02/13/2015 01:03 EST | Updated 04/15/2015 05:59 EDT

Why It's Important That Laws Can and Do Change

Last week, the Supreme Court of Canada struck down the law that prohibited physician-assisted dying. I have heard arguments on a number of sides of this issue, but few opinions are expressed as strongly as those I have heard from young people. What an opportunity the Court has given us to demonstrate that those opinions matter!

The education program that I direct for the Canadian Civil Liberties Education Trust (CCLET)engages thousands of students, teachers and teacher-candidates in workshops and seminars where people come together in order to disagree with one another about important issues. We do this because learning to disagree without being disagreeable is a habit that people living in democracies need to develop. After all, parliaments are designed with two or more distinct sides and courts have an odd number of judges. We know that reasonable people can disagree. We also need to construct our institutions to accommodate for those differences of opinion. We can't have a stalemate because decisions need to be reached. We also know that sometimes some of us cross the floor. And sometimes the floor itself changes.

In 1993, the Supreme Court of Canada told Sue Rodriguez, a woman dying from ALS, that she could not lawfully have a physician assist her in ending her life at the moment when she would prefer to die. While suicide had not been a criminal offence for decades, the Court said, "A blanket prohibition on assisted suicide similar to that in s. 241 (b) also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights."

In other words, the "norms" at that time did not include an option for what Ms. Rodriguez had requested. For those of us who remember the many discussions and debates around her case, we also have the memory of Ms. Rodriguez's eloquent but laboured speech explaining how she felt she should have the right to choose to die in a quiet and dignified manner, rather than struggling with her illness to the bitter end.

In the Carter decision, however, the Court reconsidered what now appears to be an overly broad law. While the Justices were content to leave in place a law that prohibits assisted suicide in general, they concluded that it was no longer reasonable to criminalize physician-assisted death where the person requesting such assistance is a competent adult suffering from a grievous and irremediable illness. Why did they reexamine the 1993 decision?

In the decision to consider the Carter appeal, the Supreme Court states, "The trial judge was entitled to revisit this Court's decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met."

Our classes often look at cases and circumstances where a decision must be made about what happens to people's bodies, and indeed, to their lives. Do students who do not yet have the right to vote care about such issues? My experience is that they care deeply and passionately. They are profoundly interested in fairness and justice -- and they are waiting for us to listen. Grappling with these difficult stories teaches them that in democracies, critical thinking is crucial. It affects our very existence.

We all need to learn that law is not written in stone. It can and it will change. But, it only changes when enough courageous and articulate people have a voice -- even when those people disagree with one another.

The litigants in the right to physician-assisted dying case are just such people. Is the world changing? Are we more open to the diverse voices around us? Many Canadians, including the young people in our schools, are openly expressing their views and their concerns. The students, like engaged citizens everywhere, are asking, "Who should decide what happens to me?"

Let's listen to their answers because theirs are the voices of the people who will draft our next laws.


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