I thought I would take a break from my usual political hackery to broach a subject that is both timely and rather depressing. The topic of euthanasia (or doctor assisted suicide) has been making headlines lately because of the case of Gloria Taylor, a terminally ill woman from British Columbia.
The Supreme Court has granted leave (permission) to hear the case contesting the decision of the BC Supreme Court Justice levied by federal Justice Minister Rob Nicholson – whose decision was no doubt (as is almost always the case with the Harper government) motivated in part by a desire to placate the religious right which is still a major element in the Conservative party base (see Tory MP Stephen Woodworth’s ludicrous attempts to reverse women’s right to choose). Though I wonder whether the libertarian element in the same party would be pro or con recognizing the individual’s right to die?
The last time the matter came up in the House of Commons, however, the vote reflected an issue that tends to transcend partisan lines in Ottawa. When it was last debated back in 2010, after being introduced by Bloquiste Francine Lalonde, it failed to be referred to committee, but not before garnering support from all four parties, including a rare abstention from quadriplegic Stephen Fletcher (then Conservative Minister of Democratic Reform) who movingly spoke about the issue being a matter of personal conscience, rather than a political consideration.
But what will happen when the Justices evaluate the judgement of the BC Supreme Court? The first thing they will hopefully note is the exceptional quality of the testimony that both sides presented, and the incredible scope of the court’s research.
In the course of the 200 pages written by Judge Smith, the reader will discover one of the most comprehensive legal studies ever undertaken on the subject, including comparative examinations of other countries’ laws on the subject (Holland and Switzerland are among a handful of states that legalized euthanasia), as well as a thorough discussion on medical ethics and effective practices and the feasibility of implementing similar systems in Canada.
It also will depend on whether the Justices agree with Judge Smith that the last landmark decision on euthanasia (the Sue Rodriguez case) has become outdated in the light of more recent precedents involving Charter rights.
You may remember the heart-wrenching case of Ms. Rodriguez, a woman suffering from ALS who was told she had a year to live. She asked her doctor for help to terminate her life but realized that this would infringe the criminal code, under section 241(b) in which committing suicide is not illegal, but facilitating it for someone else is. Rodriguez, maintained that this violated s.7 ( life & liberty) s.12 (cruel & unusual punishment) and s.15 (equality) of the her constitutional rights. Rodriguez subsequently lost her case, but was able to find an anonymous friend to carry out her wishes.
However, ultimately the decision in this particular circumstance will stand or fall on the basis of the legal arguments made by the bench in her opinion – specifically, the way that Judge Smith relates the question before her to the Charter of Rights and Freedoms. So let’s see how the judge went about making her case.
As most of you probably know, the Charter allows for exemptions to legally prohibited restrictions of a person’s freedoms if such measures can be shown to be justified in a “free and democratic society.” Judge Smith is convinced that, though there remains risks for the most vulnerable patients, the evidence suggests that “they can be very largely avoided through carefully-designed, well-monitored safeguards.”
She has also found that Ms. Taylor has been the victim of a breach of both her right to the security of the person as well as her right to equal treatment under the law. In her view, this case differs from Rodriguez in two significant ways: the first major difference has to do with the way in which judges now interpret the “reasonableness test” in the Charter, including new criteria the law must meet in order to be constitutional. In Judge Smith’s estimation the law against euthanasia is “overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish.”
Finally, the prohibition violates Ms. Taylor’s right to equality in the sense that the Charter forbids discrimination on the grounds of “physical disability.” In effect, then, the law allows an able bodied person to end their own life. “However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide.” Judge Smith concluded that this double standard is not compatible with the values of free and democratic society.
I wouldn’t dare editorialize on such a grave and sensitive question as a person’s right to die. All I will say is that ,as the Judge found in her research, much of the palliative care we use to treat patients like Ms. Taylor basically amounts to expediting their deaths. Also, it is worth bearing in mind the sad end to the Rodriguez case, where despite the state’s best efforts to prevent her from taking her own life, she did anyway.
Either way, we as a society must confront this issue now, because as we age these difficult cases will unfortunately become more and more common.
Photos courtesy of Dan Cox and Marcel Oosterwijk via Flickr
