WATCH: The debate over dying with dignity has been reignited at the Supreme Court of Canada. Although a lot has changed since 1993, when it last considered the issue, the federal government is not convinced it should be legal. Shirlee Engel reports.
OTTAWA – If physician-assisted suicide is legalized in Canada, there won’t be a rush to doctor’s offices to die, the lawyer arguing for legalization said Wednesday.
“If our appeal succeeds, there will be no rush to the doctor’s office by people wanting to have a doctor assisting them with their death – or that assistance would be provided,” Joseph Arvay told the Supreme Court of Canada.
“No one wants to die if living is better.”
Arvay is acting on behalf of Lee Carter, whose 89 year-old-mother, Kay, was a terminally ill B.C. woman who suffered from a condition called spinal stenosis.
In June 2012, the B.C. Supreme Court overturned Canada’s laws prohibiting assisted suicide and gave the court one year to write new ones. The federal government appealed.
READ MORE: Supreme Court of Canada confronts right-to-die question
The issue was last visited in 1993, in the case of Sue Rodriguez, who suffered from Lou Gehrig’s disease.
Arvay told the court that doctors would act as “reluctant gatekeepers” in ensuring a stringent test has been met in order to let people end their lives with the help of a physician.
That includes people with degenerative diseases whose suffering had become intolerable.
“All doctors believe it is their professional and ethical duty to do no harm, which means in almost every case that they will want to help their patients live, not die,” he said.
“We know physicians will be reluctant gatekeepers and only agree to it as a last resort.”
READ MORE: Majority of Canadians support assisted dying, poll suggests
In response to questioning from Justice Marshall Rothstein, Arvay said it is his job to show that the law – sec. 241 of the Criminal Code – prohibiting assisted-suicide is unconstitutional.
But it would be up to Parliament to set the parameters.
“This is going to be Parliament’s job. All we have to do is demonstrate that this blanket prohibition is unconstitutional. That’s my job. We ask the court obviously to provide Parliament with some guidance as to what would pass Constitutional muster,” Arvay said.
“Did you just say our job is to strike down set down 241 (b) and just ship it over to Parliament?,” Rothstein replied.
“Yes. Yes,” said Arvay.
Arvay, who uses a wheelchair, also dismissed “vociferous” criticism from church and disabled groups.
“I would be the very last person to ever suggest that one is ‘better off dead’ than being disabled,” Arvay told the court.
“It is wrong, indeed it is arrogant, of those disabled people to impose their views of what suffering is acceptable and tolerable for others. Because suffering is a very personal, subjective and contextual concept.”
Arvay argued the law as it is actually has the opposite effect – forcing people to end their lives early because they fear the alternative.
READ MORE: Dying Canadians need Supreme Court’s help: lawyer
“This law causes some people to take their lives prematurely which means that for some people the effect of this law is completely inconsistent with one of the objectives of the law, which is to preserve life,” he said.
“The effect of this law is to kill people, not to protect them. I can’t imagine a better example of an arbitrary law.”
Harry Underwood, the lawyer representing the Canadian Medical Association, noted the CMA’s position recently changed from barring the practice to allowing physicians to follow their conscience if the practice were legalized.
“The law should offer protection to those physicians who choose to participate in physician-assisted death if legalized, and those who do not,” he said.
He also pointed out that not all doctors understand what palliative care can be provided.
WATCH: Peter MacKay says the federal government is proceeding cautiously on assisted-dying issue
Meanwhile, lawyer Robert Frater, acting on behalf of the Attorney General of Canada, argued with some difficulty that it is up to Parliament to decide on these issues.
Frequently interrupted by the justices, he said nothing has changed since the court decided in 1993 that assisted suicide should be illegal.
“It would be an indictment of the health system if you decided that because (palliative care) was not available, that you have a right to assisted suicide,” Frater said.
“That’s a legal system gone awry.”
Christopher Bredt, a lawyer representing the Canadian Civil Liberties Association, said personal autonomy should prevail.
“The preservation of life does not trump personal autonomy,” he told the court.
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