B.C. court hears arguments in euthanasia case
In November and December, the British Columbia Supreme Court heard oral arguments in the case challenging the Criminal Code prohibition on euthanasia and assisted-suicide.
Last April, the B.C. Civil Liberties Association (BCCLA) brought forward a suit on behalf of the family of Kay Carter to challenge the constitutionality of provisions in Canada’s criminal code which protect people from euthanasia and assisted suicide. Under Section 241 of the Canadian Criminal Code aiding, abetting, and counselling suicide is against the law.
The family of Kay Carter accompanied their 89-year-old mother to Switzerland in January 2010 where she obtained an assisted suicide at the Dignitas suicide centre, the tenth Canadian to die at the facility. Carter had spinal stenosis, a narrowing of the spinal chord which results in the body collapsing. The family claims that Kay Carter’s right to assisted death in Canada was denied and that her daughter and son-in-law technically broke Canada’s law prohibiting the aiding and abetting Carter’s suicide and could be prosecuted under a law they claim is unconstitutional.
In June, the BCCLA later added Gloria Taylor to the suit. Taylor, has amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and was told in January 2010 that she would likely die within the year. She is still alive and because of her health, the courts expedited the case.
On Nov. 14, arguments began.
A written submission by the Farewell Foundation For The Right To Die claimed Kay Carter had a “good death” that should be available to all Canadians according to the Swiss model, which also has multiple safeguards. According to the organization, “the only regrettable aspect of the manner in which Ms. Carter ended her life was the fact that Ms. Carter was forced to end her life away from home and travel to Switzerland at great personal expense and hardship.”
Also making the case for overturning Canada’s restrictions on assisted-suicide, 63-year-old social worker identified only as L.M. testified about his family’s involvement in the deaths of his parents to illustrate the case in favour of legalizing doctor-assisted suicide. In 1996, he was told by his mother over the phone that his father, suffering from lung cancer, had planned out his death with the aid of a doctor. The physician supplied the morphine for the lethal overdose. Ten years later, his mother was diagnosed with adenocystic carcinoma, a type of cancer, and phoned him to ask for help in her own suicide. Because they could not find a doctor to provide the drugs, L.M. ordered a lethal dose of the amitriptyline anti-depressant over the internet and, with the help of his sister, prepared and administered the drugs. “I feel privileged and honoured that I was able to help my mom,” he wrote in his affidavit. “It was psychologically and physically draining, but I know that I did the right thing.”
B.C. Supreme Court Judge Lynn Smith challenged Department of Justice lawyer Donnaree Nygard’s argument that the state sees life as sacrosanct by asking why the state sends people off to war. Nygard’s response was that “the exceptional nature of war is such that criminal law doesn’t apply.” Also, Nygard said, there is a difference between “condoning” —- which would be the implicit message of permitting assisted suicide – and “excusing” death, as the state does in cases of murder in self-defence. “Right now in our society, we do not condone the taking of life…but the legalization of assisted suicide and euthanasia would condone that, and that’s where we say there would be a fundamental shift in societal values,” she said.
Nygard also pointed out that Parliament has already rejected nine private member’s bills on assisted suicide: thrice by not even bringing the matter to a vote and rejecting it six times. Moreover, Parliament’s decision in 1972 to repeal a ban on suicide was simply “a recognition there was no prohibitive effect (to the law)” rather than an acceptance of suicide. Justice Smith seemed to disagree.
Lawyer Hugh Scher, representing the Euthanasia Prevention Coalition, also argued against assisted suicide. “A constitutional principal for a class of people based on health and disability status is a lethal form of discrimination,” he said. “Adequate safeguards” for legal euthanasia “cannot be adopted,” he said, and “an unequivocal and absolute rule is required.”
Scher also warned that a vulnerable patient’s relationship with the doctor would change: “It permits the physician to aid in the assisted suicide of a patient, an act that would be a crime, but for the person’s disability.”
He also noted that as evidenced from cases in Oregon where assisted-suicide is legal, individuals do not seek death just from physical pain, but also from loss of autonomy, fear about the future, and feelings about being a burden.