VANCOUVER – Canada’s ban on assisted suicide has been upheld in British Columbia’s Court of Appeal, leaving those arguing for the right even more determined to fight for people facing an “unbearable dying process.”
Minutes after the split decision was released Thursday, a lawyer for the respondents in the case announced they would seek leave to appeal in the Supreme Court of Canada.
“We think the federal government has no place at the bedside of seriously and incurable ill Canadians who have made firm decisions about the amount of care they wish to receive at the end of life,” said Grace Pastine, who represents several individuals and the B.C. Civil Liberties Association.
The challenge was launched by various plaintiffs including Gloria Taylor, who suffered from ALS or Lou Gehrig’s disease, and the children of Kay Carter, who travelled to Switzerland to seek doctor-assisted suicide in 2010.
Two of the three judges ruled that while the law banning assisted suicide has certainly evolved in the last two decades, it hasn’t changed enough to undermine the 1993 decision from the Supreme Court of Canada.
Both judges agreed that the position of the plaintiffs was sympathetic and honest.
“Yet the societal consequences of permitting physician-assisted suicide in Canada — and indeed enshrining it as a constitutional right — are a matter of serious concern to many Canadians,” the ruling said.
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Pastine said her clients were deeply disappointed by the ruling.
“What this means is that, at least for the moment, seriously and incurably ill individuals will continue to suffer against their wishes at the end of life without the choice and the dignity that they deserve.”
The federal government appealed the decision from the B.C. Supreme Court, which ruled last year that safeguards could be put in place to protect against the risks associated with doctor-assisted dying.
The lower court suspended its ruling for a year to allow the federal government to respond. But the judge granted Taylor an immediate exemption to seek physician-assisted suicide. She died last year of a perforated colon, which was unrelated to her ALS.
The Supreme Court last ruled on the issue two decades ago involving Victoria resident Sue Rodriguez.
Rodriguez, who, like Taylor, had ALS, said the law should be struck down as a violation of the charter, but the court ruled against her.
Dr. Will Johnston, chairman of the Euthanasia Prevention Coalition, said his group was relieved to hear the court’s decision on Thursday.
The lower court decision said patients would need to personally request physician-assisted death, must be free from coercion and cannot be clinically depressed.
But Johnston said those guidelines meant “virtually anyone would have qualified.”
“I think that if we introduced an ethic into our hospitals where doctors and nurses are allowed to kill in certain circumstances, that would have a corrosive effect on a system which is already leaky in its own way,” he added.
The federal government said the decision from the B.C. Appeal Court reinforces the government’s view that the laws banning counselling or assisting in a suicide are constitutionally valid.
“The laws surrounding euthanasia and assisted suicide exist to protect all Canadians, including those who are most vulnerable,” said Paloma Aguilar, press secretary for federal Attorney General Peter MacKay.
Faye Sonier, lawyer for the Evangelical Fellowship of Canada, which was an intervener in the case, said in a statement that the court has affirmed that the right to life is the same today as it was 20 years ago.
“The court held that those who have limited abilities have no less a right to life than persons who are able-bodied and fully competent. To understand the right to life as including a right to be killed would expand charter protections far beyond what the law can guarantee.”
The dissenting judge, B.C. Appeal Court Chief Justice Lance Finch, said the lower court judge was correct to find that the prohibition on assisted suicide impaired a person’s charter rights more than necessary.
“An absolute prohibition which deprives individuals of their right to life, liberty and the security of person in a way which is unnecessarily broad cannot be said to be within a range of reasonable alternatives,” he said.
“A carefully regulated scheme would allow access to consensual physician-assisted dying while reducing the risks of harm with which Parliament is concerned.”
Lee Carter, who picked up the legal fight after her ailing mother Kay Carter was forced to travel to Switzerland to get help to die, said her mother would have seen the court’s reversal as another bump in the road.
“She wanted everybody to know what she was doing, why she was doing it and (hoped) that it would become a public discussion,” Carter said.
The ruling judges did suggest a solution in the form of a constitutional exemption if the Supreme Court of Canada were to decide to hear the case.
“As the law now stands, there does not appear to be an avenue for relief from a generally sound law that has an extraordinary, even cruel, effect on a small number of individuals,” the judges wrote in the joint ruling.
The national debate over the issue has recently been growing.
Politicians in Quebec are currently examining a bill that would permit physician-assisted suicide, which could prompt yet another legal challenge in that province.
Two weeks ago, a video recorded by Donald Low, a doctor who guided Toronto through the 2003 SARS crisis, made headlines for his impassioned argument in favour of legalizing doctor-assisted suicide.
Assisted suicide is legal in other countries, such as Switzerland, the Netherlands and Belgium, as well as the American states of Oregon and Washington.
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