British Columbia Court of Appeal
Notes from Carter v. Attorney General of
On appeal from 2012 BCSC 886.
Contents | 18 March |
19 March | 20 March | 21 March |
For the Attorney General of Canada (Appellant)
00:24:04 | 00:03:32
In her opening remarks, Ms. Nygard referred to the leading
Canadian case on the subject of assisted suicide,
Rodriguez v. British Columbia (Attorney General), 3 S.C.R. 519
(1993), 107 D.L.R. (4th) 342, 85 C.C.C. (3d) 15. She noted
that a majority of the Canadian Supreme Court had ruled that Parliament
was not constitutionally required to legalize assisted suicide,
and asserted Canada's position that Madame Justice Smith erred in departing from that
Ms. Nygard acknowledged that there are strongly held views on both sides
of the question. Those opposed to assisted suicide and
euthanasia, she said, "cite concerns for risking the lives of
individuals in vulnerable situations."
Anyone facing a
devastating illness or injury is potentially vulnerable.
- Vulnerable to the
impossibility of imagining their ability to cope with a new reality,
- vulnerable to the devaluing of their lives by those around them as a result
of prejudice within our society to those who live with disabilities,
- vulnerable to feelings as if life is not worth living due to increased
restrictions as a result of aging, perhaps in combination with financial or
- vulnerable to support in seeking assisted suicide, when
what they really desire is support to live,
- vulnerable to the message that,
unlike the rest of society who are actively dissuaded, and, if possible,
physically prevented from committing suicide, individuals in their
circumstances are provided the option of a comfortable suicide.
vulnerable as a result of feeling that their continued care is unfair burden
to their families or to society.
00:26:22 | 00:05:51
She pointed out that the Canadian
Parliament had reviewed arguments for and against assisted suicide and
euthanasia on several occasions, and had concluded that "the
need to protect individuals in vulnerable circumstances outweighs the
interest of those who seek assisted suicide and euthanasia." The same
conclusion, she said, had been reached by the vast majority of
western democratic governments that had studied the subject.
According to Ms. Nygard, the
Charter of Rights and Freedoms seeks to balance individual
interests and interests of society as a whole, as well as the
interests of different parts
In cases such as this, which raise very difficult and complex
social issues, and in which the interests of different groups
are diametrically opposed, there will not be a right answer, but
rather there will be a range of possibilities from which
parliament may choose, each with different risks and benefits.
00:27:24 | 00:06:53
Ms. Nygard: In this case, the Trial judge erred in addressing the case as if she were
tasked with deciding what the right answer was, rather than in deciding
whether parliament had struck a reasonable and appropriate balance. When
that proper approach is taken to the question, the inevitable conclusion is
that the Charter does not require Parliament to prefer the desire of some to
attempt to control the circumstances of their deaths over the protection of
others from a hastened death that they do not truly desire.
00:27:59 | 00:07:27
00:30:12 | 00:09:40
Following her opening remarks, Ms. Nygard directed the attention
of the judges to
"the breadth and complexity of the order the trial judge felt compelled to
create to attempt to address this difficult problem." She pointed out
that the order, which granted Gloria Taylor permission to seek
assisted suicide or euthanasia, was not limited to end-of-life
Ms. Nygard: . . .what we are
dealing with here are not purely end of life decisions. This
order, uh, in no way limits the availability of assisted suicide
and euthanasia to end of life situations. There is no
requirement that the individual have a terminal illness . . . It
is not limited to end of life situations. This could apply to
someone who has had a traumatic injury, but that is otherwise in
no danger of dying.
00:37:14 | 00:16:43
She argued that the criteria in the latter part of the order
merely "restrict the availability
of assisted suicide," but are not linked to procedural safeguards related to informed
consent and voluntariness.
00:38:11 | 00:17:41
Finally, she drew attention to the fact that the order specified
that any possible remedy or treatment option had to be one acceptable to the
patient, and that the suffering contemplated by the order could
refer to either physical or psychological suffering. The net
effect, she said, is that the order permitting assisted suicide
and euthanasia for Gloria Taylor relied upon "completely subjective criteria."
00:40:13 | 00:19:41
Summarizing, Ms. Nygard asserted that the trial judge's order
permitting assisted suicide or euthanasia in the case of Gloria
Taylor was broader "in many ways" than regulations in any
jurisdiction that has legalized euthanasia and/or assisted
00:41:42 | 00:21:10
Referring tothe legislative history of the law against assisted
suicide provided in
Canada's factum, Ms. Nygard acknowledged that the law has remained substantially the same since 1892, and
changes were made following the Rodriguez decision. However,
she explained that Parliament has repeatedly considered whether
or not assisted suicide/euthanasia should be legalized, and has
repeatedly decided against it. This, she said, is
consistent with what has occurred in most other countries, which
continue to prohibit the procedures. The exceptions are Belgium, Luxembourg, the Netherlands, Oregon State, Washington
State. She noted that euthanasia is illegal in Switzerland, but assisted suicide
is against Swiss law only if assistance is given for a selfish purpose.
00:53:56 | 00:33:24
Ms. Nygard: In Montana,
as a result of the Baxter decision, there has been judicial
recognition of a physician-specific defence uh, to the homicide
provisions on the basis of the consent of a terminally ill
patient. It was, that case was not argued on constitutional
grounds. Well, it was argued on constitutional grounds, but the
constitutional grounds were not accepted um, by the appeal court
in that case. Rather, the decision was made on this basis of a
recognition of a defence.
She also drew attention to jurisdictions that have rejected
attempts to legalize the procedures.
00:56:49 | 00:36:18
Chief Justice: What, what, uh, part if any did this evidence play in the
judge's reasoning or conclusions? I mean, it's a part of a vast body of
evidence. How, how did the judge deal with it?
Ms. Nygard: Uh, the judge, um, acknowledged that these, um, considerations in
other jurisdictions had occurred, uh, however, in our submission, beyond
acknowledging that, it, ah, played really no role in her analysis, uh, and
we say that it should have played a role in her analysis. That it is part of
what, ah, supports the government's apprehension that there is a reasonable,
that there is a reasonable apprehension of harm, that anything less than an
Chief Justice: Well, what, what correctable error would there be in the way
the judge treated this evidence that this court could deal with?
Ms. Nygard: The error that we say the trial judge made was in applying the wrong
standard in reviewing uh, the, the Charter analysis, in determining whether
section 7 had been violated. That what she should have done was to determine
whether Parliament had a reasonable basis for the apprehension of harm if
anything less than a, an absolute prohibition was put in place.
Ms. Nygard: So in not applying the appropriate test, the trial judge wasn't
answering the correct question, in our submission. That's the heart of her
error. And because she wasn't answering the correct question, although she
referenced these facts, she didn't take them into account, um, because they
weren't really relevant to the question she thought she was supposed to
answer, which we say was the incorrect question.
Justice Saunders: What is the right question?
Ms. Nygard: The right question is whether there was a reasonable basis for
Parliament, uh, to apprehend that there would be harm by anything less than
an absolute prohibition.
00:59:24 | 00:38:53
After considering the study conducted by the
House of Lords in the United Kingdom, Ms. Nygard closed this part of her
argument by emphasizing that the prohibition of assisted suicide
and euthanasia has been extensively examined by Parliament and
legislatures in other jurisdictions.
01:04:00 | 00:43:29
01:51:07 | 01:10:03
01:52:59 | 01:11:55
Paragraph 162) Creating an exception for the terminally ill might
therefore frustrate the purpose of the legislation of protecting
the vulnerable because adequate guidelines to control abuse are
difficult or impossible to develop.
01:55:23 | 01:14:18
Paragraph 187) To introduce an exception to this blanket protection for
certain groups would create inequality. . . . [T]his protection is grounded on
a substantial consensus among western countries, medical organizations and
our own Law Reform Commission that in order to effectively protect life and
those who are vulnerable in society a prohibition without exception . . . is
the best approach."
01:58:30 | 01:17:26
(Referring to an observation by the Chief
Justice) You're correct that that was a distinguishing feature that the trial
judge pointed to between this case and Rodriguez. And we agree that the
engagement of the right to life as it's argued by the respondent in this
case was not considered by the court in Rodriguez. Um, however, uh, even if
the right to life is engaged as, as argued by the respondent, um, it would
have had no impact on the Section 7 analysis conducted in Rodriguez. Um, the
fact. . . Because it wouldn't have any impact in a Section 7 analysis - and
I'll explain that in a second - the fact that the respondents add this on as
an additional factor, if it wouldn't have any impact, it can't be used to
circumvent stare decisis.
01:59:37 | 01:18:32
Chief Justice: You're going to have to expand on that for me, because, uh, I
think we're required to give meaning to all of the language of, of the
provision, constitutional or otherwise. And so I think that means we must
give some meaning to the word "life" or "right to life" in addition to
whatever is meant my liberty and security of the person.
Ms. Nygard: Yes
Chief Justice: I, I would like to know what life means.
02:20:10 | 03:45:07
. . .And as I indicated earlier . . . the real crux of how we say the trial
judge erred in this case is in answering the wrong question . . . Put
another way, in not applying the appropriate standard to the question of
whether the prohibition is in accordance with the principles of fundamental
justice. And in doing so the trial judge made an error of law which is
reviewable by this court on a standard of correctness.
And because she was answering the wrong question, or applying the wrong
standard, what the trial judge did was to look at the evidence that was
before her and determine which she preferred, when, in our submission, what
she should have done was to ask whether the evidence, whether evidence
existed on which Parliament could base a reasonable apprehension of harm
from anything less than a complete prohibition.
And given that the trial judge applied the incorrect standard, it's
necessary, in our view, for this court to reconsider some of the evidence,
but only to the extent necessary to apply it to the correct standard. And
that can be done, um, to a very large extent, by looking at what the trial
judge said about the evidence.
However, Ms. Nygard first proposed to consider the purpose of
the prohibition against assisted suicide, "because it is in relation to that purpose that the principles of
fundamental justice are weighed."
02:22:38 | 01:41:33
Justice Saunders: The, the Chief Justice asked a question earlier about
"what is life?" in Section 7, because that was not addressed overtly in
Rodriguez. Um, the court in Rodriguez found that there was infringement of
security of the person.
Ms. Nygard: Yes.
Justice Saunders: Does it add anything to, to find that there is an
infringement of the right to life? What does that mean before we get to the
fundamental justice issues?
Ms. Nygard: . . . the quick answer to your question
is no, it doesn't add anything. That, that the analysis, even if
you add in the life interest, uh, works out the same.
