The Right to Die part 2 proceeded in as lively a manner as had part 1, though perhaps the audience was now more able to absorb large chunks of the somewhat obtuse legalize that is necessitated by the fact that the operative issues all arise from the Criminal Code and the Charter of Rights. Bill Sullivan referred firstly to the salient fact that the effective legislation is termed an Act to Amend the Criminal Code, but the reality is that the issue is by no means a new one, its genesis arising from the Sue Rodriguez case, now 20 years in the past. Central to the discussion is the individual's right to autonomy, for physician-assisted death is an everyday fact of Canadian life, and subsumes the right to refuse to be assisted. This is not the approach that all common law jurisdictions embrace : in the UK the Supreme Court declared in 2012 that the Courts are not the right place to decide such matters. Instead, the matter went to the House of Commons, where much of what Canada has judicially "approved" went down to a 330-118 defeat.
The failure of the Conservative government to institute appropriate legislation led to the then-new Liberal government applying for an extension of the time required for Parliament to act. The Court allowed an extension of 4 months, but tellingly allowed for persons with an "irremediably physical condition" to apply under the R. v. Carter strictures. Such an Order, of course, can, but is unlikely to be, overridden by legislation.
The legislation continues the proposition that there is no obligation to accept treatment, codifies the irremediable requirement, and adds the need for a natural death to be reasonably foreseeable. The consent issue is however somewhat difficult to encapsulate, largely because the consent must be contemporaneous with the immediate expectation of death, a proposition that envisages a later mental impairment negating the consent.
There is still a large measure of regional resistance to the whole issue of physician-assisted death: both Alberta and B.C. took the view that the pace of change was too rapid, and that in the Carter case, despite muscle spasm, constant pain and blindness, the ability to decide on the question of doctor-assisted death was not impaired. The court sided with the decision to terminate treatment, a decision that was appealed by the provinces. The Alberta Court of Appeal did not spend too much time deciding that the court of first instance was correct, and, in an unusual move, determined that the Province should pay the full costs of the Plaintiff (this is quite unusual, court costs being the norm, these usually being only a fraction of legal fees - the ‘full indemnity’ is on occasion a court’s way of imposing a ‘punishment’ on a party whose maintenance of an action is unreasonable).
These, and other, issues are not entirely resolved. Civil Rights advocates in many instances deprecate the whole idea of the right to decide, and indeed some deride the whole idea of the right not to be treated. Religious groups also believe that some paternalism is warranted in respect of an autonomous right to decide, and Mr. Sullivan drew particular attention to the Catholic Church which believes, in a nice turn of phrase, that the law should not ‘invade the province of the Lord in rushing into His presence uncalled’. There is only one doctor in B.C. who has nailed his colours to the mast and will readily obey the properly considered decision if the case is justified, but there are still many live questions to be answered (for example, why are minors allowed simply to suffer, they having no right, apparently, to minds of their own; what is the future of the 10-day waiting period; and how will the consent “immediately prior to death” resolve itself?).
There is probably ample material for Part 3 of the subject!
