OTTAWA — The Supreme Court has added four months to the federal government's deadline for producing a new law on doctor-assisted death — but with an exemption for anyone who wants to ask a judge to end their life earlier.
The Liberal government had argued that it needed the original Feb. 6 deadline extended by six months in order to have the time to craft a proper law. Opponents said that would simply prolong the suffering of many.
"In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria," the court wrote in a narrow 5-4 decision on the extension application.
"An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now, pending Parliament's response."
The Supreme Court struck down a ban on physician-assisted dying in February 2015. (Getty Images)
In a landmark decision last winter, the high court recognized the right of consenting adults enduring intolerable physical or mental suffering to end their lives with a doctor's help.
It suspended its decision for a year to give Parliament a chance to figure out how to respond. Today's extension also excludes Quebec, which already has its own law.
Grace Pastine, the litigation director for the B.C. Civil Liberties Association, called Friday's news a "tremendous victory" for compassion and choice at the end of life.
"In terms of the personal exemptions, what the court determined was that those individuals should be able to make personal applications to a court to make their right a reality," said Pastine, whose group is at the heart of the application.
"It is really difficult to overstate just how important and how meaningful that will be for Canadians who are suffering unbearably."
Chief justice dissents
Still, the divisive issue proved no less so for the court's nine-judge panel. Justices Rosalie Abella, Andromache Karakatsanis, Richard Wagner, Clement Gascon and Suzanne Cote made up the majority.
Chief Justice Beverley McLachlin and Justices Thomas Cromwell, Michael Moldaver and Russell Brown dissented in part.
The dissenters said they would not have exempted Quebec from the extension, nor would they have allowed exemptions for individuals seeking to end their lives during that period.
"We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering," they wrote.
"That should be clear from the court's reasons for judgment on the merits. However, neither do we underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct."
At least one Quebec patient has already received a doctor-assisted death. The province's law governing what it calls medical aid in dying went into effect Dec. 10; since then, one patient in Quebec City's university health care network received the service, a spokesperson confirmed Friday.
"We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering."
Elayne Shapray of Vancouver, who is wheelchair-bound and needs 24-hour assistance because of progressively worsening multiple sclerosis, said she's disappointed by the court's decision to grant the extension.
"There were reams and reams of evidence from all sorts of people — ethicists, doctors, other countries — and I think (the government) had it all before them and they could have come up with guidelines by the 6th of February."
Shapray, who wants the choice of how and when to end her own life, had filed an affidavit with the court in support of the B.C. Civil Liberties Association, which argued against granting the extension.
However, she welcomed the decision to allow exemptions, calling it better than nothing in the face of the delay.
"I think they realize that real people are really suffering. It's not a matter of politics," she said.
"This is all about choice. This isn't just for me, but about all people who are suffering and want to be able to have control over their own lives and say, 'Enough is enough. I want out.'"
Unanimous decision last February
The original — and unanimous — decision on assisted dying last February came two decades after the court rejected the concept in the Sue Rodriguez case.
The latest decision revolved around two B.C. women, both of whom died before the court ruled, who wished to end their "grievous and irremediable" illnesses with medical help.
Gloria Taylor, who had a neurodegenerative disease, eventually died of an infection. Kay Carter, then 89, travelled to Switzerland, where assisted suicide is allowed. Taylor had won a constitutional exemption at a lower court for a medically assisted death in 2012, but that decision was overturned in subsequent appeals.
Not all advocates of permitting doctor-assisted death were satisfied, considering Friday's decision essentially requires patients to mount a court challenge in order to exercise their rights.
"It is not cheap to go to court, so I would call on the government to make this process affordable for people," said Dalhousie University law professor Jocelyn Downie.
"What you don't want here is that only the rich are going to be able to access it for the next four months. Is it the case that it is everybody in Quebec and the rich? That would be appalling."
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A look at some jurisdictions where right-to-die laws are in place. (Information courtesy of The Canadian Press)
A right-to-die bill was adopted last year, the first legislation of its kind in Canada. The law, scheduled to go into effect in December, stipulates that patients would have to repeatedly ask a doctor to end their lives on the basis of unbearable physical or psychological suffering. They would have to be deemed mentally sound at the time of the requests. The law, however, is being challenged in court by two Quebec-based groups on the grounds that it undercuts sections of the Criminal Code that outlaw assisted suicide and euthanasia. The federal government has expressed its opposition to the legislation but is named as a defendant in the court challenge because it is responsible for the Criminal Code.
The results of a referendum made Oregon the first U.S. state to make it legal for a doctor to prescribe a life-ending drug to a terminally ill patient of sound mind who makes the request. However, doctors cannot administer the life-ending drugs and the patient must swallow them without help. Patients must state three times -- once in writing -- that they wish to die, and those statements must be made at least 15 days apart. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind. The law took effect in late 1997, and through June, 2014, just over 800 people had used the law.
The state became the first in the U.S. to allow a person's right to die through legislation rather than through a court decision or a referendum result. Vermont's law, which took effect in May 2013, is closely modelled on the system in Oregon and uses the same safeguards. Patients must state three times, including once in writing -- that they wish to die. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind.
In January 2014, a judge ruled that competent, terminally ill patients have the right to seek their doctors' help in getting prescription medication if they want to end their lives on their own terms. The state's attorney general is appealing the ruling, and a decision on whether it will be upheld is expected later this year.
A referendum saw the state enact right to die legislation in 2008. As in Oregon, patients with less than six months to live must administer the doctor-prescribed lethal medication on their own. According to a government report, 549 people applied for the right to die between 2009 and 2013. Of those, 525 actually took their own lives.
In 2009, the state's Supreme Court ruled that Montana's public policy supports mentally competent, terminally ill patients being able to choose aid in dying. Physicians are allowed to prescribe medication that patients must administer themselves. More detailed legislative bills have been introduced in the state but have not passed. The court ruling still stands today, but data about its usage is not available.
A law passed in 1942 forbade anyone from helping someone kill themselves for selfish reasons. As a result, people arguing that they are assisting with a suicide for unselfish motives are not considered to be committing a crime. Suicides can be assisted by people other than doctors and no medical condition needs to be established. Switzerland is the only country that allows foreigners to travel there for the purpose of ending their own lives.
In the Netherlands, euthanasia is legal under specific circumstances and for children over the age of 12 with parental consent. In Europe, patients don't have to prove that they have a terminal illness -- establishing unbearable suffering is usually sufficient. Dutch doctors are allowed to perform euthanasia if a patient whose unbearable suffering has no hope of improvement asks to die with a full understanding of the situation. A second doctor must agree with the decision to help the patient die.