The two-decade-old ruling that upheld Canada's prohibition on doctor-assisted suicide has become outdated, lagging behind changes in society and the law, a group of plaintiffs are arguing as they ask the British Columbia Court of Appeal to support a decision that struck down the ban.
The federal government is appealing a B.C. Supreme Court ruling that threw out the law last year. Ottawa argues a 1993 Supreme Court of Canada decision that upheld the law, a case involving Sue Rodriguez, was final.
But the plaintiffs behind the case that once included ALS patient Gloria Taylor, who died last year, say much has changed since 1993.
Society's view on the issue has evolved, they say, and legalization in other jurisdictions, such as Oregon and the Netherlands, provides models for how best to regulate physician-assisted suicide.
More importantly, they say there have been significant shifts in how courts interpret the Charter that lead to only one conclusion: the law discriminates against people with disabilities and the gravely ill by denying them the right to end their suffering.
"It [the law] feeds rather than starves discriminatory attitudes, and confines the disabled to the stereotyped role society has unfairly consigned them," the plaintiffs say in documents filed with the B.C. Appeal Court last month. "It indelibly impresses all disabled with the label of 'vulnerable.' "
The Appeal Court is scheduled to hear the case in March, but it is likely headed for the Supreme Court of Canada, which hasn't ruled on the law prohibiting assisted-suicide since 1993. Ms. Rodriguez lost that case, but she died the following year with the help of an unidentified doctor.
The plaintiffs in the current case say the rights bestowed by the Charter have expanded since then, leaving it open to the courts to reconsider the law.
Specifically, they point to rulings on disproportionate and too-broad laws – both of which, they say, describe the assisted suicide ban.
The law prolongs suffering and may cause patients to take their lives pre-emptively out of fear they may eventually be physically unable to do so, the plaintiffs say. They argue the law discriminates against people with disabilities because while suicide has been legal since the 1970s, anyone who requires help to take their own life is prevented from doing so.
"This burden is felt acutely by persons who are grievously and irremediably ill, materially physically disabled or soon to become so, mentally competent, and who wish to have control over their circumstances at end of life," the plaintiffs say in their Appeal Court arguments.
The plaintiffs ask the Appeal Court to go even further than last year's decision.
While the initial ruling allowed only physician-assisted suicide, the plaintiffs want the Appeal Court to also allow what they describe as "voluntary euthanasia."
Physician-assisted suicide typically refers to cases in which doctors provide patients with the knowledge or the means to end their lives themselves, such as by swallowing a lethal substance.
Voluntary euthanasia would allow doctors to terminate a patient's life by administering an injection with the patient's consent.
The federal government filed its own arguments late last year, warning that allowing any form of suicide would demean the value of life and no amount of regulations can protect vulnerable people from being coerced to turning to assisted suicide.
Last year's B.C. Supreme Court ruling said the law must allow physician-assisted suicide in cases involving patients who are diagnosed with a serious illness or disability and who are experiencing "intolerable" physical or psychological suffering with no chance of improvement.
The court also granted Ms. Taylor an immediate exemption from the law, briefly making her the only person in Canada who could legally seek doctor-assisted suicide – or, as Ms. Taylor preferred to describe it, "assisted dying." Ms. Taylor died in October of a perforated colon that was unrelated to her ALS.
Despite the B.C. decision, the law against assisted suicide remains in effect. The B.C. court's judgment was suspended at least until the Appeal Court renders its decision.
Last November, the B.C. Supreme Court issued a subsequent ruling ordering the federal and provincial governments to pay roughly $1-million in legal costs to the plaintiffs.
The lawyers provided their time for free, but then asked the court to award special costs for their legal bills because of the significance of the case.
The governments are also appealing that ruling.