A life-and-death drama is playing out in the Supreme Court as the federal government, the provinces and other regulatory bodies struggle to create a constitutionally valid, medically responsible system of physician-assisted dying. Nobody else in the world is trying to build such a two-tier arrangement.
There are personalities, politics, posturing and role reversals. The clock is ticking. One province – Quebec – is already delivering medical aid in dying, and terminally ill and suffering patients in the rest of the country are wondering why their plight is being ignored. It amounts to some of the best theatre I've seen recently. You can see for yourself on the Supreme Court of Canada website.
The dramatis personae include Joseph "Joe" Arvay, the B.C. based lawyer who represented the plaintiffs in the challenge to the Criminal Code prohibitions against assisted suicide before the Supreme Court in October, 2014. In that appearance, he was reasoned, patient and persuasive, arguing that he was asking for the floor not the ceiling of what Parliament might legislate if the courts allowed physician-assisted dying. He and his team won the legal battle when the Supreme Court ruled unanimously, in February, 2015, that those laws were unconstitutional.
Almost a year later, Arvay found himself fighting a rear-guard action against the federal government's request for a six-month extension to get its legislative house in order. In his latest appearance before the Supremes, Arvay was passionate, impatient and sometimes even hectoring. And why not? He had done his homework. He instructed the judges in the law in a highly entertaining and informative star turn, and finished up by asking for costs because he and his team were working pro bono, while the governments involved in the litigation were supported by taxpayers.
The thorniest role was played by Robert Frater, representing the Attorney-General of Canada. At the 2014 hearing, he had to argue on behalf of the federal government that nothing much had changed since Sue Rodriguez's unsuccessful appeal 20 years earlier. This was a challenge, given that in the interim, several jurisdictions had passed laws allowing some form of medically assisted death and had kept careful records showing that the feared slippery slopes had not materialized and palliative care had also improved.
At the hearing earlier this month, Frater was still representing Canada, but the federal government itself had changed – from the Conservatives to the Liberals and from the leadership of Stephen Harper to that of Justin Trudeau. There was no hint of the previous government's objection to physician-assisted dying. Instead, Frater said it was such a complicated issue that the government needed more time to figure out how to do it in sync with the regulatory and legislative frameworks being developed by the provinces and territories. It was as though we first saw Frater wearing a black cowboy hat and suddenly he reappeared sporting a white one to symbolize that he was now on the side of the good guys.
Even more surprising, Frater, a compact man with a mild demeanour, argued Quebec should not be subject to the federal extension. Au contraire, he said, the province should continue offering its recently implemented medical aid in dying legislation, even though the federal government had mounted a legal challenge to suspend that very same end-of-life service less than a month earlier.
Unfortunately, the video cameras were trained on Frater and not the Supreme Court judges, so it was impossible for viewers to gauge their physical reactions, but there were plenty of questions from the bench to the suggestion that privileges should be granted to one province while being denied to others, if only on an interim basis. This was intellectual drama of a high order.
Late last week, the Supreme Court delivered a split ruling worthy of Solomon. All nine judges agreed that the government should have a four-month extension, two months short of its request but equal to the amount of time that Parliament was not sitting last year because of the federal election.
Five judges, including all three from Quebec, allowed the province to continue offering medical aid in dying, although they acknowledged the exemption "raises concerns of fairness and equality across the country." Consequently, they ruled that suffering patients with the misfortune to live outside Quebec can apply to a local court for a personal exemption. Then they will have to find a willing doctor to help them die – not my idea of a peaceful death process.
Chief Justice Beverley McLachlin, the only judge who was also on the court for the Rodriguez challenge, delivered the denouement in conjunction with the remaining three judges. They declined to exempt Quebec on jurisdictional grounds and rejected the idea of a similar loophole for individuals in the rest of the country for fear it would "create uncertainty, undermine the rule of law and usurp Parliament's role."
It was a minority (or losing) opinion, but it was strategically significant in terms of the court's relationship to Parliament. While government was arguing in favour of intervention by the courts, the Chief Justice and two of her colleagues were doing the opposite: affirming the supremacy of the federal Parliament over the courts in creating "complex regulatory regimes."
The same day, in a plot twist worthy of a serial documentary, sources in Quebec confirmed that a terminally ill patient had requested and received a doctor's help in dying. If this were a television series, the words "to be continued" would flash on the screen as the credits rolled.
Sandra Martin's book, A Good Death: Making the Most of Our Final Choices, will be published by HarperCollins in April.
Follow Sandra Martin on Twitter: @semartin71