The Appeal Court of British Columbia has ruled. Although it was a split (2-1) decision, with Chief Justice Lance Finch in the minority, the upshot is that physician assisted suicide remains illegal in Canada. Or, rather, the prohibition stands until it is appealed to the Supreme Court of Canada.
On what basis did the B.C. Court of Appeal justify its ruling? Those who were hoping that the court would weigh and balance the competing moral arguments will be disappointed. The ruling was on the narrowest possible grounds. The court said in effect: Our hands are tied. Regardless of the weight of the evidence and the merits of the arguments, every court in Canada is bound by the Supreme Court's 1993 Rodriguez decision. Only the SCC itself can change its own previous rulings.
My prediction: When the Lee Carter case reaches the SCC, the court will reverse its decision in Rodriguez. Keep in mind that twenty years ago no state permitted physician-assisted suicide. So, the SCC could only speculate as to the likely consequences of decriminalization (even with careful safeguards). Today, with assisted suicide legal in several American states (Oregon being the first) and several European countries (including the Netherlands and Switzerland), we have a good deal of empirical evidence.
According to the testimony of researcher Linda Ganzini: "We found that rates of dying in Oregon and in the Netherlands showed no evidence of heightened risk for the elderly, women, the uninsured… people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses, including depression, or racial or ethnic minorities, compared with background populations."
Based on such evidence, Justice Lynn Smith (the trial judge in Lee Carter) was persuaded that slippery-slope fears were baseless. Indeed, the safeguards in Oregon (and other jurisdictions) are so careful that, arguably, vulnerable people are better protected by a regulated system than by one which entirely prohibits physician-assisted suicide. Criteria are public. Decisions are made in the open by doctors who are accountable. As for slippery-slope fears that the number of deaths from assisted suicide would escalate dramatically, well, the evidence for 2012 shows that the percentage of such deaths in Oregon was a mere .002, a figure that has scarcely changed during the 15 years since the Death with Dignity Act (1998). The number patients opting for assisted death in the Netherlands is higher than in Oregon – about 2.5 per cent of all deaths in the Netherlands are assisted – but that number, too, has remained steady for many years and has shown a tendency to decline.
The great majority of patients who seek physician-assisted suicide are dying from metastatic cancer. Some, like Gloria Taylor and Susan Griffiths, have terminal degenerative diseases. Most have access to and are receiving good quality palliative care but are nevertheless suffering greatly.
The case for regulating rather than banning assisted suicide in Canada is simple but morally powerful. It rests primarily on the value of individual autonomy – respect for the capacity of individuals to make important private decisions for themselves. Self-determination is a cornerstone of Canada's Charter of Rights and Freedoms, as it is a cornerstone of liberal democratic societies everywhere.
Gloria Taylor expressed this point eloquently in her court testimony: "What I want is to be able to die in a manner that is consistent with the way that I lived my life. I want to be able to exercise control and die with dignity and with my sense of self and personal integrity intact. I want to be able to experience my death as part of my life and part of my expression of that life. I do not want the manner of my death to undermine the values that I lived my life in accordance with."
In Rodriguez the Supreme Court of Canada recognized the importance of Canadian public opinion when it comes to issues of personal liberty. "The pulse of the nation" counts. For more than 15 years there has been a broad Canadian consensus in favour of letting competent adults control their death, a consensus which reaches across geographical regions and socioeconomic classes.
Personal autonomy is not an absolute value, of course. Individual liberties must sometimes be overridden for the good of society. But the burden of proof is on those who wish to restrict the liberty of patients. The state must prove that allowing people such as Sue Rodriguez, Gloria Taylor, Susan Griffiths and Donald Low to opt for assisted death would cause disproportionate harm to others or to society itself. When it decides Lee Carter, the Supreme Court will have the empirical evidence it lacked in Rodriguez. That's why their decision, this time, is likely to be different.
Arthur Schafer is the director of the Centre for Professional and Applied Ethics at the University of Manitoba.