VANCOUVER - The two-decade-old ruling that upheld Canada's prohibition on doctor-assisted suicide has become outdated, lagging behind changes in society and the law, a group of plaintiffs argue as they ask the British Columbia Court of Appeal to uphold a decision that struck down the ban.
The federal government is appealing a B.C. Supreme Court ruling that threw out the law last year. Ottawa argues a 1993 Supreme Court of Canada decision that upheld the law, a case involving Sue Rodriguez, was final.
But the plaintiffs behind the case that once included ALS patient Gloria Taylor, who died last year, say much has changed since 1993.
Society's view on the issue has evolved, they say, and legalization in other jurisdictions, such as Oregon and the Netherlands, provides models for how best to regulate physician-assisted suicide.
More importantly, they say there have been significant shifts in how courts interpret the charter that lead to only one conclusion: the law discriminates against people with disabilities and the gravely ill by denying them the right to end their suffering.
"It (the law) feeds rather than starves discriminatory attitudes, and confines the disabled to the stereotyped role society has unfairly consigned them," the plaintiffs say in documents filed with the B.C. Appeal Court last month.
"It indelibly impresses all disabled with the label of 'vulnerable.'"
The Appeal Court is scheduled to hear the case in March, but it's likely headed for the Supreme Court of Canada, which hasn't ruled on the law prohibiting assisted-suicide since 1993. Rodriguez lost that case, but she died the following year with the help of an unidentified doctor.
The plaintiffs in the current case say the rights bestowed by the charter have expanded since then, leaving it open to the courts to reconsider the law.
Specifically, they point to rulings on disproportionate and overly broad laws — both of which, they say, describe the assisted suicide ban.
The law prolongs suffering and may cause patients to take their lives preemptively out of fear they may eventually be physically unable to, the plaintiffs say. And they argue the law discriminates against the disabled because while suicide has been legal since the 1970s, anyone who requires help to take their own life is prevented from doing so.
"This burden is felt acutely by persons who are grievously and irremediably ill, materially physically disabled or soon to become so, mentally competent, and who wish to have control over their circumstances at end of life," the plaintiffs say in their Appeal Court arguments.
The plaintiffs ask the Appeal Court to go even further than last year's decision.
While the initial ruling allowed only physician-assisted suicide, the plaintiffs want the Appeal Court to also allow what they describe as "voluntary euthanasia."
Physician-assisted suicide typically refers to cases in which doctors provide patients with the knowledge or the means to end their lives themselves, such as by swallowing a lethal substance. Voluntary euthanasia would allow doctors to terminate a patient's life by administering an injection with the patient's consent.
The federal government filed its own arguments late last year, warning that allowing any form of suicide would demean the value of life and no amount of regulations can protect vulnerable people from being coerced to turning to assisted suicide.
Last year's B.C. Supreme Court ruling said the law must allow physician-assisted suicide in cases involving patients who are diagnosed with a serious illness or disability and who are experiencing "intolerable" physical or psychological suffering with no chance of improvement.
The court also granted Gloria Taylor an immediate exemption from the law, briefly making her the only person in Canada who could legally seek doctor-assisted suicide — or, as Taylor preferred to describe it, "assisted dying." Taylor died in October of a perforated colon which was unrelated to her ALS.
Despite the B.C. decision, the law against assisted suicide remains in effect. The B.C. court's judgment was suspended at least until the Appeal Court renders its decision.
Last November, the B.C. Supreme Court issued a subsequent ruling ordering the federal and provincial governments to pay roughly $1 million in legal costs to the plaintiffs.
The lawyers provided their time for free, but then asked the court to award special costs for their legal bills because of the significance of the case.
The governments are also appealing that ruling.
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Euthanasia In Canada
Here's a look at the state of Euthanasia laws in Canada and their history.
Suicide Not A Crime
Suicide hasn't been a crime in Canada since 1972. (Shutterstock)
Doctor-Assisted Suicide Illegal
Doctor-assisted suicide is illegal, although the ruling of the B.C. Supreme Court will force Parliament to alter the law within one year.<br><br> The <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-113.html#h-79" target="_hplink">Criminal Code of Canada states in section 241</a> that:<br><br> "Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years." (Alamy)
Passive euthanasia involves letting a patient die instead of prolonging life with medical measures. Passive euthanasia is legal in Canada.<br><br> The decision is left in the hands of family or a designated proxy. Written wishes, including those found in living wills, do not have to be followed by family or a proxy. (Alamy)
<a href="http://en.wikipedia.org/wiki/Rodriguez_v._British_Columbia_(Attorney_General)" target="_hplink">Sue Rodriguez</a>, who suffered from amyotrophic lateral sclerosis (also known as Lou Gehrig's disease), launched a case asking the Supreme Court of Canada to allow her to end her own life on the grounds that the current law discriminated against her disability.<br><br> Because suicide is legal in Canada and Rodriguez was unable to end her life because of a lack of mobility, she argued it was discriminatory to prevent her from ending her own life with the aid of another.<br><br> The court refused her request in 1993, but one year later she ended her life anyway with the help of an unnamed doctor. (CP)
<a href="http://en.wikipedia.org/wiki/Robert_Latimer" target="_hplink">Robert Latimer was convicted of second-degree murder in the 1993 death of his severely disabled daughter Tracy</a>. A lack of oxygen during Tracy's birth led to cerebral palsy and serious mental and physical disabilities, including seizures and the inability to walk or talk. Her father ended Tracy's life by placing her in his truck and connecting a hose to the vehicle's exhaust.<br><br>The case led to a heated debate over euthanasia in Canada and two Supreme Court challenges. <br><br>Latimer was granted day parole in 2008 and full parole in 2010. (CP)
Bills To Legalize
Former Bloc Québécois MP Francine Lalonde tried repeatedly to get legislation legalizing euthanasia in Canada passed. Bill C-407 and Bill C-384 were both aimed at making assisted suicide legal. C-384 was defeated in the House 228 to 59, with many Bloc MPs and a handful of members from all other parties voting for the legislation.<br><br> Tetraplegic Tory MP Steven Fletcher, pictured, made the following statement after C-384 was defeated: <br><br> "I would like to be recorded as abstaining on this bill. The reason is I believe end of life issues need to be debated more in our country. I believe that life should be the first choice but not the only choice and that we have to ensure that resources and supports are provided to Canadians so that choice is free. I believe, when all is said and done, the individual is ultimately responsible. I want to make this decision for myself, and if I cannot, I want my family to make the decision. I believe most Canadians, or many Canadians, feel the same. As William Henley said in his poem Invictus, "I am the master of my fate: I am the captain of my soul."<br><br>(CP)