Times have changed

Philip Slayton
Assisted suicide — the issue that rips everyone’s heart out — is headed back to the Supreme Court of Canada. What will the court do this time?

In 1992, Sue Rodriguez was dying from amyotrophic lateral sclerosis (ALS, sometimes called Lou Gehrig’s disease), a degenerative disease of the nervous system. She didn’t want to live once she could no longer enjoy life. Rodriguez knew by the time that happened she would be physically unable to kill herself. She looked for a doctor who would construct a machine allowing her to commit suicide when severely disabled. But s. 241(b) of the Criminal Code says that assisting suicide, unlike suicide itself, is a crime. Any doctor who helped Rodriguez would risk jail.

Rodriguez asked the Supreme Court of British Columbia to declare s. 241(b) invalid, claiming it violated her rights under the Charter of Rights and Freedoms. She lost at trial, and before the B.C. Court of Appeal. In 1993, she lost again before a nine-member panel of the Supreme Court of Canada, but only by one vote.

Justice John Sopinka gave judgment for the Supreme Court majority. He agreed that Rodriguez had been deprived of her right to personal security, but said she had not been deprived in a way contrary to the principles of fundamental justice (s. 7 of the Charter says, “Everyone has the right to life,
liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”). The decisive point, said Sopinka, was the need to prevent suicide being encouraged and assisted in an abusive situation.

Justice Beverley McLachlin was one of the four dissenters. She wrote: “Parliament has put into force a legislative scheme which does not bar suicide but criminalizes the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice. . . .”

“Sue Rodriguez was a noble litigant,” one of the judges who sat on the case told me. “I wish we could have helped her.” Another said, “This was my most difficult case. I can’t help thinking that this was an issue that should have been decided by Parliament.” McLachlin has said that Rodriguez was one of the most troubling cases she has heard. On Feb. 12, 1994, assisted by an unknown doctor, Sue Rodriguez committed suicide.

Now the assisted suicide issue returns, coming once more from British Columbia, again prompted by a woman dying from ALS who seeks a physician-assisted death. Says Gloria Taylor: “I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends. . . . As Sue Rodriguez asked before me — whose life is it anyway?”

Gloria Taylor’s case is essentially the same as Rodriguez’. Any lawyer might be forgiven for thinking that Taylor, like Rodriguez before her, must fail in her suit. But Justice Lynn Smith of the B.C. Supreme Court, in an enormously long judgment handed down June 15, laboured mightily to distinguish the earlier case: “The majority in Rodriguez did not address whether the legislation engaged the right to life of the plaintiff. It did not address whether the deprivation of security of the person or liberty was contrary to the principles of fundamental justice regarding overbreadth and gross disproportionality. It did not address whether or, if so, how, s. 241(b) infringes s. 15 of the Charter. Finally, it addressed only very summarily the final step in the s. 1 analysis, balancing salutary and deleterious effects of the legislation.”

In Carter v. Canada (Attorney General), Smith concluded that the provisions of s. 241(b) “have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. . . .  The distinction is discriminatory . . . because it perpetuates disadvantage. The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter.” (Section 15(1) of the Charter says in part, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . . based on . . . physical disability.”)

The declaration of the legislation’s invalidity was suspended for one year to allow Parliament to draft and consider new legislation (something the government certainly wants to avoid). Taylor was given a constitutional exemption during the period of suspension so that she could seek a physician-assisted death That exemption has since been upheld evan as this case now wends its way through appeal.

Carter will inevitably come to the Supreme Court. In mid-July, the federal government appealed Smith’s decision. Will the top court uphold Rodriguez? Only one judge who sat in the earlier case remains, the chief justice. The chances are that McLachlin will still be chief justice when Carter arrives in Ottawa, and we know where her sympathies lie. But by the time the court hears Carter, Prime Minister Stephen Harper will have appointed at least seven of the nine judges, and it seems unlikely that a court packed with conservative justices will overrule Rodriguez.

And yet, as Smith in Carter said, “The evidence as to legislative and social facts in this case . . . is different from that in Rodriguez.” I think she meant that times have changed. (Smith’s judgment is ponderous and has everything in it, including the kitchen sink; when will judges learn that brevity conveys an idea more powerfully than length?)

Perhaps Canadian society, and the judiciary, are now ready for strictly controlled physician-assisted suicide. Judges soak up the zeitgeist like anybody else.  

Philip Slayton’s book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is available in paperback. Follow him on Twitter @philipslayton.

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