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Court of Appeal Denies Canadians Right to Choose Assisted Death

Court says that the Supreme Court’s earlier decision in Rodriguez is binding – BCCLA seek leave to appeal decision to Supreme Court of Canada

Today the BC Court of Appeal released its decision in Carter v. Canada, with a divided two-to-one decision overturning last year’s historic BC Supreme Court ruling. The majority of the court did not base its decision on the merits of the case. Instead, it decided that it could not reverse the Supreme Court of Canada’s 1993 decision in Rodriguez v. B.C., effectively leaving the case up the Supreme Court to sort out. The result is that, for now, seriously ill people do not have the freedom to choose a physician-assisted death. As a result, the BCCLA will seek leave to appeal this decision to the Supreme Court of Canada.

Grace Pastine, Litigation Director for the BCCLA said, “We are disappointed, but the Court of Appeal has effectively thrown the ball to the Supreme Court of Canada. We will ask the Supreme Court hear this case and to recognize the right to die with dignity. We will continue to argue that the government has no place at the bedside of seriously ill Canadians, denying the right to decide to those who have made firm decisions about the amount of suffering they will endure at the end of life.”

The BCCLA had argued – and the Chief Justice of B.C. agreed in his dissent – that the Supreme Court of Canada had not fully considered the issues raised in this case in Rodriguez, and that the evidence since Rodriguez shows that appropriate and carefully-tailored safeguards can be created to protect vulnerable individuals.

Pastine added, “We will stand for what we know is right – compassion and choice at the end of life. We look forward to asking the Supreme Court of Canada to hear our case. We are confident that ultimately, there will be legal change, and that Canadians who are suffering unbearably at the end of life will have the right to choose a dignified and peaceful death.”

The lawsuit filed by the BCCLA in April 2011 challenged the laws that make it a criminal offense to assist seriously and incurably ill individuals to die with dignity.

In June 2012, the B.C. Supreme Court struck down the laws that makes physician-assisted dying illegal in Canada, ruling that the Charter of Rights and Freedoms protects the right to die with dignity. B.C. Supreme Court Justice Lynn Smith ruled that the laws violated the rights of Gloria Taylor, who suffered from ALS, and the rights of two other plaintiffs in the lawsuit, Lee Carter and Hollis Johnson. Gloria Taylor became the first person in Canadian history to have the legal right to seek an order allowing her to have the assistance of a physician to hasten her death. The federal government appealed the decision. The B.C. Court of Appeal heard arguments in the case March 18 – 22, 2013.

Joseph Arvay, Q.C., co-lead lawyer for the plaintiffs said, “The Court of Appeal decided that their hands were tied by the 20-year-old Rodriguez decision. We are prepared to go to the highest court in land to resolve this issue because it is so critically important. The choice to live or die, and to control when and how to die, are choices of profound and personal importance, and should not be unnecessarily interfered with by the state. Criminalizing assisted dying ensures that there will continue to be a maze of back-alleys that put people at greater risk than a regulated scheme.  People will find ways to end lives that have lost all meaning, no matter what the law says, even if that means choosing a violent death.”

Alison Latimer, lawyer for the plaintiffs said, “The choice to die with dignity should be available to all Canadians. All Canadians deserve compassionate care at the end of life, including the option of a physician-assisted death. Choice is a fundamental cornerstone of our medical system. Patients have a right to accept or refuse medical treatment, even if it hastens death. For example, a patient can request to be taken off a ventilator. It is not the role of government to say that one of these types of choices results in a “natural” death, while the other choice does not.”

Sheila Tucker, co-lead lawyer for the plaintiffs said, “We disappointed that people suffering unbearably will have to continue to wait for this question to be resolved. We are convinced that inflicting such suffering on dying patients who wish to end their lives with dignity is unjust and unconstitutional. We hope that the Supreme Court of Canada will agree, and restore the decision of the BC Supreme Court recognizing the right to a medically-assisted death.”

The plaintiffs are represented by Joseph Arvay, Q.C. and Alison Latimer of Arvay Finlay and Sheila Tucker of Davis LLP.

Read the Court’s decision here.

Read additional materials about the case here.

MEDIA CONTACTS

(Vancouver) Grace Pastine, BCCLA Litigation Director: grace@bccla.org or 778-241-7183 (for general comment and in-person interviews in Vancouver)

(Toronto) Joseph Arvay, lawyer: 604-505-1728 or jarvay@arvayfinlay.com

(Toronto) Sheila Tucker, lawyer: 604-417-7894 or stucker@davis.ca