This article was published by The Globe and Mail on October 10th, 2013. To see this article and other related articles on their website, please click here
British Columbia’s highest court upheld a ban on physician-assisted suicide, setting the stage for a showdown in the Supreme Court of Canada at a time when public interest is surging in a topic that was once taboo.
The ruling by the B.C. Court of Appeal on Thursday overturned a decision last year by the B.C. Supreme Court that found the criminal ban against doctor-assisted suicide was unconstitutional. The new ruling comes just after the federal Minister of Health discussed the issue with her provincial counterparts and as Quebec is debating legislation that would allow the practice in some cases.
Public debate in doctor-assisted suicide has also been sparked by a video featuring Donald Low, a microbiologist who was in the spotlight during Toronto’s SARS crisis a decade ago. In a video shot shortly before he died of a brain tumour in September, he made an impassioned plea to allow physician-assisted suicide for some people who are in pain and terminally ill.
For the B.C. Civil Liberties Association, which launched a challenge to the law with other plaintiffs in 2011, the Appeal Court ruling fuels its determination to push for change.
“We are a bit bloodied but we are certainly not bowed – and we are determined to seek leave to proceed to the Supreme Court of Canada,” Joe Arvay, one of the lawyers for the plaintiffs in the case, said on Thursday. “The case is going to carry on on behalf of everybody out there who is in the position of a Sue Rodriguez or a Gloria Taylor.”
Ms. Rodriguez, a B.C. resident who had amyotrophic lateral sclerosis (ALS), died in 1994 after the Supreme Court of Canada the previous year ruled against her and upheld the criminal ban against assisted suicide.
Gloria Taylor also had ALS – or Lou Gehrig’s disease – and died last October without having to use an exemption that had been granted to her in the 2012 decision.
In a split decision, two B.C. Appeal Court judges said while the law relating to the Canadian Charter of Rights and Freedoms has evolved since 1993 – when the Supreme Court turned down Ms. Rodriguez’s bid to overturn the law – it has not changed enough to set aside the ruling in that case and that “no change sufficient to undermine Rodriguez as a binding authority has occurred.”
The legal questions in the case revolve primarily around Canadian Charter of Rights and Freedom sections relating to equality rights and the right to life. In a dissenting opinion, Chief Justice Lance Finch agreed with the lower court judge and also argued that the definition of “life” under the Charter should be broader than a heartbeat or brainwave.
“Life’s meaning, and by extension the life interest in [section 7 of the Charter] is intimately connected to the way a person values his or her lived experience,” he wrote. “The point at which the meaning of life is lost, when life’s positive attributes are so diminished as to render life valueless, when suffering overwhelms all else, is an intensely personal decision which ‘everyone’ has the right to make for him or herself.”
As plaintiffs braced for the next round in the legal battle, so did intervenors who maintain that changing the Criminal Code to allow physician-assisted suicide in some cases would inevitably threaten the elderly and people with disabilities.