2013-MAR: The hearing of the case Carter v. Canada before the British Columbia Court of Appeal (Continued):
The appeal of the British Columbia Supreme Court's ruling in Carter v. Canada was heard by a panel of three judges: the Honourable Chief Justice Finch,
The Honourable Madam Justice Newbury, and
The Honourable Madam Justice Saunders.
At the time of the hearing, a webcast pilot project at the BC Court of Appeal was active. The video archive can be accessed over the Internet. 1
2013-MAR-18 to 22: Very brief excerpts of factums (written arguments) submitted by two intervenors in favor of access to assisted suicide under controlled conditions:
Canadian Unitarian Council (CUC): Unitarians (a.k.a. Unitarian-Universalists in the U.S.) are a very liberal religious group in which the denomination and individual congregations have no specific belief requirements for the membership to follow. The main function of the clergy is not to tell her congregation what a holy book requires or what to believe. Their principal task is to help the members of the congregation to develop their own religious, moral, and ethical beliefs. (I use "her" here because, in the U.S., this is the first large religious denomination in which most of the clergy are female.)
The term "Unitarian" has had two meanings: After the Nicene Creed of 325 CE, Christians were required to believe in the Trinity -- the existence of a single Godhead consisted of three persons: the Father, Son and Holy Spirit, The term "Unitarian" referred to Christians who believed, as many members of the very early Church did, that God is an indivisible unity. It was and still is considered a heresy by many Christians. Following the Reformation in the 16th Century CE, the first Unitarian congregations were formed in Transylvania in Eastern Europe.
The term "Universalism" referred to adifferent religious belief -- also considered a heresy throughout much of Christianity. It was that every human would eventually attain Heaven. 2 The Unitarian and Universalist movements in the U.S. were merged into the Unitarian Universalist Association (UUA) in 1961. During the same year, the Canadian Unitarian Council began as an affiliate of the UUA. It became a separate religious denomination in 2002. It currently consists of 46 member congregations across Canada from Prince Edward Island in the East to Vancouver Island in the West.
The CUC supports access to assisted suicide under
controlled conditions. They regard the current ban on assisted suicide as a violation of Section 7 of the Charter of rights and Freedoms -- Canada's constitution. The assisted suicide ban limits:
"... the rights to life, liberty and security of the person inconsistently with the principles of fundamental justice because they are arbitrary, overbroad and grossly disproportionate..."
"The law does not criminalize the withholding of medical treatment that may sustain a patient’s life, nor the withdrawal of medical treatment that is already sustaining a patient’s life. To the contrary, the common law and provincial legislation require physicians to respect such choices by competent and uncoerced patients, based on fundamental notions of human autonomy and bodily integrity. The trial judge [at the British Columbia Supreme Court] found on the evidence that it is feasible for physicians to reliably assess patient competence, including with respect to end-of-life decisions."
"The withdrawal of life-sustaining treatment engages the same interests and bears the same risks as does physician-assisted dying, and yet the law responds to these [two] acts in dramatically different ways.
In the former case the law requires a determination of whether a patient is competent or vulnerable, and respects the individual autonomy of competent, autonomous and informed patients while protecting vulnerable patients.
[In the latter case, the] ... law imposes a total ban on physician-assisted dying ... regardless of the capacity and autonomy of the patient.
The Impugned Provisions 3 do not seek to protect vulnerable patients from being coerced or induced into choosing an assisted death; they instead ban that choice for everyone, regardless of how demonstrably competent, informed and independent a patient may be."
"... the ... total prohibition of physician-assisted dying is overbroad, grossly disproportionate and, indeed, arbitrary." 4
"The availability of choice in the mode and timing of one’s own death is a central concern of the values of autonomy and dignity. For individuals who, by reason of physical disability, are unable to take steps to end their lives, those values call for protection -- not criminalization -- of the right to choose physician-assisted dying. The Alliance advocates for the recognition of this right for adult persons of sound mind, who are suffering by reason of grievous and irremediable disease or progressive disability, and who have subjectively determined that their suffering is no longer tolerable. ..."
"Chief among the Alliance’s guiding principles are the central tenets of the disability rights movement – equality, autonomy, freedom of choice, and the right to self-determination of people with disabilities -- and the statement that persons with disabilities are capable of making rational, voluntary, and independent decisions to hasten their own deaths. ..."
"At issue on appeal is whether the Impugned Provisions, 3 which collectively establish the criminal prohibition in Canada against physician-assisted dying, unjustifiably infringe section 7 and 15(1) of the [Canadian] Charter [of Rights and Freedom]. The Alliance maintains that they do in respect of those individuals of sound mind who, by reason of grievous and irremediable illness or progressive disability, are or will be unable to end of their own lives without assistance
by prohibiting the freedom to choose physician-assisted dying, under the proper safeguards, to control their intolerable suffering and to have autonomy and dignity in death. ..."
"The disabilities with which some of the Alliance’s members live may render them unable to end their own lives without assistance, meaning that the assistance of a physician will be necessary for a dignified death to be possible, while others’ disabilities do not create that need. Some, but not all, of the Alliance’s members may intend to seek the assistance of a physician in relation to the timing and manner of their deaths if the present constitutional challenge succeeds. Although their personal circumstances and wishes vary, all of the Alliance’s members support freedom of choice in end-of-life decisions, including the freedom to choose physician-assisted dying for qualifying adults of sound mind, as a step forward for the disability rights movement that is consistent with the principles of autonomy and self-determination."
The Society's factum quotes personal statements from two of their members:
"Susan Bracken deposes as follows in respect of her experience during treatment for lung cancer:
'I told my doctor how angry I was. He offered to give me Prozac. I did not want Prozac. I wanted the comfort and security that would be mine if I knew that if things got too tough for me, then I could safely take a dose of medicine, with my loved ones by my side, and fall asleep in peace, my hand tucked into another’s'."
"Elayne Shapray, who lives with MS, deposes:
'While my quality of life today has been severely compromised, I am not contemplating ending my life at this time. However, in addition, my life is further compromised on a daily basis by the terrifying fears that the current state of Canadian law will deprive me of the possibility of a physician-assisted death if and when I should become desirous of that service as a means to end my suffering'."
Their factum continues:
"For these persons, the prospect of choice in dying offers security in living, and respects the autonomy and self-determination of persons with disabilities. This holds true regardless of whether an individual ultimately requests and chooses the option of physician-assisted dying. Dignity resides in the power to choose the timing and mode of one’s death, not in the particular choice made." 5
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
The video archive for Carter v. Canada may be access at the British Columbia Court of Appeal for each of the five days of the appeal. See: 2013-MAR-18, MAR 19, MAR 20, MAR 21, MAR 22 The broadcast used the Flash Media Player and may not be viewable on all devices.
"Impugned Provisions," refers to section 241(b) of the Criminal Code of Canada. This section currently defines assisted suicide to be a criminal act on the part of the individual who is helping a patient die.