Ms. Nygard reiterated Canada's position that the trial judge was incorrect in finding
that the life interest contemplated in Section 7 of the
Charter was engaged, and again proposed to begin by
addressing the purposes of the law against assisted suicide.
02:23:43 | 01:42:39
"In the Rodriguez case," she said, "Justice Sopinka for the majority provided several
articulations of, uh, the purpose of the prohibition against assisted
suicide." Beginning with a reference to Paragraph 173 from Rodriguez,
which referred to a consensus on the importance of respect for
human life and the need to be careful not to undermine
institutions supporting it, she quoted Paragraph 174:
(Quoting Rodriguez, para. 174) This consensus finds legal expression in our legal system, which prohibits
capital punishment. This prohibition is supported, in part, on the basis
that allowing the state to kill will cheapen the value of human life, and
thus the state will serve, in a sense, as a role model for individuals in
society. . . . [T]he prohibition against assisted suicide serves a similar
purpose. In upholding the respect for life it may discourage
those who consider that life is unbearable at a particular
moment or who perceive themselves to be a burden upon others
from committing suicide. To permit physician to lawfully
participate in taking life would send a signal that there are
circumstances in which the state approves of suicide.
2:26:14 | 01:45:10
Chief Justice: The assumption behind that statement seems to be that it
would be wrong for the state to send that signal.
Ms. Nygard: I, I, I would characterize it not necessarily that it would be wrong
for the state to send that signal, although that may be the case, but that
there is harm created by the state sending that signal. I think that's the
more relevant question, for the purposes of analysis.
02:26:55 | 01:45:50
Ms. Nygard: The trial judge's analysis, in her analysis of Section 7, uh, she
was, in our submission, negatively impacted by the fact that she focussed
only on the court's most narrow articulation of the purposes of the
provision, that being to prevent vulnerable persons from being induced to
commit suicide at a time of weakness. And that was one of the ways in which
Justice Sopinka articulated the purpose, but that as I've just taken you to
in section 174, he also provided, uh, in other sections of the reasons a
more detailed articulation of the purposes of the provision.
And I pause here - I think in
our factum we described it as a broader
purpose and I don't think that that's actually the right word to use. Um,
what Justice Sopinka describes in section 174 is, is really not broader than
the other articulations. It's just more detailed.
All of the thing, the details that he provides in paragraph 174 are really
encapsulated in this concept of, um vulnerable persons. And in our
submission . . . by ignoring that detail, the trial judge inappropriately
narrowed the, uh, the purposes that the legislation seeks to achieve.
And contrary to the respondents' submissions in their factum, that . . .
detail provided by Justice Sopinka in relation to the purposes doesn't
exaggerate the importance of the provision. In fact, um, the Supreme Court
of Canada in the Latimer case said that it's difficult to imagine how the
importance of the homicide provision, for example, could be exaggerated. So,
um, these details don't exaggerate the importance of the provision. Rather,
they provide the detail and the specificity that the Supreme Court has said
is important in identifying the objectives of piece of legislation when
conducting a Charter analysis.
02:29:38 | 01:48:34
And the respondents have also argued that these more detailed articulations
of the purpose would improperly impose a moral point of view not shared by
all Canadians. . . That argument is not supported by the case law on which
the respondents rely.
Here, Ms. Nygard pointed out that much criminal law is rooted in
morality. Further, citing paragraph 81 of
Butler (1992) 1 S.C.R. 452, she said that the Supreme
Court explicitly acknowledged that a divergence of opinion was
to be expected in moral questions, and such differences of
opinion do not make Parliament's legislative activity improper.
Ms. Nygard: The idea of
um, the life interest comes up in more than one way in this
case. Uh, there's the respondents' argument that it's adversely
impacted by the prohibition. But the prohibition is also in
place very specifically to protect life, and, uh, particularly
to protect life of individuals in vulnerable positions. And that
that, um, is, contrary to what the respondents say, not a moral,
uh, point, but is a recognition of, um, not undermining a
Charter right of another group.
The detailed articulations provided by
Justice Sopinka are also not explanations, as opposed to
objectives, which is another argument that the respondents make.
Responding to her opponents' assertions that Mr. Justice
Sopinka's "detailed articulations" do not set out the objectives
of the legislation, but are explanations of it, Ms. Nygard cited
Vriend v Alberta (1998) 1 S.C.R. 493 to the effect
that an explanation makes plain what is not obvious, while an
objective is the articulation of a goal.
Ms. Nygard: And the detailed objectives articulated by Justice Sopinka in
are, in fact, goals. They are, ah, the goal of minimizing the risk to
vulnerable individuals of being induced to commit suicide, the
goal of discouraging all individuals, not just the fit and
healthy from choosing death, and the goal of avoiding the harm
caused by sending a message that some lives are less worthy of
02:34:00 | 01:52:56
Looking at the goals of the legislation, the trial judge rejected that
averting all wrongful deaths from assisted suicide or euthanasia was a
legitimate objective because it was unrealistically exacting. . .However,
it's not necessary to articulate Parliament's goals in that way,
in such a quantitative manner. . .
. . .
In the same way, the goal here is to minimize the risk to
vulnerable individuals who do not truly desire a hastened death.
02:35:24 | 01:54:20
(Referring to para. 757 in the Carter
ruling) What the trial judge, in our submission, has
done, is narrowed or excluded from the concept of vulnerable
persons those individuals who, given a chance to experience the
future they fear, would have found, in fact, that it was a
worthwhile future. And, contrary to what the trial judge said,
this is not a hypothetical concept. There was evidence before
the court of an individual, um, in precisely that situation.
Luckily, she lived in a jurisdiction that did not have a
Here, Ms. Nygard summarized the affidavit of Allison Davies,
which was part of the evidence before Madame Justice Smith.
Davies deposed that, for a number of years, she wanted to kill
herself because of her medical condition, attempted to do so on
more than one occasion, and would have arranged for assisted
suicide or euthanasia had it been legal where she lived.
Subsequently, she adopted a different attitude toward her
situation, and began to live a fulfilling life despite her
02:39:49 | 01:58:45
Ms. Nygard: So, Allison
Davies is an example of a vulnerable individual. The fact that
people often have difficulty adjusting to their life
circumstances wasn't just set out by her. It was also discussed
in the expert report of Catherine Frazee, whose evidence the
trial judge accepted, that people take time to adjust to this
new reality. However, the trial judge rejected Canada's concern
for such individuals, apparently at least. . . in part on the
basis that once they're dead they wouldn't have the opportunity
to have that regret. And in our submission, that's not an
appropriate approach to the concept of protecting individuals in
vulnerable situations, even if what you're doing is protecting
individuals from themselves. Um, that is a valid state interest.
In support of her assertion that the state is entitled to
protect people from themselves, Ms. Nygard cited
R. v. Malmo-Levine; R. v. Caine (2003) 3 S.C.R. 571,
2003 SCC 74 (QL). The trial judge erred, she said,
"in excluding such individuals from part of Parliament's
02:41:45 | 02:00:41
In turning to the analysis of the application of Section 7 of
the Charter of Rights, Ms. Nygard began by examining
the nature of the interests upon which the trial judge based her
analysis, and the breadth of the claim made under Section 7.
Ms. Nygard: And, and, this, in part, I
think, answers your question about the impact of uh, a life
interest, if it exists, on a section 7 analysis, because when
you look at the trial judge's decision, and what she said about
the interests that were at play from the respondents'
perspective, um, although she does, uh, make reference to the
argument surrounding life, her analysis focuses on the, uh,
autonomy interests. And even though she accepted the
respondents' argument that the life interest was also engaged,
that, in our submission, uh, played little or no role, really,
in her analysis under Section 7.
Chief Justice: Uh, when you, uh, when you
say, she focused on the autonomy interests, are you talking
about security of the person?
Ms. Nygard: Uh, in both Rodriguez and in, in the
trial judge's decision, uh, I don't think the court has been
clear about exactly where the autonomy interests that they are
discussing falls, whether it falls purely under security of the
person, purely under liberty or under a combination of the two.
Um, and, and, really it doesn't matter, frankly, where it falls
between security of the person and liberty. It's the nature of
the interest which, uh, which is relevant for the analysis
itself. And that's, that's ah, what the trial judge focuses on.
She doesn't focus on whether it's a liberty interest or a
security of the person interest, she focuses on the nature of
Ms. Nygard then turned to what she described as "one of the
clearest articulations" of the trial judge's understanding of
the nature of the interest.
(Quoting para. 1156 of Carter) And she says, "It must
not be overlooked that what is at stake for someone in Gloria
Taylor's situation is not merely autonomy, nor is it simply
autonomy with respect to physical integrity; it is autonomy to
relieve herself of suffering."
And there's really, I think, two
issues that are important to keep in mind in relation to that
articulation of what the interest at stake is. Um, the first is
to keep in mind something that I raised in the beginning when I
was reviewing the order. Trial judge not talking about physical
suffering - remember here order? Predominantly she was talking
about psychological suffering, not physical. "That is reflected
in the evidence that she relied on."
Chief Justice: Does it matter? That she is
talking about physical or psychological suffering?
Ms. Nygard: Uh, it does. Because it's
important to understand the interests at stake once you
get into a balancing exercise, which Section 7 is really
all about. And, so it's important to have an accurate,
um, understanding of the interests at stake.
Ms. Nygard referred the judges to paragraph 400 of Carter
ruling, which reproduces a table of data from the state of
Oregon concerning people who have accessed assisted suicide
there. She pointed out that the table indicates that most
people are not concerned about inadequate pain control, which
was second-to-last on the list of reasons given for seeking
assisted suicide. The overwhelming majority of those who
obtained assisted suicide did so because of (1) loss of
autonomy, (2) being less able to engage in enjoyable activities,
and (3) loss of dignity. She noted that this was
consistent with the evidence of Dr. Ganzini, noted in paragraph
416 of the Carter decision, which she quoted, in part:
(From para. 416
of Carter ) . . .Patients appear to request assisted
suicide for psychological and existential reasons; that is, they
value control, dread dependence on others, are ready to die, or
assess their quality of life as poor. . .
She then reminded the judges that the trial judge's
identification of the autonomy to relieve suffering referred to
this kind of suffering - not physical pain - and that palliative
care had made great progress, so that "not all - but most -
physical pain can be well controlled." Finally, she said that
there appeared to be no objective explanation or definition
provided for the concepts of "loss of autonomy" or "loss of
Having established this context, went on to explain how "life
interest" should be considered in relation to the application of
Section 7 of the Charter of Rights.
