Freedom: Right to Die
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How medically assisted dying became legal in Canada.
In 1993, Canadians watched a heartbreaking story play out in the courts, on their television screens and in the private suffering of a dying woman. Sue Rodriguez had ALS. She wanted to die on her own terms, and wanted the right to have a doctor help her with that. She fought for her rights all the way to the Supreme Court of Canada.
If I cannot give consent to my own death, whose body is this? Who owns my life?
Sue Rodriguez lost her case in court for the right to assisted suicide in 1993
Sue Rodriguez nearly convinced the court. It was a 5-4 decision, but it went against her. In its decision the highest court in the land said that medically assisted suicide was considered morally and legally wrong in Canada and upheld section 241(b) of the criminal code in its entirety. A year later, in February 1994, Rodriguez committed suicide with the help of an anonymous physician. She died knowing that the doctor helping her could be punished with up to 14 years in prison. What she may not have known was that she had started to change the way Canadians thought about assisted suicide.
Journalist Sandra Martin is the author of a book that charts the history of the right-to-die movement here and abroad. It is called “A Good Death: Making the Most of Our Final Choices.”
Sandra Martin author of “A Good Death: Making the Most of our Final Choices”
“Back in the early 90’s when Sue Rodriguez was about 40, was suffering from ALS, nobody was publicly asking for the right to die. There were some doctors who were helping patients along, but it was the doctor’s decision. It wasn’t the patient’s choice. I think that that’s a key issue in this story.” Sandra Martin
Watch the full interview with Sandra Martin
Patient choice had indeed become the story. Over the next 15 years, Canadians increasingly expressed the view that people who are terminally ill and suffering should have the choice to end their lives with the help of a physician. There was a widening gap between the public opinion on the issue and the law of the land.
Lee and Price Carter were well aware of that gap. It was 2010. Their mother Kay was sick and in pain, and it was only going to get worse.
Lee and Price Carter. Lee Carter was a plaintiff in the assisted death case that went to the Supreme Court of Canada. (Carter v Canada)
“She had been ill with spinal stenosis for a couple of years. And it got where she was really debilitated, she said to me one August visit when I went to see her in her care facility, she said I want to ask you if you would take me overseas — so that I could die with dignity.” Lee Carter
The Carters made arrangements with the Dignitas Clinic in Switzerland, where their mother could receive the kind of help she couldn’t get at home. Like the doctor who helped Sue Rodriguez years before they were committing what was considered to be a crime in Canada — one that could result in a 14-year jail sentence. On January 10, 2010, the Carters and their mother arrived at the clinic in Zurich.
Kay Carter became the 10th Canadian to die of assisted suicide at the Dignitas clinic in Switzerland
“She was asked countless times: ‘Kay are you sure this is what you want to do? You realize that if you do this and you do it, you will be dead’. And her constant refrain was ‘I Kay Carter, wish to die with dignity’,” Kay Carter’s son, Price Carter told CPAC.
Watch the full interview with Lee and Price Carter.
And die with dignity was exactly what she did, with some of her children by her side but not at home where she had hoped to be.
Lee and Price Carter returned home to Canada. Their main mission had been accomplished, Lee said, but their fight had really only begun.
“I was approached by BC Civil Liberties and they asked Hollis — my husband — and I — if we would talk to them about being plaintiffs in this case and both of us went ‘of course we will'”, said Lee Carter. “Why would we do that? Oh it’s just continuing what she had always wanted that Canadians should have a choice in how they die.”
The case — launched in the British Columbia Supreme Court by the BC Civil Liberties Association (BCCLA) in April 2011 — challenged the laws that made it a crime for physicians to help competent, seriously ill individuals end their life at a time of their choosing. It was called Carter v Canada.
Joe Arvay was the lead lawyer who brought the case. He says the law as it stood then was putting people — those who were sick and the people who loved them — in an impossible situation.
Joe Arvay lead council on the landmark Carter v Canada.
