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Assisted Suicide Laws In Canada Infringe Rights, Says B.C. Supreme Court; Gloria Taylor Granted Exemption

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ASSISTED SUICIDE GLORIA TAYLOR
Gloria Taylor, right, is assisted by her sister Patty Ferguson as they pause for media outside British Columbia Supreme Court upon arrival in Vancouver, B.C., on Thursday December 1, 2011. A judge has ruled the laws banning doctor-assisted suicide are unconstitutional. B.C. Supreme Court Justice Lynn Smith also granted Gloria Taylor an exemption in her ruling, allowing the ailing woman to seek a physician-assisted suicide during the period her ruling is suspended if she wants. THE CANADIAN PRESS | CP

VANCOUVER - A B.C. woman whose health is in dramatic decline is now eligible for a legal physician-assisted suicide after a B.C. Supreme Court judge struck down parts of Canada's law banning the practice.

But Gloria Taylor's plight is the exception in the pivotal ruling by Justice Lynn Smith, who has suspended her decision for a year to give Parliament a chance to change the laws and bring them in line with the Constitution.

Taylor, who has Lou Gehrig's disease or ALS, joined the legal action last year saying she wanted the right to die with dignity and with the help of a doctor.

"She will be permitted to seek — and her physician will be permitted to proceed with — physician-assisted death under specified conditions," Smith said of Taylor in her ruling.

In her 395 page ruling, Smith said the laws banning doctor-assisted suicide were discriminatory, disproportionate and overbroad.

The ruling was immediately hailed by the B.C. Civil Liberties Association and condemned by the Euthanasia Prevention Coalition.

Taylor issued a statement through her lawyer saying she is relieved.

"I'm deeply grateful to have the comfort of knowing that I will have a choice at the end of my life," the statement said.

"This is a blessing for me. . . It allows me to approach my death in the same way I've tried to live my life — with dignity, independence and grace."

But Dr. Will Johnston, with the prevention coalition, said the ruling is alarming and an appeal is expected.

"We would caution Canadians to be skeptical that they can achieve greater choice and greater autonomy at the end of their lives or at any other time of their lives by giving power and constitutional protection to those who would arrange your suicide or your death," he said at a news conference outside the courthouse.

"We think that this is naive."

The judge ruled the provisions in the Criminal Code unjustifiably infringe on Taylor's rights to life, liberty and security of persons.

She ruled the laws are discriminatory for those who are grievously ill or physically disabled who want to have some control over their circumstances at the end of their lives.

The judge noted the law doesn't prohibit suicide, but those who are physically disabled can't commit suicide without help.

"The impact of the 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."

She said the legislation had very severe adverse effects on Taylor and others like her and they aren't outweighed by the benefits of the laws against assisted suicide.

Smith agreed risks exist to allowing doctor-assisted suicide, but she ruled those risks "can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced."

Her declaration that the laws had no force and effect was specific to doctor-assisted suicide where the patient is a fully-informed competent adult free of coercion and who was not clinically depressed.

The judge also set out several rules for Taylor if she wants to use her constitutional exemption during the year, including providing a written request, that her doctor attests that she is terminally ill and near death and documentation of the medication that the attending physician plans to use for her suicide.

When the conditions are met, the judge ruled Taylor can make an application to the B.C. Supreme Court which will order that "a physician may legally provide Ms. Taylor with a physician-assisted death at the time of her choosing."

Lawyers for the Canadian government argued at trial that the current laws were necessary to protect people in vulnerable circumstances, and that nothing short of the existing laws would achieve that goal.

Udo Schuklenk, professor of philosophy who holds the Ontario research chair in bioethics at Queen's University in Kingston, Ont., predicted the B.C. government will appeal the decision, "and then almost certainly it will land on the desk of the Supreme Court of Canada."

"And until then you can be certain nothing is going to change ... Nothing changes for physicians because at the moment all the court has said is that the current legislation is not in line with what the Constitution would require of legislation in this country.

"And it basically gives government a year to respond to this. But during this year, the legislation as it stands remains."

In European countries such as the Netherlands, Belgium and Switzerland, where assisted suicide is legal, Schuklenk said there is overwhelming support among medical professionals, including general practitioners.

Dr. John Haggie, the president of the Canadian Medical Association, issued a statement Friday saying the medical profession has been working hard to set up guidelines around end-of-life care.

He said the association had been following the court case, and while it's important, "it shouldn't divert us away from the need for a national commitment to palliative care so that patients and their families can get the support at bedside."

B.C. Attorney General Shirley Bond wouldn't comment on the case saying that "it's a federal matter."

No one could be reached from the federal government for comment.

The same issue went before the Supreme Court of Canada in 1993 when Sue Rodriguez asked for a doctor-assisted suicide and was rejected by a vote of 5 to 4.

Lawyer Ron Skolrood, who specializes in constitutional and health law, said he too expects to see appeals in the case.

He added there was no guarantee that the federal government would legislate a solution to physician-assisted suicide, pointing out that Parliament didn't step in when Canada's abortion laws were struck down.

Because the law remains in force, — with Taylor as the exception —Skolrood said there may be other seriously-ill people going to court to ask for the same exemption granted to Taylor.

"Or, frankly, there might be a change in policy about enforcement for the time being," he said.

"The fact that the declaration's been suspended leaves people who may want to avail themselves in a vulnerable situation, because the law technically remains in force for a year."

- with files from Sheryl Ubelacker in Toronto

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