Ms. Nygard: The trial judge uh, correct, in our
submission, that right to life does not include the right to
death. She only found that the right to life was engaged in this
case, um, in the manner that was argued by the respondent that
some individuals will choose to take their own lives earlier
than they may otherwise choose if the option of having
assistance in doing so were available. And the trial judge found
that that fact did engage life, the life interest under Section
7 of the Charter. And in our submission she was incorrect in
that uh, analysis.
Justice Saunders: Is there evidence on that
Ms. Nygard: There was, the respondents filed uh,
affidavits from individuals, um, and they can probably cite this
more accurately than I can, but there was at least one affidavit
from a friend of an individual who said that her friend had done
precisely that. I can't remember the individual's name, off the
top of my head. So there, there was some evidence that that may
Ms. Nygard: And Canada's position on why the
life interest is not engaged in the circumstances of this case,
uh, is basically that there is not a sufficient causal
connection between the taking of life in these circumstances
described by the respondent and the state action.
It was not, she said, that state action must be sole cause of
a decision to kill oneself earlier rather than later, but that
there must be a "sufficient causal link" between the prohibition
of assisted suicide and the earlier death. In this
respect, she distinguised the cases cited by the respondents,
one of which concerned the right of homeless people to set up
tents in parks in Victoria, and the other involving the
establishment of "safe injection sites" for intravenous drug
users in Vancovuer.
In those cases, she argued,
"the state was preventing complainants from mitigating risks to
their life and health," but, in the present case, the
respondents were not trying to improve their health or prevent
death were actively seeking death, so that the state could not
be said to be interfering in the same way.
Ms. Nygard also asserted that the homeless had no choice but
to erect tents to protect themselves, while addicts had no
choice but to avail themselves of safe injection sites (given
the nature of addiction). For them there was a lack of
other alternatives to deal with an immediate threat to their
well-being. In contrast, she said, people seeking assisted
suicide/euthanasia are not facing an immediate threat, but are
afraid of future circumstances that may, in fact, never
materialize, and also have alternatives, such as accepting
Madame Justice Saunders observed that, in the case of Sue
Rodriguez, "the future threat was very real." While Ms.
Nygard agreed, she emphasized that it is necessary to consider
why people want access to assisted suicide: not as a result of
present symptoms, but as a result of fear of loss of control or
fear of the ability to deal with them. She acknowledged
that medical science may be able to predict physical symptoms
relative certainty, but added that it cannot say with
certainty how well an individual may be able to deal with them.
While people often can't imagine how they will be able to cope
with declining health and difficult symptoms, she said that
"many, many" people find that they can actually do so. She
returned to her assertion that many people seeking assisted
suicide are motivated by fear of the future and a future
inability to deal with symptoms, rather than direct fear of the
Chief Justice: But doesn't that tell us
something about what life is? When 94% of the Oregon respondents
in 2010 say that their concern is being less able to engage in
activities that make life enjoyable? Because life is more than a
pulse or a heartbeat or some little electrical activity up here.
It's, it's surely the ability to engage in or appreciate the
full range of the human experience, whether it's intellectual,
emotional, physical? And it's, I, I . . . This is, argument is
cast in such negative terms. It's about fear of avoiding
suffering, or fear of loss of autonomy. But, life is a big
positive isn't it?
Ms. Nygard: Yes.
Chief Justice: Or, or ought it not to be?
Ms. Nygard: Yes, and I guess Where I would disagree
with what you just said, is when you said that life, and I,I now
I've forgotten the exact words you used, but something about the
. . . it being the full range of those experiences . . .
Chief Justice: Yeah. So far as the individual
Ms. Nygard: Well, and, and that's the key. And,
and, and, so far as the individual is capable, and we all of us
have very different ranges of capability. Uh. . .
Chief Justice: Well surely it would be up to
the individual to decide when that's no longer a life for him or
Ms. Nygard: Well, uh, there's, uh, that's, that's
what this case is all about. And there's a lot of factors that
have to be considered in that, because the fact is giving the
individual that choice impacts not only the individual. Setting
up a system which permits an individual to have that choice puts
in place a whole scheme that creates risks for others. And
that's why this is a balancing exercise. That's why this, is, as
I said at the beginning, there is no right answer to this
question. This is a very difficult question and there are
valid, um, concerns on both sides.
Justice Saunders: My, my concern here is,
and I accept that there is a balance, and that you're going to
be addressing it, but right now you're addressing uh, the
question of causation. And you're putting it in terms of, um . .
.not to be harsh, but almost a moral deficiency or some sort of
deficiency that people aren't able to face their future, as
difficult as it seems. And it seems I'm saying because people
should be able to, um, face down their doubt to their last
breath, or their last electrical impulse, um, that there isn't
the necessary causation to, to get to us into rest of the
analysis. You're, you're saying that it should be cut off at the
threshold because there isn't the necessary causation. And that,
that is a troubling proposition.
Ms. Nygard: It, it's not a moral judgement that
I'm relying on here. Rather, it is, um . . . When, when you're
looking at causation you have to look at the linkage to the
state action. And whether a person is morally right or morally
wrong in being afraid of a potential future, uh, is really
beside the point. What my point is is that that decision by the
person is not sufficiently linked to the state action.
Chief Justice: Well, if the law prevents the
individual from making the choice that he or she thinks is right
for him or her, isn't that a sufficient connection?
Ms. Nygard: And, and this gets back to
what I was saying earlier, because, the, part of the problem in
the causation, uh, area is that the person will be prevented
from making that choice in the future in the scenario that we're
talking about, but whether come that future they will actually
want to make that choice is uknown at this point. They think
they would. Um, but there are too many unknown factors, in our
submission, that removes the, uh, the causation link. The
sufficient causation link.
04:43:33 | 02:28:27
Justice Saunders: I can see the, uh, submission playing in the,
um, rest of the analysis. It's hard, it's hard, I'm having
difficulty, um, connecting it on the causation level, uh,
because all of this is in some respects about fear. A lot of
people fear death. Um, this is a situation where that is the
choice that seems to be coming, uh, to a person, um, and, and
they want, um, you're saying that, that because they might
choose to accept death earlier, rather than endure, and then
face their certain death after, that's some individual fear that
takes this away from being caused by the state action.
Ms. Nygard: Yes
The Chief Justice was unable to follow her development of
this answer, so Ms. Nygard made a second attempt.
04:47:16 | 2:32:09
Justice Saunders: I think what you're saying is it . . . doesn't
add anything to the respondents' case to say that the life, the
life interest is engaged given that Rodriguez has already said
that security of the person interest is engaged, and that, that
puts it all into a consideration of the next part of Section 7.
Ms. Nygard: (Yes)
Chief Justice: But the negative consequences can only be
understood by appreciating what the present positive values are.
That's what life is, isn't it?
Ms. Nygard: I'm not sure
Chief Justice: You, you can't fear what you're going to lose if
you don't know what it is that you've got at the moment.
Ms. Nygard: I, I'm not sure I'm, I'm understanding your question,
but, um . . .
Chief Justice: I'm still trying to give content to the word
"life," in the context of Section 7, the right to life, liberty,
and security of the person. And it seems to me it has to mean
something more than the liberty interest and something more than
the security interest.
Ms. Nygard: It has to mean. . .
Chief Justice: And I'm trying to find out, what is it?
Ms. Nygard: It has to, it has to mean something different than the
liberty interest and security interest. And in our submission,
what it means is just what it says. The protection of the
existence of life.
Chief Justice: So, a heartbeat, a breath, a brainwave is enough.
Ms. Nygard: Yes, because those other considerations that you're
talking about, um, are, are the things that are taken into
account under the analysis that already occurred under security
of the person and liberty. So to say that they are part of the
life interest is, is repetitive.
Justice Newbury: So you're saying that if,
um Section 1 justified, a violation of security of the person
and liberty it by, almost, it almost follows, that it also would
justify the invasion of a life interest.
Ms. Nygard: In this context. I, I, I wouldn't
say that as a general proposition, certainly . . .
Justice Newbury: So, aren't you're saying
then that the life interest is, it's something different, but
you're saying it's not greater than the other two interests?
Ms. Nygard: No, and that's what Justice Sopinka said in
Rodriguez, that that all of these interests have to be taken
into account. It's not that one trumps the other.
Justice Newbury: But if Section 1 justifies
infringement of the other two, you're saying it must justify
infringement of the life interest.
Ms. Nygard: . . . .because of the nature of the
life interest we are talking about in this case - I wouldn't say
that as a general proposition - but the nature of the life
interest that we're dealing with in this case, that is, um,
that, if , the, the there was justification for the security of
the person and liberty interest, you know, the suffering created
by, by living um which is what is sought to be avoided . . .if
that is justified, then, yes, the life interest as identified by
the respondent in this context. . . would also be justified.
Ms. Nygard: The heart of
the Section 7 analysis is in the balancing which occurs in the
balancing of the principles of fundamental justice. And the
trial judge addressed three principles of fundamental justice.
She addressed arbitrariness, overbreadth and gross
disproportionality. In relation to arbitrariness she found that
she was bound by the Supreme Court of Canada's decision in
Rodriguez. However, she still did an extensive analysis of the
arbitrariness question on the basis of providing a record for
the Supreme Court of Canada should they wish to reconsider that
Ms. Nygard: And her analysis focused on the
ethical debate surrounding assisted suicide and euthanasia, and
whether there was an ethical distinction between assisted
suicide and euthanasia on the one hand and withdrawal of
treatment, refusal of treatment , other, and and and forms of
palliative care on the other hand. And, in our submission, the,
her analysis of the ethical debate was misplaced for three
The first is that even if all of those practices which I've
just mentioned are not ethically distinguishable, and even if -
now, because this was the argument, why it was arbitrary,was
that they are not ethically indistinguishable and society
tolerates the risks associated with the other practices, but
doesn't, uh, in relation to assisted suicide, and euthanasia.
So even if that, that is the case, society tolerates similar
risks in both, uh, situations, that is not relevant to the
question of arbitrariness. The Supreme Court of Canada has
recognized that the concept of arbitrariness does not compel
Parliament to deploy the criminal law equally against all
conduct that may arguably be similar . . .
On this point, Ms. Nygard referred the judges to
R. v. Malmo-Levine; R. v. Caine (2003) 3 S.C.R. 571,
2003 SCC 74 (QL) and
Alberta v. Hutterian Brethren of Wilson Colony (2009) 2
S.C.R. 567, 2009 SCC 37 (QL).
