On October 15, 2014, I went to the Supreme Court of Canada (SCC) to hear morning arguments from counsel in Lee Carter et al v Attorney General of Canada (British Columbia), the case that is challenging the Criminal Code provisions that make physician- assisted death illegal. The Canadian Cancer Survivor Network is monitoring this important issue for the significant implications the decision will have on Canadians.
Background – in brief
The two appellants, Kay Carter and Gloria Taylor, both suffered from progressive, degenerative diseases. They brought a claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions related to euthanasia and physician-assisted death. Their claim primarily focused on S.241(b) of the Criminal Code which prohibits aiding another person to commit suicide. Counsel for the appellants argued that this provision violated his clients’ constitutional rights to life, liberty and security of the person (s.7 Charter of Rights) and that it violated their equality rights (s. 15(1)Charter of Rights).
This is not the first time this particular argument has been made. In 1993 Sue Rodriguez unsuccessfully challenged the same provisions, using the argument that the provisions violated her rights to life, liberty and security of the person.
The difference between 1993 and now is that at the recent trial, the Supreme Court of British Columbia made significant findings of adjudicative, social and legislative fact. There was more evidence in the record at trial about the experience with legal physician-assisted death in other countries. The record permitted an assessment of the current approach to and understanding of end-of- life decision making. It also gave some understanding of the efficacy of possible safeguards that might permit persons in the position of Ms. Taylor to have the option she sought while protecting the vulnerable.
The Supreme Court of Canada
There was a lot of interest in the proceedings. I arrived at the SCC at 7:40 am and there was already a line at the door for the public gallery. There were advocates from many groups representing those with disabilities and members of the public who were interested in the issue. The BC Civil Liberties Association had bright orange scarves made for the occasion, which were a contrast to the grey skies and grey building.
The arguments brought forward are complex and very long, and I have documented some of the highlights.
Counsel for the appellants, Mr. Joe Arvay Q.C. and Ms. Sheila Tucker’s remarks were straightforward. Mr. Arvay commented that the most vociferous opposition to his clients’ case were religious organizations and groups for people with disabilities. However, he added, in a secular society, this can’t trump constitutional rights. Mr. Arvay emphasized that his clients were advocating only for physician-assisted dying, and that doctors will only agree to it as a last resort. Some important changes in social and legislative facts have come about since Rodriguez and the Canadian Medical Association has also changed its position, and will now support those members who elect to follow their conscience, adding that if legal, physician-assisted death is a matter of conscience for doctors, the law should offer protection to physicians. The BC Civil Liberties Association intervened, and their argument was that preservation of life does not trump personal autonomy.
Lawyers for the Attorney General (AG) of Canada were tasked with justifying the prohibition in the law. A key point the AG of Canada relied on is that Parliament has repeatedly looked at this issue and that it has not changed its mind, or the law. As Canada is a democracy, issues such as physician-assisted dying are best left to Parliament. Also, the AG of Canada argued that the prohibition is the best way to protect vulnerable people. Before the lunch break, there was some excitement in the numerous exchanges between Mr. Fraser, counsel for the AG Canada, and the Justices regarding his view of the findings that the trial judge in BC made, as he felt that the trial judge had overstepped her authority.
Interveners on the side of the Attorney’s General made the argument that the prohibition upholds human dignity. The Evangelical Fellowship of Canada stated that no Canadian is better off dead than alive. Mr. Trotter, counsel for the Evangelical Fellowship, argued that if the prohibition is lifted there will be wrong deaths and one life ended wrongly is too many, even if to save someone from suffering.
As Mr. Arvay commented, it has been 20 years since this issue has come up and what a debate it has been. There are many points of view and strong the feelings on both sides of the issue. It was an exciting day to be at the Supreme Court of Canada and I felt privileged to listen to the arguments made.
You can read the submitted factums by counsel at this link: http://www.scc-csc.gc.ca/case-dossier/info/fac-mem-eng.aspx?cas=35591
You can watch the arguments, with simultaneous translation available, at this link: http://www.scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=35591