The Right to Die
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- Published on Friday, 05 August 2011 07:10
- Written by John Draper
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There have been several campaigns in Canada trying to get the "Right to Die" - or as most of us would know it, "Assisted Dying". The subject was first discussed at length in connection with the Sue Rodriguez case when in September 1993 the Supreme Court of Canada ruled 5 to 4 against giving her the legal right to die. She had Lou Gehrig's disease and committed suicide anyway in 1994 with the help of an anonymous physician. The case got national attention due to support by NDP MP Svend Robinson. Then in October 1993, cerebral palsy sufferer Tracy Latimer was killed by her father in a mercy killing. (More here)
In late 2009 Francine Lalonde introduced a bill in Federal Parliament which would have made assisted dying legal but it was voted down in April 2010 by a collection of wimps and religious nuts. (more). The Dignity in Dying group has been active for a while but a new B.C. based organization is now mounting a constitutional challenge. They started by setting up the "Farewell Foundation" that would assist its members to die upon request. For this purpose, they applied to register as a non-profit society in B.C. but were rejected on the grounds the organization had illegal purposes. (In Canada, the Criminal Code makes it an offence to help with suicide, punishable by a term of up to 14 years.)
They are now appealing this decision to the B.C. Supreme Court and ultimately to the Supreme Court of Canada on the grounds that it violates the Canadian Charter of Rights and Freedoms. The first hearing is scheduled for August 3, 2011.
An affidavit filed by Russel Ogden of the Farewell Foundation states: "The criminal prohibition on assisted suicide in Canada causes immeasurable physical and psychological suffering to persons of sound mind who are capable of making informed decisions and who wish to end their own lives in order to avoid that suffering. This suffering is certain and it is as extreme as any suffering humanity must endure. This case tests whether Parliament is entitled to cause such suffering to the people of Canada."
Ogden said his group is pursuing the case because Canadians who are terminally ill have no appropriate options if they decide they want to die. "They can, once in a while, get the benefit of a sympathetic physician, but that is rare, or they can end their lives in violent ways, or they can die quietly and in secret, using methods that are advocated in the how-to literature," he said. He added: "legally assisted suicides in other countries take place within a structure that is accountable to authorities, with detailed reporting required to the police and coroner's office, but in Canada assisted suicides are "hidden" because they are illegal.
"They happen covertly and they foster clandestine, camouflaged assisted-death practices. We think that it is time for Canada to bring assisted death out in to the open," he said.
According to Mr. Ogden, polls now show 70 per cent of Canadians support it.
Addendum - Aug 2, 2011
A recent poll in England showed that three in four people think terminally ill adults should have access to medical help to die, but only one in three think people with physical disabilities should have same right, UK Guardian Aug 2, 2011
Part 2 - August 3, 2011
Application for Right to Die before BC Supreme Court
In a separate case, The Globe and Mail reports that a 63-year-old, divorced mother of two adult sons, Gloria Taylor, has Lou Gehrig's disease and has filed for the right to die. It has left her with a crippled right hand, difficulty breathing, atrophied muscles in her feet and toes, uncontrollable cramps that shoot through her body and bouts of excruciating pain when she stretches.
The application that has been filed by British Columbia Civil Liberties Association states: "Gloria is terrified of losing control of her bodily functions. … One of her greatest fears is to be reduced to a condition where she must rely on others for all of her needs. She does not want to live in a bedridden state, stripped of her dignity and independence."
George Copley, a lawyer for the Attorney-General of B.C., said both the provincial and federal governments need more time to prepare for the case, and urged a delay.
But Joseph Arvay, a lawyer for the BCCLA, said time is something his client doesn't have. "We have a dying woman who wants to be able to exercise her constitutional right to die with dignity," Mr. Arvay said outside court on Tuesday. "And the only way that's going to happen is if the trial is heard in November, because her situation is urgent."
The government's position, he added, "is irresponsible and it's insensitive. For them to say we need more time, and given the situation of Ms. Taylor, is in my opinion very wrong. … Gloria has ALS. … It is a disease that causes people to die in a horrible manner and she wants to be able to avoid that fate if at all possible with the assistance of this court."
However, the Justice Lynn Smith who is hearing the case granted an expedited trial and said: "I've considered the case plans put forward ... that make it urgent to hear this matter expeditiously ... I'm satisfied there is urgency," She set the trial to start November 15, 2011.
It is possible that this case will be merged with the case described above since they are closely related and are being heard by the same Judge.
Update Aug 19, 2011
B.C. Supreme Court tosses out challenge to assisted-suicide law
The Farewell Foundation's attempt to challenge the section of the Criminal Code banning assisted suicide has been tossed out by a B.C. Supreme Court judge.