The second reason Ms. Nygard provided to demonstrate the
trial judge's error was that "very different policy
considerations" are involved with assisted suicide and
euthanasia on the one hand, and refusal of treatment (including
withdrawal of treatment) on the other.
Ms. Nygard:. . .And the law
backgrounding an individual's right to refuse treatment is not
in any way based on or reflective of a right to choose death or
a right to hasten death. It is based on an autonomy right. But
it's based on an autonomy right to be free from interference
with physical integrity . . . And so the policy considerations
are very different. . .
Finally, Ms. Nygard insisted that, contrary to the ruling of
the trial judge, there is an ethical distinction between
assisted suicide/euthanasia and refusing treatment.
Ms. Nygard: There was evidence before the trial judge of Parliament's
consistent conclusions in regard to, uh, the distinctions
between these, these, actions. There was evidence, um, that the
almost every national medical association, including the
Canadian Medical Association opposes euthanasia and assisted
suicide, on the basis of an ethical distinction between, in, at
least in part, on the basis of an ethical distinction between
those actions and the withdrawal or refusal of treatment.
Chief Justice: Well, let me give you this hypothetical to
test your ethical distinction. One, one case a person is
connected up to a life support system, but has the physical
capacity to disconnect it herself. Doesn't require any help.
That's not against the law. She, she knows she's committing
suicide, she's allowed to do it. The other case is a person who
is connected to a life support system and really would like to
die, but doesn't have the physical capacity to do it and so
calls on a third party for assistance. The doctor. What's the
difference between that case and the case of physician assisted
Ms. Nygard: Because in that case the ability of the physician
to discontinue the life support is based on what I was just
talking about. It's based on the patient's right to refuse
continued treatment, to say, "I no longer wish you to have, to
have this treatment. You can't force it upon me. You must
withdraw it. So that is based on this limited right of autonomy
to physical integrity. To not have your bodily person interfered
with against your will. It may be that, that the patient's goal
is to be allowed to die as a result of that, but that it not the
basis in our law for , ah, um, for the physician to remove that
treatment. And, and, at the end of the day, the other important
distinction, as I said before, is that what is actually
occurring there is that the patient's life was being
artificially prolonged. And that is being put to an end. It's no
longer being artificially prolonged, and if the patient dies,
the patient dies of their underlying condition.
Justice Saunders: If you looked at it as a baseline of what a
person's own body can sustain, whether it can sustain life or
not, um you would put disconnecting, uh, the machinery, um, as
then, not rising, making a person resort to their, to their own
baseline of what their body can sustain, as compared to, um, the
proposition here, which is that one can ask for something which
will take away life though a bod, the person's body might still
Ms. Nygard: That's right. Yeah, so, so one is an active
causing of death where death would not otherwise occur, and the
other is, uh, the stopping of the prolonging of life
artificially, which may result in death naturally occur.
According to Ms. Nygard, the fundamental error made by the
trial judge was to apply the wrong standard to the evidence
before here. Having failed to apply the "reasonable
apprehension of harm" standard, she came to the wrong
Justice Saunders: Harm to whom?
Ms. Nygard: Um, well, the harms that are identified in the
goals that Parliament seeks to achieve through the prohibition.
So, so the harm to um, vulnerable individuals who may be induced
to commit suicide against their true wishes, uh, the harm in,
um, sending a message that there are certain circumstances under
which the state condones suicide, um, those, those are the harms
that, um, underscore the analysis under Section 7 and the
balancing that has to occur in looking at the principles of
Ms. Nygard argued that the courts must show appropriate deference to Parliament's choices
when dealing with legislation about complex
social issues. That deference, she said, is put into
practice by recognizing that legislation can be justified when
Parliament has had to balance conflicting interests and, having
apprehension of harm," has restricted or prohibited certain
activities. Citing cases from the Supreme Court of Canada,
R. v. Sharpe (2001) 1 S.C.R. 45, 2001 SCC 2 (QL)
R. v. Heywood (1994) 3 S.C.R. 761 (QL), she
described the standard of a "reasonable
apprehension of harm" as an articulation of the level of deference that
should be accorded to Parliament in cases like the present one.
Following the recess, Ms. Nygard illustrated the application of
the "reasonable apprehension of harm" standard in the cases of
Irwin Toy Ltd. v. Quebec (Attorney General) (1989)
1 S.C.R. 927 (QL) and
She also asserted that the trial judge's order actually
creates one of the harms that Parliament wanted to avoid.
One of the goals of the absolute prohibition of assisted
suicide, she said, was to avoid sending the message that certain
groups in society are less valuable than others. By
identifying a certain group as eligible for assisted suicide,
she said, the judge's order implies that the lives of people in
that group are worth less than those of the rest of society,
since the state actively discourages everyone else from
R. v. Sharpe, Ms. Nygard emphasized that the Supreme
Court of Canada does not require that Parliament adopt the
least restrictive measure in when attempting to draft a law
that balances conflicting interests, but is required only to
demonstrate that restrictions are reasonable in light of the
harm they are intended to prevent. She added that it is
difficult to devise a law that will protect everyone who is in
need of protection without capturing some who may not be.
She pointed to
R. v. Malmo-Levine as authority for the proposition
that, once the risk of more than de minimis harm is
established, it is up to Parliament to do the balancing
required. As long as it has a reasonable apprehension of
harm, that is sufficient to justify a restriction. Such
legislation cannot be considered "overly broad" simply because
it protects more people than those strictly in need of
That the absolute prohibition of assisted suicide is based
upon a reasonable apprehension of harm is demonstrated in
several ways. In the first place, she reminded the judges
that Parliament had consdiered a number of less restrictive
measures, and rejected them as not providing sufficient
protection. Second, the vast majority of western
democracies prohibit both assisted suicide and euthanasia, based
on the same concerns. Third, courts in other countries
(except Columbia) have ruled that there is no right to assisted
suicide. Finally, she said, the absolute prohibition of
assisted suicide is justified by the very facts relied upon by
the trial judge in her ruling, when considered in light of the
(proper) standard of a reasonable apprehension of harm.
Taking first the trial judge's statement that an "almost
complete prohibition" of assisted suicide and euthanasia could
minimize the harms Parliament seeks to avoid, Ms. Nygard argued
that this implicitly acknowledged that Parliament had reason to
be concerned. She emphasized that none of the evidence
relied upon by the trial judge was conclusive with respect to
harms or risks from legalizing assisted suicide. In that
respect, the evidence was like a glass that could be said to
half-full or half-empty, depending upon one's perspective.
She provided three examples of evidence accepted by the trial
judge as supporting her view that risks could be managed by
safeguards, which, she said, could also be seen as proof that
they could not.
The first example was from Oregon, where the data does not
indicate whether or not those accessing assisted suicide had a
pre-existing disability. The information is necessary to
determine whether or not disabled people in Oregon are more
likely to seek assisted suicide. The trial judge inferred
from the absence of evidence that the law did not
disproportionately impact the disabled, but Ms. Nygard pointed
out that "no evidence" really means that there is no evidence,
not that there is no risk. A reasonable
apprehension of harm can be supported by the Oregon data because
it does not prove that disabled people are not adversely
affected by legalizing assisted suicide. She added that
the trial judge's order contained no safeguards to protect the
Ms. Nygard's second example was the trial judge's use of
evidence from the Netherlands. Assisted suicide and
euthanasia have been legal there for 10 years by statute, and
for about 30 years as a result of a court decision. The
evidence showed that many patients were the victims of
"life-ending acts without explicit request" (LAWER), even though
one of the legal safeguards is a requirement for an explict
request. The evidence showed, she said, significant rates
of non-compliance even after 30 years practice and 10 years of
statutory regulation. The evidence also showed that the
rate of non-compliance has been declining.
The trial judge chose to ignore the unacceptable levels of
non-compliance and focus, instead, on the improvements,
concluding that legalization of assisted suicide and euthanasia
had been helpful. Ms. Nygard argued that the obvious
alternative view, based on a reasonable apprehension of harm,
was that safeguards will not work because they will not be
The final example offered before the hearing adjourned for
the day was the "Oregon Depression Study," which was done by one
of the respondents' expert witnesses at trial. The study
looked at 58 patients who had sought assisted suicide under the
Oregon law. 15 of them had a major depressive disorder.
Of the 18 who received prescriptions for lethal drugs, nine
committed suicide. Of the nine, three had major depressive
disorders. One of these was successfully treated for
depression before committing suicide. Thus, two of the
nine who committed suicide had major depressive disorders at the
time of their deaths, and this, said Ms. Nygard, was evidence
that supported a reasonable apprehension of harm. So, too,
she said, did the author's admission that the Oregon safeguards
may fail to protect some people.
Ms. Nyard noted that the trial judge acknowledged that about
1/4 of those seeking assisted suicide were clinically depressed.
Although this evidence would support a reasonable apprehension
of harm with respect to them, the trial judge chose, instead, to
base her ruling on the fact that 3/4 of the applicants for
assisted suicide were not clinically depressed.
For the Attorney General of Canada (Appellant)
Ms. Nygard referred the judges to a case in Ireland (Fleming)
in which a woman claimed a constitutional right to assisted
suicide. The trial was held before a panel of three
judges, who ruled against the plaintiff. An appeal was
heard three weeks ago, and the results are awaited,
The Irish court heard the same kind of evidence from the
plaintiffs that was heard in Carter, and sometimes from the same
witnesses, though the evidence was not as voluminous. The
Irish court had the Ganzini depression study.
Looking at the same evidence as the trial judge in Carter,
the Irish court reached a different conclusion. It held
that the Ganzini study demonstrated that there were risks, "such that a right to access to assisted
suicide did not exist." The conclusion of the Irish court
clearly supports a reasonable apprehension of harm in relation
to the mentally it.
The trial judge, said Ms. Nygard, held that it was
still "feasible" to assess patients so long as they exercised
great care, but the evidence is that great care is not always
exercised by doctors, and this, she said, supports a reasonable
apprehension of harm.
Nygard: Parliament was
not required in balancing the interests at stake here, and
deciding the best course of action, was not required to assume
that all doctors would, in fact, at all times, apply that high
level of scrutiny and great care.
Justice Newbury: Was, was there evidence,
um, from the province as to the ability of the province to
provide such a system as, as she's contemplating, in our, in our
hospitals today, where people, um, often don't have a real
relationship with the doctor who sees them in a hospital?
