Physician-Assisted Suicide Carter v Physician-Assisted Suicide Carter v. Canada (Attorney General) 2012 British Columbia Supreme Court 886 2013 SCC Lee Carter, et al. v. Attorney General of Canada, et al. [case #35591] (part 1) Rels 300 / Nurs 330 March 2016

http://bccla.org/2011/02/medically-assisted-dying/ The BCCLA filed a lawsuit in April 2011 to challenge the laws that make it a criminal offense to assist seriously and incurably ill individuals to die with dignity. The legal challenge seeks to allow “seriously and incurably ill, mentally competent adults the right to receive medical assistance to hasten death under certain specific safeguards.” 300/330 appleby

The “Human Face” of the Court Challenge is provided by Gloria Taylor, a woman living with the terminal illness ALS “I’m asking the court to change the laws in Canada so that all Canadians, including myself, have the right to die with dignity…I should be able to make the choice about how much suffering to endure, based on my own beliefs and values…It doesn’t make any sense that it’s legal for me to commit suicide, but it’s illegal for someone to help me to die at peace, without pain, in the comfort of my home, with family and friends surrounding me.” 300/330 appleby

Right to assisted suicide 'momentous' says B.C. woman 'I'd really like to see people say assisted dying and stop saying assisted suicide.'—Gloria Taylor http://www.cbc.ca/news/canada/british-columbia/story/2012/06/18/bc-gloria-taylor-assisted-suicide.html [2:09 video clip] 300/330 appleby

“A British Columbia Supreme Court judge has declared Canada's laws against physician-assisted suicide unconstitutional because they discriminate against the physically disabled… 15 JUNE 2012 300/330 appleby

Assisted-suicide ban struck down by B. C Assisted-suicide ban struck down by B.C. court Judge rules law discriminates against the disabled http://www.cbc.ca/news/canada/british-columbia/story/2012/06/15/bc-assisted-suicide-ruling.html “In her ruling, [Justice Lynn] Smith noted suicide itself is not illegal, and therefore the law against assisted suicide contravenes Section 15 of the charter, which guarantees equality, because it denies physically disabled people like Taylor the same rights as able-bodied people who can take their own lives, she ruled… "The distinction is discriminatory … because it perpetuates disadvantage." 300/330 appleby

http://www.cbc.ca/news/canada/british-columbia/story/2012/06/15/bc-assisted-suicide-ruling.html “Grace Pastine said the legal team spoke with Gloria Taylor just minutes after the decision came down. “Gloria said, 'I'm deeply grateful to have the comfort of knowing that I'll have a choice at the end of my life. This is a blessing for me and other seriously and incurably ill individuals. This decision allows me to approach my death in the same way I've tried to live my life: With dignity, independence, and grace‘ “Pastine said Taylor's condition has deteriorated to the point where she's in a wheelchair and now needs a feeding tube. "She's still spirited and lively, but her body is failing her.“ On Thursday 4 October 2012, Gloria died of pneumonia, surrounded by family and friends. 300/330 appleby

13 July 2012 http://www.cbc.ca/news/canada/story/2012/07/13/pol-cp-federal-appeal-assisted-suicide.html “[Federal Justice Minister Rob] Nicholson said Friday the government will seek a suspension of all aspects of the ruling, including the exemption for Taylor, while it goes to the British Columbia Court of Appeal. The government believes Section 241(b) of the Criminal Code is constitutional, he said. "The laws surrounding euthanasia and assisted suicide exist to protect all Canadians, including those who are most vulnerable, such as people who are sick or elderly or people with disabilities," Nicholson said in a statement. "The Supreme Court of Canada acknowledged the state interest in protecting human life and upheld the constitutionality of the existing legislation in Rodriguez (1993)." 300/330 appleby

