10/14/2014 12:23 EDT | Updated 12/14/2014 05:59 EST

Dying Canadians Need Supreme Court's Help, Lawyer Says

OTTAWA - Suffering people are reaching out to the Supreme Court of Canada for help ending their lives and politicians need to listen as well, says a lawyer set to argue the case on Wednesday.

While the prime minister says he doesn't want to re-open the debate, by agreeing to revisit the issue itself the Supreme Court could once again catapult the question of physician-assisted suicide back onto the national agenda.

At issue before the top court is whether laws prohibiting people from helping someone else commit suicide violate the Constitution.

It's the second time the court has considered the issue. In the 1993 Sue Rodriguez case, a 5-4 decision found that while existing laws did violate the charter, those violations were justified because they accorded with principles of fundamental justice.

Should the court decide this time that the laws are unconstitutional, it could give Parliament time to rewrite them or face having the existing laws simply expire with nothing to take their place.

It's the situation the government now finds itself in over Canada's prostitution laws, which were struck down by the top court last year as being in violation of the charter.

The new legislation on prostitution, Bill C-36, is currently before the Senate though numerous advocates have suggested it still won't pass the constitutionality test.

The B.C. Civil Liberties Association, which is leading the assisted dying case, acknowledge Tuesday the same thing could happen in this instance.

"It would be a travesty if the court asked politicians to come up with legislation and if they didn't take that mandate very seriously," said Grace Pastine, the association's litigation director.

"The fact of the matter is that Canadians are suffering against their wishes at the end of life and they are asking the court for change."

Two B.C. families brought the matter back before the Supreme Court. They filed a new challenge to the law in 2011 after their respective mothers both sought help to end their lives following diagnoses of degenerative conditions.

Both women are now dead. Gloria Taylor eventually died of an infection and Kay Carter travelled to Switzerland, where assisted suicide is allowed.

Her daughter Lee acknowledged Tuesday she could have just walked away from the legal battle but didn't want to.

"She asked me to do it and she was a great person," Lee said Tuesday. "I admired her, loved her, and there was no question in my mind that I wanted to do this for her."

The case is different this time around in part because the fundamental principles of justice referred to in 1993 have changed, the plaintiffs argue.

Several other countries now allow physician-assisted suicide and polls suggest that as the population ages, more Canadians are in favour of having the right to get help to die.

In the 20 years since the court's decision in Rodriguez, nine private members bills were brought before the House of Commons seeking to legalize some form of the practice. None passed.

That's why, the prime minister suggested Tuesday, the matter is moot.

"These difficult questions around right-to-die and assisted suicide — as you know they were discussed a couple of years back in the Parliament of Canada, the government of Canada at this time has no intention of reopening that debate," he told reporters at an event in Sept-Iles, Que.

"I understand it is before the courts, it has been before the courts before but obviously we will be watching with great interest whatever the Supreme Court may decide in its deliberations."

The legal arguments in the case differ from 1993 in terms of the scope of charter violations being alleged.

Among them is that existing laws which don't criminalize suicide but only assisted suicide treat those who might need help ending their lives unfairly as they don't have the same ability to make that decision for themselves.

"We take this case and this hearing very seriously because we know that we are the voice for fearful and suffering Canadians," Pastine said.

"Now is the time for Canada to decriminalize physician-assisted dying and give seriously ill patients the dignity and compassion that they deserve."

Lawyers for the federal government argue that without a total ban on assisted suicide, vulnerable people could fall prey to suggestions they end their own lives.

In addition to the plaintiffs and government, more than a dozen groups have sought intervener status in the case, including advocates for the disabled, religious organizations and medical associations.

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