Academic journal article Issues in Law & Medicine

Lessons from Rodriguez V. British Columbia

Academic journal article Issues in Law & Medicine

Lessons from Rodriguez V. British Columbia

Article excerpt

At issue in Rodriguez v. British Columbia(1) was the constitutionality of a provision in Canada's Criminal Code (hereinafter "the ban" or "section 241(b)")(2) that prohibits assisting any suicide. The Supreme Court of Canada upheld the law in Rodriguez,(3) but the issue of whether physician-assisted suicide should be permissible has not gone away. For Americans Rodriguez should be of interest at two levels: it provides a primer on the constitutional arguments likely to be made in similar cases, and more generally Rodriguez provides insight into the social forces at play behind the controversy raging at the interface of law and medicine about what is and is not appropriate medical treatment in instances of severe disability and terminal illness.

My personal observation based on my experience as an attorney who worked on the Rodriguez case is that there are several quite distinct arguments for and against bans on suicide assistance that reflect profoundly different conceptual bases. The first goal of this article is to identify these different arguments and to use them to illuminate the differences between the judgments given. The second goal is to suggest, not which of these conceptual bases is "correct" for the purposes of constitutional adjudication, but which struck me as the most politically significant, and to develop some of the implications of this hypothesis.

The Facts of Rodriguez v. British Columbia

The case began in the fall of 1992. At that time Sue Rodriguez was forty-two years old, had amyotrophic lateral sclerosis (ALS),(4) and was given a prognosis that she would live between two and fourteen months.(5) ALS is a degenerative disease. Ms. Rodriguez wanted to keep living, but she anticipated a day when her condition would become so debilitating that her view might change.(6) By that time, however, she would be physically unable to commit suicide without assistance. if at that time she wanted to commit suicide but were denied assistance, she would have to allow the disease to run its course, which she feared would result in an uncertain, potentially lengthy, period of physical and psychological suffering.(7)

Ms. Rodriguez brought a constitutional challenge against Canada's assisted suicide ban, which absolutely prohibited anyone from assisting another to commit suicide under any circumstances.(8) She alleged that the ban violated sections 7, 12, and 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter"),(9) which provide:

7. Everyone has the right to life, liberty and security of the person and

the right not to be deprived thereof except in accordance with the

principles of fundamental justice.

12. Everyone has the right not to be subjected to any cruel and unusual

treatment or punishment.

15(1). 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 and, in particular, without discrimination based on race,

national or ethnic origin, colour, religion, sex, age or mental or physical

disability. The extent of the guarantee of these rights is determined by section 1 of the Charter, which provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."(10)

Ms. Rodriguez's application was dismissed by the trial judge.(11) The majority of the British Columbia Court of Appeals upheld the trial judge.(12) A bare majority of the Supreme Court of Canada affirmed, with four of the nine justices dissenting.(13)

Ms. Rodriguez committed suicide with the assistance of an unnamed physician in February 1994. A member of Parliament was at her side.(14) The government of Canada has promised a parliamentary debate on the subject of physician-assisted suicide (enactment of criminal law is within federal jurisdiction). …

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