 It's my great honor to introduce Joseph J. R. Bay, QC. Joe has law degrees from University of Western Ontario, but we're not going to hold that against him, and from Harvard. He specializes in civil litigation and also constitutional and administrative law, including many Aboriginal rights cases. He lives in BC, and that's where he likes to spend his time. He's drawn away to the Supreme Court of Canada in Ottawa probably too much of the time. A review of his file is humbling indeed. He told me not to embarrass him, so I have to be careful here with what I say, but I cannot not talk about some of this. The list of landmark constitutional law cases that he has argued as the Supreme Court of Canada into Egan and Nesbitt, which was the first Supreme Court of Canada judgment establishing that sexual orientation is a protected ground of discrimination under the Canadian Charter of Rights and Freedoms. The little sisters case, which dealt with the powers of Canada customs to censor sexual expression. The Surrey School Board case establishing the right of teachers at the elementary school level to use books about same-sex families. The same-sex marriage litigation. The health services case, which established that collective bargaining is constitutionally protected under the Charter of Rights and Freedoms of Association. Insight, which established the right of addicts to supervised injection in BC, and most recently the downtown Eastside sex workers case on the issue of public interest standing. Some of the awards that Joe has received include the Walter Tarnas-Polsky Human Rights Award, an award from the BC Civil Liberties Association, BC Lawyers Association inaugural Liberty Award in 2012, and also 2012 Canadian Lawyer Magazine rated him in the top 25 most influential lawyers in Canada. There was an article in the Walrus Magazine recently which stated, quote, Vancouver lawyer Joseph Harvey is the best interpreter of the Charter of Rights and Freedoms. No one perhaps has had more influence on contemporary Canadian life and values. And the article was aptly entitled Civil Warrior. So I listed many, many cases, and the one that he is presently involved in is lead counsel on the Charter Gloria Taylor case, in which the British Columbia Supreme Court last year recognized the constitutional right to assistance from a physician in dying. This seminar was originally scheduled, as you may know, for I think almost two weeks ago now, but the British Columbia Court of Appeal in this Charter and Gloria Taylor case had rescheduled the hearing of the appeal of that case, and so Joe was unable to come, but he was kind enough to reschedule his presentation for us to date. So we're very, very grateful, and I personally am pretty excited to hear this presentation. And he's fresh out of the British Columbia Court of Appeal, and the hearing was the end of last Friday, and he's here with us to answer, I think, and hope the question, is there a constitutional right to the dying? So please join me in welcoming Joe. I'm very pleased to be here today, from sea to shining sea. Last night when I arrived, it wasn't very shining, it was like Vancouver, but it's got sunny and pleasant here today. So as Elaine said, I've come to talk to you today about whether there is a constitutional right to die. As most of you will know, the Supreme Court of Canada almost 20 years ago in the Sue Rodriguez case said there was not, but as Elaine mentioned, and I'm sure most of you know, the British Columbia Supreme Court just this past July came to the opposite conclusion. That decision was, of course, appealed, and as Elaine said, I just finished a five-day appeal on the Court of Appeal last week. Whatever happens in the Court of Appeal, everybody assumes that the Supreme Court of Canada will grant leave, and that, and they will then hopefully resolve the issue not only one way or the other, but one way. It's almost impossible for me to describe the BC Supreme Court's decision in the time that I would have, because it's over 400, or it's 400 pages long. But essentially what the BC Supreme Court held was that the law, which imposes a blanket prohibition on any kind of assisted suicide, including euthanasia, is, was contrary to section seven of the Charter and those legally, lawyers amongst you or legally trained amongst you will know that that's the right in the Charter that guarantees people the rights to life, liberty, and security of the person. The Court also held that it unjustifiably infringe the equality rights section of the Charter. The Court struck down the law and gave Parliament essentially a year to recraft a law that was in accordance with the Charter. Now, the Court didn't specify the details, excuse me, of what that legislation would look like, but it did say that if Parliament was to replace the blanket prohibition with a law that regulated physician assisted suicide, then it must be available in these circumstances. I'm just gonna read to you the criteria. It must be available to a fully informed, non ambivalent, competent adult who is free from coercion and undue influence, who is not clinically depressed, who personally, that is not through a substituted decision maker, requests the physician assisted death, has been diagnosed by a medical practitioner as having a serious illness, disease, or disability, is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to that person, has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person. I won't go back through those terms and I don't expect anybody to memorize them, but each of those terms begs a number of questions and I simply don't have the time to address any of them, but each of them in themselves, I