“It became apparent that many people had to choose between committing suicide, or asking family or friends to assist them with their death while they still were enjoying their life, because if they waited too long — to the point where life no longer had any value for them, or living was worse than death — then it would be too late.” Joe Arvay
Watch the full interview with Joe Arvay
The BC Supreme Court agreed with Arvay’s legal argument, striking down the prohibition against assisted suicide, calling the current law discriminatory, disproportionate and overbroad. The court gave Parliament one year to draft new legislation that would allow physician assisted suicide.
The Federal government appealed. Arvay was not surprised.
“We knew this was just step one in a three-step dance. We knew that the government would appeal to the court of appeal,” says Arvay.
Arvay’s dance, as it turned out, involved one step forward and one step back. The Court of Appeal agreed with Ottawa that the BC court couldn’t overturn the 1993 SCC Rodriguez decision upholding section 241(b) of the Criminal Code. And that is when the real battle began. On October 12, 2014, the BCCLA got leave to appeal the case to the Supreme Court of Canada. For Joe Arvay, it was a chance to convince the high court to take the third step in the dance — one that he was certain Canadians wanted to take.
“I believe that public opinion had shifted. That there was now a ground swell of support for physician assisted dying that didn’t exist back in 1992 or 94 when Rodriguez was decided.”
On February 6, 2015, the Supreme Court of Canada struck down the criminal code prohibition on assisted suicide
Arvay was right. On February 6, 2015, in a unanimous decision, the Supreme Court of Canada reversed its 1993 decision in Rodriguez, striking down s 241(b) of the Criminal Code. The court said the prohibition against assisted suicide violated the right to life, liberty and security of the person guaranteed in s7 of the Charter of Rights and Freedoms.
We knew we won, it was over, and we had accomplished what we had set out to accomplish. It was a very emotional moment in my life and in my career.
The Supreme Court of Canada said medically assisted suicide should be allowed for a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering. The court gave Parliament one year to come up with a new law.
Hundreds gathered on Parliament Hill to protest Bill C-14 – June 1, 2016
But politics, in this case, didn’t cooperate well with judicial deadlines. The Conservatives were in power on February 6, 2015, when the Supreme Court of Canada struck down the assisted suicide law. But nine months into the time granted to come up with a new law, on October 19, the Liberals won the federal election. The new government had only three months left to come up with a new law.
They didn’t quite make it. The Supreme Court of Canada granted Parliament a six month extension.
And, in the House of Commons, in February, the federal government announced its proposed legislation. The bill drafted by the government, Bill C-14, required a person’s death to be foreseeable for medically assisted death to be allowed.
“The emphasis had switched from what the Supreme Court was saying, which was about suffering. Suffering that is intolerable to the patient. Suffering as grievous and irremediable. It had changed from that to a ‘reasonably foreseeable natural death’,” says Sandra Martin.
The proposed law was met with rigorous debate. With some MPs arguing it was too lenient and others, it was too restrictive.
And things didn’t get easier when Bill C-14 went before the Senate. Senators took issue with the condition that a person’s death needed to be foreseeable. “There is nothing in the Carter decision that talks about proximity to death or limiting access to those who are approaching death,” said Senator James Cowan. But — with the deadline approaching — the Senate eventually approved Bill C-14.
On June 17, 2016, the Bill received royal assent and medically assisted dying became legal in Canada.
Within months Canada’s new law on medically assisted dying was already being challenged in court.
“We believe that the law is actually contrary to the Carter decision, it does not respect the decision of the SCC, and is unconstitutional, and we have started yet another lawsuit challenging that law.” Joe Arvay
It’s a story of freedom that will be continued…
Right to Die tells the story of Canadians who fought for the freedom to choose medically assisted dying. In what other ways do Canadians find their individual freedoms threatened? CPAC’s Peter Van Dusen poses this question to privacy and security experts Ann Cavoukian (a distinguished expert-in-residence at the Privacy by Design Centre of Excellence at Ryerson University), Wesley Wark (a visiting professor at the Graduate School of Public and International Affairs at the University of Ottawa), and Amir Attaran (a professor in the Faculty of Law and the School of Epidemiology, Public Health and Community Medicine at the University of Ottawa).
Freedom in Canada: A Panel Discussion