Ms. Nygard: Yeah, and there was quite a bit
of evidence around that, because that's a real difference
between the Netherlands, for example, and Canada, where in the
Netherlands people, in general, have a longstanding relationship
with their physicians, and, and as you indicated, and there was
clearly evidence before the trial judge that that would, in
Canada, be the exception rather than the rule. The vast majority
of people do not have longstanding relationships with their
physicians. Uh, and . . .
Justice Newbury: Well, certainly I know in,
in Vancouver, most GP's don't go into the hospitals. They don't
have privileges in the hospitals any more.
Ms. Nygard: . . . that is certainly one of
the concerns around the ability, uh, if, if, the ability to
assess competence and to assess, um, the lack of coercion is
based on a "getting to know the patient," from a practical
perspective, given our system, that's a very difficult thing to
Justice Newbury: Well, was there evidence on
Ms. Nygard: There, there was some evidence
on it and I believe it was Dr. Donnelly, who was one of the
witnesses, uh, for the respondents, um, and there was evidence
in her cross-examination transcripts, I believe, and I will
double check this over the lunch break and get you the specific
references. Um, where there was a discussion about this ability,
um, to assess people given the lack of long term relationships.
. . my recollection of that evidence is that, uh, Dr. Donnelly
acknowledged that that's difficult to do without a long term
relationship, but was of the view that physicians would take the
time necessary in these circumstances, to get to know the
patient, and, and to do what they needed to do to assure
themselves. But that goes back -
Justice Saunders: To assure themselves that
the consent is freely given?
Ms. Nygard: Yes
Justice Saunders: Or, or free of, um, um,
depression, or both?
Ms. Nygard: The evidence with Dr. Donnelly
was, was focussed more on the issue of coercion and influence
than on depression. But that goes back to the point I was just
making, that, um, I'm sure that Dr. Donnelly and many other
physicians would, in fact, take that time, but the evidence from
the jurisdictions where this occurs is that is not universally
going to happen. It hasn't universally happened. And Parliament,
in making these kinds of choices and in balancing the interests
that are at stake is not required to assume that everyone will
act to that very high level. And, and, and that concept was,
was, um referred to by the Supreme Court of Canada in the
Malmo-Levine case . . .(para 100) The Court there said that
Parliament did not have to act on the assumption that people
would act responsibly. Because the fact of the matter is it
won't always happen. And that's, the evidence that we have in
this case. It won't always happen.
Justice Saunders: Well, and sometimes people
just make mistakes.
Ms. Nygard: That too.
Justice Saunders: That's what the law of
negligence is all about. Good meaning people who make mistakes.
Ms. Nygard: That's right. And for, for any
number of reasons. As you say, they can be very well meaning,
um, but, their, their level of comfort may be influenced by
their internal biases, as to the quality of a person's life . .
. there's any number of reasons. . . Parliament is entitled to
consider what will happen in the real world in practice, not
just what's possible in theory.
Ms. Nyard pointed to evidence of biases against the disabled and elderly about quality
of their lives, such that medical professionals can be
unconsciously inclined to agree that it makes sense for someone
elderly or disabled to request assisted suicide. Whle the
trial judge believed that physicians could overcome
their biases, Ms. Nygard questioned "how a person can overcome an unconscious bias
by conscious effort." Even if it were possible to do so in
theory, she argued, parliament is not
required to hold to such a theory when the evidence is that
theories don't necessarily work in practice.
Referring to the evidence of Baronness Findlay, a palliative
care specialist from the United Kingdom, Ms. Nygard said that
her opinion was that safeguards are not feasible in practice,
and also that diagnosis and prognosis were "notoriously
fallible." The trial judge rejected her view of diagnosis,
but agreed that estimates of life left to live were unreliable.
Baronness Findlay also testified that safeguards werer
ineffective in cases of cognitive impairment and when coercive
influences were at work. Ms. Nygard, referring to the
Davies affidavit, noted that it supported Baronness Findlay's
opinion that the "cooling off" period in some statutes doesn't
take into account the fact that a desire for death fluctuate
over time. Ms. Nygard drew attention to the evidence from
both Baronness Findlay and Dr. Baraza to the effect that enlightened
consent requires experience as well as intellectual
understanding, and that a requirement for a second opinion is an
insufficient safeguard. It is human nature to look for a like-minded physician,
as reflected in the evidence of Dr. Bentz from Oregon about one
of his patients.
00:33:05 | 00:24:22
Justice Saunders: . . .the discussion about depression, is that
really a concern about, um, consent
Ms. Nygard: Yes. Yes, because
Justice Saunders: It's something that you, in your submission,
can mask an, an accurate view of the consent issue.
Ms. Nygard: Yes, it, it, it, depression, uh, works to cloud
people's judgement in many ways . . . There is evidence to this
effect in the record. And they become hopeless. But it's a
treatable condition . . .So to accept someone's consent to death
when they're suffering from depression can result in the death
of someone, who, if they had been treated for depression may not
have truly wished to die.
00:34:20 | 00:25: 38
Another point against legalizing the procedure was the
possiblity that a patient would get "locked into the process."
The trial judge did not take adequate notice of Dr. Mishara's
evidence, said Ms. Nygard, because his expertise was in suicide,
not in "assisted death." But his point, Ms. Nygard said,
was that the two are not completely distinct, but both subsets.
Dr. Mishara's evidence was that the involvement of a third party
changes the dynamic when someone is contemplating suicide.
Most people change their mind about suicide; 37% of the patients
given lethal prescriptions in Oregan didn't taken them.
However, if a third person is involved in the decision, it may
become more difficult for people to change their
00:37:59 | 00:29:16
Ms Nygard next raised the problem of subtle influence and coercion issue.
Although the trial judge agreed that both could be in play,
though impossible to detect, she did not feel that subtle
influence and coercion would be a problem.
Justice Newbury: Sorry, who said this?
Ms. Nygard: (Tentatively identifies witness) And it was accepted
by the trial judge.
Ms. Nygard observed that the U.S. Supreme Court believed that
the possibility of subtle influence and coercion has to be
considered, even if they cannot be scientifically detected or
measured. She also pointed out that Baronness Findlay gave
evidence about this in paragraphs 32 to 35 of her
affidavit that was ignored by the trial judge in her opinion.
Expectations that people have of themselves and others, and internal
pressures (not to be burden on others) can direct someone toward
assisted suicide or euthanasia, even if they have a loving and supportive
family. Indeed, family support for their request for
assisted suicide, even if well-meant and sincere, can have a
coercive effect. With respect to physicians, it is
universally acknowledged that physicians should not suggest
assisted suicide or euthanasia; the patient should make the
request. But, Ms. Nygard asked, is there really much
difference between a physician suggesting the procedure and
agreeding with a request for it?
Ms. Nygard referred to an anecdote told by another suicide
expert who was a Crown witness about the effect of unconscious
biases illustrated by one of his experiences teaching nursing
graduate students. She also argued that there was
significant evidence from Professor Frazee before the trial
judge concerning biases against the disabled, which result in
them being disproportionately steered toward DNR orders and
"premature surrender to comfort care." She quoted from
Professor Frazee's evidence:
As long as people with disabilities
are disenfranchised and made to feel that they are burdens to
their society, and to those who support them in their community,
assisted suicide cannot be a free choice.
There is cold comfort in the offer of
death as a response to suffering and indignity from a society
that overwhelmingly considers disabled lives to be dominated by
suffering and indignity.
00:55:03 | 00:46:20
Chief Justice: What did the judge say about this evidence?
Ms. Nygard: Uh, she accepted the evidence of Prof. Frazee that
in a couple of places, uh, paragraph 815 and paragraph 853, she
said that she accept the evidence of Professor Frazee, but then
she went on to say that those unconscious biases that Professor
Frazee described can be overcome by this idea of careful
scrutiny and taking great care.
00:55:31 | 00:46:48
Ms. Nygard, noting that "even that limited evidence that I've taken you to is more than
ample to support a reasonable apprehension of harm," turned back
to the Fleming case in the Irish court, but was interrupted by a
question from Justice Saunders.
00:56:21 | 00:47:38
Justice Saunders: Sorry, do you, do you put the, um, your entire
support um, for the legislation, uh, on the basis that there is
a reasonable apprehension of harm, or is there, um, some other
intangibles . . .? Is it simply pragmatic, or is it, um, value
Ms. Nygard: Um, it's
Justice Saunders: The criminal law is often seen as being
largely a value driven, um, standard, for the community.
Ms. Nygard: And, and there's certainly I think it's fair to say
there are value driven aspects to it. I mean there's the,
there's the pragmatic, um, problem, of um, vulnerable people
losing their lives, um, but there's also, as I discussed
earlier, this idea that by crea - and I think this is perhaps
where the value laden part comes in, that in creating as system
which says this category of person we will allow access to
suicide. Everyone else we will dissuade from suicide, we will
step in to prevent them from committing suicide, we will do
what- as much as we can to prevent them from taking their lives,
but this category of people that we'll describe in this way,
however that is, whether it's the criteria that the trial judge
gave or some other criteria, that category of people, um, we
won't prevent them from suicide, we'll, we'll, um, we'll allow,
not only allow them access to, to suicide uh, and not prevent
them, but we'll, we'll make that suicide relatively easy. We'll
make it a medicalized suicide. Um, and that -
00:58:26 | 00:49:44
Justice Saunders: Is it, is it possible that it's, it's simply a
statement that it has in the Criminal Code for a very long time?
Is it possible that it's simply a statement that, in Canada, um,
we do not, um, we, we will not sanction uh, somebody taking
another person's life?
Ms. Nygard: That's, that's certainly part of it. I don't think
that's the whole picture, though. I mean, and that, I think
probably, um, in 1893, was probably as much thought as was given
to it, frankly. But this isn't one of those situations where,
you know, it was enacted in 1893 . . . thereabouts . . .and no
one's given it any thought since. Uh, this is a situation where
there has been significant thought on many different occasions
as to whether this absolute prohibition should be maintained.
00:59:21 | 00:50:38
Chief Justice: You, you didn't quite finish the thought you
started a moment ago. You said that by creating a category of
people who may have access to assisted suicide . .
Ms. Nygard: Yes. The the, we thereby send the message that
there's something different about those kinds of lives. That
we're not going to provide the same protection to those kinds of
lives. That we're going to agree that those kinds of lives
warrant termination. And that feeds into the things that
Professor Frazee was discussing. . .
She returned to her point that the government wanted to send
the message that all people are equally valued. "Insofar as that could be considered a
value-laden issue," she said, "that's certainly part of the equation."