think, underlie the complexity of the issue. And that pretty much summarizes at least the order in the case, not so much the reasons. The case actually has something for everyone, for those in the legal community, many fascinating and cutting legal edge arguments, but of course it's of great interest to those in the medical community, to philosophers, to ethicists, for political scientists, and indeed just for everybody in the general public, most of whom have strong feelings on this issue one way or the other. I'm not here to talk about law much. I appreciate I'm in a law school and so I'll lecture. One reason is also a public lecture, but the main reason that I don't talk about law much today is that I actually don't think the outcome of the case will turn much on law. I think the outcome of the case is going to turn on the facts and the policy issues that lurk beneath the surface of the legal case. And so it's to those issues that I'm going to address my remarks. Those who oppose any legalization of physician assisted suicide or physicians assisted dying, rely on a number of arguments, but in the end they really kind of come down to saying that life is sacred or life is inviolable or at least saying life is really, really important. And since parliament's objective is to save lives, how could such a law possibly be unconstitutional? Not a bad argument if you say it fast, but we say not so fast. In the first place we need to know what the word life even means in the constitution. Is it mere breathing, beating of one's heart and beating signals from the brain, or does it mean something more? This is how Gloria Taylor, the woman who started the case but subsequently died, described her life and what it means to her. It's one small passage from her evidence. She says, what I want is to be able to die in a manner that is consistent with the way that I lived my life. I want to be able to exercise control and die with dignity and with my sense of self and personal integrity and tact. I want to be able to experience my death as part of my life and part of my expression of that life. I do not want the manner of my death to undermine the values that I live my life in accordance with. I do not need government to dictate for me how I should spend the last moments of my life or how I should die. In the second place I think it's important to ask just how inviolable or sacred is life if we allow some people to justifiably kill. We allow people to justifiably kill in self defense. We allow people to justifiably kill in war and what makes some killing justifiable and others not and who is now to decide those questions. In the third place we need to ask whether the law that purports to save lives, in fact is actually the cause of some person's death. And by that I don't mean that there are deaths because the law is ignored and we can't strike down laws simply because they are ignored or the whole criminal code will be struck down. In this case the court heard the evidence of many persons who said that the present law might cause them to take their own lives sooner than they otherwise would want to because if they waited until life was truly unbearable they would be physically incapable of committing suicide on their own and to wait that long and to ask for assistance and replace their loved ones at risk criminal prosecution which they wanted to avoid at all costs. Therefore some of these people testified that faced with the horrible and these poxons choice of on the one hand a premature death and on the other hand an agonizing life they would choose a premature death. One of our witnesses was a wonderful man by the name of Nagy Marcos. He was suffering from Huntington's disease and a few months after the trial but before the judgment was rendered he ended his life by suicide and he did so well before he was ready to die. This is what he said in a note to his family and friends. In deciding on the timing for hastening my death and to stay within the current laws I had to do this myself and couldn't get any help. He said it was a precarious balance between doing it too early and missing out on my rich life and doing it too late when I was no longer capable. So hence we have a situation where the law rather than saving lives was in fact killing people. Not a very good law if you look at it that way. Yet the government persisted in arguing that there's a difference between the inadvertent effects of a law and replacing it with one where the purpose is to allow doctors to intentionally kill people. The government argued that even if there might be some persons such as Sue Rodriguez or Gloria Taylor who express a confident and voluntary and determined wish to die there were others who were not so confident and might in times of weakness to come to subtle or not so subtle pressures to seek and obtain assistance in death. This in turn required us to confront the dreaded slippery slope arguments. The practical slippery slope, there are others is premised on there being a law that properly allows for physician assisted death but only for a very limited group of people. Let's call them the non-vulnerable people. But because of the fallibility or perhaps even the malevolence of people who will be interpreting and applying the law some vulnerable people will improperly be qualified and thus there will be some wrongful deaths. It was the practical slippery slope that was likely the main reason why Sue Rodriguez lost her case. Because the Supreme Court of Canada said there was no halfway measure. Halfway between an absolute prohibition and complete and complete criminalization. There's a halfway measure that could be relied upon with assurance to protect the