Predicting how the Supreme Court of Canada will decide based on a hearing is a risky game. In most cases, the justices have a firm grasp on the issues before they even step into the courtroom, having read all of the written submissions and lower court judgments well in advance. Interviews with judges suggest the hearing changes the outcome in only about five to 15 per cent of cases.
But at the risk of abandoning scholarly caution, yesterday did not go well for supporters of the assisted suicide ban.
The federal government presented, as predicted, a host of slippery-slope arguments in support of an absolute prohibition, providing examples of people who thought about committing suicide but decided not to and were later grateful they hadn’t, cases of abuse in countries that permit physician-assisted dying, examples of doctors putting “do not resuscitate” orders on patients’ charts without consent.
Federal counsel argued that opening the door to assisted suicide would push that door open wider than intended, at one point emphasizing the trial judge’s finding that existing safeguards in other jurisdictions have proven imperfect (ignoring the fact that the B.C. judge also found there was not sufficient evidence to conclude that vulnerable people were placed at greater risk as a result).
The justices did not seem to find these arguments particularly compelling. At one point, Justice Moldaver basically suggested that the findings at the trial level indicated the opposite of what the government was arguing. At another, during an argument about whether the law protected disabled people from harm, the chief justice interrupted to ask, “Is the argument here [that] disabled people need protection even against their own wishes?” The government’s counsel replied, “No, it isn’t.” The chief responded, “Then what is it?” If the federal government had been wondering whether its point was getting across, it wasn’t after that.
Later, the justices pushed the federal counsel on whether it accepted the trial court’s findings that the prohibition imposed harms, and that it even led some people to commit suicide prematurely. The counsel said yes, but explained that this was a complex issue and the prohibition is what Parliament had chosen to address it.
Interveners who arrived to speak in favour of the law did not fare any better. Counsel for the Council of Canadian with Disabilities argued the law protects disabled persons from abuses and harms at the hands of those who devalue/undervalue their lives. Justice Abella asked whether the Council, speaking for disabled people, could identify who gets to decide whose interests are paramount: those disabled persons who want access to physician-assisted suicide or those that worry others having access might somehow put them at risk? No clear answer was forthcoming.
The questions the justices posed to the appellants and interveners who hope the Court will strike down the ban were equally telling. There were important questions about whether the question of autonomy and suffering only applied to people who are terminally ill, or whether all people ought to have the right to access assisted dying. There were also important legal questions specifically related to which of the principles of fundamental justice were violated by the law under Section 7’s “right to life, liberty and security of the person.” Is the law overly broad? Is it grossly disproportionate in its impact? Can it be both?
These questions do not necessarily indicate a challenge to the arguments against the ban so much as the justices wondering about the best legal rationale for striking it down under the Charter. None of the questions posed to the counsel for the appellants, that I can recall, came close to damaging the central argument that the ban imposes undue suffering on adults who have the capacity and desire to obtain assistance to end their lives.
If yesterday’s hearing is any indication (and the scholar in me must again point out there’s always a chance it isn’t), the question is not whether this Court will rule that the absolute prohibition on assisted suicide is unconstitutional, but how.
Emmett Macfarlane (@EmmMacfarlane) is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is published by UBC Press.