01:01:05 | 00:52:22
Returning to the Fleming case before the Irish High Court,
Ms. Nygard advised the judges that the Irish court had the trial
judge's opinion from the Carter case before them.
Even looking at the evidence cited by the trial judge in support
of her ruling, the Irish court disagreed with her conclusion.
They could not agree that the cumulative evidence does not show
that risks have not materialized in a manner that has been
predicted. Acknowledging that no system is perfect, and
that some allowance must be made for error - even fatal errors -
the Irish judges held that the evidence that safeguards can be
effective is neither encouraging nor satisfactory.
Ms. Nygard asserted that the Irish court reached the opposite
conclusion because they applied the "reasonable apprehension of
harm" standard: the one that, she said, ought to have been
applied by the trial judge in Carter
01:10:30 | 01:01:47
01:29:01 | 01:02:11
Referring to Canada's
factum, beginning at paragraph 64, Ms. Nygard said that the
trial judge held that a reasonable alternative to absolute
prohibition was an almost absolute prohibition, with exceptions.
This, she said, required Parliament to choose between leaving
assisted suicide and euthanasia complete unregulated - which was
unacceptable - or creating a complex regulatory regime to
control the practices - and pay for it. Where the only
alternative necessiates such an extensive regime to minimize
risks- risks that are created by the ruling - this is not, she
argued, a reasonable alternative to absolute prohibition.
Further: the trial judge's alternative creates harm
from the message that it sends about some lives not being as
valuable as others, and, finally, depends upon the control of
things that can't be controlled, like unconscious bias.
01:36:08 | 01:09:18
Chief Justice: Now, your friend's response to this argument is
that the, the judgement doesn't require Parliament to do
anything. Uh, he says you can strike the law down, and if
Parliament wants to cure the defect, um, then it could, can
create exceptions to the absolute prohibition.
Ms. Nygard: And, and that gets back to what I said at the
beginning, that, in effect, what has, the trial judge's order
has done is forced Parliament into making a decision between
accepting the risks that everyone agrees are inherent in an
unregulated system, or creating this complicated regulatory
regime in, in order to try and mitigate those risks.
And where those are the only choices available to Parliament, it
can't be said that what Parliament already has in place falls
outside the range of reasonable alternatives.
01:37:27 | 00: 10:37
Justice Saunders: Just to go to the actual order, that was
entered, there isn't anything contemplated here, um, that
requires regulation. It, there may be enforcement issues,
compliance issues, but it does not, by itself, set up any
Ms. Nygard: No. And we're not saying that the order orders
Parliament to set up a regulatory scheme. I, I, I acknowledge
that. It doesn't do that. What it does is forces this choice on
Parliament. Parliament could just say, "Ok, well we'll uh,
repeal the prohibition. We'll be in compliance with the order."
Um, but no one is seriously suggesting that that would be a good
idea, because of all the inherent risks that the trial judge
acknowledged, were assisted suicide and euthanasia to be
unregulated. So although the trial judge doesn't order that a
regulatory regime be set up, what she has done is put Parliament
in a position of having to choose between, between having a
complex regulatory regime or, uh, accepting the inherent risks
of very significant harm.
01:38:43 | 01:11:53
Justice Saunders: Now, except there, there is a, I, I just think
that this takes, the argument, um, further than the order, ah,
seems to suggest, because the order would limit the availability
of physician assisted suicide. Um, and I think it contemplates
that doctors would comply with the order. And I think what
you're saying is that Parliament would be forced to look at the
regulatory system to ensure compliance with the order. Cause
it's not a free-for-all. It is, and it may or may not, um, be a
good order for the other reasons that you said, but this, this
argument, that it forces a regulatory regime on Parliament, I'm
having trouble understanding.
Ms. Nygard: Well, and, and perhaps that, that trouble comes from
an issue that I was going to address later, but I think it's
best to do it now. As to exactly what this order does, because
it's unclear, in my submission, whether this order is simply
declaring the provisions unconstitutional, with the stay,
declaring the unconstitutional, and leaving it to Parliament to
come up with a solution if they choose to, or whether this order
purports to read down the provisions. And I think that what you
were just saying there assumes the latter. And, and it may be .
Justice Saunders: And you don't accept that. . .
Ms. Nygard: It's not that I don't accept it. I just don't think
it's clear what the intention of the trial judge was in that
regard. Um, and if, but even if she has read it down, one, we
would say that that's an inappropriate incursion into the role
of Parliament, in reading down a piece of legislation in such a
detailed manner, but even if it wasn't inappropriate to read
down the legislation in this way, if that's what she's done, um,
the problems are as . . . much of the language in the order is
vague to some degree, and would be very difficult on the basis
of just this order alone to have a workable system. For example,
what is an advanced state of weakening capacity? For example, is
it that it's an objective test and I pointed, I referred to this
when I went through the order, that the advanced weakening
capacities have no chance of improvement, but a subjective test
for the rest of it, or was it the intention that it all be a
subjective test. It's not clear from the language. So even if
this is a reading down of the prohibition, it's not something .
. . that could be left as is and expect people to be able to
know what it is they can and cannot do.
01:42:28 | 01:15:38
Turning to the last principle of fundamental justice, Ms.
Nygard argued that the absolute prohibition is not grossly
disproportionate when one takes into account the fact that other
people may lose their lives when that is not what they truly
want. Given the real danger of unwanted deaths, she said,
"there is nothing, really, that could be grossly
disproportionate to them."
The problem, she said, is that the trial judge gave excessive
weight to the concerns of the claimainants, and insufficient
attention to those on the other side, whom she described as
unknown persons, hypothetical patients who might suffer
The issue could, perhaps, be described as hypotethical, but
that is really a reflection of the nature of it. There is
no direct evidence of how physician assisted suicide would work
in Canada, said Ms. Nygard, and those who have suffered harms
from the practice are dead. The best that can be done to
demonstrate a reasonable apprehension of harm is to provide
evidence from people like Davies, who would have died under a
permissive regime, from people who believe they have witnessed
harm done under permissive regimes, such as the evidence of
Canada's witnesses from Washington state, to refer to evidence
like the existence of LAWER, and, finally, to refer to evidence
of currently harmful situations (like that of societal bias
against the disabled) that common sense says would be
exaggerated in a permissive regime.
lives of people described in those three kinds of evidence are
equallly important and not merely hypothetical, asserted Ms.
Nygard, and it is not grossly disproportionate for Parliament to
choose to protect them. She referred to the case of Irwin
Toy, in which the court warned that better situated individuals
must not be permitted to use the courts to the detriment of
those less well situated. In this regard, she reminded the
judges of the evidence of Dr. Ganzini to the effect that those
most likely to access assisted suicide in Oregon tended to be
strongwilled people who had been in control of their lives and
wished to remain in control. They were she said, better
situated than the vulnerable whom the complete prohibition is
meant to protect.
01:54:38 | 01:27:48
Ms. Nygard insisted that for a claim to succeed under Section
15 of the Charter of Rights, a claimant must first demonstrate
that he has been deprived of a benefit or is suffering from a
burden imposed by law. This, she said, cannot be done with
respect to physician assisted suicide.
Nygard: . . . the ability to choose suicide is not something that
the law provides to anyone. There is certainly no general right
to commit suicide. And when the law, as a whole, is considered,
it's clear the state does what it can both to dissuade
individuals from suicide and in some circumstances to even step
in and physically prevent individuals from suicide. And in the
absence of an unfettered ability of anyone to commit suicide, it
cannot be said that the claim to choose suicide is provided by
law to anyone, and that, therefore, this threshold test is not
02:01:22 | 01:34:32
Justice Saunders: Is this something like your causation argument
yesterday under Section 7?
Ms. Nygard: Um, no. I don't, it's, it's a different, uh, it's a
different basis for this argument. It's not related to
causation. It's, it's related to the fact that there is no
general right to suicide.
Chief Justice: I wonder if that's a really accurate statement.
If, if the law permits it, you can't say there is a positive
right, but it provides no impediment.
Ms. Nygard: Well in some circumstances it provides an
Chief Justice: Well, it's not illegal to commit suicide, it's
not illegal to attempt suicide.
Ms. Nygard: It's not a criminal, uh, offence. That's correct.
However, there are certainly circumstances um, where, uh, uh,
under the Mental Health Act, for example, and that's in the
authorities, where there is the legal um, ability if not
obligation to step in and physically restrain someone from
committing suicide. So, so it's not that, that it's an open
field on suicide. There is no criminal prohibition, that's
correct, but that's not, in any way, a recognition by the law of
a right to commit suicide.
02:02:52 | 01:36:02
Justice Saunders: I would have thought that people have a right
to do whatever actions they may choose to do, uh, provided it's
not, um, prohibited.
Ms. Nygard: I, I think that there is a difference between a
right and something that's available. Uh,
Justice Saunders: I think that most people on the street would
think they have a right to walk down the street, and the street
is available. Um, you don't go generally go around talking about
things that are prohibited and things that are right and then
the other vast quantity of things which, . . .something else,
Ms. Nygard: I-it comes back to the concept that it has to be a
contextual analysis. And when the context is m, that when
although not criminally prohibited, uh, the state does many
things to try and prevent and dissuade suicide. There are all
sorts of suicide prevention programmes, um, there's a national
suicide prevention plan, and, as I said, in, there is even
provincial legislation which actually uh, allows individuals to
be physically prevented from committing suicide. So that's the
context, and in that context it, it can't be said that there is
a right to commit suicide.
02:04:32 | 01:37:42
Even if threshold is met, said Ms. Nygard, any distinction created
by the prohibition is not discriminatory.
Nygard: . . .while
we accept that the prohibition does have a greater impact on the
severely disabled than it does on able-bodied people . . because
the severely disabled have more limited means of ending their
lives, it's important to note two related aspects to the nature
of the distinction.
First, she said, the severely disabled, or those who may
become so, have choices. Their options are not easy or comfortable,
but neither are the options for sucide open to able-bodied people. Many
are violent or
painful. None of the choices are good
choices. Referring to Gloria Taylor's affidavit, Ms.
Nygard pointed out that she "didn't want access to the methods of suicide
available to the able-bodied." Similarly, she said,
"In the words of Mr. Fenker, 'They wanted a better choice.'"
Nygard: The better choice
that they want is a medicalized suicide under the guidance and
with the support of physicians.
She once more repeated that one of the effects of the
prohibition is to acknowledge that all lives are equally
deserving of respect protection. Providing an exception of
the kind envisioned by the trial judge would
actually contradict the purpose of Section 15.
