionals.

Ms. Nygard responded that the safeguards that protect vulnerable people from being pressured to accept death may not work because of biases held by the medical profession or others. “People with disabilities are viewed differently by doctors than able-bodied people. Their lives are perceived as being much worse than experienced. Doctors are too ready to agree to assist,” she claimed.

Justice Thomas Cromwell then asked if the government accepted findings by a lower-court judge that an effect of the law on assisted suicide is to prolong suffering, and in other cases leads people to take their lives prematurely while they are still able to do so. Ms. Nygard said those impacts could not be ignored. Justice Cromwell replied, “Your side of the room has been ignoring them.”

After wrapping up her submission, Ms. Nygard joined her partner, Mr. Frader, at their counsel table. Now both of them were sitting with face in hands and looking somewhat defeated and deflated. It certainly looked like the justices had more reservations about the government’s case than that of the appellants.

Several other intervenors who joined the government followed Ms. Nygard and the proceedings concluded at around 4:00 pm. Now the case is in the hands of the nine Supreme Court Justices. Their decision will be rendered in several months.

Here are some facts to consider that may affect this decision:

  • In general, attitudes have changed greatly over the years. Ten countries and states now have legislation that supports assisted suicide. Only 1-3% of all deaths in these jurisdictions are by assisted suicide. There has not been one known case of someone dying by assisted suicide against their will. The fears of the alarmists are not supported by the data.
  • Doctors may help a patient die under current law. Physicians may legally administer medications even though they know that the doses of medication in question may hasten death, so long as the intention is to provide palliative care by easing the patient’s pain. This supports the argument for striking down the law criminalizing assisted suicide.
  • According to an Ipsos-Reid poll commissioned in 2014 by Dying With Dignity Canada, 84% of Canadians support medically assisted dying. Even more noteworthy is that it is supported by 80% of Christians, 89% of the disabled and 89% of health professionals.
  • Just 16% of Canadians oppose assisted suicide. The disabled groups don’t have the support of the disabled. The church groups don’t have the support of Christians. Who then, are these groups representing? William McKinley, US Congressman and 25th President of the United States, cautioned, “The tyranny of the minority is infinitely more odious and intolerable and more to be feared than that of the majority.”
Simon Parcher is President of Canadian Humanist Pubications, the publisher of Humanist Perspectives Magazine. He is also the Immediate Past President of Humanist Canada and a Humanist Officiant.

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