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Protection of Conscience Project

Service, not Servitude
Legal Commentary

British Columbia Court of Appeal
Notes from Carter v. Attorney General of Canada
On appeal from 2012 BCSC 886.

 Introduction | Contents | 18 March | 19 March | 20 March | 21 March | 22 March

18 March, 2013

Donnaree Nygard

For the Attorney General of Canada (Appellant)

Opening Remarks

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 ruling.

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."

Ms. Nygard:  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 emotional abuse,
  • 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. 

Or simply 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 Canadian 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 of society.

Ms. Nygard:  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

Re: The order granted by the trial judge

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 situations:

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 suicide.

Re: Legislative history

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 that no 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 absolute prohibition.

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.

Re: Rodriguez: stare decisis

01:04:00 | 00:43:29


01:30:18 |01:09:47

Sitting resumes

01:51:07 | 01:10:03

Purpose of the legislation as noted in Rodriguez

01:52:59 | 01:11:55

Ms. Nygard: (Quoting Rodriguez, 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

Ms. Nygard: (Quoting Rodriguez, 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."

Re: "Life" as Section 7 interest

01:58:30 | 01:17:26

Ms. Nygard: (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.

Re: Charter of Rights issues- Section 7

02:20:10 | 03:45:07

Ms. Nygard:  . . .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."

The meaning of "life"

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.

Purpose of the legislation

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:

Ms. Nygard:  (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

Ms. Nygard:  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 R. v. 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 Rodriguez 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 protection.

02:34:00 | 01:52:56

Ms. Nygard:  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

Ms. Nygard:  (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 permissive scheme."

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 condition.

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 objectives."

Re: Charter of Rights, Section 7- Analysis

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 the interest.

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. 

Ms. Nygard: (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.

02:48:10 | 02:07:06

Sitting resumes

04:22:45 | 02:07:37

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 dignity."

04:30:13 | 02:15:07

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 issue?

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 occur.

04:31:40 | 2:16:33

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 treatment.

04:36:04 | 02:20:57

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 with 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 physical difficulties.

04:38:23 | 2:23:16

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 is capable.

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 her?

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.

04:40:52 | 02:25:46

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.

04:42:29 | 02:27:22

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.

04:49:16 | 2:34:09

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.

Re:  Heart of the Section 7 analysis

04:51:40 | 02:36:22

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 issue.

04:52:40 | 02:37:33

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 reasons.

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).

04:57:40 | 02:42:32

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. . .

05:01:06 | 02:46:03

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.

05:02:16 | 02:47:09

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 suicide?

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.

05:04:23 | 02:49:16

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 sustain life.

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.

05:05:59 | 02:50:52

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 conclusions. 

05:07:10 | 02:52:04

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 fundamental justice.

05:17:08 | 03:03:01

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 a "reasonable apprehension of harm," has restricted or prohibited certain activities.  Citing cases from the Supreme Court of Canada, including R. v. Sharpe (2001) 1 S.C.R. 45, 2001 SCC 2 (QL) and 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.

05:19:08 | 03:04:01

Sitting resumes

05:37:23 | 03:04:20

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  R. v. Butler.

05:48:00 | 03:15:20

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 committing suicide.

05:48:50 | 03:15:47

Citing 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 protection.

05:54:11 | 03:21:07

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.

05:56:35 | 03:23:32

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.

06:00:37 | 03:27:33

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 disabled.

06:06:02 | 03:32:59

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 complied with.

06:10:22 | 03:37:18

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. 

19 March, 2013

Donnaree Nygard

For the Attorney General of Canada (Appellant)

Continuing Charter of Rights, Section 7-Analysis

00:10:00 | 00:01:17

Irish High Court: Fleming case

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.

Physician-patient relationships and informed consent

00:16:49 | 00:07:51

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 . . .

00:17:38 | 00:08:55

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 do.

Justice Newbury: Well, was there evidence on this?

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 -

00:19:15 | 00:10:32

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.

00:20:56 | 00:12:13

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.

The issue of unconscious bias

00:22:25 | 00:13:42

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.

Patient decision-making

00:24:24 | 00:15:41

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 minds.

Coercive pressures

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.

Basis of Canada's case

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 driven?

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."

Irish High Court: Fleming case

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

Sitting resumes

01:29:01 | 01:02:11

Reasonable alternatives

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 regulatory scheme.

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

Gross disproportionality

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 hypothetical harms.

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.

The 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. 

Re: Charter of Rights, Section 15- Analysis

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 met.

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 impediment.

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, just available.

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.

Re: Charter of Rights, Section 1- Analysis

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

Resume sitting

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 deleterious effects."

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 . . .

04:20:22 | 02:20:36

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.

Procedural Issues

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 trial.

04:27:49 | 02;28:03

Reply submissions

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 Justice.

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

Objection to Unitarian Council intervention

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 intervention.

Closing summary

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 of harm.

Intervenors supporting the appellant

04:51:10 | 02:51:24

Hugh Scher
for the
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 choice."

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 constitutional right.

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 experience.

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

Sitting resumes

05:26:34 | 03:10:02

Gerald Chipeur
for the
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 Justice.

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 United kingdom.

Mr. Chipeur then proposed three questions for the court's consideration:

  • 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 "no."

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 decision. 

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
for the
Evangelical Fellowship of Canada [Factum]

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?

Mr. Trotter: Well it was . . .

Chief Justice: Sacred in a non-religious sense. I read that and I, I scratch my head.

Mr. 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 assistance.

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 emphasized that no Canadian has a right to be killed, since that would collide with Charter 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

David Baker
for the
Council of Canadians with Disabilities (CCD)
and the
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 euthanasia. 

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


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