Responding to the trial judge's statement that the law fails
to correspond to the needs and circumstances of severly disabled
people, and that it assumed that they are not able to make this
kind of decision, Ms. Nygard said that was not the basis for the prohibition.
The heightened risk that would be faced by the disabled is not
related to their ability to make autonomous
decisions, but to their interaction with a prejudiced society.
The trial judge claimed that vigilance would solve this problem,
but, countered Ms. Nygard, requiring the risk to be undertaken
is not required by the Charter.
The trial judge also noted that the Battin study indicated
that a permissive regime resulted in no increased risk to people
with pre-exiting disabilities, but Ms. Nygard observed that that
conclusion was based on an absence of data about the
disabled, which was not collected. Since the conclusion
was based on a lack of
information, reliance on that conclusion was misplaced.
Further, she said, statistical analysis may fail to take into
account adverse effects on individuals. She reminded the judges
that the disabled community was divided on the issue. Some
found the prohibitition protective; others found it demeaning.
02:17:24 | 01:50:36
Justice Saunders: Or, or, or they may say, simply, see it as
their journey done. Not everybody, I think, who may choose, um,
the end of life, necessarily, um, fails to see the value of
going on. It, they just may see their journey's done.
Ms. Nygard: Yes, and that's true. And, and it's acknowledged . .
. that those people are caught by the prohibition. Um, but, the
law does not require Section 15 to have a perfect correspondence
between, uh, the effects, and this is set out in the Gossleni
deicison para 55 . . So it's acknowledged that the absolute
prohibition will capture some people who are not in need of its
protection. But that fact alone . . . does not make the
provision discriminatory, where the provision is necessary to
protect the interests of other individuals. Particularly where
those individuals are more vulnerable. . .
02:20:01 | 01:53:11
Ms. Nygard distinguished the Eldrige case, which involved the
effective denial of a benefit to the claimanants that was
provided to others - medical services. Suicide, she said, is not
a benefit provided by the government
02:22:09 | 01:55:19
Returning to the division in the disable community, Ms.
Nygard asserted that those needing the protection of an absolute
prohibition most are most supportive of it. The
prohibition serves the fundamental purposes of Section 15 by
maintaining the position that all lives equally
worthy of protection and equally valued. She recalled that
Justice Sopinka in Rodriguez warned that making exceptions to a
general prohibition would actually create inequality and deform
Charter jurisprudence. The Carter case does not fit into a
Section 15 claim, because the prohibition is not about
discrimination, but about protecting everyone.
02:27:18 | 02:00:28
Ms. Nyard stated that all argments made in the Section 7
analysis are equally valid in a Section 1 analysis. The
proper standard under Section 1 is whether or not the absolute
prohibition is based on a reasonable apprehension of harm, and
whether or not the absolute prohibition falls "within a range of
reasonable alternatives." The trial judge, she argued, erred
because she applied the wrong standard when she sought the least
restrictive means to accomplish the goal of the legislation.
The fact that she proposed an alternative, even if it could be
said to be reasonable, does not make Parliament's decision to
maintain an absolute prohibition unreasonable.
However, said Ms. Nygard, the trial judge's alternative was
not reasonable because it does not meet the objectives of the
legislation ina real and substantial manner. Instead, it
requires the government to compromise its objectives, and is
based on speculation about how people will act, and premised on
a very high standard of care. Finally, the ruling also
completely undermines the government's goal of ensuring that all
lives are considered to be of equal value.
02:36:15 | 02:09:25
04:09:34 | 02:09:49
Ms. Nygard asserted that assisted suicide is now regulated;
it is prohibited. According to the trial judge, some
physicians are not complying with the prohibition, so it would
be an improvement to regulate rather than prohibit the practice.
However, she said, that some physicians disobey the law does not
undermine the legitimacy of the law. She continued to
discuss the deleterious and salutary effects of the prohibition
at some length, but her presentation was difficult to follow.
04:18:09 | 02:18:15
Chief Justice: I'm sorry
to tell you, Ms. Nygard, that I just haven't quite followed that
last part. I'm trying hard but I haven't . . .
She again attempted to make the argument, eventually
asserting simply that "the salutary effects outweigh the
Ms. Nygard: If that
is conclusion that is reached, you can't then take that
conclusion and put it back into the mix and say that conclusion
that other interests outweigh the interests of the claimant goes
into the making of the conclusion. You can't have it on both
sides of the equation . . .
Justice Saunders: And another way of looking
at it, could you say Section 1266 and the way you're looking at
it, um, seems to suggest that a conclusion that one side is not
- she's used the word important, I might say weighty - as the
other side, um is a reason to find it disproportionate, contrary
to the concept of weighing. . .
Ms. Nygard: Yes
Justice Saunders:. ..which is that one side
is likely to be, um, overweigh the other side.
Ms. Nygard: That's the whole point of the
exercise, to determine that. Yes.
04:21:02 | 02:21:17
Ms. Nygard: Just as in section 7, what we have at the end of the day are on
one side of the equation, individuals who undoubtedly are in
very difficult circumstances, and who desire some level of
control over those circumstances in the form of assisted suicide
or euthanasia. On the other side of the equation we have people
who are vulnerable for a variety of reasons that I've, that I've
discussed, who are in danger of having their lives taken when
that is not what they truly desire. We have the loss of life and
the devaluing of life through the message that's sent by
allowing the exceptions on one side of the equation, and we have
significant suffering on the other side of the equation. Neither
of these things are easy, but it cannot be said that
Parliament's choice to protect against that loss of life and to
continue to value all lives is disproportionate.
04:22:33 | 02:22:47
Canada made two procedural arguments, both of which alleged,
in effect, that its case was adversely impacted by decisions
made by the trial judge that affected the evidence presented and
the interpretation of evidence presented at trial.
The first argument was that the trial judge had compressed
timelines for the trial and thus prevented Canada from obtaining
and presenting all of the evidence it wanted to present at
trial. Ms. Nygard asserted that it was not clear what
impact that evidence would have had on the conclusion of the
04:27:49 | 02;28:03
The second procedural ground was that the trial judge
improperly accepted reply submissions from the plaintiffs,
including a submission arguing that weight should not be given
to the evidence of a number of the expert witnesses called by
Canada, but denied Canada the opportunity to respond.
04:30: 46 | 02:31:00
Ms. Nygard: . . . it's difficult to know what the trial judge did as a
result of those submissions, with the exception of one of the
witnesses, because in her reasons all the trial judge said was
that she had assessed the weight to be given to the various
expert opinion evidence taking into account a variety of
factors, but she didn't further articulate the factors
considered for any particular expert or the weight that she gave
to any particular expert's evidence. So . . .
Chief Justice: The judge isn't required to
do that, is she?
Ms. Nygard: She's not required to do that, but
where, and it wouldn't be a problem had we had the opportunity
to respond to the respondents' submissions, but given that, um,
the respondent made these arguments regarding the weight that
should be given to these witnesses' evidence, that Canada was
not given an opportunity to respond to those arguments and we,
on top of that, we don't know what the trial judge did with it.
It may be that there's not a problem with what she did with it
it, but because she didn't articulate it, we don't know.
Ms. Nygard admitted that, if the judges accepted Canada's
substantive arguments on the merits of the appeal, the
procedural issues would be insignificant. However, she
said, if the court found against Canada on the substantive
questions, the procedural arguments would become important, as
the prejudice to Canada's case at trial caused by procedural
errors could not be remedied on appeal.
The Chief Justice pointed out that in cases in which an
attempt is made to introduce fresh evidence on appeal, the
standard is that the evidence must be both relevant and
material; it must be such that it would have made a difference
to the outcome of the trial. asked what standard should be
applied. But, he said, in order to make that finding, it
is necessary to consider the evidence in question, which could
not be done in the present case.
Ms. Nygard granted that problem, but said that the evidence
was not available because Canada had been denied the opportunity
to get it. The Chief Justice said that Canada, as the
appellant, could have provided an affidavit describing the
evidence it had intended to produce if it had been given the
opportunity. Ms. Nygard acknowledged this, but, said that
would have meant going out after the trial was over and
collecting evidence that the trial judge had refused to hear,
which would have been a questionable use of resources.
04:36:36 | 02:36:50
Justice Newbury asked what Canada wanted the Court of Appeal
to do about the problem. Ms Nygard replied that the case
should be sent back to the trial court.
04:37:14 | 02:37:28
Justice Saunders: But we don't know whether
that evidence would have any chance of affecting the judgement.
Um, . . . if we're not with you on the substantive appeal, uh,
then we would be with the trial judge on the substantive appeal,
and you'd be asking us to say that something that we don't know
the content of could have affected the outcome of that. And it
might not have been nearly as cogent as the evidence you've
already pointed us to.
Ms. Nygard: Yes, and I mean, that, that is a
problem. It's a bit of a catch-22 situation for us.
The Chief Justice asked why, if it was a question of improper
submissions rather than evidence, the problem was not being
redressed during the appeal.
"Because of the volume," said Ms. Nygard. She said that
they had reached their page limit without attempting to address
the issues raised by the lengthy reply submissions made by the
plaintiffs at trial. Her answer did not convince the Chief
04: 41:36 | 02:41:50
Chief Justice: Let me put it this way. If, if the judge said
something in her reasons that was based on what you say was an
improperly received reply submission, why couldn't you knock
that on its head here?
Ms. Nygard: Well, and that goes back to what I
was saying . . . It's not that the judge said anything improper
in relation to them. We just don't know what she did with it. So
we don't know what influence that had on her decision.
Justice Saunders: You s . . . I guess you're saying
that the, the, uh, witnesses that were, um, referred to in, in
the submissions that you never got a chance to reply to, uh,
those witnesses evidence was looked at properly, cogent on the
issues, then the judge seemed not to, not to find their evidence
particularly weighty or something . . .
Ms. Nygard agreed, and referred the judges, by way of
example, to two witnesses whose evidence was given less weight
by the trial judge, pointing out that it was not clear if she
did so because she accepted the plaintiffs' submission.
That would not have beena problem in itself if Canada had not
been denied the opportunity to respond.
Saunders: You would say then that she accorded
less significance to the reasonable apprehension of harm? That,
that must be the way it ties into your submission.
Nygard: Yes. I think that that's fair.
04:43:55 | 02:44:10
Ms. Nygard objected to the planned intervention by the
Unitarian Council on the grounds that it was raising a new issue
that had not been raised by the principal parties. She
left argument on the point until the court came to consider the
04:46:26 | 02:46:40
Ms. Nygard closed by briefly making the point that
Parliament is required to strike a balance between the interests
of those who want
control of the circumstances of their death, and those at risk
of dying unwanted deaths if the absolute prohibition is lifted.
