Lawyers representing a 63-year-old B.C. woman with a fatal neurodegenerative disease wants the B.C. Supreme Court to grant her the right to a doctor-assisted suicide.
Gloria Taylor, a West Kelowna woman with amyotrophic lateral sclerosis, also known as ALS and Lou Gehrig's disease, says she wants her doctor to be able to help her end her life before she becomes incapacitated.
Taylor is one of five plaintiffs in the case, which was fast tracked in August because of her illness. She was not in court on Monday morning in Vancouver for the start of the hearing, but her case is being presented by Joseph Arvay of the B.C. Civil Liberties Association.
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The other plaintiffs include 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 and the B.C. Civil Liberties Association.
In his opening arguments, Arvay told the court 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.
Arvay read an affidavit from another man, Peter Fenker, who was 71 years old and a strong active man until he was diagnosed with ALS.
In the statement, Fenker described how his muscles wasted away until he could barely move, and he didn't even have muscles to hold his internal organs in place, so even lying down left him in severe pain as they pressed against his spine.
"I felt like a blob with useless limbs," he wrote in the affidavit.
Fenker wrote that he seriously considered killing himself with a gun once he was diagnosed, but that he didn't want to make that decision out of anger or depression, due to the effect it would have on his family.
'The government should not be able to control my body.' —Affidavit from Peter Fenker, deceased ALS patient
"I would hate to say goodbye to the world in such an ugly manner."
Later, once he could not physically take any action to end his life — besides refusing food and water — he said he wished for physician-assisted suicide, and was angry that was not a possibility.
"The government should not be able to control my body," he wrote.
He has since died from the disease, wrote his wife Grace, in a separate affidavit read in court. She wrote that he suffered incredibly, gasping for breath over days as though he was drowning in water.
She wrote that her husband often said to her, "Humans show animals that are suffering more compassion."
Avary said he also plans to speak to the limitations of palliative care, how assisted suicide works in other jurisdictions such as Oregon, what safeguards can be put in place to protect vulnerable people from being coerced, and how much has changed since the issue was before the courts in the 1990s.
Existing laws defended
The challenge is being opposed by the federal and provincial governments and the Euthanasia Prevention Coalition, which has intervener status in the case.
Donnaree Nygard, the lawyer for the attorney general of Canada, described the case they would bring forward, acknowledging it is a difficult and emotional topic likely to arouse sympathy and apprehension in most people.
Nygard said their argument will be that the good of alleviating suffering is outweighed by the probability of wrongful death.
She said those particularly vulnerable are the elderly, disabled, and people who may worry about being a "burden to society."
She said nothing substantial has changed since the Supreme Court ruling in the 1990s and experts will testify that safeguards are not effectively protecting vulnerable people in jurisdictions where assisted suicide is already allowed.
The Euthanasia Prevention Coalition's members say their lawyers will argue legalizing assisted suicide will lead to elder abuse.
Before the hearings began on Monday morning, the coalition staged protests at transit stations around metro Vancouver and on the steps of the B.C. Supreme Court to highlight their concerns.
The coalition's chairman is Will Johnston, a Vancouver physician who believes legalizing assisted suicide could lead to elder abuse.
"The papers that are being presented to the court don't specify that a physician would be there at the time of death," he said outside the court on Monday.
Johnston has particular concerns about how a lethal dose might be administered to a patient.
"There's no guarantee that the dose would be taken willingly at the end and, in fact ... the suggestion is that the dose could be offered to the patient or even given directly to the patient by anyone under the general supervision of a doctor."
Last ruling in 1993
In Canada, it's 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.
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.
This past summer, 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.