Supreme Court of Canada revisits morally fraught issue of doctor-assisted death

Two decades after ruling against doctor-assisted death for suffering, terminally ill patients, the Supreme Court of Canada will reveal Friday its latest answer to one of modern society’s ultimate, existential questions.

In an age when medical science can preserve life far beyond nature’s course, what right do mentally competent but physically incapable individuals have to seek assistance in speeding their exit?

The case at hand revolves around two B.C. women, both now dead, who wished to end their “grievous and irremediable” illnesses with medical help.

Gloria Taylor, who had a neurodegenerative disease, eventually died of an infection. Kay Carter, then 89, travelled to Switzerland, where assisted suicide is allowed.

Taylor had won a constitutional exemption at a lower court for a medically assisted death in 2012, but that decision was overturned in subsequent appeals. Last January, the Supreme Court of Canada agreed to settle the matter — effectively readjudicating its 1993 judgment in the case of Sue Rodriguez.

Much has changed since a deeply divided top court rejected a bid by Rodriguez — who suffered from ALS, or Lou Gehrig’s disease — for the right to end her life with a physician’s help.

End-of-life issues are much more top of mind for an aging demographic bulge of baby boomers who are watching their parents pass — and contemplating their own earthly end as a result.

Polls suggest public opinion has swung predominantly in favour of doctor-assisted death for the most cruelly afflicted.

When the Supreme Court heard arguments in what is known as the Carter case last October, the public lined up two hours before the hearing began and overflow seating had to be arranged in the court lobby.

At the time of the Rodriguez ruling, no jurisdiction in the world sanctioned doctor-assisted suicide. Today there are at least eight that do — not including pending, contested legislation in Quebec.

But much remains fundamentally the same.

“Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair,” then justice John Sopinka wrote for the Supreme Court majority in 1993.

“The prohibition relates to the state’s interest in protecting the vulnerable and is reflective of fundamental values at play in our society.”

The court ruled the ban on assisted suicide did not infringe on the Section 7 “life, liberty and security” provisions in the charter and, while violating equality language in Section 15, it was justified as a reasonable limit.

But it was a profoundly split decision, with four of the nine justices dissenting — eloquently and at length.

Beverley McLachlin, who had been on the top court for four years in 1993, wrote a dissenting opinion that not only disagreed with the majority, but also with the dissenting opinion of the court’s then-chief justice Antonio Lamar.

“What is the difference between suicide and assisted suicide that justifies making the one lawful and the other a crime, that justifies allowing some this choice, while denying it to others?” McLachlin wrote at the time.

Today, McLachlin is the chief justice — and the only judge from the 1993 court still sitting.

Adding to the intrigue is the fact that while this is Stephen Harper’s court, with seven of the nine justices appointed by the current prime minister, it has not been kind to Harper’s Conservative agenda.

A series of recent rulings have gone against the government’s legal and constitutional arguments on everything from safe injection sites to prostitution laws and Senate reform.

And the government has been unequivocal about doctor-assisted suicide.

Justice Minister Peter MacKay defended the status quo when the Supreme Court first agreed to hear the appeal last January.

“Our position is straightforward: Rodriguez is still good law,” government lawyers told the court last October.

And Harper himself has said Parliament has decided the law should remain as it is, having rejected a number of private member’s bills seeking to change it.

“The government of Canada at this time has no intention of reopening that debate,” the prime minister said last fall.

Lawyer Hugh Scher, representing the Euthanasia Prevention Coalition, issued a news release Wednesday demanding the court respect the will of elected representatives.

“A decision to strike down the assisted suicide law would strike a serious blow to parliamentary sovereignty and to basic principles of democracy by effectively overriding the will of Parliament as it has been expressed consistently over the past 30 years,” Scher said in the release.

Even those rooting for change believe the issue will ultimately end up back in the House of Commons, where the arguments will continue.

“Even if the decision comes out from our standpoint to be the best of all possible decisions, there’s no automatic guarantee that a wise decision leads to wise legislation,” Wanda Morris of Dying With Dignity Canada said in an interview.