Sandra Martin
A decade ago, I visited a dear family friend who was warehoused in a nursing home, waiting for her body to conclude its sorry decline while her mind remained as vibrant as ever. Is there anything I can do before I say goodbye, I asked. "Something quick and painless?" she asked, rhetorically. That naked glimpse into the ravages of infirmity in a woman I had always admired for her independence shocked me, but it has been jostling for space in my crowded memory bank ever since.
Along with ghosts and incandescent moments in the right-to-die struggle, I am preoccupied with what-ifs, as – like many others – I wonder how Friday's Supreme Court of Canada ruling will play out in the political arena.
"When Parliament is paralyzed the courts must act," lawyer Joseph Arvay, representing the appellants, Kay Carter, Gloria Taylor et al., told the SCC judges in a public hearing last October. "We are asking the court to recognize the floor," he said in his concluding remarks, "not the ceiling of what is available to our clients" in wanting help in ending lives that had become unbearable.
The judges were listening.
In a unanimous and historic decision, the court, writing in one eloquent voice, vindicated the judgment of trial judge Justice Lynn Smith of the B.C. Supreme Court in 2012 and repudiated the arguments of lawyers for the federal government. By ruling that a competent adult who "clearly consents to the termination of life" and "has a grievous and irremediable medical condition" that "causes enduring suffering that is intolerable to the individual," the SCC went beyond the politically expedient amendment to Quebec's medical-aid-in-dying law, which requires a patient to be terminally ill. That significant difference may have reverberations in Quebec, which is planning to implement its law before the end of the year.
The court also offered an expansive description of an "irremediable medical condition" by including "an illness, disease or disability" in its allowable categories. That suggests suffering may include psychological as well as physical pain. This is another significant difference, one that goes beyond the terminally ill requirement in Oregon or the measures campaigners are striving for in Britain. It approaches the legislative model established in the Netherlands in 2002.
The ruling was astonishing enough for a Friday morning in February. What was truly remarkable, though, was the response from elected representatives of the people of Canada: Silence, total and unequivocal silence. I was not in the House of Commons on Friday afternoon, but news reports concur that nobody on any side of the political spectrum, including Justice Minister Peter MacKay, took advantage of Question Period to query or make a comment on the judgment. Instead, MacKay read a terse statement to reporters outside the House, stating that physician-assisted death was "a sensitive issue," and that he and his colleagues would "study the decision and ensure all perspectives on this difficult issue are heard."
He will have to get a move on because the Supreme Court has suspended two sections of the Criminal Code for 12 months and entreated "Parliament and the provincial legislatures [which have jurisdiction over health care] to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons." That task also includes establishing a regulatory framework which reconciles "the Charter rights of patients and physicians." Fortunately, MacKay has an activist and informed group of doctors in the Canadian Medical Association to advise him, and some legislative examples to use as a template, including the two private members' bills drafted by his colleague Steven Fletcher, and recently introduced into the Senate. Fletcher, the survivor of a catastrophic encounter with a moose, knows better than most of us the meaning of vulnerability, autonomy and the sanctity of life. "Life is the first choice," he has said, "but it is not the only choice."
The struggle in how the suffering die is far from over. The government could reject the SCC's ruling by invoking the notwithstanding clause of the Charter, or, as happened after the SCC declared the prohibition against abortion unconstitutional back in 1988, fail to pass a new law.
I prefer to be optimistic and to remember Winston Churchill, who so famously said, after the Allied victory over the Axis forces at El Alamein in November, 1942, "… this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
Sandra Martin