Last month, the Supreme Court of Canada decriminalized physician-assisted death. The case, Carter v. Canada, contested that the criminalization of physician-assisted suicide, which had occurred in the 1993 Rodriguez v. Canada case, went against the Charter right to life, liberty, and security of the person.

We can, in part, thank one of University of Toronto’s very own for this step forward. Wayne Sumner, an emeritus professor of philosophy at the St. George campus, supplied evidential arguments for the case, so I sat down with him to discuss the details.

Sumner has been with the university since 1962 and specializes in ethics and the philosophy of law. He has always been interested and involved with the topic of physician-assisted death, which can be separated into two distinct subsets. The first is physician-assisted suicide, where the responsibility of death is on the patient. The second is euthanasia, where the responsibility of death is on the doctor. This distinction exists because of the existence of patients who are physically unable to end their lives.

Sumner spent over 20 years teaching undergraduate courses where the topic was heavily discussed. In 2011, he finally decided to put years of thought into writing, releasing a book titled Assisted Death: A Study in Ethics and Law—just as the Carter case was being filed in British Columbia. When he caught wind of it, he contacted the plaintiff, offering to help in any way he could. The lead lawyer on the case, Joseph Arvay, was able to construct a framework for Sumner through which he could give the benefit of his expert opinion to the court.

He was asked three ethical questions to argue and reach conclusions about, which were:

 

1.     Is there any ethical difference between suicide on the one hand and assisting suicide on the other?

2.     Is there any ethical distinction between assisting suicide and euthanasia?

3.     Is there any ethical distinction between both of those on the one hand and other treatment options at the end of life that also may result in hastening death, ones that are perfectly legal and everyone thinks are ethically acceptable?

 

Sumner concluded that there was no ethical distinction to be found in any of the questions. This, he pointed out, was crucial to the provincial and federal judges ruling in their favor, because “the law was drawing a distinction that was ethically unsupported, or was ethically arbitrary” by criminalizing physician-assisted death. He stated that the legality or illegality that society confers on acts “should be grounded in some importance difference between them,” and here it was ethics.

Such arguments paved the way for a unanimous ruling in the plaintiff’s favor at the Supreme Court. Sumner said it was “wonderful. Absolutely wonderful, [because it was] the most emphatic form [their] decision could have taken.” What Sumner means by this is that more often than not, each judge signs their name in favor or dissent on a Supreme Court case, but in the Carter case, the unanimity was so profound that “it wasn’t even signed by any one of the justices. It was just signed by THE COURT, as if the whole court was speaking with one voice.”

This strong response in favor of physician-assisted death comes at a great contrast to the divisive and ultimately failed 1993 Rodriguez v. Canada case. When asked about the crucial difference between the two, Sumner remarked, “the major consideration for the 1993 court was that they were worried it wasn’t safe to legalize these practices. There wasn’t a lot of evidence available to them about whether this fear was realistic. This time around the trial judge had a mountain of evidence available to her about how these policies had played out elsewhere.”

What Sumner is talking about is one of the most vocal counter-arguments about physician-assisted death: the abuse of the system, say, by family members. Since the 1993 case, “there [have] been a number of jurisdictions in the world that [have] legalized one form or the other of physician-assisted dying.” This includes the countries of Netherlands, Belgium, Luxembourg, and the states of Oregon, Washington and Vermont. Throughout this time, “there’ve been a lot of empirical studies of what has happened, and in particular, on the issue of whether these laws are being abused in any way. No evidence of abuse has materialized.” Therefore, Sumner sees little to no validity in counterarguments of the sort, because “those claims are always made without evidence [and] are groundless.”

Sumner doesn’t know what the future holds for physician-assisted death in Canada, at least in terms of legislation. Yes, physician-assisted death is no longer illegal, but that’s only half the journey. There’s still a long way to go concerning federal, and maybe even provincial, legislation being drafted to specify upon the procedure behind physician-assisted death. This has to be done with respects to the parameters the Supreme Court has established including being a competent adult who makes a clear request for assistance in dying. Beyond this, Sumner doesn’t really have time to speculate. With the ruling still so new, the media abounds, and Sumner is continuing to do his part in sharing his perspective and engaging others in discussion. 

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