Government lawyer draws line between euthanasia and war

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If the state doesn't condone the taking of human life, then why does it send men and women off to war?

That issue was raised by British Columbia Supreme Court Judge Lynn Smith on Thursday as she prompted Department of Justice lawyer Donnaree Nygard to flesh out her argument that the government regards life as so sacrosanct that euthanasia or physician-assisted suicides can never be justified.

"Where the state draws the line is that we will not condone the taking of life," Ms. Nygard said as she laid out the government's opposition to a constitutional challenge to a Criminal Code sanction that makes physician-assisted suicide illegal in Canada.

"But [the state]sends young men off to war, and young women," said Judge Smith, who is hearing a case brought by the B.C. Civil Liberties Association and a group of people who want physician-assisted suicide legalized.

Ms. Nygard said war is "a separate and different issue" that isn't relevant to the case, and she added: "The exceptional nature of war is such that criminal law doesn't apply. … There is a completely different set of rules."

She said that, at any rate, there is a difference between the state "condoning" or approving the taking of life, which it would have to do if it changed the law, and "excusing" the taking of life, such as it does when a person kills someone in self-defence.

Ms. Nygard argued that euthanasia or assisted suicide for the terminally ill cannot be legalized because that would run counter to basic societal values and the will of Parliament.

"Right now in our society, we do not condone the taking of life … but the legalization of assisted suicide and euthanasia would condone that, and that's where we say there would be a fundamental shift in societal values," she said.

The case revisits the constitutional challenge to Criminal Code sanctions against assisted suicide that Sue Rodriguez brought before the Supreme Court of Canada in 1993. The Victoria woman, who was dying of Lou Gehrig's disease, lost in a 5-4 decision, and subsequently committed suicide with the help of an anonymous physician.

But Ms. Nygard said the Supreme Court looked at the issue as recently as nine years ago, when it rejected an application from a man dying of AIDS who sought an exemption to the law so that he could have a doctor help him end his life.

The Supreme Court's rejection of that application, said Ms. Nygard, reinforced its ruling against Ms. Rodriguez.

And she added that there is no reason to think Canada's highest court would feel any differently about the issue now.

Ms. Nygard said Parliament has repeatedly considered and rejected proposed changes to the law since assisted suicide was criminalized in Canada in 1892. In recent years, she said, Parliament has dealt with nine private member's bills on the issue, three of which failed to gain any support, and six of which were debated in the House and voted down.

"This is an issue that has received extensive consideration," Ms. Nygard said.

Judge Smith asked Ms. Nygard about a 1972 decision by Parliament to repeal a law that made attempting suicide illegal, saying "the effect was to leave it to the discretion of an individual, rather than to criminalize an attempt to take one's own life."

But Ms. Nygard said Parliament's aim wasn't to condone suicide but rather to shift the focus to finding non-legal solutions to preventing suicide.

"The fact is the state stepped back … thus leaving a space of liberty for people to attempt that act," Judge Smith said.

"The intent was not at all to provide people with the opportunity to commit suicide. … [It was]a recognition there was no prohibitive effect [to the law]" Ms. Nygard replied.

She also argued that decriminalizing euthanasia and physician-assisted suicide could lead to the accidental taking of life, such as in cases of critically ill patients unable to communicate their wishes.