Victoria Times-Colonist by Maneesha Deckha 1 March 2015

Dignity in death is not just about the right to choose. It’s also about equal treatment.

But the Supreme Court of Canada’s ruling last month permitting physician-assisted death for those competent adults suffering from “grievous and irremediable” medical conditions addressed only the right to choose, not the equality argument.

In focusing on the right to choose, the court’s ruling matches long-standing public debate on the topic.

Both proponents and opponents argue that the right to choose favours their side.

Supporters of the decision will point to the right of patients who are suffering intolerably to die a dignified death if they want to. Opponents respond that a society that permits assisted death even for a select group will impair the choices of vulnerable individuals. Opponents argue that physicians and/or relatives might not see the value in the lives of persons living with disabilities who will then feel internal pressure to end their lives.

Less visible, but also at stake, is the Charter right to equality. The equality claim boils down to this: The Criminal Code permits persons who are able to end their lives on their own to do so since suicide is no longer a crime. But persons who need help because of a physical disability to end their own lives can’t because assisted suicide is a crime.

The law thus has a disproportionate effect on individuals with physical disabilities. While the complete ban might purport to promote equal respect for people with disabilities by trying to protect them from coercion, this disproportionate burden actually violates their equality.

In its ruling, the Supreme Court said it was unnecessary to consider the equality argument. That’s because it was able to decide the issue on the right to choose. This is not an unusual move. Indeed, courts will frequently decline to comment on multiple arguments before them if one is determinative.

But the trial judge did take up the equality argument when this case first came to trial. In doing so, Justice Lynn Smith provided an innovative analysis. She wrote a meticulous decision that canvassed many sides of the debate, including a range of views within the disability community about the equality implications of lifting the ban.

Ultimately, she agreed that the full criminalization of assisted suicide violated the equality rights of people with physical disabilities.

By declining to follow her lead and consider the equality angle, the Supreme Court leaves unanswered the strongly held critique by some disability-rights advocates that permitting physician-assisted death devalues the lives of people with disabilities.

This critique points out that our society already systemically discriminates against individuals with disabilities and that the Supreme Court’s ruling will add to the stigma about disabled lives that fuels this prejudice.

Advocates of this view claim that doctors are not immune from this social prejudice. They worry that physicians who will now evaluate consensual requests for termination of life will have internalized biased views about the quality of a disabled life.

While it is unlikely that a Supreme Court ruling on the equality issue would have changed entrenched views on either side, having our highest court weigh in on the equality implications of physician-assisted death is preferable to its silence. A ruling on the equality dimension would have brought the issue of systemic discrimination against those with disabilities to the foreground of the analysis. Currently, it resides in the decision’s margins.

More important, perhaps, the Supreme Court’s answer to the equality argument could have prompted wider reflection on what the right to equality — so cherished by Canadians — means in matters of life and death, apart from the right to choose. Both rights are important and can help shape informed debate about the new legal landscape we’re now in.

As government gears up to draft legislation to comply with the Supreme Court’s ruling, the equality dimension should receive equal attention.

Maneesha Deckha is an associate professor in the Faculty of Law at the University of Victoria.