A Supreme Court hearing over whether to allow doctor-assisted suicide produced a wrenching debate Wednesday over questions like whether starving oneself is a viable alternative to having a doctor help someone die.
The lawyer representing Canadians in favour of physician-assisted death argued today that there's little evidence a change in the law would result in a rush of people asking to end their lives.
"Nobody wants to die if living is better," said Joseph Arvay.
Arvay told the court that his clients want the law changed to allow competent adults with irreversible medical conditions, and who are so disabled that they can't end their own lives, to ask a doctor to assist them in doing it.
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That's ordinarily someone who can't move their arms or may not be able to swallow, he said, though he told the court that it would be up to Parliament to set the exact conditions under which a physician could help someone die.
The court last considered the issue in 1993 when it ruled that where assisted death is concerned, certain rights enshrined in the Charter of Rights and Freedoms are trumped by the principles of fundamental justice. In that case, Sue Rodriguez argued the existing laws violated her charter rights.
Rodriguez had Lou Gehrig's disease, a neurogenerative disease formally known as amyotrophic lateral sclerosis, or ALS.
In a 5-4 decision, the court ruled that while the laws did violate her rights, they were overridden by the principles of fundamental justice.
Twenty years later, right-to-die advocates say the legal and moral landscape in Canada has changed, and the laws need to change with it. The court should find that there are new factors to consider since the Rodriguez case, Arvay said.
The court reserved its decision, which means it will likely be months before the ruling is released.
Arvay argued his clients seek only to allow physician-assisted dying, not suicide assisted by others, because doctors want their patients to live, not die.
"We know that physicians will be reluctant gatekeepers and only agree to it as a last resort," Arvay said.
It's up to Parliament to define the restrictions on whatever a new law would allow, he said, with some guidance from the court as to what would be constitutional.
Sheila Tucker, who also represented the appellants, compared the desire for doctor-assisted suicide to a patient asking for their ventilator to be removed. Those patients may be disabled and may be depressed, she said, but it's a request society honours.
Tucker also disputed the notion that legalizing physician-assisted death would start down a slippery slope. The Supreme Court's 1993 decision came when the world was uncertain whether that would be the case, she said, but evidence from the European countries that allow assisted suicide show otherwise.
Starvation an option
Robert Frater, arguing on behalf of the federal government, said that nothing has changed since the court considered the Rodriguez case, and that all life is valuable and the government aims to protect it.
Justice Rosalie Abella challenged Frater on the inequality of the law, asking why it's legal for able-bodied Canadians to kill themselves but not for those who aren't physically able to do it.
"We're not criminalizing it for those who are not able-bodied," Frater responded. "We abolished the attempted suicide attempt for everyone."
Abella said she finds it inconsistent to remove the offence from the Criminal Code "and yet leaving it essentially for those who are not able to commit suicide."
Donnaree Nygard, who argued with Frater on behalf of the federal government, said suicide was decriminalized because the government recognized that prevention and intervention were better ways of dissuading people from killing themselves than a criminal charge. The lack of a criminal sanction, she said, is simply a recognition that it wasn't an effective way to prevent suicide.
In any event, she told the court, it's not that some people have a range of options and others have none. Those who are too disabled to kill themselves can stop eating or drinking water, a long, drawn-out death.
"That is not to say that they are easy or comfortable options... but the so-called usual means of suicide are also not easy or comfortable. Many are painful, they are violent, they are not assured of success, they are traumatic for the person, they are traumatic for surviving family members."
Two Charter sections at issue
Nygard said the court had to recognize the social reality of people with disabilities and pointed to evidence that doctors assess the quality of life of people with disabilities to be lower than the people themselves feel it is. She said that when it's left to a third party to determine how serious someone is about ending their life, that bias matters.
Several of the justices challenged Frater on his assertion that the trial judge overstepped her role when she evaluated some of the alternatives to the current law. Frater said the judge didn't show due deference to Parliament and its role in setting law.
Arvay represents Lee Carter, Gloria Taylor and the British Columbia Civil Liberties Association. Lee Carter accompanied her mother, Kathleen Carter, to Switzerland in 2010 so the elder Carter could end her life.
Kathleen Carter suffered from spinal stenosis, a degenerative condition that left her in a wheelchair and caused her chronic pain. Gloria Taylor was a British Columbia woman who wanted to end her life following an ALS diagnosis. She died before that could happen.
The argument that assisted suicide prohibitions violate the charter rests on two sections: Section 7, which sets out the right to life, liberty and security of the person, and Section 15, which grants equality rights.