B.C. Supreme Court strikes down ban on physician-assisted suicide

Vancouver — The Globe and Mail

Gloria Taylor addresses a news conference in downtown Vancouver in 2011. Ms. Taylor is dying of Lou Gehrig's disease and is seeking the legal right to physician-assisted suicide. (John Lehmann/The Globe and Mail)

British Columbia’s Supreme Court has declared a section of the Criminal Code that prohibits physician-assisted death invalid. (Follow live coverage here)

In a decision released Friday, Madam Justice Lynn Smith says the Criminal Code provisions “unjustifiably infringe the equality rights” of the plaintiffs in the case, including Gloria Taylor, who suffers from amyotrophic lateral sclerosis (ALS).

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Joseph Arvay, who represented Ms. Taylor, said that his client cried with relief on hearing the decision. He said that he does not know what her plans are.

Mr. Arvay said he imagined that the government would appeal the ruling, but hoped they would not.

A spokesperson for the federal government said the minister needed time to read the extensive ruling, but that they would be reviewing the judgment.

Grace Pastine, of the B.C. Civil Liberties Association, met reporters outside B.C. Supreme Court and called the ruling “a watershed decision.” She called the case a “major victory for individual rights at the end of life.”

Ms. Pastine read a statement from Ms. Taylor. It said: “I am deeply grateful to have the comfort of knowing that I’ll have a choice at the end of my life. This is a blessing for me, and other seriously and incurably ill individuals. This decision allows me to approach my death in the same way I have tried to live my life – with dignity, independence, and grace.”

Will Johnston, B.C. chair of the Euthanasia Prevention Coalition, said the ruling opens the door to potential elder abuse.

“We think this judgment decided to minimize and disregard the evidence of harm in other jurisdictions where assisted suicide and euthanasia has been practiced,” he said.

Udo Schuklenk chaired an expert panel of the Royal Society of Canada that studied end-of-life decision-making and said, in a report released last year, that informed Canadians should have the right to choose death within a regulated system, even if they have not been diagnosed with a terminal illness.

Dr. Schuklenk, a bioethicist at Queen’s University in Kingston, Ont., said the judge in Friday’s ruling clearly took into account the panel’s finding that there is no evidence that vulnerable people would be at appreciable risk of abuse if euthanasia was decriminalized. “If there is no appreciable risk, surely autonomy-based considerations mean people should be able to make these sorts of choices towards the end of their lives and have these choices respected,” he said.

Ricardo Smalling, a lawyer who is a research fellow at Queen’s, said the law is generally still valid, at least until next year, which means other people cannot legally exercise the same option. But, if the government does not do something about it, or if the B.C. Court of Appeal or the Supreme Court of Canada does not grant an injunction to stay the implementation of the decision, then assisted suicide will automatically become legal, he said.

Justice Smith has given Parliament one year “to take whatever steps it sees fit to draft and consider legislation.” During that time the ruling is suspended. However, the judge has also granted Ms. Taylor a constitutional exemption during that period that permits her to proceed with physician-assisted death under specified conditions.

“The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards,” the judge said of assisted suicide in her ruling.

Justice Smith said the Criminal Code provisions also infringe on the right to life, liberty and security of person for Lee Carter and Hollis Johnson. They travelled to Switzerland to help a loved one obtain assisted suicide there and the judge said the provisions put them at risk, in least in theory, of incarceration.

Justice Smith said the legislation that prevents physician-assisted suicide falls “outside the bounds of constitutionality.”

“A less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation - grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress - to access physician-assisted death,” she said.

The constitutional challenge of the Criminal Code sanction that makes physician-assisted suicide illegal in Canada was brought by the B.C. Civil Liberties Association and a group of individuals.

The case revisited the constitutional challenge against assisted suicide that Sue Rodriguez took to the Supreme Court of Canada in 1993. The Victoria woman, who was dying of amyotrophic lateral sclerosis (ALS), or Lou Gehrig’s disease, lost in a 5-4 decision. She subsequently committed suicide with the help of an anonymous physician.

Donnaree Nygard, a lawyer for the Department of Justice, argued in B.C. Supreme Court in December that assisted suicide should not be legalized because that would run counter to basic societal values, as well as the will of Parliament.

Ms. Nygard said there was no reason to the think the Supreme Court of Canada would feel any different about assisted suicide. She added that Parliament has repeatedly considered and rejected proposed changes to the law since assisted suicide was criminalized in 1892. Ms. Nygard said Parliament has, in recent years, dealt with nine private member bills on the issue – three failed to gain any support, and six were debated in the House and voted down.

The court heard evidence from several people on the other side of the coin, those who argued terminally ill Canadians should have the right to choose how they end their lives.

One such affidavit was filed by Lee Carter, one of the plaintiffs in the case formally known as Carter v British Columbia (Attorney General). Ms. Carter’s mother Kay suffered from spinal stenosis and was confined to a wheelchair. She was told she would soon be reduced to lying flat in a bed, unable to move.

Kay travelled to a clinic in Switzerland in 2010 to end her life. Her daughter’s affidavit was filed with the court by the Farewell Foundation For The Right To Die, one of several groups intervening in the case. The Farewell Foundation filed an application arguing the Swiss system should be adopted in Canada. The application said multiple safeguards are built into the Swiss system, including the requirement that a patient must be mentally competent, must undergo medical assessment, must have a hopeless medical prognosis, and must be suffering unbearably.

Once a prescription for a lethal dose of sodium pentobarbital has been issued, the application said, the patient must express a wish to end his or her life on the day of the assisted suicide. The act of taking the medication must be performed by the individual.

Gloria Taylor, another plaintiff in the case, said she suffers from ALS. Ms. Taylor said in her affidavit that she wants to be able to exercise control and die with dignity. “What I fear is a death that negates, as opposed to concludes, my life,” she said.

A B.C. social worker identified himself only as L.M. in his affidavit because he feared he, his sister, and others could face criminal charges for assisting in the deaths of their chronically ill parents. “My sister and I agreed that because we could be criminally prosecuted ... we would keep it a secret,” the affidavit said. “I have lived with the secret ever since.”

Though some have suggested legalizing assisted suicide would create a slippery slope and lead to a rise in such deaths, Sheila Tucker – a lawyer representing the B.C. Civil Liberties Association – told B.C. Supreme Court this was not the case in jurisdictions that did pass such laws. Ms. Tucker said leading academics have found there is no evidence to suggest vulnerable groups – the elderly, disabled, or mentally ill – are any more likely to receive euthanasia. Ms. Tucker said places such as Switzerland, the Netherlands, Belgium, Oregon, and Washington have legalized assisted suicide without seeing a flurry of deaths.

With files from Wendy Stueck in Vancouver and Gloria Galloway in Ottawa

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