A victory for the right to die
B. C. judge strikes down the ban on assisted suicide in Canada.
‘ This decision allows me to approach my death the same way I tried to live my life — with dignity’
A B. C. judge ruled Friday to strike down the law that makes physician- assisted death illegal in Canada.
B. C. Supreme Court Justice Lynn Smith ruled that the current law violates the constitutional rights of the three plaintiffs who led the landmark legal challenge, launched by the B. C. Civil Liberties Association.
“They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Lee Carter and Hollis Johnson,” the judge concluded in a 395- page written judgment released Friday.
While declaring the law against euthanasia invalid, the judge suspended that declaration for one year to allow Parliament to determine what requirements are needed to make the law comply with Canada’s constitution.
“During that period of suspension, a constitutional exemption will permit Ms. Taylor the option of physicianassisted death under a number of conditions,” Smith ruled.
The judge set out the conditions in her ruling: Taylor, who is terminally ill, must provide written consent, her attending physician must attest that she is terminally ill and near death with no hope of recovery, and the physician and a consulting psychiatrist must attest that Taylor is mentally competent.
Once those conditions are met, Taylor will have to apply in court for an order allowing a physician to assist her death, the judge said.
The judge found that “palliative care cannot relieve all suffering” and accepted that legal end- of- life practices allow doctors to withhold life- sustaining treatment and administer palliative sedation to the point of hastening death.
“There are respected practitioners who would support legal change,” Smith wrote.
“They state that providing physician- assisted death in defined cases, with safeguards, would be consistent with their ethical views,” she added.
The judge acknowledged public opinion is divided on the issue. “The most commonly expressed reason for maintaining a distinction between current accepted end- of- life practices and physician- assisted death is that any system of safeguards will not adequately protect the vulnerable,” Smith wrote.
“The evidence shows that risks exist, but they can be largely avoided through carefully designed, well- monitored safeguards,” the judge ruled.
The case is expected to be appealed by the federal or B. C. governments, which opposed striking down the law.
Their position was that very good medical care is available for the dying, including palliative sedation to reduce endoflife pain for patients suffering terminal illnesses such as cancer, ALS and Huntington’s disease.
“We hope the government will not appeal,” Joe Arvay, the constitutional lawyer representing the plaintiffs, said Friday.
He said his client, Taylor, cried with relief when she heard the judge had ruled in her favour.
Taylor issued a statement Friday after the ruling, which said: “I’m deeply grateful to have the comfort of knowing that I 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 the same way I tried to live my life — with dignity, independence and grace.”
The judge fast- tracked the case so Taylor could participate. The 64- year- old Kelowna woman suffers from amyotrophic lateral sclerosis ( ALS), also known as Lou Gehrig’s disease, a fatal neurodegenerative disease that slowly robs individuals of their motor skills. Most die within three to five years.
Making physician- assisted death illegal puts it in the back alley, similar to abortion before it was legalized, Arvay told the court.
BC Civil Liberties Association lawyer Grace Pastine told reporters, “This case is a major victory for individual rights at the end of life.”
Pastine said the ruling is a major step forward in the protection of human rights in Canada.
“This is a case about real people with serious illnesses who through this law can find some measure of peace and comfort knowing they have a choice,” she said.
“The court has recognized that the government has no place at the bedside of seriously ill Canadians who have made firm and considered decisions about the amount of suffering to endure at the end of life and the level of care they will or will not receive in their final days.”
The other plaintiffs in the case included Kwantlen Polytechnic University criminology instructor Hollis Johnson and his partner Lee Carter, whose mother Kay died before trial.
They sought to have the court declare Section 241 ( b) of the Criminal Code unconstitutional because it violates sections 7 and 15 of Canada’s Charter of Rights and Freedoms.
The Farewell foundation for the Right to Die was granted intervener status and supported the plaintiffs’ position.
One of the interveners opposed to striking down the law was the Euthanasia Prevention Coalition of B. C.
“We’re disappointed but not surprised at the radical nature of the decision today,” Dr. Will Johnston, the coalition’s coordinator, said outside court.
“We think this judgment decided to minimize and to disregard the evidence of harm in other jurisdictions where assisted- suicide and euthanasia has been practised,” he said.
“And we are extremely concerned about the situation of
This is a case about real people with serious illnesses who through this law can find some measure of peace and comfort knowing they have a choice.
GRACE PASTINE BC CIVIL LIBERTIES ASSOCIATION LAWYER
elder abuse, which is a major issue in Canada.”
“I think this will be a disaster for Canadians, who expect themselves to be protected by the law,” Johnston added.
“To suggest that we can have one foot on the gas and one foot on the brake I think is unrealistic. It’s not accurate to say that we can draw a bright line between competent people, who have only physical illness and are close to death, and depressed people.”
The case was the most comprehensive challenge of the law since Sue Rodriguez lost her case 19 years ago in the Supreme Court of Canada. Rodriguez also had ALS.
Most of the case decided Friday was determined through the affidavits of 71 witnesses, but the court heard the testimony only of a handful of medical experts.
Three U. S. states permit physicianassisted death or assisted death, including Oregon and Washington.
The few Western countries that allow it are the Netherlands, Belgium, Luxembourg and Switzerland.
The full 395- page judgment is online at: http:// bit. ly/ LhiEOV