vulnerable from seeking death in times of weakness. Of course the singularly important area of evidence that we were able to call in the Carter case or the Gloria Taylor case that was not available to the court in Rodriguez was the evidence from those jurisdictions where physician assisted dying had been legalized in one way or the other. There was a remarkable and impressive amount of evidence from the social scientists and physicians who had intensely studied the operation of these regimes and in particular the extent to which physician assisted dying with the impractice, the demographics of the patients who would avail themselves of it and the nature and extent of the compliance or non-compliance with the requirements of the law. As to the risk of wrongful death meaning death to persons who may not be competent, death to persons whose requests for death may not be truly voluntary as they may have been subject to some kind of coercion, death whose wish was not based on full information and the risk that the elderly and the disabled are more at risk than other segments of the population. The trial judge said after listening to all of the evidence which is massive, that for sure there are risks but she says they can be an, I'm quoting, identified and very substantially minimized through a carefully designed system imposing stringent limits that are scrupulously monitored and enforced, and a quote. And another part of her judgment she said, quote, a system with properly designed and administered safeguards that could with a very high degree of certainty prevent vulnerable persons from being induced to commit suicide. But these are findings of fact by a trial court that a court of appeal or even Supreme Court of Canada are likely to be very, very reluctant to substitute their judgment for. So and indeed the crown in the last week really didn't try to challenge the findings of fact because they were so well supported by the evidence. But instead the crown said that the trial judge's tolerance for the risk of wrongful death, her tolerance for the risk of wrongful death was inappropriately high. It was not good enough said the crown that the risk of wrongful death could be very substantially minimized or avoided to a very high degree of certainty. We coined this as the crown's zero tolerance test. Since in the trial court the government argued that the only way the court could as a matter of constitutional law strike down the existing laws is if the court was satisfied on the evidence that with any new law which had legalized the decision to suicide dying, there would not be one person ever who would be wrongfully assisted with her death. In the court of appeal the government said it wasn't arguing zero tolerance but was arguing something called the reasonable apprehension of harm test. But it was obvious to me that they were arguing that the risk of wrongful death had to be somewhere between absolute zero and a very high degree of certainty of zero. I come from an Italian background and my uncle although would often say to me nephew, we think you are slicing the salami a bit too thin. We got into an interesting debate about the apparent contradiction between our very Canadian abhorrence to capital punishment and our supportive physician assisted dying. The crown's mantra, a recent one by the way that just as it was wrong for even one innocent person to be executed by the state that it was wrong for even one person to be wrongly assisted in their death by a doctor. The analogy in our view was completely in out. No one on death row wants to die. Being executed is being killed against one's wishes. What we are asking the court to allow was the totally voluntary and persistent wish for assistance in death by a fully competent and adult person. Now I appreciate the question of competence and voluntariness of a requester might be an issue but context means everything. And the trial judge while actually being initially attracted to this argument ultimately rejected it because there is simply more risk of a wrongful death in the face of persons who both dispute their guilt and express a wish to live than there is in the context of a grievously ill person who may be already close to death and who is seeking medical assistance and dying. It's also not without significance that in the case of capital punishment is the state doing the killing and doing it against one's will. The zero tolerance approach has never governed the medical profession nor for that matter the legislators or colleges and physicians or surgeons that govern their behavior. Nor could it as it would paralyze the very practice of medicine. As some proof of that, we pointed out that legislators and regulators across the land expressly condone that which goes on every day in every critical care unit in every hospital in the country. And I'm referring to the legal decisions of doctors to withdraw or withhold life-sustaining care or treatment or apply palliative or what's called terminal sedation with the certainty and knowledge that this is going to kill the patient. And it needs to be emphasized that there exists the very same risk of wrongful deaths in that context as there would be in a regime if physician assisted dying was legalized. In other words, requests from incompetent patients, requests that were not truly voluntary, requests based on inadequate information. Indeed, we say that the risk of wrongful death today and the ICUs across the land are even greater than would be the case if you had a strictly legalized system of physician assisted dying because the present regime with respect to these other end-of-life measures are completely unregulated. And indeed, in those