What was the Supreme Court of Canada Decision in the Sue Rodriguez case? Sue’s lawyers argued that: Canadian Charter of Rights and Freedoms: Section 7 says that all Canadians have the right to life, liberty and security of person. Rodriguez's position was that a right to life includes the right to a dignified death under the circumstances. She argued that it was cruel and unusual treatment for her to be unable to have someone to assist her under these circumstances. 300/330 appleby

Sue’s lawyers also argued that: Canadian Charter of Rights and Freedoms: Section 15, says a person should not be discriminated against based on disability. Rodriguez argued that the law allows for an able-bodied person to take his or her life. But since she was forbidden to have someone help her with her suicide, she was being discriminated against based solely on her inability to perform the suicide herself. Her lawyers argued the law denied her a right of choice, and that is a choice which the law allows to all able-bodied Canadians. 300/330 appleby

A lawyer for one of the groups that intervened against Rodriguez said if doctor-assisted suicide were legalized, it might put pressure on the severely disabled. They were concerned that, if assisted suicide for the disabled was accepted, people would be expected to commit suicide at a certain stage in their illness. The Canadian Conference of Catholic Bishops argued that the owner of Rodriguez's life was God, not her. The Constitution says as much in its preamble, which describes the nation as founded on the supremacy of God. 300/330 appleby

Five justices agreed that Rodriguez's rights were being violated. BUT, they ruled, an individual's right to a dignified death does not override the sanctity of life under the law. In other words, the infringement was reasonable and necessary to protect the weak of society. The judges decided that to change the laws would put other vulnerable or disabled people at risk. She must lose her freedom to die the way she chose, for the welfare of the rest of society. The judges feared that assisted suicide could then be used as a cloak for murder of the weak. 300/330 appleby

Three of the justices, including the chief justice, agreed with Rodriguez that the law violated Section 7. In a minority opinion, they wrote that death is the final act in the drama of life, that death is an integral part of life and therefore should be protected under the Charter of Rights, protected as much as the right to life is. The last judge sided with Rodriguez as well, but on the basis of her third argument which said that she was being discriminated against based on her disability. 300/330 appleby

CARTER, LEE v. THE ATTORNEY GENERAL OF CANADA Hearing of Appeal The Attorney General of Canada appeals a determination that sections of the Criminal Code prohibiting physician-assisted suicide are unconstitutional because they infringe ss. 7 and 15 of the Charter. Court of Appeal for British Columbia Monday 18 March 2013 to Friday 22 March 2013 Justices Finch, Newbury and Saunders presiding 300/330 appleby

Appearing before the Court: Attorney General of Canada, Apellant Lee Carter, BCCLA, Gloria Taylor, Respondents INTERVENORS: Christian Legal Fellowship Evangelical Fellowship of Canada Euthanasia Prevention Coalition / EPC-BC Council of Canadians with Disabilities / Canadian Association for Community Living INTERVENORS: Alliance of People with Disabilities who are Supportive of Legal Assisted Dying Society Canadian Unitarian Council Farewell Foundation for the Right to Die 300/330 appleby

Factum of the Appellant, the Attorney General of Canada (excerpts) STATEMENTS AND ARGUMENTS The Nature of the Desire for Hastened Death The Ability to Assess the Authenticity of the Desire for Hastened Death Personal Accounts of Individuals in Difficult Circumstances Impact on Individuals with Disabilities and Elderly Individuals Experience in Permissive Jurisdictions Ethics Causation of death is a fundamental component of Canada’s homicide laws No right to commit suicide State interest in protecting life 300/330 appleby http://www.courts.gov.bc.ca/Court_of_Appeal/webcast/factums/Appellant%20Canada%20Factum.pdf

