Robert Frater told the court the decision the Supreme Court made in the Sue Rodriguez case 20 years ago upholds the “twin objectives” of the sanctions against euthanasia and assisted suicide: the protection of the vulnerable and the preservation of life.
The Supreme Court of Canada heard arguments in the Carter case on physician-assisted suicide Oct. 15. The Carter case involves two women, Lee Carter and Gloria Taylor, who have since died, though the challenge was picked up by the B.C. Civil Liberties Association. The appellants seek to overturn the Criminal Code prohibition against physician-assisted suicide on constitutional grounds, arguing the ban violated the women’s Charter rights under section 7 to life and security of the person and equality rights under Section 15. The trial judge found their rights were violated under section 7, because the ban on assisted suicide could make a person facing a degenerative illness such as ALS choose to kill themselves while they are capable of doing it, hastening their death. They might decide to live longer if they had the option of a physician-assisted death, the judge argued.
The appellants are “attempting to use the Charter to turn the object of the law on its head,” Frater said. By saying this law can’t be accessed by the severely disabled and therefore offends the Charter misses the intent of the law.
Frater said the trial judge in Carter “overstepped her role” in the analysis of whether jurisdictions that allow assisted suicide and euthanasia have adequate safeguards.
“That is a question for Parliament,” Frater said.
Representing the appellants, Joseph Arvey said the “most vociferous opposition” to their challenge “comes from church groups and the disabled.”
“We respect your religious views, but they cannot trump our constitutional rights,” said Arvey, who uses a wheelchair. “To the disabled, I am the last person who would suggest one is better off dead than being disabled.”
It is wrong and arrogant for disabled people “to impose their view of what suffering is acceptable to others,” he said.
Arvey said the exceptions they sought would only affect those who faced irremediable suffering through degenerative illnesses such as ALS, Parkinson’s, Huntington’s or “cruel forms of cancer.”
He said their challenge was based on the principles of autonomy and on the value of mercy. He predicted if the appeal is successful, “there would be no rush to the doctor’s office” by people seeking assisted suicide.
Quebec’s new euthanasia law was also raised before the court. A lawyer for the Attorney General of Quebec argued if the Supreme Court strikes down parts of the Criminal Code governing euthanasia and assisted suicide, Parliament should not be able to revise the Criminal Code in a way that goes counter to Quebec’s “medical aid in dying” law. Jean Yves Bernard argued Quebec’s euthanasia law is a matter of provincial jurisdiction because ending a patient’s life in order to end suffering is part of a continuum of medical care.
“We now recognize medicine is not solely used to cure,” he said, and the Criminal Code does not have the competence to determine health care.
Pierre Bienvenue, representing the Quebec-based Physicians’Alliance Against Euthanasia, argued instead federal jurisdiction over criminal law is “an absolute rule of public order.” If Quebec goes ahead with its bill its effect would be “to amputate part of the federal law and create certain provincial free zones across the country,” he said.
The Alliance represents doctors who say health care does not involve putting a patient to death, he said. Killing someone or helping someone kill themselves has never been part of health care.
Frater also objected to the Quebec argument that euthanasia is part of health care.
“Ending a life or assisting someone to end a life is a step beyond health care,” he said, noting criminal laws against homicide are federal jurisdiction.
Robert Staley, speaking for the Catholic Civil Rights League, the Protection of Conscience Project and the Freedom Alliance, asked the court to consider protecting the conscientious rights of health care officials should the laws be struck down. He noted the Quebec law forces doctors to refer patients for euthanasia, making them participate in the practice indirectly.
Justice Louis Lebel asked Bernard if conscientious objection is allowed if euthanasia is defined as treatment. Bernard said under the new law medical professionals are not forced to do this, but they must refer to competent authorities who will find someone to provide the care.
There is no timeframe for when the court will makes its decision.