It took Kathleen “Katy” Carter only minutes to die.
In January 2010, the 89-year-old B.C. woman, who was deteriorating rapidly from spinal stenosis, a paralyzing condition, had her wish for an assisted death realized, in secret, in a Zurich clinic, where she drank a lethal dose of barbiturates through a straw, her children’s arms wrapped around her and each other.
She fell unconscious within minutes. After 20 minutes, a nurse checked her pulse. “She’s left us now,” she told Carter’s children.
Now, five years later, Carter’s wish for assisted suicide in her own country has come full circle, as the Supreme Court of Canada begins to deliberate whether to uphold or strike down the law prohibiting doctor-assisted death.
“She would be thrilled, she would be ecstatic,” Carter’s daughter Lee told Postmedia News during the one-day hearing Wednesday in Ottawa, where the same family members who gathered in Zurich five years ago for her mother’s “covert” assisted death assembled again.
“She wanted Canadians to be discussing this. And here we are, at the highest court of Canada,” Lee said.
The nine justices of the Supreme Court heard impassioned pleas for overturning Canada’s absolute prohibition against assisted suicide, with proponents arguing laws that consider the act tantamount to murder are a violation of personal autonomy and infringe on section 7 of the Charter of Rights and Freedoms that provides for “life, liberty and security of the person.”
The issue has taken on new urgency in the two decades since the Supreme Court, in 1993, narrowly denied Sue Rodriguez the right to doctor-assisted death. Boomers are confronting their own mortality, as well as that of their aging parents, and social mores appear to be moving in one direction, observers say, with polls suggesting mounting support for assisted suicide.
On Wednesday, dozens lined up on the Supreme Court steps in the rain to get a public seat in the courtroom while an overflow crowd watched the proceedings on closed circuit monitors in the lobby.
The latest challenge to the law banning assisted suicide was launched on behalf of Kay Carter and another B.C. woman, Gloria Taylor, who has also since died. The B.C. Supreme Court struck down the law in 2012. The B.C. Court of Appeal overturned the decision last year.
The Harper government has argued Criminal Code provisions prohibiting doctors, or anyone else from assisting in suicide protect the sanctity of life and the most vulnerable. The B.C. Civil Liberties Association is arguing the best protection for all Canadians is regulation, not criminalization.
Joseph Arvay, a lawyer arguing on behalf of the B.C. Civil Liberties Association, said a blanket prohibition is creating back alleys for assisted suicide, where people are buying “turkey bags that they then fill with helium” or ordering drugs from Thailand or Mexico that, if they don’t work, leave them brain damaged and even worse off.
“This law kills some people,” he said.
Price Carter (left) and Lee Carter head up the stairs at the Supreme Court in Ottawa on Wednesday.
Arvay, who was left a paraplegic in an accident, said his clients are advocating for doctor-assisted dying only and not assisted suicide by anyone, “Because we know physicians will be reluctant gatekeepers and only agree to it as a last resort.”
Arvay said the law that makes it a crime for people to seek doctor-assisted suicide violates the equality rights under the Charter of Rights and Freedoms because it denies physically disabled people who are unable to end their lives without assistance what able-bodied people can freely do.
In Canada, suicide is not a crime, but assisted suicide is.
Arvay said that “the most vociferous” opposition to decriminalizing assisted suicide comes from some church groups and disabled organizations.
“To the church groups we simply say that we respect your religious views but they cannot, in this secular society, trump our client’s constitutional rights and no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so,” he told the court.
“I would be the very last person to ever suggest that one is “better off dead” than being disabled,” he added.
But he said it is patronizing and “arrogant” for some disabled groups to “impose their views of what suffering is acceptable and tolerable for others because suffering is very personal and subjective.”
But the government’s lead lawyer disagreed. “Rodriguez is still good law,” said Robert Frater.
The twin purposes of the law — the protection of the vulnerable and the preservation of life — “are as vital today as they were 21 years ago,” he told the court, adding there are no new case laws and “no new facts” that would justify a lifting of the ban.
Sue Rodriquez was denied by the Supreme Court the right to a doctor-assisted death in 1993. Peter Blashill, Postmedia News file
He acknowledged that palliative care and palliative sedation — putting patients to sleep with drugs and then waiting, literally, for death, often without hydration and nutrition — are not available to all Canadians.
But he said it would be “an indictment of the health system if you decided that because palliation was not available to everyone that you had to find a right to assisted suicide.”
“That’s a legal system gone awry, in my submission.”
But Frater was interrupted by the justices several times when he argued that a B.C. trial judge overstepped her role when she concluded that stringent limits in other foreign jurisdictions that permit assisted suicide can “substantially minimize” the risk to vulnerable people.
“What she was deciding was whether they were good, whether they worked,” Frater said.
Justice Marshall Rothstein shot back: “She was just looking at the evidence and that’s what the evidence caused her to conclude. What’s so legislative about that?”
David Baker of the Council of Canadians with Disabilities said the voices of those “who are subsequently assisted to die or euthanized are strikingly absent from the trial record.”
Most people with serious disabilities have considered suicide at one time or another, Baker said.
But he said parliament has repeatedly studied the issue, with bills “on a virtually ongoing basis” but has concluded, “protecting life and protecting the vulnerable remain overriding concerns justifying the law’s retention.”
But Justice Rosalie Abella asked what the harm is “in granting the possibility of relief to those who are disabled who want it, and to those who don’t want it but are also disabled?”
Another federal lawyer also conceded after questioning from the court that one of the effects of the total ban is that it can prolong suffering and may lead some people to kill themselves prematurely.
There is only one Supreme Court justice left from the days of the Rodriguez case — Beverley McLachlin, now chief justice. McLachlin was in dissent in the Rodriguez case.
Christopher Bredt, of the Canadian Civil Liberties Association said the preservation of life doesn’t trump personal autonomy.
Bredt said the right to decide how and when to die “necessarily includes the right to seek assistance,” pointing out the right to abortion in the Morgentaler case included the right to assistance in obtaining that abortion.
“Why should you force someone to go into a closet and hang themselves,” Bredt said. “Why can’t they do it with dignity? Why can’t they go see a doctor, if there is a doctor willing to do that, and say, listen, I’ve made the decision, I’ve thought it through, I’m competent and I want to end my life.’”
If legalized, the implications for the nation’s doctors would be profound. “However this goes, it’s very unlikely that there would be more than a handful of people who would actually carry out physician-assisted dying,” Dr. Chris Simpson, president of the Canadian Medical Association told reporters during a break in the proceedings.
But if law were to change, the CMA recently voted to support doctors who chose to follow their conscience and engage in physician assisted dying, Simpson said.
Arvay said palliation sedation is a euphemism for doctor-assisted death. “It’s time to end the hypocrisy between so-called active and passive euthanasia,” he said.
skirkey@postmedia.com
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