Supreme Court of Canada decides to hear assisted dying case

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THE Supreme Court of Canada announced on Thursday that it will hear the BC Civil Liberties Association’s (BCCLA) appeal of the death with dignity case, Lee Carter et al. v. Attorney General of Canada, et al. The case asserts that the laws that criminalize doctors for helping competent, seriously ill individuals who wish to hasten death are unconstitutional.

Elayne Shapray, a woman who suffers from multiple sclerosis (MS) who has been seeking the right to die with dignity since this case began, filed an affidavit in support of the BCCLA’s application to the Supreme Court. Elayne stated she is tormented by the knowledge she is trapped in an unbearable dying process and lives in legal uncertainty of her rights given the inherent delays in the legal process.

Elayne Shapray said, “I am overjoyed that the Supreme Court of Canada has decided to hear this case. My hope is that the Court will allow people in my situation who endure intolerable suffering from a variety of conditions to choose a peaceful, dignified death surrounded by loved ones and many friends. As the law now stands, I will be obliged to end my life without the assistance of a physician, and will have to act alone, while I still can. While I do not want to traumatize my family by ending my life through self-starvation, over medication or some horrible self-inflicted injury, these are the only choices until the Supreme Court rules that the laws are unconstitutional.”

Grace Pastine, Litigation Director for the BCCLA, said, “There are few rights more fundamental, or more deeply personal, than the right to determine how much suffering to endure and whether to seek a doctor’s assistance to hasten death if living becomes unbearable. We are relieved that the Supreme Court of Canada has decided to hear our case, and we are hopeful that ultimately there will be legal change for Canadians who want to have the right to choose a dignified and peaceful death.”

The case was filed in April 2011, and the BCCLA was joined in the lawsuit by Lee Carter and Hollis Johnson, a married couple who accompanied Lee’s 89-year-old mother, Kathleen Carter, to Switzerland in January 2010 to peacefully end her life. It was subsequently joined by Gloria Taylor, who was terminally ill with ALS, also known as Lou Gehrig’s disease. Gloria died of natural causes on October 4, 2012.

The BC Supreme Court ruled in 2012 that the Criminal Code of Canada provisions against assisted dying violate the constitutional rights of the gravely ill and gave Parliament one year to rewrite the laws. The federal government appealed. The BC Court of Appeal overturned the lower court’s ruling in late 2013, holding that in light of the Sue Rodriguez decision only the Supreme Court of Canada was entitled to consider whether the law was constitutional.

The BCCLA petitioned the Supreme Court of Canada to hear the case in October, arguing that seriously and incurably ill, mentally competent adults should have the right to receive medical assistance to hasten death under specific safeguards. It has been twenty years since Canada’s highest court looked at the issue, dismissing a challenge to the law in the Sue Rodriguez case. In that case, the Court upheld the law in a 5-4 decision.

Joseph Arvay, co-lead lawyer for the plaintiffs, said, “We are taking this case to the highest court in the land because the right to control when and how to die is integral to the liberty, security and well-being of Canadians, and cannot be unnecessarily interfered with by the state. There has been a sea change in recent years in the social and legislative facts underpinning the Court’s decision in Sue Rodriguez’s case. A significant number of countries now allow for physician-assisted dying. The experience in these countries reveals that fears about physician-assisted dying are unfounded. It is time for Canada to adopt a new approach.”

Sheila Tucker, co-lead lawyer for the plaintiffs, said, “We strongly believe that inflicting suffering on dying patients who wish to end their lives with dignity is unjust and unconstitutional. This is a case about compassionate care at the end of life. Choice is a key element of our medical system. Patients have a right to accept or refuse medical treatment – for example, a patient can refuse kidney dialysis, even if that choice leads to death. It is not the role of government to say that some medical choices result in a “natural” death, while others do not.”

Alison Latimer, lawyer for the plaintiffs, said, “We advocate for a system that allows for compassion and choice at the end of life and provides up front safeguards for the seriously ill.  Regulation of choice in dying, rather than the criminalization of doctors, provides the best protection for Canadians. Without a change to the laws, there will continue to be a maze of back-alleys that put people at risk. Tragically, people find ways to end lives that have become unbearable, no matter what the law says, even if that means choosing a violent death.”

Pastine added, “There have been repeated calls from all quarters of society, be it academics, ordinary Canadians or those more prominent such as, most recently, the renowned Ontario microbiologist Donald Low, for this issue to be addressed at a national level. Despite the public importance of the issues raised, no political party seeks to debate the issue and federal government officials have refused to bring the issue of physician-assisted dying back before Parliament. The Supreme Court of Canada is the only place seriously ill Canadians can look to protect their constitutional rights.”