'Whose body is this?': The right to die with dignity revisited

Over the holiday season a story out of Winnipeg grabbed the attention of the Canadian public. The story went something like this: an elderly woman fell in the home she shared with her middle‑aged son. She was injured in the fall and left unable to get up under her own power. Her son, apparently carrying out the wishes of his mother, did not call for emergency assistance and did not move her to bed. Instead, the 62‑year-old covered his mother with a blanket where she lay and provided her with food and water until she passed away several weeks later.

We don't know most of the details of what happened. We don't know whether this man lay on the floor beside his ailing mother until her passing. We don't know what this woman asked of her son. We don't know whether she was capable of making decisions about her personal care. What we do know is that her son has been charged with criminal negligence causing death and the court of public opinion is somewhat split.

No matter where you sit on the spectrum of opinion, there are two truths to this tragedy: (1) this woman was deprived of a dignified death; and (2) the state of the law leaves people who are ailing with a dismal set of options -- act alone in ending your life while you are still able, or commit to riding out your failing body until the end. The law does not care what that end looks like.

This isn't a new discussion. In 1993, the Supreme Court of Canada (SCC) upheld the constitutionality of section 241(b) of the Criminal Code against assisted suicide. In that case, Sue Rodriguez who was diagnosed with ALS famously fought for her right to engage the assistance of a doctor in ending her life.

Rodriguez, who asked in a video statement to the SCC, "whose body is this?" didn't live to see the result of her efforts and although the challenge was not successful in striking down the prohibition, the SCC left room for the issue to be revisited down the road.

For a majority of the Court, the case hinged on whether the ban on assisted suicide infringed Rodriguez's section 7 Charter right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." In short, the Court reasoned that yes, Rodriguez's security interest, which includes the right to make decisions about one's body, was compromised, but that the deprivation of that interest was not contrary to the principles of fundamental justice.

The principles of fundamental justice are not easy to pin down. The Court struggled to define them, but said that they are characterized by a consensus that they are "fundamental to our societal notion of justice."

This is one of the lines of argument the British Columbia Civil Liberties Association (BCCLA) picked up on in a renewed challenge, which made its way back to the Supreme Court for argument in October 2014. Similarly to the Rodriguez case, the challenge was launched after the late Gloria Taylor set about ending her life by way of medical intervention after being diagnosed with ALS.

In the 21 years since Rodriguez, the "principles of fundamental justice" have been refined by the courts and now concretely include that a law cannot be arbitrary, overly broad in its application or disproportionate in effect, as compared to its objective.

The BCCLA has argued that the landscape has changed and we now know that the law against assisted suicide offends those principles, stating in their written argument to the SCC that:

concepts that were empty abstractions at the time of Rodriguez  are now populated with facts, including evidence of foreign regimes, detailed research studies and the testimony of actual participants. A debate once framed by stark philosophical opposition can now be assessed against experience. Speculative concern about the ability to distinguish between rational medical decision-making and traditional suicidal behaviour can now be gauged in the context of broad study-based expert consensus. In light of the evidence, some of the assumptions made by the Rodriguez majority now demonstrably lack factual grounding.

Applying this new information to the legal principles more thoroughly developed in the time since Rodriguez, the Supreme Court will have to compare the effect of the ban (denying the right of some people to make decisions about their body) and the objective (protecting vulnerable people) to determine whether the principles of fundamental justice have been respected. In Rodriguez, the Court had imperfect information to make that comparison.

The federal government is hoping to tie the hands of the Court, arguing that nothing has changed since the time of the Rodriguez challenge and that, just as before, the prohibition is in the interest of protecting the vulnerable.  

The Supreme Court has reserved judgment on the matter. If in fact the Court makes the decision to strike down the ban, it is likely that it will suspend the declaration of invalidity to allow Parliament the necessary time to legislate the conditions in which assisted suicide will become available.

The late Dr. Donald Low, an infectious disease specialist at Toronto's Mount Sinai Hospital famous for his work during the SARS crisis in 2003, gave an intimate video account of his view on physician-assisted suicide days before his death from a brain stem tumour. Dr. Low asks in his video: "why make people suffer, for no reason, when there is another alternative?"

That really is the important question and I, for one, am holding out hope that the Supreme Court will make the compassionate decision to advance the rights of terminally ill Canadians.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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