Canadian Lawyer

OP I N ION in a way that offends the principles of fundamental justice. . . ." "Sue Rodriguez was a noble litigant," one of the judges who sat on the case told me. "I wish we could have helped her. difficult case. I can't help thinking that this was an issue that should have been decided by Parliament." McLachlin has said that Rodriguez was one of the most troubling cases she has heard. On Feb. 12, 1994, assisted by an unknown doctor, Sue Rodriguez committed suicide. Now the assisted " Another said, "This was my most returns, coming once more from British Columbia, again prompted by a woman dying from ALS who seeks a physi- cian-assisted death. Says Gloria Taylor: "I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends. . . . As Sue Rodriguez asked before me — whose life is it anyway?" Gloria Taylor' suicide issue same as Rodriguez'. Any lawyer might s case is essentially the be forgiven for thinking that Taylor, like Rodriguez before her, must fail in her suit. But Justice Lynn Smith of the B.C. Supreme Court, in an enormously long judgment handed down June 15, laboured mightily to distinguish the earlier case: "The majority in Rodriguez did not address whether the legislation engaged the right to life of the plaintiff. It did not address whether the deprivation of secu- rity of the person or liberty was contrary to the principles of fundamental justice regarding overbreadth and gross dispro- portionality. It did not address whether or, if so, how, s. 241(b) infringes s. 15 of the Charter. Finally, it addressed only very summarily the final step in the s. 1 General), Smith concluded that the provi- sions of s. 241(b) "have a more burden- some effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinc- tion based on physical disability. . . . The distinction is discriminatory . . . because analysis, balancing salutary and deleteri- ous effects of the legislation." In Carter v. Canada (Attorney Perhaps Canadian society, and the judiciary, are now ready for strictly controlled physician- assisted suicide. Judges soak up the zeitgeist like anybody else. it perpetuates disadvantage. The legisla- tion' is not demonstrably justified under s. 1 of the Charter. says in part, "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . . based on . . . physical disability. invalidity was suspended for one year to allow Parliament to draft and consider new legislation (something the govern- ment certainly wants to avoid). Taylor was given a constitutional exemption during the period of suspension so that The declaration of the legislation's ") s infringement of s. 15 equality rights " (Section 15(1) of the Charter she could seek a physician-assisted death That exemption has since been upheld evan as this case now wends its way through appeal. Carter will inevitably come to the Supreme Court. In mid-July, the federal government appealed Smith's decision. Will the top court uphold Rodriguez? Only one judge who sat in the earlier case remains, the chief justice. The chances are that McLachlin will still be chief justice when Carter arrives in Ottawa, and we know where her sympathies lie. But by the time the court hears Carter, Prime Minister Stephen Harper will have appointed at least seven of the nine judges, and it seems unlikely that a court packed with conservative justices will overrule Rodriguez. And yet, as Smith in Carter said, "The evidence as to legislative and social facts in this case . . . is different from that in Rodriguez. times have changed. (Smith's judgment is ponderous and has everything in it, including the kitchen sink; when will judges learn that brevity conveys an idea more powerfully than length?) Perhaps Canadian society, and the " I think she meant that judiciary, are now ready for strictly con- trolled physician-assisted suicide. Judges soak up the zeitgeist like anybody else. Philip Slayton's book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is available in paperback. Follow him on Twitter @philipslayton. Read Justice Lynn Smith's ruling in Carter v. Canada (Attorney General) at tinyurl.com/BCassistedsuicide. Untitled-3 1 www.CANAD I AN Lawyermag.com SEPTEMBE R 2012 19 12-08-07 9:24 AM

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