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SCC case on assisted suicide 'timely and important'

Toronto health lawyer Mary Jane Dykeman says a Supreme Court case that's looking at whether this country's ban on assisted suicide protects or violates the fundamental rights of Canadians is a timely and important one.

 "It is high time that assisted suicide be reviewed by the top court and that legislators advance the issue for thoughtful consideration," she tells AdvocateDaily.com.

Dykeman, partner at Dykeman Dewhirst O'Brien LLP, says the legal case that's before the court comes at a time when there's a national emphasis on health-care consent, advance-care planning and an aging population that's turning its collective mind to end-of-life issues.

“This case is important in Canadian law and society and comes at a time when we have end-of-life legislation in Quebec, due in force in December 2015,” she says.

Dykeman notes it has been 21 years since the landmark 5-4 decision of the Supreme Court in the case of Sue Rodriguez and since then, there have been many societal changes in Canada and abroad.

“There are earnest and compelling arguments on both sides of the debate,” she says. “At this juncture, we also have the benefit of numerous international jurisdictions having moved forward to enshrine assisted suicide legislation and better evidence related both to assisted suicide and also what good palliative care can offer. And it’s not to say that we cannot improve and embed excellent palliative care in Canada, and strides have certainly been made in that direction.”

Those arguing for a change in the law say public opinion has shifted dramatically since Rodriguez became a household name by taking her fight for a medically assisted death to the Supreme Court, says the Canadian Press.

The nine-justice panel was split during her case in 1993 and this week’s submissions at the Supreme Court revealed that the issue remains divisive for medical practitioners, religious groups and advocates for the rights of the disabled, says the wire service. Two different groups representing Canadians with disabilities appeared before the court, arguing opposite sides of the case, says the article.

At the heart of the case is whether the ban on assisted suicide violates the Charter of Rights and Freedoms, in part because able-bodied Canadians can take their own lives, while someone physically incapable of doing so would need help – anyone who assists would face legal repercussions, says the Canadian Press.

“In the original B.C. lower court ruling that prompted the Supreme Court case, the judge explored a number of ways in which things have changed since Rodriguez – including the availability of care for patients nearing death,” says the article.

Dykeman says the case advances a division-of-powers argument in the form of criminal-law powers resting with the federal government, while health care is largely within provincial jurisdiction. Furthermore, she says, the case shines a lens once again on all of the fundamental rights in s. 7 of the Charter.

“In the Sue Rodriguez case 21 years ago, the court recognized that her autonomy was infringed, but that her right to autonomy was not absolute,” she says. “And in terms of s. 15 equality rights, we know that the prohibition on suicide was lifted four decades ago, yet assisting a suicide remains a criminal act in Canada, even where a person who is physically unable to affect their own suicide would require assistance to do what a fellow citizen can readily do. There is also much more public discourse about the need for a strong palliative care framework.”

Dykeman also pointed to Dr. Donald Low, the renowned Chief of Microbiology at Mount Sinai Hospital who was the public face of SARS. Just days before his death in September 2013 due to a brain tumour, he presented compelling arguments for assisted suicide.

“It was done in a more public way than in the case of Sue Rodriguez, who didn’t have access to social media 21 years ago, but their messages were similar, about choice and dignity,” she says.

"It’s time to revisit, as a society, whether this choice is one that should be enshrined in legislation; and if that is to occur, what protections must be in place to prevent abuse. The legal community and the public at large will be watching very carefully to see what happens with this case."

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