This Farewell Foundation Report covers the Carter Trial for Dec. 16, 2011
Friday, December 16th, was the final day in this summary trial.
Court commenced at 09:00, one hour earlier than usual to ensure everything could be completed before the Court started the Christmas break. The day began with the AG Canada registering an objection over the 160 page document delivered by the plaintiffs
that morning. The previous day the plaintiffs had provided a 30 page submission on their s.1 Charter argument. S.1 is the clause of the Charter that allows the government to put certain limits on rights guaranteed to Canadians. For example, free speech can be limited if it is deemed hate speech.
Canada’s Donnaree Nygard objected that the 130 pages added overnight to the plaintiff’s submission was either not a proper reply or amounted to the plaintiffs “splitting their
case.” She said there had been no opportunity to read the massive last minute submission and she requested time to respond.
The plaintiff’s counsel, Joe Arvay, said that Canada had a “lot of nerve” since Canada and British Columbia had given him more than 300 pages of argument and he believed his reply was entirely appropriate.
In the end, Justice Smith allowed the hearing to continue and she gave Ms Nygard until January 13th to provide a written submission on the parts of the plaintiff’s that Canada
deemed not appropriate. Justice Smith also said that she would allow Canada to make a further submission to supplement its s.1 Charter submission, if necessary.
Both Canada and BC contend there are not sufficient reasons to allow a trial court to overrule Rodriguez. In response, the plaintiffs rely on a recent Ontario decision in—Bedford—which concerns Canada’s laws against prostitution. In Bedford the law was found to be unconstitutional and is now under appeal. The plaintiffs say that the situation facing Justice Himel in the Bedford case was same as that in this BC Court. Just as Justice Susan Himel was not bound by an earlier Supreme Court of Canada decision, neither is Justice Lynn Smith in British Columbia, say the plaintiffs.
The standing of two of the plaintiffs, Dr. Shoichet and the BC Civil Liberties Association,
was unchallenged until the final days of the trial. The defendants now seek to strike their standing in the case. Joe Arvay says the standing of the BCCLA as a named plaintiff is critically important to fundraising to cover the extraordinary costs in this case, and if Gloria Taylor dies it is important to have the BCCLA continue to represent her interests. Arvay said Dr. Shoichet could have applied for private interest standing if the defendants had challenged his standing in the beginning.
Zero-Tolerance for Wrongful Death
Joe Arvay submitted that Canada’s closing argument amounts to a “zero-tolerance” policy
because it says Parliament can’t enact a law that “might create even the ‘risk’ that one person might die who should not have died.” Arvay said Canada’s counsel is “simply wrong” and clarified that Parliament could “leave the matter unregulated as a private matter between the physician and patient” but he hoped government would create some sort of law to regulate assisted death. Justice Smith pointed out that Canada did not have capital punishment because of the risk that one wrongful death of an innocent person is too many. “What do you say to that?” She asked.
Mr. Arvay answered “Let us put to rest once and for all the complete red herring of
capital punishment…. Canada says capital punishment was abolished ‘precisely because even the best justice system in the world makes mistakes that, if capital punishment were an option, would result in the death of innocent individuals.’ … It need hardly be mentioned that we can assume that everyone on death row wants to live and is being killed involuntarily. Involuntary death is not only not sought in this case, it is the polar
opposite of what is sought in this case – the right to control one’s own life and death.”
Justice Smith seemed sceptical at Mr. Arvay’s argument. She pointed out that some voluntary deaths may involve people who do not really mean to die. In answer, Arvay said that the risks had to be reconciled somehow, that we don’t live in a totally risk free world and that the Court should look at the risks that are already inherent in the medical system every day. Arvay said that if Justice Smith chose to strike the law, the federal parliament had the option of crafting the best law humanely possible.
Sheila Tucker introduced a number of safeguards that the plaintiffs believed would address concerns about voluntariness. These included a psychiatric evaluation, a formal written request, repeated requests, variable waiting periods depending on medical condition, assignment of a patient advocate, a requirement that the patient self-administer lethal medication, and that voluntary euthanasia only be permitted in cases where a patient is physically incapable.
Donnaree Nygard objected to Ms Tucker’s proposed safeguards on grounds that these should have been identified in the plaintiff’s original submissions and to present them at the end of the hearing did not constitute a proper reply. “The plaintiffs had an obligation to put their full case forward at the start,” she said.
Ms Nygard argued that the plaintiffs had mischaracterised Canada’s statement about the
purpose of the prohibition on assisted suicide and euthanasia. She repeated her previous oral and written submissions that the prohibition “reflects the state’s interest in preserving life by not condoning the taking of another’s life.” She said the plaintiffs were wrong to suggest that Canada’s objective is “the preservation of life, without qualification or the
preservation of life in any absolute sense.”
Ms Nygard said that the protection of vulnerable individuals who might be induced to suicide is just one of the harms that Canada seeks to prevent. She said that Parliament has identified additional harms to individuals and to society, including negative social messaging that some lives are less valued, harm to the doctor-patient relationship, and a weakening of palliative care.
In closing, Ms Nygard said that the beneficial effect of the law is the prevention of harm. She said Canada had put forward evidence from other jurisdictions that wrongful deaths have occurred. While the plaintiffs have argued that there is a greater danger in prohibition because it contributes to underground assisted death, Nygard said there is no evidence put to the court that regulation would change that.
Canada will provide Justice Smith with a written submission on January 13, 2012, to identify which parts of the plaintiff’s reply should not be allowed. Subsequent to those
submissions, Justice Smith will adjourn to consider her disposition. While there’s no indication when a ruling will be delivered, it is certain to be appealed to the BC Court of Appeal.