This Farewell Foundation Report covers the Carter Trial December 7, 2011
Day 15: Wednesday December 7, 2011
On December 7th the three interveners in support of the plaintiffs gave oral and written submissions to the Court.
CANADIAN UNITARIAN COUNCIL
Canadian Unitarian Council lawyer Tim Dickson said the CUC supported the plaintiffs entirely but would focus entirely on s.7 of the Charter right to life, liberty and security of the person because it helped to expose the fundamental injustice of preventing “seriously and terminally ill persons from making choices of profound importance to them for reasons that are irrational and grossly heavy-handed.” Dickson referred to Chief Justice McEachern’s dissent in Rodriguez in the BC Court of Appeal, “death and the way we die is a part of life itself,” and he argued that how a person dies is a “critical part of the narrative of his life,” and that it is profoundly intrusive to limit the manner and timing of a person’s death.
Dickson reminded the Court that all the judges who addressed security of the person in Rodriguez found that her security of the person was infringed by the law against assisted suicide but principles of fundamental justice deprived her of any right to assistance. Dickson said that this Court should also find that the plaintiff’s autonomy interests are infringed, and that the law must be struck down because it is overbroad: “It condemns them to living for weeks, months or years in a state of such poor quality that they would prefer death. For some, like Gloria Taylor, the impugned provisions impose enormous anxiety as they wait for, and then experience, the degradation of their bodies. The impugned provisions plainly and obviously limit these persons’ security interests.”
The Canadian Unitarian Council’s submission covered three main points. First, the CUC said that the current legal framework for medical decision-making and Charter values require that a competent, informed and voluntary choice for assisted dying must be respected because such decisions are not incompatible with the fundamental norms of our law. Second, the slippery slope arguments by the defenders of the law are “entirely addressed by a rigorous application of the ordinary legal standard for all medical decision-making: the standard of informed consent.” Since that standard is sufficient for a decision to withdraw life-sustaining medical treatment when the consequence is death there is no
compelling reason that the same standard should not be applied to the context of physician-assisted dying. Therefore a total ban is overbroad. Third, the “active/passive” distinction between physician-assisted dying and the withdrawal of life-sustaining treatment is contrary to the state’s true objective: Dickson argued that it is “obviously inconsistent with this overarching objective of protecting informed consent on matters of such fundamental personal importance. Not only is the ban unnecessary to achieving
that objective, it indeed thwarts it for persons like Gloria Taylor.”
AD HOC COALITION OF PEOPLE WITH DISABILITIES WHO ARE SUPPORTIVE OF PHYSICIAN-ASSISTED DYING
Appearing on behalf of the Ad Hoc Coalition were lawyers Angus Gunn and Sarah
Hudson. The Coalition’s members say that their disabilities might leave them unable to end their lives without assistance, so the assistance of a physician is necessary for a dignified death. All of the Coalition’s members “support freedom of choice in end-of-life decisions, including the freedom to choose physician-assisted dying for qualifying adults of sound mind, as a step forward for the disability rights movement that is consistent with the principles of autonomy and self-determination.”
The Coalition drew from the recent Royal Society of Canada Report and noted that it is illogical to criminalize physician-assisted dying out of fear that some deaths will not be freely chosen. “This logic is…premised on a faulty assumption, namely that the status quo is itself without costs or risks, and that the only costs and risks to be factored into our deliberations concerning the desirability of moving away from the status quo are the ones that accompany the move away from [it]”. The Coalition said that the evidence in the Carter case has established that assisted death occurs even under prohibition with no
procedural safeguards.
The Coalition argued that vulnerable persons would be better protected in a system
that allows choice in assisted dying with specified safeguards, rather “than under the cloud of an absolute prohibition. On a review of restrictive and permissive regimes around the world, the Royal Society similarly offered the hypothesis that it may be the case that an open and liberal policy, as opposed to a restrictive regime, leads to a reduction in non-voluntary assisted dying.”
The Court was urged to consider the how the Canada’s law perpetuates prejudice and
paternalism: “an absolute prohibition prejudicially deems as vulnerable all persons with disabilities and paternalistically blankets those who do not need and do not wish the state’s protection in a way that disrespects their autonomy.”
FAREWELL FOUNDATION
The written submission of the Farewell Foundation is posted at www.farewellfoundation.ca/docs/Memorandum_of_Argument_December_3_2011_Farewell_Foundation_Intervener.pdf
Counsel Jason Gratl told the Court that Farewell Foundation generally supported the Charter of Rights arguments of the plaintiffs but it sought a different remedy that distinguishes the Foundation from the plaintiffs.
First, the Farewell Foundation does not support a restriction on medical autonomy that requires a doctor to determine that person suffers from a condition that is “grievous or irremediable or both.” The second distinction is that the Foundation does not see the involvement of doctors as necessary to every part of an individual’s decision to end his or her life. Gratl argued that doctors are indispensable to confirming the decisional capacity of a person and they are also indispensable to ensure that a choice to bring one’s life to its end is fully informed with regard to diagnosis, prognosis, palliative and medical treatments, and social environmental options that might improve a person’s circumstances.
But, argued Gratl, the practice of documenting a request for assistance to die and the procedures to document that assisted dying is free from undue influence are not medical matters. The evidence led in the Court about the Swiss model employed by organizations such as Dignitas and EXIT provide the framework for regulation of assistance that farewell Foundation believes is optimal for protecting against the involuntary ending of life. For example, Canada’s witness Dr. Jose Pereira told the court that the regulations for the Swiss hospital in which he worked were quite reasonable criteria.
Gratl argued there are three categories of individual who need protection: a) those who lack the capacity to make decisions, b) those who have not consented, either by silence or refusal, and c) those who are not fully informed about alternative options to assistance with dying. Mr. Gratl said the right to self-determination and autonomy turns on the ability to distinguish between persons with capacity or without capacity, persons who consent or do not consent, and persons who are informed or not informed. Farewell Foundation said there was no reason that these standards could not be legislated into practice:
“If we are serious about freedom in Canada and serious about medical autonomy we shouldn’t have to ask a doctor for permission to end our own lives or to obtain assistance in ending our lives. Of course complicated by the reality of obtaining assistance according to some levels of description include assessment of the decisional capacity and provision of diagnosis and prognosis and potential palliative and medical treatments in the context where a doctor knows an individual wants to end their own lives.”