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Gloria Taylor retains right to seek physician-assisted death, for now

Gloria Taylor, right, is assisted into British Columbia Supreme Court by fellow plaintiff Lee Carter in Vancouver, December 1, 2011. Taylor, who has Lou Gehrig's disease, is seeking the right to a doctor-assisted suicide in a challenge at B.C. Supreme Court.

JOHN LEHMANN/The Globe and Mail

The federal government has filed its notice of appeal, but a B.C. woman who was granted a constitutional exemption that permits her to seek physician-assisted death can still use it – at least for now.

Justice Minister Rob Nicholson announced Friday that Ottawa will appeal last month's right-to-die ruling by the B.C. Supreme Court.

The court said Criminal Code provisions that prohibit physician-assisted death are unconstitutional and gave Parliament one year to draft new legislation. Madam Justice Lynn Smith also granted plaintiff Gloria Taylor – who suffers from amyotrophic lateral sclerosis (ALS) – the exemption.

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Mr. Nicholson said government believes the Criminal Code provisions are valid, and also objects to the decision to grant an exemption "resembling a regulatory framework for assisted suicide."

Lawyer Sheila Tucker, who represented the B.C. Civil Liberties Association, a co-plaintiff in the case, said Monday that Ms. Taylor is permitted to use the exemption until a stay is granted. It has not been, and a date for when the parties will appear in the B.C. Court of Appeal has not been set.

"Applying for appeal itself in no way affects the order below. A stay would be an intervening motion and it would only be the order on that motion that would disentitle [Ms. Taylor] from the status quo," Ms. Tucker said in an interview.

Ms. Taylor, 64, has not commented publicly since the appeal was announced. She did not return a message left at her home Monday.

When asked if and when she would use the exemption at a news conference last month, Ms. Taylor said, "I live one day at a time and I'm not there yet."

The federal government has not disclosed which grounds it will argue for the Criminal Code provisions or the exemption. Mr. Nicholson did not expressly say and the government's four-page notice provides no hints. Julie Di Mambro, Mr. Nicholson's press secretary, said Monday that Ottawa will not comment further while the matter is before the court.

But Jason Gratl, a lawyer for the Farewell Foundation for the Right to Die, one of the intervenors in the case, said one argument he expects the government to raise involves the exemption framework put in place by the judge.

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"The Crown is going to try to make a big deal on this constitutional exemption structure," he said in an interview, adding that he believes the framework to be "extremely restrictive."

Under the judge's conditions, Ms. Taylor must have her physician attest that she is terminally ill with no hope of recovery. The physician must also state Ms. Taylor has been informed of her prognosis, treatment options and risks. She must then be referred to a physician with palliative care expertise for consultation and be advised she can change her mind.

Ms. Taylor's physician and a psychiatrist must then attest she is competent. If she decides to go forward, she must carry out the final act herself, unless she's not physically able.

"Unless Ms. Taylor has become physically incapable, the mechanism for the physician-assisted death shall be one that involves her own unassisted act and not that of any other person," the judge wrote in her ruling.

Mr. Gratl said last month that he could see half a dozen "weak and unpersuasive, but arguable" grounds for appeal. One potential argument, he said, could be that the Sue Rodriguez case overrides the B.C. Supreme Court judgment. Ms. Rodriguez lost her challenge of the physician-assisted death prohibition in the Supreme Court of Canada in 1993.

Mr. Gratl declined Monday to discuss further grounds for appeal. "I don't want to inadvertently assist my opponents," he said.

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Ms. Tucker said it would be "imprudent" to speculate on which arguments government will raise.

Mr. Nicholson's decision to appeal was cheered by opponents of physician-assisted death last week. The groups have said the B.C. Supreme Court ruling is a slippery slope that opens the door to elder abuse.

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