OTTAWA — The Canadian Bar Association is urging the federal government to expand its restrictive new law on assisted dying, allowing mature minors, people suffering strictly from psychological illnesses and those diagnosed with competence-eroding conditions like dementia to get medical help to end their suffering.
But even as the country's lawyers seek to extend the right to medical assistance in dying, the government is digging in its heels, maintaining that the facts on which the Supreme Court decided to strike down the ban on assisted dying are no longer applicable.
Julia Lamb, who has a degenerative muscle disease, pauses following a news conference in Vancouver, B.C., June, 27. (Photo: Jonathan Hayward/The Canadian Press)
In a response to a court challenge of the new law, the government argues that the top court's findings of fact in the landmark Carter case last year applied only in the context of the absolute ban on physician-assisted dying that existed at the time.
Now that there is a new law — which allows assisted dying only for incurably ill adults who are already close to a natural death — the government says those findings are no longer necessarily true.
"The defendant does not admit that these findings remain true today or that they are applicable in the present case," the government argues in a document filed in the Supreme Court of British Columbia.
Among the facts that the government suggests are no longer true are the top court's findings that:
- Denying assistance in dying for people with grievous and irremediable medical conditions may condemn them to a life of severe and intolerable suffering.
- Such a person faces a "cruel choice": take his or her own life prematurely or suffer until natural death.
- A permissive approach to assisted dying would not put Canada on a "slippery slope" in which disabled and other vulnerable Canadians are pressured to end their lives.
The government's argument is in response to a court challenge launched by the B.C. Civil Liberties Association and Julia Lamb, a wheelchair-bound 25-year-old who suffers from spinal muscular atrophy, a degenerative disease that she fears will eventually consign her to years of intolerable suffering. Lamb and the BCCLA contend the new law is unconstitutional and not compliant with the Carter decision because it would not allow an assisted death for people, like Lamb, who are suffering but not near death.
"The defendant does not admit that these findings remain true today or that they are applicable in the present case."
In a terse reply to the government's document, Joseph Arvay, lawyer for the plaintiffs, says the government "is estopped from disputing the factual findings made in Carter ... and to do so is an abuse of process."
Grace Pastine, the BCCLA's litigation director, said the government is essentially saying, "'We've crafted a brand new law and so now this is a brand new issue and you have to re-litigate and re-argue every issue related to physician-assisted dying all over again.'"
The legal fight that culminated in the Carter ruling took four years and cost millions, she noted, adding that the government is creating "a real barrier to justice'' by maintaining that battle must be fought all over again.
"If ordinary Canadians and public interest groups and pro-bono lawyers have to recreate the wheel every time they challenge an unconstitutional law, they're seriously disadvantaged against the bottomless pockets of the federal government," Pastine said in an interview.
Assisted dying approach needs work: CBA
But even as the government digs in, the CBA is urging it to adopt a more permissive approach to assisted dying.
At its annual meeting Thursday, the bar association's council unanimously passed three resolutions, urging the government to extend the right to assisted dying to people suffering strictly from psychiatric illnesses and to mature minors and to allow people diagnosed with conditions that will eventually cause loss of competence to make advance requests for an assisted death while they're still able to give informed consent.
The government has promised independent studies of those three issues, starting within six months and reporting back by the end of 2018.
Also on HuffPost:
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.