A British Columbia Supreme Court judge has declared Canada's laws against physician-assisted suicide unconstitutional because they discriminate against the physically disabled.
In a 395-page ruling released Friday, Justice Lynn Smith addressed the situation faced by Gloria Taylor, a B.C. woman who was one of five plaintiffs in the case seeking the legal right to doctor-assisted suicide.
Taylor has ALS, or Lou Gehrig's disease, a fatal neurodegenerative disease, and she sought the ruling to allow her doctor to help her end her life before she becomes incapacitated. The case was fast-tracked in August because of her illness.
In her ruling, Smith noted suicide itself is not illegal, and therefore the law against assisted suicide contravenes Section 15 of the charter, which guarantees equality, because it denies physically disabled people like Taylor the same rights as able-bodied people who can take their own lives, she ruled.
"The impact of that distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent and who wish to have some control over their circumstances at the end of their lives," Smith writes.
"The distinction is discriminatory … because it perpetuates disadvantage."
Smith also says the law deprives both people like Taylor and those who try to help them of the right to life and liberty guaranteed under Section 7 of the charter.
She argued the legislation could force a person to take their life sooner than they want to in order to kill themselves while still physically capable.
And Smith says the risk of incarceration denies the right of freedom to relatives who assist by taking their loved ones to jurisdictions where physician-assisted suicide is legal.
The effect of the ruling will not be immediate, because Smith suspended it for one year in order to give Parliament time to take whatever steps it sees fit to draft and consider new legislation.
But in the meantime, Smith granted Taylor a constitutional exception to seek physician-assisted suicide if she chooses to end her life.
The ruling will, if it stands up to an appeal, put Canada in the company of the Netherlands, Belgium, Luxembourg and Switzerland, countries which permit physician-assisted suicide. Three states in the U.S. also allow the practice.
Smith's ruling also addresses the risks raised by defendants in the case.
"The evidence shows that risks exist," she wrote. "But that they can be very largely avoided through carefully designed, well-monitored safeguards."
At the end of the decision, Smith also stipulates that her ruling only apply to "competent, fully informed, non-ambivalent adult persons who personally (not through a substituted decision-maker) request physician-assisted death, are free from coercion and undue influence and are not clinically depressed."
Taylor 'grateful' says lawyer
Outside the court, B.C. Civil Liberties Association litigation director Grace Pastine said the legal team spoke with Gloria Taylor just minutes after the decision came down.
"She said, quote, 'I'm 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've tried to live my life: With dignity, independence, and grace,'" said Pastine.
Pastine said Taylor's condition has deteriorated to the point where she's in a wheelchair and now needs a feeding tube.
"She's still spirited and lively, but her body is failing her."
"The B.C. Civil Liberties Association launched this lawsuit and hails the court's ruling as a major step forward in Canada for the protection of human rights, the prevention of needless suffering and compassion at the end of life," she said.
But Will Johnston, the chair of the Euthanasia Prevention Coalition of B.C., said he is disappointed with the "radical decision" to legalize assisted suicide.
"We think that this judgment decided to minimize and disregard a lot of the evidence of harm in other jurisdictions where assisted suicide and euthanasia has been practised, and we are extremely concerned about the situation of elder abuse which is a major issue in Canada," said Johnston.
Johnston said an appeal of the decision is a foregone conclusion and he looks forward to a potential reversal.
Coalition of plaintiffs
Gloria Taylor was one of five plaintiffs who asked the court to strike down the law that bans assisted suicide last November.
The other plaintiffs included:
- A couple who helped their aging mother fly to Switzerland for an assisted suicide.
- A Victoria doctor seeking the right to help his grievously and irremediably ill patients have assisted suicides.
- The B.C. Civil Liberties Association.
The B.C. Civil Liberties Association was aided by lawyer Joseph Arvay, who argued that Canada's Criminal Code provisions against physician-assisted suicide are unconstitutional, and individuals should have the right to choose what they describe as a dignified death.
The request was opposed by the federal and provincial governments, and the Euthanasia Prevention Coalition, which had intervener status in the case.
Donnaree Nygard, the lawyer for the attorney general of Canada, argued the good of alleviating suffering is outweighed by the probability of wrongful death.
She said those who are particularly vulnerable are the elderly, disabled, and people who may worry about being a "burden to society" and safeguards are not effectively protecting vulnerable people in jurisdictions where assisted suicide is already allowed.
Lawyers for the Euthanasia Prevention Coalition argued legalizing assisted suicide will lead to elder abuse.
Last ruling in 1993
The Supreme Court of Canada last ruled on the right-to-die debate in 1993, when Victoria resident Sue Rodriguez, who also had ALS, took her case to court.
It ruled against her request for a doctor-assisted suicide, but Rodriguez did find an anonymous doctor who helped her carry out her dying wish.
In Canada, it has been illegal to counsel, aid or abet a person to commit suicide, and the offence carries a maximum punishment of 14 years in prison. However, three U.S. states and four European countries do allow it.
Last year, the Farewell Foundation for the Right to Die attempted to challenge the law in B.C. Supreme Court, arguing the Criminal Code section prohibiting assisted suicide is unconstitutional. But the judge dismissed the case because the plaintiffs were anonymous.