Justice Lynn Smith ruled the foundation did not have a strong enough case to challenge the law, saying anonymous members of the group must identify themselves in order to prove the law directly affects them.
However, Smith invited the group to apply to intervene in a parallel right-to-die case led by the B.C. Civil Liberties Association.
So the Farewell Foundation will be joining in with the case mentioned above - Gloria Taylor's right to die.
Updates on this case are continued below
Case in UK
August 19, 2011 UK Guardian
Meanwhile a severely disabled man wants doctors to be allowed to ease his death in the UK, or help him travel to Switzerland to end his life.
Another case in Quebec
August 31, 2011
A Quebec lawyer, Rene Duval, an experienced human rights lawyer and litigator is working on behalf of 47 year-old Ginette Leblanc who is pleading for help to end her life. She has amyotrophic lateral sclerosis, also known as Lou Gehrig's disease.
Duval believes a lot has changed since the country's highest court ruled against Sue Rodriguez in a divided decision in 1993. Duval told the Montreal gazette: "One of the reasons for dismissing her application was that other comparable countries had no such thing as laws allowing assisted suicide." But now Switzerland, Belgium and Holland allow assisted suicide as U.S. States Washington, Oregon and Montana.
The lawyer is working on filing an application on behalf of Leblanc to the Quebec Superior Court to invalidate section 241b of the Criminal Code - that makes assisted suicide illegal. Duval expects that application to be dismissed, therefore leading him to the Quebec Court of Appeal and then to the Supreme Court of Canada.
"I don't expect any court to issue a decision that would contradict Rodriguez. Only the Supreme Court of Canada can re-examine this issue," he said.
Duval believes the process could be shortened if all parties agree and he hopes to file an application to the Supreme Court of Canada in the fall of 2012.
Update, 14 November, 2011
The case is now being heard by the court
Gloria Taylor, a West Kelowna woman with amyotrophic lateral sclerosis, also known as ALS and Lou Gehrig's disease, says she wants her doctor to be able to help her end her life before she becomes incapacitated. She is one of five plaintiffs in the case and was not present today. Her case is being presented by Joseph Arvay of the B.C. Civil Liberties Association.
The other plaintiffs include a couple who helped their aging mother fly to Switzerland for an assisted suicide, a Victoria doctor seeking the right to help his grievously and irremediably ill patients have assisted suicides and the B.C. Civil Liberties Association.
In his opening arguments, Arvay told the court that Canada's Criminal Code provisions against physician-assisted suicide are unconstitutional and individuals should have the right to choose what they describe as a dignified death.
Arvay read an affidavit from another man, Peter Fenker, who was 71 years old and a strong active man until he was diagnosed with ALS.
In the statement, Fenker described how his muscles wasted away until he could barely move, and he didn't even have muscles to hold his internal organs in place, so even lying down left him in severe pain as they pressed against his spine.
"I felt like a blob with useless limbs," he wrote in the affidavit.
Fenker wrote that he seriously considered killing himself with a gun once he was diagnosed, but that he didn't want to make that decision out of anger or depression, due to the effect it would have on his family. "I would hate to say goodbye to the world in such an ugly manner."
Later, once he could not physically take any action to end his life - besides refusing food and water - he said he wished for physician-assisted suicide, and was angry that was not a possibility.
"The government should not be able to control my body," he wrote.
He has since died from the disease, wrote his wife Grace, in a separate affidavit read in court. She wrote that he suffered incredibly, gasping for breath over days as though he was drowning in water.
She wrote that her husband often said to her, "Humans show animals that are suffering more compassion."
Avary said he also plans to speak to the limitations of palliative care, how assisted suicide works in other jurisdictions such as Oregon, what safeguards can be put in place to protect vulnerable people from being coerced, and how much has changed since the issue was before the courts in the 1990s.
In Canada, it's illegal to counsel, aid or abet a person to commit suicide, and the offence carries a maximum punishment of 14 years in prison. However, three U.S. states and four European countries do allow it.
The Supreme Court of Canada last ruled on the right-to-die debate in 1993, when Victoria resident Sue Rodriguez, who also had ALS, took her case to court.
It ruled against her request for a doctor-assisted suicide, but Rodriguez did find an anonymous doctor who helped her carry out her dying wish.
This past summer, the Farewell Foundation for the Right to Die attempted to challenge the law in B.C. Supreme Court, arguing the Criminal Code section prohibiting assisted suicide is unconstitutional. But the judge dismissed the case because the plaintiffs were anonymous.
Amongst those opposing is the Federal Government. They summarize their case with: "… the good of alleviating suffering is outweighed by the probability of wrongful death."