situations, family members are allowed to make a decision on behalf of incompetent patients. That wasn't something we were advocating with respect to physician assisted dying. But the Supreme Court of Canada as well as the House of Lords has maintained that the distinction between what it calls passive euthanasia with drawing withholding measures and active euthanasia, which is the administration of a legal medification, had not only legal but moral or ethical significance. Indeed, the court said to cross that line was to cross the Rubicon itself. Well, we wanted the court to make that cross. And this gave us the opening to do what I don't think was ever done in the Canadian court room. And that was to call the opinion of philosophers and ethicists. Foremost among those experts was the University of Toronto Professor Emeritus Professor Wayne Sumner. Professor Sumner persuaded the trial judge that there was simply no ethical distinction between the various and common end-of-life measures that come within term, passive euthanasia, and on the other hand, active euthanasia. Indeed, he persuaded the trial judge that there was no ethical distinction between suicide on the one hand and assisted suicide on the other hand. Now we appreciate that what is or is not ethical cannot determine what is or is not legal or constitutional. But to the extent that the Rodriguez decision rested on there being an ethical distinction between these types of end-of-life measures and what we were advocating, we demolished those distinctions. We also used this evidence to try to persuade the court to recognize a new principle of fundamental justice. Those of you in the room who are law students or lawyers will appreciate that some of the principles of fundamental justice include that the laws not be arbitrary, not be overbroad, not be grossly disproportionate. We argued that there should be a new principle of fundamental justice and that there should not be gross disparity between conduct that criminalizes and other conduct that is completely lawful. We said that there was a gross disparity between what we call passive euthanasia and active euthanasia, murder from one tea and coffee for the other. Finally, we posed a question, what would the court do if parliament decided to make all kinds of end-of-life measures a crime of no exceptions? It was pretty obvious to us that not only would that provoke the hue and cry of the Canadian Medical Association, who by the way was against us in this case, but it would be struck down by the court. And if that's the case, if parliament had passed a law imposing a blanket prohibition on withdrawing of the folding and terminal sedation and that law was struck down, then the only difference between that law and the present law isn't the possibility of wrongful deaths because the possibility of wrongful death exists in both. The only difference between those two laws is that one enjoys the support of the Canadian Medical Association and the other doesn't. One enjoys, one reflects the values, if you will, or the ethics or the morals of some segments of society and the other doesn't. One is consistent with the ethics of some members of the medical profession and one doesn't. Which means the difference between those two laws really comes down to morals, values. Now, I'm not suggesting that the criminal law can't be based on morals or values because many of the criminal laws are. But it's clear from the jurisprudence of the Supreme Court of Canada that a law that is based on morals can only withstand a challenge under the Charter if the morals reflect the consensus of everybody or near everybody in Canadian society. But in this case, the trial judge, after hearing all the evidence, evidence from ethicists and philosophers and medical people, et cetera, et cetera, came to the conclusion that there is no consensus in Canadian society on physician's assisted dying. And if there's no consensus in a matter of morals, then you can't rely on morals to support that law. And I think that's what the Supreme Court of Canada did in Rodriguez. Now, saying that because wrongful deaths may be occurring already in critical care units may not be a particularly compelling argument because we all know that two wrongs don't make her right. But the fact is, and the trial judge found, they give the medical professions extensive familiarity with the doctrine of informed consent, very few mistakes occur. And so there's no reason to think that if the physician's assisted dying was regulated that there would be any more wrongful deaths in that context. Indeed, as I mentioned, once it's regulated and legislated, there should be much less. Now, there was some evidence of not just mistakes, but actually of a deliberate flooding of the law in the Netherlands or Belgium, both in terms of euthanizing people who didn't explicitly request it and in respect to poor reporting. And I don't have time to take you through this, although I know it tends to be the favorite argument of those who oppose physician's assisted dying. But let me just tell you this, that the evidence there was that there appeared to be considerably less abuse after the euthanasia was legalized in those countries than before. And that there was greater incidence of abuse in those countries that didn't have legalized physician's assisted dying than in the countries that did. And finally, the trial judge, I think, properly said that one shouldn't assume that if physician's assisted dying was legalized in Canada that anything similar would occur in Canada. And she went through the whole culture of doctors of being along Canada, which was not necessarily the case in the Netherlands or