On October 15, 2014, the Supreme Court heard a historic appeal on the controversial and complex issue of assisted suicide. At issue is whether the outright criminal ban on the practice violates the Charter of Rights. The week of the hearing – which I attended and live-tweeted – I published an op-ed in the Toronto Star. It is reproduced below. I also did an interview with CTV Power Play.
Abortion. Prostitution. Safe injection sites. For three decades, the Charter of Rightshas governed some of the most divisive issues in Canada. Itis a touchstone, prompting us to consider complex public policy questions informed by the values of individual liberty, equality, concern for the vulnerable and respect for human dignity.
No Charter issue has aroused greater public interest than the 1993 case of Sue Rodriguez, the woman who unsuccessfully challenged the Criminal Code provision that prohibits assisted suicide. Rodriguez, who suffered from ALS, argued that the law condemned her to an inhumane choice: either commit suicide while she was still physically able to do so herself, but not yet ready; or suffer until death arrived on its own.
The Supreme Court of Canada agreed that the law deprived Rodriguez of the autonomy and security of the person guaranteed to her by section 7 of the Charter. Buta narrow majority found that the law furthered a legitimate state goal: promoting the sanctity of life. Against that abstract interest, the harm done to Sue Rodriguez was tolerable collateral damage. The Court also dismissed the argument that, since attempted suicide is not criminalized, the law discriminates against persons with disabilities who are unable to exercise such a choice without the aid of others.
Now, a new group of plaintiffs have prepared a fresh challenge to the assisted suicide law. Buttressed by thousands of pages of evidence, they convinced a trial judge of their cause, but that decision was overturned. Twenty-one years after it decided Rodriguez, the Supreme Court will once again consider whether individuals have the right to make end of life decisions with the aid of those willing to assist them.
One defence of the law is it prevents persons from being killed against their wishes. That fear, though, is not borne out by evidence from other countries, like the Netherlands. The trial judge concluded that, as with other complex medical decisions, proper training and oversight mechanisms can mitigate such risk. The concern, essentially, is that people could be murdered, a crime which is well established in Canadian law and entirely amenable to investigation, prosecution and punishment.
Another argument the Court will hear is that the gravely ill are inherently vulnerable and, essentially, less capable of informed choice. This argument may be well meaning, but it grossly devalues the right of every person to decide how to respond to extreme life challenges. The plaintiffs correctly reject the notion that, simply because of their medical condition, they are unable to rationally choose when their suffering should end.
The most difficult argument to assess is that decriminalizing assisted suicide sends a dangerous message to society. Some disability rights organizations argue that permitting someone to seek assisted suicide because of physical limitations is difficult to reconcile with the daily experience of many persons with disabilities. All persons deserve respect, and no life should ever be considered less worthy than another. But it does the plaintiffs a disservice to describe them simply as seeking to avoid physical dependency and pain. Rather, they seek recognition of their basic personhood through removal of the criminal penalty which renders them entirely at the mercy of their condition.
The law has for centuries recognized that all competent persons have the right to refuse medical treatment, even where death is the inevitable result and even where the choice is informed by personal or religious beliefs that society would never willingly endorse. The distinction between that choice and assisted suicide is arbitrary. Unless we are prepared to say that no person can ever choose death, unless we are prepared to impose our own moral dictates upon others at the most extreme moment of their lives, everyone deserves the right to make that decision unconstrained by the spectre of criminal prosecution.
One former Supreme Court justice, who joined the majority decision in Rodriguez, has described the case as the most difficult of his career. Some argue that the Supreme Court should stay out of the issue altogether. That view is misguided. The Court is never more necessary than when the law compromises the Charter’s essential promise: that everyone may choose the path of their own life, even if we strongly disagree with it. That is the essence of a free society. It would be a powerful step forward for the Court to endorse it. Better late than never.