This Farewell Foundation Report covers the Carter Trial December 8-13, 2011
Day 16-19: Thursday December 8 – 13, 2011: The Defendant’s Arguments
THE ATTORNEY GENERAL OF CANADA
Donnaree Nygard presented Canada’s position over the course of three and a half days. When she was finished, George Copley presented the argument for the Attorney General of BC on the afternoon of December 13th.
Ms Nygard explained to the court that she did not have time to write a short argument, so she was providing a long one — 198 pages. She said that the issue of assisted suicide and euthanasia is an “incredibly difficult policy issue” and expressed shock at the previous day’s submissions by the interveners, in particular the Farewell Foundation. She said that while Canada appreciated that the Farewell Foundations rights-based analysis of autonomy was a principled position, the Carter plaintiffs were not seeking an autonomy
right. Rather, Carter was asking for a policy change for people suffering grievous and irremediable illness. Such a policy, she said, was the responsibility of parliament and not the courts.
Nygard’s first argument was that the doctrine of stare decisis does not permit the Court to reconsider the prohibition against assisted suicide since the Supreme Court of Canada found that the prohibition is constitutional and in accordance with the principles of fundamental justice. In Rodriguez the SCC rejected the claim that a terminally ill person has a right to assistance to suicide, even when the person is suffering and cannot do so without assistance. Canada says the Rodriguez ruling is binding on the Court and that should be the end of the matter.
The Attorney General of Canada also says that the blanket prohibition on assisted suicide and euthanasia is still the norm in Western democracies and while the plaintiffs say there is a trend toward the decriminalization or legalisation of assisted suicide and euthanasia, this is not actually the case. While some jurisdictions have allowed assisted suicide or euthanasia since the Rodriguez ruling, Canada says that “many more Western jurisdictions have rejected attempts to legalise assisted suicide or euthanasia or have actually enacted legislation to strengthen or re-affirm the existing prohibitions on these practices.”
Ms Nygard reviewed the history of the criminal law against assistance with suicide, since Canada’s first Criminal Code took effect on July 1, 1893. She said the prohibition of assisted suicide and euthanasia expresses the fundamental value of preserving human life and “the state’s interest in preserving life by not condoning the taking of another’s life. It
reflects the policy of the state that the value of human life should not be depreciated by allowing life to be taken by another.”
Justice Smith asked Nygard how, if the state does not condone the taking of life, we explain killing in self-defence, or sending people to war? Nygard said that those situations are different, they are not about condoning the taking of life but about exceptions to the taking of life with a different set of rules. For example, said Nygard, self-defence is a narrow excuse for killing in a situation where there would be a loss of life anyway.
Nygard said Canada’s parliament has repeatedly rejected legalization of assisted suicide and euthanasia. Since 1991 nine private members bills at the House of Commons have either been defeated or were not debated. Last year Bill C-384, An Act to Amend the Criminal Code (Right to Die with Dignity) was defeated by a vote of 228 – 59. She noted that one reason Canada had rejected capital punishment was because even the best justice systems make mistakes and this results in wrongful executions, and that legalizing assisted
death would have the same risks.
Nygard said that courts in the USA, England, and Europe have upheld the prohibition of assisted death, and that the BC Supreme Court should do the same. She also argued that medical associations around the world opposed physician assistance in dying, and emphasized that the New Zealand Medical Association held that even if the law were to change in that country, the NZMA would continue to regard the practice as unethical.
With regard to people with physical disabilities, Nygard said persons with “complete disability are in a different situation than individuals without physical disabilities with respect to their ability to end their lives without contravening the criminal law.” However, even a person with severe disabilities can still end his or her own life without assistance, either by refusing medical treatment or stopping eating and drinking.
Canada’s position is that the absolute prohibition against assistance in suicide is “based on the understanding that all people who are considering suicide, with or without physical disability, are vulnerable and in need of protection from the interventions of others. In enacting a blanket prohibition, Parliament has adjudged that all persons who might wish to end their lives are vulnerable to abuses, coercion, and subtle pressures and has legislated accordingly.” The law, said Nygard, may be paternalistic but in that respect it is “equally paternalistic to the able-bodied and the disabled.”
In closing, Canada’s position was that “the taking of a life represents the most serious crime in Canadian law.” Prohibition is “consistent with Canadian values and the state’s interest in preserving life by not condoning the taking of another’s life.”
ATTORNEY GENERAL OF BRITISH COLUMBIA
On December 13th George Copley presented the argument for the BC Attorney General, as he did in the case of Sue Rodriguez nearly 20 years ago. Mr. Copley reviewed the record or the Rodriguez case and compared it to the case presented by the plaintiffs. He said the arguments Gloria Taylor are essentially the same as those for Sue Rodriguez, therefore
the principle of stare decisis applied and the court should reject her claim.
Copley rejected the claimant’s case that things had changed since Rodriguez. He said that the blanket prohibition against assisted death was still the norm around the world. Just because a new law had been enacted in Oregon, Washington, and Belgium, and that the Netherlands had codified what was previously a policy for doctors, this did not change the fact that the norm around the world is still prohibition.
Copley submitted that the plaintiff’s claim that there is no ethical distinction between withdrawal of treatment that causes death and a positive act to hasten death is no different than the one put forward in Rodriguez. The Supreme Court of Canada rejected that argument in 1993 and Copley believed it would do so today.
The spectre of a “made in Canada slippery slope” was raised. Copley said the Canadian Medical Association had expressed concern that if euthanasia or assisted suicide were permitted for “competent, suffering, terminally ill patients,” then courts might extend this to people who are not competent, not suffering, and not terminally ill. Copley warned that “reliance on the autonomy principle alone leads logically and inevitably to physician assisted death on demand.”
Picking up on Canada’s argument that severely disabled people can still end their lives,
Copley said “the able bodied and the disabled can equally commit suicide by refusing to eat or drink or by refusing provision of artificial nutrition or hydration. Decriminalization of suicide does not in purpose or effect make a distinction between the able-bodied and the disabled. All that s. 241(b) does is remove one means of committing suicide … (an) able-bodied person may have more possible choices as to means of committing suicide but the means of committing suicide is not a benefit conferred by government.”
Justice Smith commented that refusal of food and drink as method of suicide seemed “harsh.” Copley replied that a doctor could ethically treat the suffering of a patient who chooses to die that way [see note below **].
Similar to the position presented by Canada, British Columbia said legalization is an “exceedingly complex social issue” that would be better left to parliament to decide, because it could choose from a wider range of alternatives than the courts. “(A) blanket prohibition on assisting suicide, and … euthanasia, is necessary to achieve the objective of protecting vulnerable persons in a real and substantial manner. Nothing less will suffice.”
[** Farewell Foundation notes that Canadian courts have not considered the refusal of life-support and artificial nutrition/hydration to constitute suicide, as is now suggested by both Canada and British Columbia. Case law, Zsiros (2003) and Martens (2004), has said that aiding suicide includes actions that “move the process of suicide along.” If, as suggested by the Attorney General for BC, a doctor can treat the suffering of a patient who has stopped eating or drinking, then it would seem that the government is saying that the
doctor can ethically move the process of some forms of suicide along.]