Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Last posting, I gave some elementary definitions underpinning the controversy surrounding the right to die issue. I started and ended the posting with a reminder: that these issues might be political, philosophical, religious, and socio-economic, but they are also very personal issues as well. Sue Rodriguez is a reminder of this important factor in our discussions. She is also the moniker for the seminal right to die case heard in 1993 by the Supreme Court of Canada: Rodriguez v. British Columbia (Attorney General).

As most of us well know, the Supreme Court of Canada denied Sue the right to doctor-assisted suicide. Returning to the definitions given in my last posting, Sue’s case was not one of euthanasia, whereby a third party takes another’s life in order to ostensibly relieve the ill person’s suffering, but rather the right to legally take her own life, suicide, with the help of a physician. Recall that under section 241 of the Criminal Code of Canada, anyone who assists another person to commit suicide is guilty of an offence. Thus, Sue was seeking protection for the person, the doctor, who would be assisting her in ending her life at the time she appointed. She explained very poignantly why she so desperately wanted her case to be successful: She wanted her son, who was then nine years of age, to “respect the law and did not want her last act on earth to be illegal.” In her book, Uncommon Will, she explained further, "But if I can't obey the law in the end, I'll know at least I did all I could to change it. So will he [her son]." To Sue Rodriguez, her physicality was an integral part of her identity: "If I cannot move my own body I have no life."

As soon as Sue launched her legal battle, lines were drawn. Many right to life groups opposed her claim, likening her position to state approved euthanasia as practiced by the Nazi Germany regime. She also had her supporters, some who were with her until the very end and others who she could no longer trust. John Hofsess, an initial supporter, who was the organizer of the Right To Die Society, quickly became an insider and was heavily involved in Rodriguez’s bid until she learned he had, without her permission, penned a letter to the editor of the Vancouver Sun, under her signature, criticizing the ALS Society. In the end, it was Sue’s lawyer, Vancouver based human rights lawyer Chris Considine, and then NDP MP, Sven Robinson, who stayed the course. Indeed, Sven and an unnamed doctor were with Sue Rodriguez on February 12, 1994 when she passed away after she self-administered a fatal concoction through a straw.

Legally, the Rodriguez decision not permitting assisted suicides and finding section 241 constitutional, split the nine-member court with five justices upholding the section and four justices finding the section constitutionally flawed. The argument was primarily based on section 7 of the Charter of Rights and Freedoms, what is known as the right to life section, although the cruel and unusual punishment section pursuant to s. 12 of the Charter and equality section 15 were also invoked. In the end, the majority judgment, preferred the sanctity of life over the right to die and collective societal rights over an individual’s right to control his or her own life.

The four dissenting justices who sided with Rodriguez, which included then Chief Justice Antonio Lamer and present Chief Justice Beverley McLachlin, wrote in the minority judgment that "the right to die with dignity should be well protected as is any other aspect of the right to life." In their view the Criminal Code prevents people like Rodriguez from exercising autonomy over their bodies available to other people.

What does this case bode for the future? Presently, as I will discuss more thoroughly in a future posting, the British Columbia Supreme Court has recently once again considered the right to die issue through three very different plaintiffs: Lee Carter, Hollis Johnson, and Gloria Taylor. Lee Carter, together with her husband Hollis Johnson, raised the issue on behalf of Lee’s mother, who was forced to end her life overseas instead in her home in Vancouver due to the ban on assisted suicide. Gloria Taylor, like Sue Rodriguez, suffers from ALS and wishes, like Sue, to end her life legally. On June 15, 2012, Madam Justice Lynn Smith found for the plaintiffs and struck down section 241, giving the Federal government a year to amend the Criminal Code accordingly. In the meantime, Justice Smith allowed Gloria Taylor, through a constitutional exemption, the conditional right to commit suicide with a physician’s assistance. A constitutional exemption is a rare power under s. 24(1) of the Charter, used by the court to exempt individuals from the effects of legislation on the basis that the legislation, for this particular individual, is constitutionally oppressive.

Considering the justices who compose the majority are no longer sitting on the Court and Chief Justice McLachlan, a member of the minority in favour of striking down the legislation, is still sitting with a much different court composition, I might add, the arguments raised and accepted in the Carter case may survive Supreme Court of Canada scrutiny. There have also been many more cases of assisted suicide since the Rodriguez case; cases in which the courts have been extremely reluctant to find guilt under s. 241.

In the next posting on this issue, I will discuss some of those cases and the impact they might have on a future Supreme Court of Canada decision. Whether or not there will be such a future SCC decision is dependent on the federal government, particularly Rob Nicholson, the Minister of Justice, who must decide whether or not to appeal the Carter case to the BC Court of Appeal. Such decision must be made within thirty days of the decision, making the deadline the end of next week. In anticipation of this decision, there are a number of websites with petitions asking the Minister to appeal such as the Council of Canadians with Disabilities. Yet, some opinion polls suggest Canadians are in favour of some form of doctor-assisted suicide. The issue therefore remains unresolved.