Given the nature of the interests at stake, Parliament was
entitled to legislate on the basis of a reasonable apprehension
04:51:10 | 02:51:24
Euthanasia Prevention Coalition [Factum]
Before proceeding with his argument, Mr. Scher asked the
court to take note that no medical associations were
represented. He said that his factum made three points:
1) Real autonomy is effectively diminished if
assisted suicide and euthanasia are legalized;
2) The absolute prohibition is not not discriminatory but protective.
The claim for a right to choose suicide with medical oversight
is not a right to equality but "a claim respecting privileged
3) There is no
reliable evidence of adequacy of safeguards that justifies the
conclusion reached by the trial judge.
Mr. Scher reminded the court that absolute prohibition of
physician assisted suicide is the norm rather than the
exception, and asserted that there is no constitutional right to commit suicide.
The prohibition, he said, is based on the overriding acceptance
of the value of human life.
Most of his time was devoted to the first point: autonomy.
Among other things he asked why, if the issue really were
autonomy, it was necessary to spend so much time talking about
safeguards and limitations on the exercise of a deemed
With respect to the the protective aspect of the prohibition,
he said that the offer of assisted suicide to the disabled
community bespeaks a prejudice that would be immediately
apparent if assisted suicide had been offered to aboriginal
Canadians as a "solution" to the problems and suffering they
Due to the structure of his delivery he had to address the
third point in about a minute. He argued that the evidence
from one of the plaintiffs witnesses concerning non-reporting
and the killing of people without their request demonstrated
that legalization of assisted suicide and euthanasia results in
actual harm and not insignificant risks.
05:09:44 | 03:08:59
05:26:34 | 03:10:02
Christian Legal Fellowship
Gerald Chipeur opened by stating that he would be addressing
the meaning of "life" in Section 7 of the Charter, a question
that had been raised by the Chief
He said that it was agreed that "life" must mean more than
the time between the beginning and the end, and that there may
be a consensus that the beginning and end of life are profoundly
personal and private times for the individual, the family and
physician - but rarely the state.
He argued that the evidence submitted by the parties
indicates that, for the most part, issues at the end of life are
being worked out satisfactorily for most people. The
imposition of the level of strict government scrutiny necessary
for the regulation of physician assisted suicide may not, he
said, be an improvement on the current situation for individuals
and families. He warned that the intrusion of the
government at the end of life may interrupt or disrupt the
current harmony between law and medicine, which involves a
highly nuanced and sensitive approach that allows end of life
decisions to be made privately. On this point, he referred
the court to the House of Lords ruling in the Bland case in the
Mr. Chipeur then proposed three questions for the court's
- Should this court refuse to take judicial notice of legislative
facts surrounding coerced sterilization of the mentally
handicapped that occurred in Alberta hospitals?
- May a citizen waive the Charter right ot life?
- Should the court give a private citizen the power of
life and death over another?
He suggested that the answer to each of these questions was
Mr. Chipeur asserted that the court should accept the
abundant evidence that coerced consent was obtained in Altberta hospitals
as part of the state-mandated sterilization of the mentally
handicapped, and conclude from that that consent would probably
be coerced in assisted suicide and euthanasia. One death
resulting from coerced consent, he argued, is one death too
many. He emphasized the principle of the sanctity of life
and the inviolability of human life referred to in the Bland
He also referred to the important distinction made in the
Bland decision between euthanasia and refusing treatment or
refusing to treat. However, even if a person gives up on
life, he said, one cannot waive the Charter right to life, any
more than one could waive the Charter right to liberty and sell
oneself into slavery. A contract for slavery would be
nullified as a matter of public policy.
Finally, he urged the court to acknowledge that the right to life must mean
that the government must not kill you even if you consent.
Quoting authorities, he warned that the court should not risk
causing damage that it cannot repair, and that the
choice between life and death is not one that courts can safely exercise.
05:40:19 | 03:23:47
Geoffrey Trotter proposed to address the
Chief Justice's question about the
meaning to be given to the term "life" in the Charter,
Madam Justice Saunder's
question about whether or not the prohibition of assisted
suicide was "values-driven," and to respond to the
Chief Justice's musing about the
relationship of a pulse or brainwave to the meaning of "life."
He began by emphasizing that the
criminal law has always prohibited killing.
Trotter: The sanctity of human life is itself a charter value
that rightly informs the criminal law, and that it's by
upholding the sanctity of life that the complementary Charter
value of human dignity is enhanced and protected. . . Our
criminal law has always prohibited people from consenting both
to their own killing and taking the lives of others. The EFC
submits that the Charter is entirely supportive of and not
contradictory to the prohibitions which are attacked in this
case. Indeed, the Supreme Court of Canada affirmed in Rodriguez
at paragraph 125, and this is a quote: "The sanctity of life is
one of the three Charter values protected by Section 7. . . .
Paragraph 129 . . . "human life is sacred or inviolable" in, as
the court stated, a non-religious sense.
Chief Justice: What does that mean?
Trotter: Well it was . . .
Chief Justice: Sacred in a non-religious sense. I read that and
I, I scratch my head.
Trotter: Well, Sopinka goes on to talk about it meaning it has a
deep intrinsic value of its own. I think its reaching for the
fact that there, it's it's sacred-like, even for those who don't
believe in God . . .
Mr. Trotter insisted that was legally and ethically sound for the court to affirm the
non-sectarian principle that the sanctity of human life means that it merits special
protection: that life is a sacred trust rather than a mere right to be contracted
away or waived. The Criminal Code, he argued, should
continue to prevent people from consenting to being killed, and
reminded the court that the Supreme Court judgement in Rodriguez
had been repeatedly affirmed by Parliament.
Human dignity, he said, must be undestood in relation to the sanctity of human
life. He cautioned that human dignity is not an absolute right to do as one wishes,
but that the legal concept of dignity means inherent
dignity, something that all people share simply by virtue of
having human life. He proposed that Section 7 of the
Charter is "life affirming," and cited Rodriguez in
asserting that liberty and security of the person cannot be
divorced from the sanctity of life.
Just as the Supreme Court said that there is
no such thing as good polygamy, the Evangelical Fellowship says
that there is no such thing as a good killing; no Canadian is better off dead than alive.
Mr. Trotter argued that
"death with dignity, properly understood, means to live one's
remaining life with the inherent dignity of a human person,"
with medical assistance, and the option to decline unwanted
To legalize assisted suicide and euthanasia would require
another moral agent to do the killing, and the state would be
complicit in the act. He noted that the Canadian Law
Reform Commission commented that this would put the state in the
position of indirectly condoning murder. Mr. Trotter
no Canadian has a right to be killed, since that would collide
values of the sanctity of life.
Turning to the Chief Justice's question about whether or not
"life" meant simply a
brainwave or a pulse, Mr. Trotter first pointed out that the
question did not arise on this appeal, since the case was
concerned strictly with competent people. He added that
even if people lose their abilities they remain human beings
nonetheless, and that the proper response to diability and dying
is caring for people who are disabled and dying. If they
feel that their dignity is diminished, it is up to everyone else
- and the state - to affirm their dignity in actions and in
laws, and affirm the sanctity of human life.
05:52:01 | 03:35:29
Council of Canadians with Disabilities (CCD)
Canadian Association for Community Living (CACL) [Factum]
David Baker represented two of Canada's principal advocacy
organizations for disabled people, with a combined membership in excess of 300,000.
The organizations were concerned about the Carter ruling because
the diagnosis of terminal illness is notoriously unreliable, and
many members of the groups have been threatened with the removal
of life-sustaining treatment, and have had to contest
do-not-resuscitate orders placed on their medical files.
The appeal of the Carter ruling was, said Mr. Baker, an attempt
to vindicate their rights.
Both groups support the considered choices of persons with disabilities.
In fact, the CCD intervened in the Rodriguez case in
support of a constitutional exemption for assisted
suicide (not euthanasia). However, since that time, the
organization has changed its position and now argues against
exemptions and in favour of absolute prohibition. The
reason for the change was partly positive - improvements in palliative care, hospice care,
etc. However, it was also because the experience of other
jurisdictions showed that all persons with disabilities were at
risk. The gatekeepers were doctors, who were making complex legal decisions
based on medical evidence.
Like Mr. Scher, Mr. Baker pointed out that the medical professions
were unrepresented in the appeal, and claimed that the medical
profession actually opposes legalization of assisted suicide and
Mr. Baker explained that when the
CCD came to the view -strongly held - that the absolute prohibition
of assisted suicide should stand, a small number of members left
the organization to form a new group, in favour of assisted
suicide and euthanasia. He noted that the new group would
be represented in the appeal.
Nonetheless, he said the law should not be changed to
accommodate a tiny group, nor did his clients agree with the
attempt by the trial judge to distinguish a particular group for
whom the exemption is sought. He insisted that this was a
distinction without a difference: that all are disabled.
The conclusion that there was no evidence of heightened risk to
the disabled in Oregon and the Netherlands could only have been reached by
"sleight of hand."
Mr. Baker's clients expressed a
great degree of scepticism about research based on asking
doctors after the fact whether or not they had complied with the law
or had committed, something he said was "quite extraordinary research to
rely upon for drawing conclusions about compliance with the law."
Moreover, his clients were
"completely dissatisfied with the imbalanced record in this
case," by which he meant the decision of the trial judge to deny
Canada the opportunity to obtain and present evidence supportive
of the prohibition. "My
clients are deeply concerned," he said, that the case "not be decided on
the basis of an incomplete record."
Reponding to the Chief Justice's assertion that "life" must
mean engaging in the full range of experience, Mr. Baker cited
the example of one of his clients who is completely immobile,
who lives in a hospital and operates a computer by moving his
eyes. A "brilliant mathematician," he lives a full life,
supported by his family. His clients remain concerned
about the fate of those who do not have extraordinary talents
and supportive families.
Mr. Baker noted the
Oregon research showing doctors' interpretations of why patients
chose assisted suicide: loss of autonomy, dignity, difficulty
with bodily functions, being a burden, etc.
Those, he emphasized, are the concerns and the daily experience
of all people with disabilities.
He lamented the fact that this case was about a right to
assisted suicide rather than a right to
palliative care, home care, and suicide prevention.
He closed by warning the judges that real harm will be caused
by making "therapeutic death" available to disabled people.
06: 15:11 | 03:58:39