Unbeknownst to most Canadians, last November and December, 24 lawyers gathered for 21 days in a Vancouver courtroom, engaged in a controversial case that saw the Governments of British Columbia and Canada pitted against three private individuals and the British Columbia Civil Liberties Association in a face-off over doctor-assisted suicide.
Those who have followed Canada’s euthanasia debate will hearken back to the case of Sue Rodriguez, who in 1993 was unable to persuade the Supreme Court of Canada she had a right to die, despite her Lou Gehrig’s disease diagnosis. She later took her own life with the assistance of Member of Parliament Svend Robinson and a sympathetic doctor.
Government lawyers argued that the Rodriguez case had already determined the issue for Canadians and the 1993 decision was binding on all other Canadian courts. Not so, said the learned judge.
That was then, and much has changed, according to Madam Justice Lynn Smith of British Columbia’s Supreme Court who handed down a 395-page decision yesterday, (Carter v. Canada) declaring that Canada’s criminal law banning assisted suicide is contrary to the Charter of Rights and Freedoms and therefore unconstitutional.
It is important to remember that attempting to commit suicide is not illegal in Canada, although until 1972 it was. The only prohibition is against those who counsel a person to commit suicide or aid and abet a suicide.
So why was Ms. Rodriguez prevented from accessing assistance to end her life, while Gloria Taylor, also suffering from Lou Gehrig’s disease and the main plaintiff in Carter v. Canada, will now be able to do so?
Since the early 90’s the “dying with dignity” movement has steamrolled across North America and Europe. Oregon State enacted their “Death with Dignity Act” in 1994, as a result of a citizen initiative that saw a referendum vote of 51% in favour of assisted suicide.
Columbia enacted their laws permitting assisted suicide in 1997, followed by Holland and Belgium in 2002, Washington State in 2008 and Luxembourg in 2009. Montana State has no law but accepts the defense of necessity if a physician is charged with homicide as a result of an assisted suicide.
However, Switzerland remains the “grandmother” of assisted suicide as it enacted legislation in 1937 that only considers assisted suicide a crime if the assistant has a selfish motive. Given Switzerland’s early entry in this field, it is the most popular choice for “tourism suicide”, a phenomenon that induced Lee Carter to sign on as a plaintiff in Carter v. Canada.
She told the court that she and her husband facilitated her 89-year-old mother’s travel to Switzerland to avail herself of the services of DIGNITAS, a Swiss organization that assists non-residents to end their lives. In 2010 DIGNITAS took part in 97 assisted suicides, five were Canadians. Ms. Carter’s mother spent over $30,000 to end her life and Ms. Carter lives with the pressure that her activities were in breach of Canadian law.
DIGNITAS is only one of many organizations world-wide that provide “Right-to Die” information and counseling. As well, since 1991 no fewer than nine private members bills seeking to legalize assisted suicide have been introduced into the House of Commons.
The proliferation of legal assisted suicide has brought with it scientific scrutiny of data available from suicide clinics world-wide, research that tends to dismiss the concerns that were voiced during the Rodriguez case and were repeated by government lawyers in Carter v. Canada.
Madam Justice Smith heard from dozens of medical and ethics experts and determined that Parliament can create a system of assisted suicide that will take into account appropriate safeguards to protect the vulnerable and those with mental illness.
In addition, the interpretive provisions of the Charter have grown and developed in Charter cases decided by the Supreme Court of Canada since 1993, introducing legal concepts that gave Madam Justice Smith additional tools in the exercise of assessing the constitutionality of the law.
As in most Charter cases, the government was given twelve months to enact legislation that does not breach the Charter, however, Gloria Taylor received a special exemption that granted her the right to avail herself of a physician assisted suicide at any time.
You can expect the British Columbia Court of Appeal to weigh in on this decision unless the Governments of British Columbia and Canada consider themselves “dead in the water”.
Lawdiva aka Georgialee Lang