By Lori CulbertPublished October 10, 2013/ vancouversun.com
“The B.C. Civil Liberties Association launched its “death with dignity” lawsuit in 2011, spearheaded by the organization’s litigation director Grace Pastine. Other lawyers, including noted human rights lawyer Joe Arvay, volunteered their time to make arguments in the potentially landmark case.
Today, the B.C. Court of Appeal overturned a lower-court ruling and upheld the federal law against assisted suicide. Pastine said the BCCLA was disappointed, but vowed to appeal to the Supreme Court of Canada and to “continue to argue that the government has no place at the bedside of seriously ill Canadians.”
Critics argue changing the law would leave vulnerable people at risk. Pastine earlier answered The Sun’s questions about her arguments in this lawsuit, known as Canada vs. Carter.
Vancouver Sun: Why did the BCCLA launch this court challenge in 2011?
Grace Pastine: We believe that everyone has the right to choose a dignified death. The Criminal Code provisions against physician assisted-dying are unconstitutional because they deny individuals the right to have control over choices that are fundamental to their lives and prevent unnecessary suffering. They restrict the liberty of physicians to deliver compassionate end of life care to incurably ill patients.
VS: Are you doing this work pro-bono?
GP: The B.C. Civil Liberties Association and the individual plaintiffs in the death with dignity lawsuit are represented pro bono by three of Canada’s top constitutional lawyers: Sheila Tucker of Davis LLP and Alison Latimer and Joseph Arvay, Q.C. of Arvay Finlay Barristers. They have donated thousands of hours of their time completely without charge. Despite these lawyers’ generous donation of time, the case has cost many tens of thousands of dollars. The B.C. Civil Liberties Association has funded the case, generously supported by its members and donors.
VS: Gloria Taylor was the human face behind this case. Who was she?
GP: Gloria Taylor was born and raised in Castlegar, B.C. and resided in Westbank, B.C. She was terminally ill with ALS, also know as Lou Gehrig’s disease, a fatal neurodegenerative disease with no known cure or effective treatment. Gloria was a grandmother, motorcycle enthusiast and former residential care worker. She founded a Kelowna support group for people living with ALS, and she was actively involved in raising money for groups that support people who are living with ALS and their caregivers.
Gloria began to experience the early symptoms of ALS in 2003. A neurologist diagnosed her with ALS in 2009. After her diagnosis, her condition steadily deteriorated. As she approached the end of her life, Gloria wanted to have the option to request physician assisted dying so she could die a compassionate and peaceful death, surrounded by her family and friends.
VS: Why do assisted suicide laws need to be changed?
GP: Without a change in the law, seriously ill individuals will continue to suffer against their wishes at the end of life, without the choice and dignity that they deserve. They will make profound end of life decisions without the advice and support of their physicians.
VS: Does the existing law brand as criminals anyone who helps terminally ill loved ones fulfil a wish to end their suffering?
GP: Lee Carter and Hollis Johnson are two of the plaintiffs in our lawsuit. Lee and Hollis accompanied Lee’s 89-year-old mother, Kathleen (“Kay”) Carter to Switzerland in January 2010 to end her life with dignity. Kay suffered from spinal stenosis, a degenerative condition, which confined her to a wheelchair, unable to feed herself, and suffering from chronic pain. Her doctor told her that the condition would quickly leave her reduced to lying flat in bed, completely unable to move. Kay feared she would become trapped in own body and stripped of her independence.
Kay was a lifelong supporter of the dying with dignity movement and she insisted on having choice and control over how she would end her life. Lee and Hollis believe that by participating in this lawsuit they are honouring her intrepid spirit.
VS: You successfully convinced the BC Supreme Court in June 2012 to strike down the law that makes physician-assisted death illegal in Canada. What did Justice Lynn Smith say in that ruling?
GP: The B.C. Supreme Court ruled that the right to die with dignity is protected by the Charter of Rights and Freedoms. The decision was a major victory for choice and individual rights at the end of life.
The court struck down the laws that makes physician-assisted dying illegal in Canada. B.C. Supreme Court Justice Lynn Smith ruled that the laws violated the rights of Gloria and the other two plaintiffs in the lawsuit, Lee Carter and Hollis Johnson. The judge determined that the criminal law provisions unjustifiably infringe the equality rights of Gloria Taylor, because she could not commit suicide, whereas able-bodied persons are not denied that option. The laws also infringe the rights to life, liberty and security of the person of Gloria Taylor. The laws infringe the liberty of Lee Carter and Hollis Johnson because they are at risk of incarceration.
VS: What were the arguments made by lawyers representing the provincial and federal attorneys general?
GP: The government has argued that changing the law would put vulnerable people at risk. However, we proved to the court that rigorous, upfront safeguards protect vulnerable individuals and prevent suffering.
VS: Victoria resident Sue Rodriguez made these same emotional arguments two decades ago?
GP: Yes, we took up the torch that Sue Rodriguez lit nearly two decades ago. Sue Rodriguez’s legal crusade ended when a very divided Supreme Court, in a 5-4 decision, upheld the law that criminalizes assisted dying. The Court held that the state interest in the sanctity of life excluded freedom of choice.
VS: What has changed since 1993?
GP: There has been a profound shift in recent years in social thinking on these issues. A significant number of countries now allow for physician-assisted dying in some form. The experience in these countries reveals that fears about physician-assisted dying are unfounded.
Ordinary citizens are deeply concerned with these issues, particularly as our population ages. Year after year, in poll after poll, Canadians have overwhelmingly said they are in favour of changing Canada’s laws.
VS: Have other countries, such as Belgium, Switzerland and the Netherlands, and some states, such as Oregon and Washington, adopted right-to-die laws? What has been their experience?
GP: Many of these jurisdictions have passed legislation specifying the requirements for a physician assisted death to be considered legal. These safeguards may include patient counselling, assessment by multiple physicians, ensuring that patients are incurably ill due to their conditions, and a time lapse to ensure that the decision cannot be made rashly. We now have years of empirical knowledge about the effects of legalization and we know the safeguards are working well.
VS: In Canada, anyone who helps fulfil a dying person’s wish can face a maximum sentence of up to 14 years in prison for assisted suicide. But aren’t assisted suicides already taking place in Canada, just privately?
GP: Yes, it will always be the case that some people will find ways to end lives that have lost all meaning, no matter what the law says, and no matter what the risk. They will attempt violent suicides, alone, behind closed doors. They will refuse food and water to bring about death, while traumatized family members keep vigil. Unless there is a change in the law, they will be denied the choice of a safe, compassionate death.
VS: If this law is not overturned at the Supreme Court of Canada, what options are left for terminally ill people who wish to end their lives with dignity?
GP: Currently, in the same way Canadians are able to make choices in regards to medical treatment and health care, it is legal for a Canadian to choose to end her own life. However, those individuals who are unable to end their own lives due to disability (for example, a lack of mobility due to terminal illness such as ALS) are not able to exercise this option. This leaves incurably ill individuals who wish to die with dignity before their illness has progressed to a point where they are unable to enjoy life with the agonizing decision: they can either take their own life while they are capable of doing so, but before their illness has progressed to a point where they are ready to die, or to ask a friend, associate, or doctor to break the law and risk legal punishment to help them in carrying out their wishes.”