Belgium. Now, more fundamental point remains, and that is zero tolerance to the risk of harm, is simply incompatible with the charter exercise. We simply cannot deny to those who's suffering is both horrific and certain their charter rights to die with dignity because of the very speculative risk that someone somewhere, we don't know who might be wrongfully assisted in their death. All that the law can ever do is devise as many safeguards to eliminate the risk as is humanly possible. And that's the essence of any charter case because in the end, the essence of any charter case is to balance the deleterious harms, the deleterious effects, if you will, of the law on people's charter rights and freedoms against the objective and salutary effects of the law. Now, this law had many deleterious effects. The approach that we took in this case was not just about one person, even though Gloria Taylor was obviously carrying the torch left behind by Superdragons. We presented the court with the evidence of many people from across Canada and indeed the world to demonstrate the hardship and suffering that the law was causing and perpetuating. The court heard sad and brave stories from men and women suffering from AOS, Huntington's disease, Parkinson's, MS, various forms of cancer and strokes, one of which left people in an aptly named locked-in syndrome, where the only thing the person could do was blink. I'm going to read you an excerpt of an aptly from one of our witnesses, the man by the name of Tony Nickinson, who had such a condition. And he provided this affidavit by blinking one letter at a time. These are his words. I am a 56-year-old man who suffered a catastrophic stroke in June of 2005, while it's on a business trip to Athens, Greece. It left me paralyzed below the neck and unable to speak. I need help in almost every aspect of my life. I cannot scratch if I itch. I cannot pick my nose if it is blocked. And I can only eat if I'm fed like a baby. Only I won't grow out of it unlike the baby. I have no privacy or dignity left. I am washed, dressed, and put to bed by carers who are after all strangers. You try defecating to order while suspended in a sling over a mode and see how you get on. I'm fed up with my life and don't want to spend the next 20 years or so like this. Tony was one of the reasons we did not try to limit our case to those who had a terminal illness as was the case in some jurisdictions because we thought being trapped in one's body for 20 years was a far worse fate than having a terminal illness. Tony, by the way, started his own case in England trying to challenge the common law rule of necessity. He lost that case in August of this year. A week later, he starved himself to death. I recall the moment in court when the lawyer for the provincial government argued that the disabled, like Tony, are not discriminated against because they, like able-bodied people, can commit suicide. The only difference being that Tony's of the world are limited to starving themselves to death. This prompted the judge to ask whether that might not be a bit cruel. If any of you have watched the movie Hunger, about the hunger strike engaged by the IRA in Ireland, you'll appreciate just how terribly gruesome dying by starvation is. The lawyer then said that while the doctors could help by administering a medification that would somehow relieve the agony of the starvation, the only purpose which was to intentionally die, the lawyer seemed completely oblivious to the implications of his answer. How was that not physician assisted dying? Now, the trial judge set out in some detail the account of one of our witnesses who had anal cancer who talked about, quote, oozing putrescences and mucus and blood in fecal matter of every orifice. The crown characterized this and much of our other evidence as our blood and excrement evidence designed to sway the court by field sympathy rather than reason. To some extent, we played guilty to that charge. We believe that the court needed to hear real stories of real people, that what the crown wanted to do was to sanitize the case and have it be an abstract debate by experts and statisticians and the like. The stories the court heard were indeed at times gruesome because for some people dying is gruesome. But what the court also heard were stories of amazingly strong and independent people who had lived vibrant and wonderful lives because what became obvious is that the people who are most likely to want to avail themselves of some assistance in dying are not people who are weak and vulnerable and fragile or persons who Margaret Somerville claims or who fear about being abandoned, but rather strong people and people who are much loved and supported by their families. Two of those people obviously are Gloria Taylor, Sue Rodriguez, three nagging Marcos, but there are many, many other witnesses and their family members who testified at trial. I'm gonna take the time to read you an excerpt from the wife of one such person who had ALS and wanted physicians to serve dying. These are Nika's words about her husband Robert. To understand Robert's positions, she said, position and life-ending journey, one needs to know something about him, his personality, likes and dislikes. He was a brilliantly intelligent and intellectual renaissance man, equally at home in the arts and sciences, a potter, a sculptor, chef, marine scientist, science researcher. His first degree was in philosophy, his master's degree in oceanography. He spoke six languages. He was a great rock-on-tour with Witt always building attention in his stories until the Dana Mott broke us down in tears of laughter. He was a prawn farming specialist, a fishery's