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Religious Tolerance logo

Physician Assisted Suicide (PAS) in Canada

Part 3 of thirteen parts

2011-NOV: Carter v. Canada case heard
by
the Supreme Court of British Columbia.

2012-JUN: Court's ruling issued,
supporting access to assisted suicide.

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This topic is continued from the previous essay

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The PAS case Carter v. Canada before the Supreme Court of British Columbia:

This court is the "... province's superior trial court." It hears "... any type of case, civil or criminal." 4 In spite of its name, it is not the highest level in the province's court system. Decisions of the Supreme Court can be appealed to the Court of Appeal, the highest court in the province. A decision of the Court of Appeal can be appealed to the Supreme Court of Canada. The Carter v. Canada lawsuit was eventually heard by all three courts.

The hearings in the Supreme Court of British Columbia were before the Honourable Madam Justice Lynn Smith. They were spread over a five month interval, from 2011-NOV-14 to 2012-APR-16 in eight segments, each ranging from one to five days duration.

Justice Smith issued her ruling on 2012-JUN-15. The decision is an amazing 330 pages long. That is the length of a typical novel. The Table of Contents alone extends over more than 4 pages! 1

The petitioners won. The court decided that people in agony, who want to end their pain through a dignified death, and who are unable to organize their own suicide, have the right to request "death with dignity" from a physician.

Some key statements embedded in the court ruling are:

[6] "Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death." 2

[8] "The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people."

[9] "... The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are
involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive
jurisdictions on the availability of palliative care or on the physician-patient relationship." 2

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[10] "The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards."

[15] "The claim that the legislation infringes [on Petitioner] Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) [of the Criminal Code of Canada] prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage." 2

[30] "The defendant [the Attorney General of] Canada opposes the granting of any of the relief sought by the plaintiffs. It pleads that there is no reason to depart from the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General) ... which affirms the constitutionality of s. 241(b) of the Criminal Code. Further, it says that the plaintiffs are claiming a constitutionally protected right that is broader than that which was rejected by the Supreme Court of Canada in that decision ..."

[33] "... Canada submits that if the laws are found to infringe the rights of any individuals, then such infringement is justifiable in a free and democratic society and is saved by s. 1 [of the Charter of Rights and Freedoms -- Canada's constitution]. 2

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The ruling quotes from the affidavit of plaintiff Gloria Taylor, 63, who is suffering from ALS and is seeking assistance from a physician so that she can commit suicide. The affadavit states:

[54] "... Ms. Taylor describes some of her hopes and fears regarding her death, as follows:

'I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends. I know that I am dying, but I am far from depressed. I have some down time – that is part and parcel of the experience of knowing that you are terminal. But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy. I will not waste any of my remaining time being depressed. I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality. There will come a point when I will know that enough is enough. I cannot say precisely when that time will be. It is not a question of “when I can’t walk” or “when I can’t talk”. There is no pre-set trigger moment. I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile”. When that time comes, I want to be able to call my family
together, tell them of my decision, say a dignified good-bye and obtain final closure – for me and for them.

My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives. I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified, and inconsistent with the values and principles I have tried to live by. I am proud to be dedicating the final days of my life trying to change the law in this respect. It is my hope that my actions in being a plaintiff in this case will bring others the peace of mind and sense of control that the law is presently denying me'." 3

[56] "I am dying. I do not want to, but I am going to die; that is a fact. I can accept death because I recognize it as a part of life. What I fear is a death that negates, as opposed to concludes, my life. I do not want to die slowly, piece by piece. I do not want to waste away unconscious in a hospital bed. I do not want to die wracked with pain. It is very important to me that my family, and my granddaughter in particular, have final memories that capture me as I really am – not as someone I cannot identify with and have no desire to become.

I have pre-arranged my cremation. I have chosen songs I would like played at my service and am designing a memorial program. I am working on a eulogy, which my cousin has agreed to read aloud for me at the service. We create ourselves through our lives. These acts are part of
my creation of the person I want to be and the person I want others to see and remember me as. I want my death to be part of that creation as well. As Sue Rodriguez asked before me – whose life is it anyway?" 4

The court ruling, issued on 2012-JUN-15, was in favor of the plaintiffs and in favor of legalizing assisted suicide. It was suspended for one year, presumably to allow for appeals or for the federal Government to pass a bill that specified the procedures required before a person can obtain assistance in suicide. The plaintiffs involved in the case who want help to commit suicide were given exemption fromis suspension.

Plaintiff Gloria Taylor, who suffered from ALS, died of an infection during 2012-OCT without exercising her right to an assisted suicide.

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The Summary Section of the ruling states:

"The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician assisted dying, relying on the Canadian Charter of Rights and Freedoms In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.

Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms.Taylor the option of physician-assisted death under a number of conditions...."

Less than a month later, the federal government appealed the case to the British Columbia Court of Appeal.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.  
  1. "Carter v. Canada (Attorney General)," Supreme Court of British Columbia, 2012-JUN-15, at: http://www.maitremontreuil.ca/
  2. Ibid, "I SUMMARY," Pages 7 to 9.
  3. Ibid, "I SUMMARY," Page 18.
  4. "Supreme Court," The Courts of British Columbia, 2009-JAN-29, at: http://www.courts.gov.bc.ca/

Site navigation: Home page > "Hot" topics  > Assisted Suicide > Canada > here

or: Home page > "Hot" topics  > Suicide menu > Assisted Suicide> Canada > here

Copyright © 2016, by Ontario Consultants on Religious Tolerance
Original posting: 2016-FEB-26
Latest update: 2016-FEB-27
Author: B.A. Robinson

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