B.C. Court declares invalid Criminal Code prohibition of physician-assisted death

By Sunny Dhillon, Globe and Mail, June 15, 2012
British Columbia’s Supreme Court has declared a section of the Criminal Code that prohibits physician-assisted death invalid.
In a decision released Friday, Madam Justice Lynn Smith says the Criminal Code provisions “unjustifiably infringe the equality rights” of the plaintiffs in the case, including Gloria Taylor, who suffers from amyotrophic lateral sclerosis (ALS).

Joseph Arvay, who represented Ms. Taylor, said that his client cried with relief on hearing the decision. He said that he does not know what her plans are.
Mr. Arvay said he imagined that the government would appeal the ruling, but hoped they would not.
A spokesperson for the federal government said the minister needed time to read the extensive ruling, but that they would be reviewing the judgment.
Grace Pastine, of the B.C. Civil Liberties Association, met reporters outside B.C. Supreme Court and called the ruling “a watershed decision.” She called the case a “major victory for individual rights at the end of life.”
Ms. Pastine read a statement from Ms. Taylor. It said: “I am deeply grateful to have the comfort of knowing that I’ll have a choice at the end of my life. This is a blessing for me, and other seriously and incurably ill individuals. This decision allows me to approach my death in the same way I have tried to live my life – with dignity, independence, and grace.”
Will Johnston, B.C. chair of the Euthanasia Prevention Coalition, said the ruling opens the door to potential elder abuse.
“We think this judgment decided to minimize and disregard the evidence of harm in other jurisdictions where assisted suicide and euthanasia has been practiced,” he said.
Udo Schuklenk chaired an expert panel of the Royal Society of Canada that studied end-of-life decision-making and said, in a report released last year, that informed Canadians should have the right to choose death within a regulated system, even if they have not been diagnosed with a terminal illness.
Dr. Schuklenk, a bioethicist at Queen’s University in Kingston, Ont., said the judge in Friday’s ruling clearly took into account the panel’s finding that there is no evidence that vulnerable people would be at appreciable risk of abuse if euthanasia was decriminalized. “If there is no appreciable risk, surely autonomy-based considerations mean people should be able to make these sorts of choices towards the end of their lives and have these choices respected,” he said.
Ricardo Smalling, a lawyer who is a research fellow at Queen’s, said the law is generally still valid, at least until next year, which means other people cannot legally exercise the same option. But, if the government does not do something about it, or if the B.C. Court of Appeal or the Supreme Court of Canada does not grant an injunction to stay the implementation of the decision, then assisted suicide will automatically become legal, he said.

Justice Smith has given Parliament one year “to take whatever steps it sees fit to draft and consider legislation.” During that time the ruling is suspended. However, the judge has also granted Ms. Taylor a constitutional exemption during that period that permits her to proceed with physician-assisted death under specified conditions.
“The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards,” the judge said of assisted suicide in her ruling.
After decades of both research and public debate, perhaps the time has come for Canada to begin to open the door to physician-assisted death for those incurably ill who wish to take that decision.
Of course, no systemic guidelines have been designed or adopted to prevent as much risk as possible; however, now the door is ajar for those, including Ms Taylor who suffers from ALS.
Whether the government will appeal the decision is still not known. There are already those promoting the case of elder abuse in the light of this decision, a courageous one on the part of the justice who write it.
We applaud her courage and her compassion, and we look forward to a healthy debate on the merits, hoping that the issue does not become mired in either ideology or religious absolutism.