author, a seaweed researcher, a teacher, above all a communicator, a person unable to walk down the street without giving you a treatise on the flora fauna architecture in every of the area. If any one of our children developed a fifth of his knowledge, they would be educated indeed. He was always looking to learn something new, never hesitant at trying to develop a new skill but some things failed him, like playing the saxophone and singing in the choir. He believed the day of living was wasted if he didn't learn something new or teach something new to another. Robert told me and I believe that for him life was more than just breathing, life was learning, doing, being involved. Above all, living was about communicating. He loved solitude and quiet that allowed him to read, learn, and think, but he loved company, to teach, to share humor, to share knowledge. He knew his illness would leave him in communicato but still breathing, trapped in a paralyzed body, a living hell, a nightmare. Worse, this nightmare of extended dying would have no resonantia. He told me that he felt there was no value to a life of mere assistance, merely breathing, not to him or to anyone. He told me that he believed that for others it would only impose a burden even if it were one they were willing to bear, or say were. For himself it achieved nothing. You know, religious belief that dictated was good to suffer. He had no hope of remission, improvement, or delay, just the inexorable decline into full silent paralysis. Not even able to complain or praise. A daily grind of being attended to, unable to communicate, or to do anything, unable to give. Now, Robert died in his home surrounded by his family after his family prepared him a dish of curry. Actually wrote in his notebook just before he died, curry to die for. And after taking a few monthfuls, he raised his fist in a feeble power salute and gently passed away. His wife Nika said that Robert died almost as he wished. He had a good death that he told her that he was distressed that he had to go outside the law worrying if his family might suffer the consequence of that. But the crown said if physician assisted dying was allowed, it can be used by people not so strong or supported as Robert or Nagy or Gloria Taylor. Indeed when the case became the most challenging for me was with respect to the argument that was mounted by the Disabled Rights Organization, which intervened and which opposed any kind of legalization of physician assisted dying. In an article in the Globe and Mail a few months ago, Justice Major, who's in the majority in the Madrigal's case, was reported to have said that what he remembers specifically about the case was the quote silent ranks of disabled people, their wheelchairs ringing as the courtroom full of lawyers debated the law. He said for this reason it was a haunting type of case. So here's where the case got not just challenging for me, but personal and more personal than I would have realized when I started the case and you will all appreciate the rather obvious reason. In our courtroom the legal debate might have been better described as the verbal equivalent of wheelchair murder ball. I will try to set out as fairly and respectfully as I can the views of the Disabled Rights Organizations and then provide you with my response. The views of the main Disabled Rights Organizations of Canada was the federal and provincial government who were only too eager to adopt was based on what has been called the social model of disability. That model claims that while people may have physical or psychological impairments based on illness or trauma, it is society that really disables them. Simply put I may not be able to walk, my ability to walk is impaired by my spinal cord injury, but it is the society that allows buildings to be constructed with stairs that truly disables them. Now of course the prejudice and discrimination that the disabled face runs much deeper than the city of stairs. As a disabled man I know full well and have experience and be continued to experience prejudice and stereotyping. That usually manifests itself not so much in hatred or ridicule, although that too happens, but rather in pity and that pity in turn can manifest itself into the insidious idea that one may be better off dead than disabled. And the disabled organizations are concerned that the physicians who sit dying is legalized that will be based on that very premise. That the state will be endorsing the message that if for example your mobility is so impaired, if you acquire a machine degree, you're so dependent on others for your care, for your feeling, for your dressing, for your toileting, that you indeed must be better off dead. That being paralyzed with a neck down and not being able to enjoy the feeling of human touch or any kind of sexual or physical pleasure is in fact the equivalent of being dead. Their concern is that if physicians who sit dying is legalized, that the message will not only be accepted by the public, but will carry into the doctor's office and for the disabled patient, as compared to say the patient would cancer, the doctor will be too quick to suggest death. Rather than rehabilitation or palliative care. And the message will not just be one that the doctors believe, but that will be internalized by the disabled themselves so that they will consciously, unconsciously come to accept that they should just kill themselves. And since the most common reason many people say they want to die is not physical pain, but the prospect of living a life dependent on caregivers for the most intimate details of one's life. The disabled organizations turn this around and say that you get an effect