September 2, 2014 6:38 pm
Updated: September 2, 2014 7:32 pm

Government to argue ‘absolute prohibition’ on assisted suicide in Canada


WATCH: Dying with dignity is a hot-button issue across Canada, one that’s about to be reignited when a landmark case goes before the supreme court. But, the federal government is now asking for an absolute prohibition on the practice. Vassy Kapelos explains.

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OTTAWA – Federal government lawyers will argue for an “absolute prohibition” on assisted suicide in Canada, a position that could also impact provincial laws when a landmark case goes before the Supreme Court this fall.

In a factum filed with the court this summer, lawyers for the Attorney General of Canada say that assisted suicide must remain illegal to protect the most vulnerable in society.

“The preservation of life and the protection of vulnerable people – the poor, the elderly, people with disabilities – are societal interests of the highest order,” it says.

“An absolute prohibition sends the message that all lives are valued, and worthy of protection from those who may subtly encourage vulnerable people to terminate their lives.”

Lawyers cite the ongoing ethical debate even among physicians, and reference the “slippery slope” of where to draw the line for patients who ask for assisted suicide – last dealt with by the high court in the case of Sue Rodriguez in 1993.

READ MORE: ‘Growing demand’ for euthanasia and assisted suicide, health documents say

They also draw on examples from other countries such as Belgium, where euthanasia is approved when there is a “fear of future suffering.”

The Canadian Medical Association, which is acting as an intervener in the case, changed its position in August to allow physicians to follow their conscience on providing medical aid in dying – but only within the bounds of existing legislation.

“If the law were to change, the CMA would support its members who elect to follow their conscience,” reads the association’s factum.

It goes on to say the challenges physicians would face in making assessments about medical aid in dying “have been understated.”

Provincial jurisdiction?

The Supreme Court case is scheduled to be heard on Oct. 15. It comes from British Columbia, where two terminally-ill women challenged the government’s laws against assisted suicide and euthanasia in Canada.

Gloria Taylor, who was terminally ill with ALS or Lou Gehrig’s disease, and Kathleen Carter, who suffered from spinal stenosis, a degenerative condition which confined her to a wheelchair, have both since died.

Carter’s daughter, Lee, is one of the plaintiffs.

If upheld, the ban could impact provinces such as Quebec, which earlier this year passed a “medical aid in dying” bill for terminally-ill patients.

Lawyers for the department of justice argue that criminal law applies to provinces, even when addressing health care.

“Federal criminal law power has always reflected concerns for public health and safety, itself a broad and compelling constitutional interest,” the document says.

“The answer must be that there is no ‘core’ of provincial health jurisdiction that would include the power of physicians to euthanize patients or permit physicians to prescribe drugs for the purpose of allowing patients to kill themselves.’”

Dominique Talarico, a Montreal lawyer representing a doctor who is among four plaintiffs challenging Quebec’s law as unconstitutional, said his province’s legislation would be “dead in the water” if the court accepts the federal government’s arguments.

“The paramountcy or predominance of the Criminal Code would prevail over the rights that a province may have in legislating in health matters,” Talarico said.

A spokeswoman for Quebec’s justice minister said the province won’t comment until the Supreme Court makes its decision.

People should have a choice’

For Maureen Taylor, the widow of Donald Low, the matter is about choice.

“All I’m advocating for is that people should have a choice over how they die. Not that this should be hoisted on anyone who doesn’t want it,” Taylor said in an interview.

Low, an infectious disease specialist who guided Toronto through the 2003 SARS outbreak, died from a brain tumour in September 2013. In a video made eight days before he died, Low pleaded for legalizing doctor-assisted suicide.

WATCH: Making the case for assisted suicide

Taylor believes her husband’s final days could have been different if he had been allowed to choose how he died.

“I lived it. I lived watching my husband,” said Taylor.

“Instead of living his last weeks enjoying his moments with his grandchildren, and with his family, I saw him anxious, and nervous, and really agonizing over trying to find a way that he could have control over how he died.”

She describes her husband’s final days as “awful.”

Taylor, a physician’s assistant in the emergency room at Toronto’s Sunnybrook Hospital, believes assisted suicide will not lead to a “slippery slope” if regulated properly by the federal government.

“This has to be decriminalized. You cannot prosecute physicians who out of compassion help patients who ask for it to end their life,” said Taylor.

“But to address the concerns of those who worry about the vulnerable and a slippery slope…I think we need regulation, and that’s what I’d like to see.”

A spokeswoman for Justice Minister Peter MacKay said the minister was not available for an interview, and reiterated the government’s position regarding assisted suicide.

“Assisted suicide is an emotional and divisive issue for many Canadians. It is our government’s position that the Criminal Code provisions prohibiting assisted suicide and euthanasia are in place to protect all persons, including those who are most vulnerable in our society,” spokeswoman Clarissa Lamb said in an email.

Lamb referenced the previous time Parliament debated a Bloc Quebecois “die with dignity” bill in April 2010 – which was defeated by a majority of votes in the House of Commons.

“We will respect democratic will on this issue,” she said.

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