Canada’s Assisted Suicide Debate: Alive and Well

If you’ve read a newspaper in the past two months, you’ll know that Canada’s right-to-die debate has come back to life. Leading the revival is B.C. resident Gloria Taylor, a 63-year-old grandmother – and reported motorcycle enthusiast – who was diagnosed with ALS (aka Lou Gehrig’s disease) in 2009. As is often the case for people suffering from this currently incurable neurodegenerative disease, Gloria’s condition deteriorated rapidly. In June of 2011, she decided to add herself as a plaintiff in the BCCLA’s constitutional challenge of Canada’s criminal prohibition on assisted suicide, which had been filed with the B.C. Supreme Court (BCSC) two months earlier.

The trial began in November of 2011 and came to a close one month later, on December 16, 2012. In his closing remarks, Joe Arvay – lead counsel for the plaintiffs – took a moment to remind the Court that suicide was decriminalized in 1972. As a result, Canadians were afforded the legal and oh-so-personal right to put an end to their suffering. However, it also left many disabled individuals physically unable to exercise this right. These individuals, Arvay pointed out, are being discriminated against; they are being denied a legal right due to their disability.

The obvious counterargument, as was invoked by the Crown at trial, is that lifting the ban on medically assisted suicide would put Canada’s weak and vulnerable at risk. Implicit in this argument, though, is the infantilizing notion that being disabled in one sense necessarily means that you lack capacity in another – that being physically disabled somehow renders you unable to reach a reasoned and rational decision with respect to exercising your right to die.

In addition to their discrimination claim – brought pursuant to s. 15 of Charter – the plaintiffs also contend that Canada’s criminal prohibition on assisted suicide violates their right to life, liberty and security, as guaranteed by s. 7 of the Charter. Fundamental to that argument, of course, is the contention that the s. 7 guarantee has evolved to the point where it now encompasses the right to avoid an excruciating and entirely inescapable death.

In all likelihood, we will have to wait a few months for the BCSC to release its decision – and whatever the decision, it is hard to imagine this case going unappealed. In the meantime, as we prepare ourselves to critique this impending judgment, and to follow this case up the judicial chain, a refresher on the über-divisive case of Rodriguez v British Columbia, [1993] 3 SCR 519, seems appropriate.

Like Gloria Taylor, Sue Rodriquez suffered from the viscously deteriorative effects of ALS. By the time her case reached the SCC, her life expectancy was 2-14 months. Seeking the right to opt for physician-assisted suicide at the point at which she lost her capacity to enjoy life, Rodriguez hoped to establish the unconstitutionality of s. 241(b) of the Criminal Code on two primary grounds: ss. 7 and 15(1) of the Charter. (Section 12 – the right not to be subjected to cruel and unusual punishment – was also pursued, but hastily dismissed.)

In a split decision (5-4), the SCC rejected Rodriguez’s appeal, and declared constitutional Canada’s criminal prohibition on assisted suicide. For an interesting look back at the Rodriguez decision, check out this recent Globe & Mail interview with former SCC Justice Jack Major, the man who cast the fifth and deciding vote in favour of rejecting Sue Rodriguez’s request. For now, here is a bare-bones review of how the court dealt with the two key Charter claims:

Section 7

Sopinka J, for the majority (including La Forest, Gonthier, Iacobucci and Major JJ), rejected Rodriguez’s s. 7 claim. He acknowledged, however, that the “security” component of s. 7 includes fundamental notions of human dignity and personal autonomy when it comes to maintaining control over one’s own body; as such, Sopinka determined that s. 241(b) did infringe on the security of Sue Rodriguez’s person. The catch, though, was that the resulting deprivation did not, in Sopinka J’s eyes, contradict the second component of s. 7: the “principles of fundamental justice.”

This determination was grounded, at least in part, on the belief that the term “fundamental” requires a certain level of societal consensus – i.e., would a reasonable Canadian support the availability of physician-assisted euthanasia in certain situations? In the absence of evidence to the affirmative, Sopinka J concluded that no such consensus existed. Two decades later, credible survey evidence appears to be poking holes in Sopinka J’s now-dated conclusion; indeed, recent polls suggest that the large majority of Canadians are open to legalizing physician-assisted suicide. It will be interesting, in the current case of Gloria Taylor, to see if this new data plays a significant role in the Court’s analysis.

McLachlin J (dissenting, with L’Heureux-Dubé) agreed with Sopinka J in terms of s. 241(b) infringing Rodriguez’s right to security under s. 7. Unlike Sopinka J, however, McLachlin J (as she was then) contended that drawing a distinction between suicide and assisted suicide has the entirely arbitrary effect of preventing people like Sue Rodriguez from exercising autonomy over their bodies, and thus does constitute a violation of the ill-defined principles of fundamental justice.

Moreover, McLachlin J decided that s. 241(b) cannot be saved under s. 1 of the Charter. The primary purpose of the prohibition, she explained, is “the protection of the vulnerable who might be induced in moments of weakness to commit suicide.” An admirable objective, of course, but counselling someone towards suicide is already a criminal offence under s. 241(a), so the exercise of any sort of undue influence on a vulnerable person would be illegal regardless of s. 241(b).

Interestingly, McLachlin CJ is the only judge from the Sue Rodriguez case that remains on the SCC bench today. If Gloria Taylor’s s. 7 claim makes it that far, therefore, one would have reason to assume that the Chief Justice would be on her side—having said that, McLachlin CJ has been known to change her mind from time to time.

Section 15

Assuming that s. 241(b) did violate s. 15, Sopinka J’s majority found the violation to be justified under s. 1. The provision, Sopinka J pointed out, has a sufficiently pressing and substantial legislative objective (broadly, to preserve respect for human life) and its means (a strict ban on assisted suicide) are proportional to its objective. Sopinka J draws strength from the “substantial consensus among western countries” that a blanket ban on assisted suicide serves to protect the “human life” of the weak and vulnerable. Times may very well have changed over the past two decades, though, as a number of “western” jurisdictions have since eliminated this strict prohibition.

McLachlin J, in her written reasons, never really gives Rodriguez’s s. 15 claim the time of day. “I am of the view,” she wrote, “that this is not at base a case about discrimination under s. 15…and that to treat it as such may deflect the equality jurisprudence from the true focus of s. 15.” While her treatment of the s. 7 claim might provide a point of optimism for Gloria Taylor, it would seem that her complete dismissal of the s. 15 claim would provide quite the opposite.