Jack Major can still see the silent ranks of disabled people, their wheelchairs ringing the Supreme Court of Canada as a courtroom full of lawyers debated the assisted suicide law in 1993.
“It was a haunting type of case,” said Mr. Major, who was the Supreme Court judge whose vote tipped the balance in a 5-4 decision affirming the law.
Eighteen years later, the polarizing question is heading back to the top court. A Vancouver judge finished hearing a test case on Friday launched by Gloria Taylor, a terminally ill B.C. woman. It was the first step of a journey that will ultimately compel the top court to grapple anew with whether the terminally ill can obtain help to end their lives.
But the case is much more than just a replay of the unsuccessful challenge mounted in 1993 by another B.C. woman, Sue Rodriguez. Precedents do not last forever. The Supreme Court has taken to revisiting seminal judgments 15 or 20 years on, sometimes with different results.
“The court certainly has been known to overturn important Charter decisions,” University of Ottawa law professor Carissima Mathen observed. “I don't think the Rodriguez case would pose a big barrier in a case like this.”
The changing context
For majority judges in 1993, the case turned on the sanctity of life coupled with concerns – embodied by the disabled observers who showed up at the Supreme Court hearing – that legalizing assisted suicide could cause vulnerable people to be killed off prematurely.
Findings are now available from four countries (The Netherlands, Belgium, Luxembourg and Columbia) and four U.S. states that have legalized assisted suicide. The applicants argue that safeguards imposed in those jurisdictions ensure that each candidate has expressed a genuine, consistent desire to die, and there is virtually no evidence of abuse.
Led by constitutional expert Joseph Arvay, they maintain that the Charter’s right to life, liberty and security of the person has expanded considerably since the Rodriguez case; that it clearly encompasses the right to avoid a painful, unavoidable death.
The challengers have also tried to distinguish their case by furnishing scores of poignant affidavits from individuals who watched helplessly as relatives died a lingering, excruciating death. Others were written by terminally ill people who urgently desire to choose the time of their deaths.
The second legal prong of the challenge is the Charter’s equality section. Since suicide is not itself illegal, the litigants argue, it is unconstitutional to deprive those disabled by a terminal illness of the right to obtain assistance to end their lives.
However, York University law professor Bruce Ryder warned that the argument may fall on barren ground. “The equality section is very much a graveyard for Charter claims these days,” he said.
The political climate
Of the nine Supreme Court judges who heard the Rodriguez case, only Chief Justice Beverley McLachlin – who led the dissenting side – remains. While the chief justice will likely argue again in favour of assisted suicide, she is well-attuned to the dangers of the court appearing to overstep its role, University of Toronto law professor Brenda Cossman said.
“There is a government in place now that has incredible hostility toward the court and is in favour of judicial restraint,” Prof. Cossman said. “From her many understated public statements, it sounds like the chief justice is acutely aware of the charges of judicial activism. I think that has to enter into her thinking.”
Mr. Major, now working as a lawyer in Calgary, said he finds it disillusioning that judges must deal with the issue again. It could have been avoided if federal government had heeded a message implicit in the Rodriguez decision that the assisted suicide law needed to be modernized, he said.
“It fell to politicians to amend the [Criminal]Code to permit assisted suicide under whatever circumstances they felt were sufficient safeguards,” Mr. Major said. “Parliamentarians have just ducked that issue.”
The moral question
The challengers are buoyed by a Supreme Court decision this fall that compelled the Harper government to keep a Vancouver supervised drug injection facility open, a ruling rooted in the greater harm that addicts suffer when they are forced to acquire and inject drugs on the streets.
The same “harm reduction” principle was at the core of a recent successful challenge in Ontario to prostitution laws that force prostitutes to endure the dangers of operating in seclusion.
Similarly, lawyers in the Taylor case hope to show that the suffering caused by the prohibition against assisted suicide is grossly disproportionate to its aims.
While opponents of judicial activism would recoil at the notion, Prof. Cossman said that the issue of assisted suicide is the kind of rare case in which the moral compass of each judge will probably count for more than strict Charter interpretations.
“It feeds into the worst fears of the critics of judicial activism,” Prof. Cossman said. “The difference between the majority and the dissenting reasons in the Rodriguez decision were not really about law. Ultimately, I think, it boiled down to a question of morality.”