This Report covers the Carter Trial December 2 – 6, 2011
On Friday December 2nd the plaintiff’s counsel Joe Arvay commenced his s.15 Charter of Rights argument that the criminal prohibition against aiding suicide discriminates against people with disabilities. Section 15 says:
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Similar to the 1993 Rodriguez case, it is argued that people with severe disabilities are denied the option of ending their lives without assistance, but this option is available to other people, hence there is a burden or disadvantage resulting from the law. The Court heard evidence about individuals who wish to end their lives because of a disabling grievous and irremediable illness, but who they say they cannot do so without assistance.
It was also argued that part of the burden imposed on disabled persons is the stereotype that they are not capable of making autonomous choices and that disability rights groups had fed into that stereotypical thinking. The Court was told that many people fail to recognize that disabled people are capable of exercising authority in their decisions, including the decision to end their lives. Joe Arvey said that the belief that disabled people
don’t have enough autonomy or agency to end their lives and that they would only do so if they are coerced or unduly influenced is incredibly insulting, patronizing, and infantilizing.
Continuing for the plaintiff’s, Sheila Tucker took over from Joe Arvay on Friday afternoon
through to Monday afternoon to argue that the law was overbroad because “the complete prohibition of physician-assisted dying under force of the criminal law goes far beyond what is necessary to protect (the state’s interest in protecting life).” She pointed out that for every problem that had been identified (e.g. diagnosis of serious illness, consent, capacity, voluntariness, treatment alternatives, and depression) a possible safeguard was
Justice Smith asked what Sheila Tucker believed the government’s objective should be
and Tucker say that the line should be drawn at protecting those individuals who might be induced to suicide with assistance in the absence of an explicit desire to die.
On December 6th Joe Arvay resumed at the lectern to argue that the law is arbitrary. The first step in determining whether a law is arbitrary is to identify the purpose of the law in the first place. In the Rodriguez ruling, the Supreme Court of Canada said that the purpose of the law was “the protection of the vulnerable who might be induced in moments of weakness to commit suicide.” Arvay said that this would have been a correct analysis, except that the Court went further and seemed to discover a new principle of
fundamental justice that all “human life must be respected and we must not
undermine the institutions that protect it.”
To summarize his point that the Supreme Court of Canada got it wrong in Rodriguez, Arvay said that the protection of all human life is not a fundamental principle
“[T]here is no real connection in fact and theory between the absolute prohibition of physician-assisted dying and the protection of the vulnerable because the absolute prohibition is based on there being a moral or ethical distinction between what is compendiously referred to as ‘active and passive euthanasia’ when there is no such distinction in ethics that such a distinction exists. Indeed we submit that to maintain such a distinction in law is ‘manifestly unfair.’ Even if the alternative formulation of the arbitrariness principle were to be deployed, we say that the absolute prohibition of physician-assisted dying is inconsistent with the state interest in protecting the vulnerable because there is no ethical distinction between those end-of-life treatments that are lawful and those that are made a crime.”
In other words, the state does not criminalize medical decisions that end life through the cessation of treatment, so it is arbitrary to criminalize the administration of a treatment that will end life.