By Leah Hansen
On Feb. 6 the Supreme Court of Canada ruled assisted suicide as no longer illegal. The decision came after the original case — including two citizens with irreversible medical conditions — challenged Canada’s provisions in court in 2011.
By the time Supreme Court heard the case, it was October 2014 and both original plaintiffs, Kathleen Carter and Gloria Taylor, had died. The final decision in Carter v. Canada was unanimous — the prohibition on assisted suicide violates section seven of the Canadian Charter of Rights and Freedoms.
The Supreme Court suspended its ruling for 12 months to give the federal government time to adjust legislation. Ottawa took action in July by appointing three people to a consultation panel. By mid-November, they plan to produce a report to the Ministers of Justice and Health — not giving recommendations, but instead laying out various legislative options.
The appointment of these particular panel members generated some controversy. Catherine Frazee, Dr. Harvey Max Chochinov and Benoît Pelletier were all appointed with different areas of expertise related to assisted dying. However, Frazee and Chochinov were formerly Crown witnesses in the government’s appeal of the original 2012 ruling, and have formerly expressed opinions against assisted dying. Various media outlets have decried their involvement comes with bias towards the issue.
Frazee, a Professor Emerita at Ryerson and former co-director of RBC Ryerson Institute for Disability Studies, Research and Education, spoke with The Eyeopener on assisted dying, her role on the panel and the allegations of bias.
Why is the right to die important for Canadians?
It’s apparent that the issue of assisted dying is one that goes to the very heart of our human condition. It involves questions of individual autonomy and choice at the same time as it highlights human vulnerability and suffering. Some people feel strongly that they should have the right to choose how and when to end their life and that in a compassionate and caring society, we must honour this right with sensitivity and support. Other people are deeply concerned that assisted death will be more readily available than palliative care, or other supports that relieve suffering.
What will the rights of physicians be once new legislation comes into effect?
Any physician will have the right, as matter of conscience, to refuse to participate directly in euthanasia or assisted suicide. How this right will be reconciled with a patient’s right to seek assisted dying is one issue that our panel is asking Canadians to advise on.
What ethical issues must be considered while forming legislation?
If there are ethical issues still at play, these are issues pertaining to how we put this new practice into effect. Research suggests, for example, that people who are strongly in favour of assisted dying are predominantly white, well-educated and economically well-situated. In a nation both legally and ethically committed to equality and inclusion, we will need to ensure that our new laws do not disadvantage socially vulnerable and minority populations.
There’s been media coverage around this perceived bias. You and Dr. Chochinov were crown witnesses in the original BC Court of Appeals case. Would you agree this is an impediment to the appearance of impartiality?
If both Dr. Chochinov and I had not had longstanding careers in which we have demonstrated our ability not to be improperly influenced by our personal views, then I think one might have questioned the nature of the appointment. But I’m confident we’re doing our job with integrity and transparency.
What was your position on this issue before your appointment?
It’s a matter of public record that I was working with the disability rights community in Canada, that I was representing both the Council of Canadians with Disabilities and the Canadian Association for Community Living, and that in that role, those organizations were opposed. They put themselves on the line to stand against an amendment to permit assisted dying. For myself, I think that is history. The supreme court of Canada spoke very decisively on this issue and it’s not for me to resist the fact that we are now in a situation in Canada where we’re going to have assisted dying. From February of next year, it’s going to be permissible.
I’ve noticed some questions are negatively phrased, even irrelevant. One question concerns mental health issues, and the question referred to a 17 year old with “full and complete understanding of her condition and wishes to die.” Why would a question like that have been included? Didn’t the Supreme Court specify in its decision that the new ruling applied only to adults of legal age?
One of our tasks is to consult on the issue of eligibility and so if we were to ask people only the obvious questions, we might get a very consistent kind of response. What we need to find out here is where are the edges? How far do Canadians want this practice to extend or how widely do they want assisted dying to be available? And where to Canadians draw the line? So in order to assess that, we have to test the margins a bit.
Some are saying though, the inclusion of this question is completely irrelevant simply because the Supreme Court’s ruling only applies to legal adults, and that your inclusion of this question is meant to “manufacture fear.”
That was not our intention. Our intention was to engage people in a thoughtful process of reflection and feedback and we are fully committed to respecting the spirit of the Supreme Court decision and to giving the federal government a fulsome account of what Canadians want.
You said people strongly in favour of assisted dying are predominantly white, well-educated and economically well-situated. I have noticed that there is a lack of diversity on the panel itself. Do you think that affects your ability to produce a report relevant to all Canadians?
If this panel had instead been tasked to think about the issue and give a recommendation, that would have been a real problem because we can’t, as three people, be anything more than a very small sliver of the Canadian demographic. But since that isn’t our task — our task is to consult and listen — it makes it very obvious that a priority has to be to listen beyond our immediate circles and to engage with people from a vast diversity of perspectives.
In a previous version of this story, The Eyeopener said Lee Carter had died before the Supreme Court heard the case. This was incorrect. It was her mother, Kathleen Carter, that died before the court heard the case. The Eyeopener regrets this error.