Factum of the Respondents, Lee Carter, BCCLA, Gloria Taylor (excerpts) STATEMENTS AND ARGUMENTS It is possible to identify rational, voluntary, informed requests to die Charter rights are denied by the law against assisted suicide Ethics It is feasible for physicians to assess competence with high reliability Some assisted death occurs in Canada contrary to the law Current accepted end of life care practices include withdrawal of life sustaining equipment where death inevitably follows and palliative sedation which may shorten life The Law Creates a Distinction by Imposing a Burden The law imposes extreme costs on the grievously and irremediably ill 300/330 appleby http://www.courts.gov.bc.ca/Court_of_Appeal/webcast/factums/Respondents%20Carter%20et%20al%20factum.pdf

Let’s Compare Competing Perspectives Among Similar Intervenors Intervenors representing persons with disabilities Council of Canadians with Disabilities / Canadian Association for Community Living Legalizing assisted suicide and euthanasia would devalue and endanger the lives of persons with disabilities. Alliance of People with Disabilities who are Supportive of Legal Assisted Dying Society Individuals who, by reason of physical disability, are unable to take steps to end their lives, need protection – not criminalization – of the right to choose physician-assisted dying. 300/330 appleby

Let’s Compare Competing Perspectives Among Similar Intervenors Intervenors representing religious groups Evangelical Fellowship of Canada “Sanctity of Life is a Core Principle of Canadian Constitutional and Criminal Law… ‘Death with dignity’ does not mean to be killed at the time of one’s choosing, but rather to live one’s remaining life with inherent dignity.” Canadian Unitarian Council “[There is] no Relevant Distinction between Physician-Assisted Dying and the Withdrawal of Life-Sustaining Treatment… “The prohibition [against assisted suicide] violates the right to life by depriving patients of the right to die with dignity.” 300/330 appleby

What do you see as the 2 most compelling arguments? Prohibit assisted suicide Allow assisted suicide # support? # support? 300/330 appleby

What decision will they reach? Court of Appeal for British Columbia Monday 18 March 2013 to Friday 22 March 2013 Justices Finch, Newbury and Saunders presiding What decision will they reach? Will they support Justice Lynn Smith’s decision which regards the legal ban on assisted suicide as unconstitutional? OR Will they agree with the Attorney General of Canada that the law prohibiting assisted suicide is constitutional and is needed to protect all Canadians? 300/330 appleby

Court of Appeal for British Columbia Carter v Court of Appeal for British Columbia Carter v. Carter (Attorney General) 10 October 2013 [In] the previous decision of the Supreme Court of Canada in R. v. Rodriguez (1993), … s. 241 was found not to infringe certain rights under the Canadian Charter of Rights and Freedoms, and the prohibition on assisted-dying accorded with the principles of fundamental justice Justices Newbury and Saunders held that the trial judge was bound by stare decisis (or “binding precedent”) to apply Rodriguez Chief Justice Finch supported Justice Smith’s determination that S.7 (life, liberty and security of person) was undermined, but held that S.15 (equality) had already been determined in Rodriguez Seriously ill people may NOT choose a physician-assisted death even in the face of intolerable suffering. Only the SCC has the authority to overturn its own decision in Rodriguez [1993] 300/330 appleby

http://globalnews.ca/news/896497/doctor-assisted-suicide-ban-upheld-in-b-c/ “Canada’s ban on assisted suicide has been upheld in British Columbia’s Court of Appeal, leaving those arguing for the right even more determined to fight for people facing an ‘unbearable dying process’.” BC ban on assisted suicide upheld 300/330 appleby

BC Civil Liberties says that if physician-assisted suicide were legalized, “appropriate and carefully-tailored safeguards can be created to protect vulnerable individuals.” The BC Court of Appeal’s ruling was appealed to the Supreme Court of Canada. 300/330 appleby

Carter v. Canada (Attorney General) 6 February 2015: SUPREME COURT OF CANADA decision – prohibition is unconstitutional Carter v. Canada (Attorney General) The Court’s Declaration of Invalidity regarding the Criminal Code’s prohibition of assisted suicide was suspended for 12 months During this time, Parliament was directed to amend the Criminal Code so that it would not be unconstitutional [More discussion to follow next week] 300/330 appleby