to this reason is itself an act of discrimination. They say it is ableist society imposing its views on what it considers to be a dignified life. And that it's not the view of the disabled person who says this is simply what I need to do to get up in the morning and get out of my day. Indeed, the evidence called by the government was assessed as a very severely disabled person who said that at a certain point in their lives when they were first disabled, they really did want to die. And had physician assistants had died and been available, they would have availed themselves of that option. But having been denied that because it was illegal, they persevered and not understanding the most severe disability went on to death rewarding and happy lives. And were now very relieved that they had not killed themselves. That kind of evidence prompted a number of different responses from them. The first was that the court could not reject the idea of physician assistants dying because of the wholly hypothetical if not metaphysical notion that if the person had not chosen death, they might have chosen life. At some point, we have to allow people to make their own calculus of the risk and benefits of living because if we refuse to do so, we will condemn some people to a life that will turn out to be one of the misery and suffering. The second was to try to turn the disabled organization's arguments on his head. The evidence did reveal that almost everyone who was first seriously disabled usually by car accidents or dialing or sports accidents say they wanted to die. That was no different. But the amazing nature of being human seems to be the virtually indestructible will we all have to live. To rise above and conquer the most devastating injuries. Superman was also known as Christopher Reeve when as a result of falling off his horse in the prime of his life and being left a quadriple. Went from being society's supreme specimen of masculinity and virility to the disabled organization's supreme example of living a dignified life. Stephen Hawking is still a poster person for that life. These and many less famous disabled persons provide inspiration and proof that being disabled is no reason to want to die or to be better off dead. But it was also proved to some extent of how exaggerated was the suggestion of the disabled rights groups that legalization of physician-assisted dying would cause a rush of disabled persons heading to the doctor's office for a lethal prescription. So it seemed to me rather than maintaining the existing and absolute criminal prohibition of any kind of physician-assisted dying, parliament might in legalizing physician-assisted dying oppose as one requirement that there be a significant waiting period before any newly disabled person, especially one who is relatively young, was allowed the option of assisted death. And by significant, I mean one, two, perhaps even longer, years, even longer, in contrast with the waiting period that might be applicable from someone who suffered a degenerative illness such as cancer or ALS. As I noted, the trial judge imposed a requirement that a person be in a state of advanced weakening capacities with no chance of improvement. That is really the case that a person is disabled by accident or traveling. Indeed, what we must do before any disabled person or any person opts for physician-assisted dying is to make every effort to counsel that person against it. This must not only be a voluntary decision, but one of last resort. It's also important to know that the studies in New York and the United States for physician-assisted dying is legal. There's no evidence of the disabled are at a heightened risk of being killed and the trial judge so far. But most importantly, the fact is that for some, being severely disabled is not a societal construct, but it is the reality of living with a very serious and irremediable and very real medical condition that for some is simply immolable. And that means that one is somehow being co-opted into believing into some ableist society's views of what is an undignified life. Well, that is the society we live in. And it would be wrong to characterize a request for death in that circumstance as a rational point the trial judge understood and accepted. It must come a point in time when we must be able to respect the decision of those competent disabled persons who have made a voluntary decision to die and but for the disability are not able to do without assistance, to refuse to legalize physician-assisted dying because of the assumption that all disabled persons are at any and every point in time in their lives too vulnerable, too fragile, too fragile, too brainwashed by ableist society to resist the suggestion of doctors or family members or society as a whole, that they are better off dead, just patronizing and indeed, infantilizing. As one of our experts apply, making such assumption, quote, feeds rather than starves discriminatory attitudes. I've talked a lot about what Canada might look like if physician-assisted dying is legalized. But let's talk about the Canada that we live in where it is a crime. The plain fact is that assisted suicide in even euthanasia is happening in Canada. But it is happening in what might be described as the proverbial back alleys. The same back alleys where abortion was taking place before it was decriminalized. Back alleys where ineffective drugs were smuggled in from Asia or Mexico, where people have to go out and buy helium tanks and plastic turkey bags that they then turn into macaw killing machines that often fail and leave the patient alive but now with brain damage in addition to their pre-existing illness. In this connection, to follow the comments of Professor Emily Jackson, Jackson is our note-worthy. She says, of course, the fact that something bad happens outside the law is not a good reason for legalizing it. She says, rather, my point is that given the ill, that illegality leads to worse assisted deaths than what happened under restricted conditions of legality. If we think assisted dying is sometimes justifiable, then it is regulated assisted dying which should be preferred. In the end, the government's vigorous defense of our challenge seems to resort to the rather hyperbolic claim, always cloaked in the metaphor of the very slippery slope, that if we were to legalize physician assisted dying, we would go from a country in which doctors were committed to the healing of their patients would become trigger-happy and especially when it was disabled persons who showed up at the doctor's door. That, in my view, is impossible in the extreme. There will always remain two very important reasons that physician assisted dying would be a relatively uncommon occurrence to Canada just as it is in all the states and countries where it is allowed. The first is the irrepressible will to live that we all have. The second is the extreme reluctance of doctors to take the final step in assisting a patient to die. One of the reasons why we advocate a system of physician assisted dying and not one where anyone can assist is precisely because this is not only a health issue. But having doctors as the gatekeepers will ensure that it is only resorted to as a last resort measure. And doctors have all the expertise needed to best ensure that any decision reflects one's free will and competence because that is what informed consensus all about. Yet it would be a mistake to think that who this case will benefit is only a tiny minority of the population who would avail themselves of physician assisted dying. Indeed it was the crown's argument that given the very small number of people for whom this would be a legitimate option that needs to be balanced against the risk of wrongful death of who they said were too many others. And the balance the crown said would tip in favor of those others. We say this is a false dichotomy. And the first place tiny is a relative concept. In the Netherlands it is about 1.9% of the deaths. If that was to be extrapolated to Canada then in absolute terms it would be about 5,000 people. That's a lot of suffering to be avoided if physician assisted dying is legalized. But even if we accept that it is a tiny number of relative terms it doesn't tell the whole story. Indeed the evidence in places like Oregon is that a very large percentage of persons who have been given prescriptions for a lethal medication never use them. There are as many nine times the number of people in the Netherlands who make serious inquiries about physician assisted dying that never go through with it. But what these prescriptions provide what a regime that allows the possibility of physician assisted dying provides is peace of mind. The peace of mind that should life simply become intolerable. But there's a peaceful and dignified way out. And it is not suicide with all the tragic implications of that for the patient and his or her family. But the peace of mind that when the time comes to anyone's life that there will be a care, a kind caring doctor who will be there to assist. This is the ultimate palliative. It is what a society committed to the values of autonomy and mercy should provide. And this is why this case is for all Canadians not just the tiny few who will act on it. It is for all of our moms, our dads, our family and friends indeed all of us who as we age and face the possibility of an untimely and intolerable suffering will have the right to die with dignity. Oh, well before I thank Joe and ask you to join me in thanking him, I wanted to mention that this is the last seminar of the year hosted by the Health Law Institute. We've been running this series now for 17 years and we offer eight seminars a year. I would like to thank in particular Barbara Carter who's over there and her colleagues. So Barbara is the person behind the curtain pulling all the strings and making all of this happen and so we're enormously grateful that it actually would not happen without Barbara being here and providing all the support. You, our audience also make it happen by participating in the seminars coming out, giving us ideas for our series for next year. If you have any suggestions for speakers or topics I would love to entertain them and also if you happen to know of any visitors to the university who are coming here during next year we would like to take advantage of that potentially. And so thank you to the audience and I would now like to thank Joe. I'm personally and my guess is all of you present are enormously grateful for him taking the time from his very busy schedule to come all the way from BC economy fair at my request. No issue, some speakers say, oh no, I'll only come if I can come business class. I didn't know who was around. I didn't know who was around. Well then they don't come. The talk was, it's so combined law and morals in the way that he invited that he would do so. And I was thinking of this quote returning to the Walrus Magazine article. A colleague refers to his mind as D. Nandy, neurotic, beautiful to conceive. I'm not sure about the neurotic part being demonstrated today, but it was there. And finally he called him a laser. And I think that other than the neurosis, Mr. Arvey demonstrated to us all of those skills in the way that he presented and in the compellingness of his topic and approach. And so please join me in a huge thank you.