*Update – The court hearing was adjourned due to illness of one of the leading lawyers.*
On Monday March 4, at 9 a.m., the Farewell Foundation for the Right to Die, together with other organizations in support of assisted suicide, will hold a rally in front of the B.C. Court of Appeal, at Hornby & Nelson streets.
Meanwhile, inside the court, lawyers will meet to defend their positions in the Carter et. al v. Canada appeal case. The Attorney General of Canada is appealing the determination that sections of the Criminal Code prohibiting physician assisted suicide are unconstitutional because they infringe sections of the Charter of Rights and Freedoms.
The determination made headlines in the summer of 2012, when Gloria Taylor, one of the plaintiffs, was allowed to seek medical assistance in dying, as the first person in Canada. Taylor died in October 2012 from an infection, without needing the assistance.
Few people know the case has a South Vancouver angle
When South Vancouver resident Ruth Goodman took her own life on February 2, 2013, the media were all over the issue. Goodman, age 91, drank a lethal dose of pentobarbital, which she obtained from a source in South America, according to a press release by the Farewell Foundation for the Right to Die, a foundation she supported.
The Globe and Mail newspaper published Goodman’s final letter:
I am a 91-year-old woman who has decided to end my life in the very near future. I do not have a terminal illness; I am simply old, tired and becoming dependent, after a wonderful life of independence. People are allowed to choose the right time to terminate their animals’ lives and to be with them and provide assistance and comfort, right to the end. Surely, the least we can do is allow people the same right to choose how and when to end their lives. By the time people read this, I will have died. I am writing this letter to advocate for a change in the law so that all will be able to make this choice. (Ruth Goodman, Vancouver).
Today, Saturday March 2, the Globe and Mail published another article on Goodman.
In the essay below, written for my law class, I spoke with Farewell Foundation spokesman Russel Ogden and with Grace Pastine, litigation director of the BC Civil Liberties Association, about the meaning of the appeal case:
When Russel Ogden snuggles up to watch his favourite TV show The Wire, the background sounds of telephones ringing make his heart cringe. For Ogden has a second phone in his basement. And when that phone rings, he knows he’s in for a long night of listening to a person who is about to suicide.
Ogden is a sociologist and criminologist at Kwantlen Polytechnic University, but he’s also the founding director of the Farewell Foundation for the right to die. Farewell’s members believe people have the right to receive assistance with self-chosen death and those who are assisting should be free of criminal prosecution. They support institutions like Swiss-based Dignitas, which provides both medical and non-medical solutions.
“We want to incorporate that model in Canada, which is effectively a demedicalized approach,” said Ogden. The foundation, based in New Westminster and only two years old, is part of one of the most controversial constitutional law cases of the last decade.
Gloria Taylor the only Canadian ever to receive the legal right to seek assistance in dying
When the B.C. Supreme Court awarded Gloria Taylor an exemption to the constitution as the only person in Canada with the legal right to seek assistance in dying in June 2012, the Farewell Foundation was closely following the case as an intervener.
Taylor, who suffered from amyotrophic lateral sclerosis or ALS, a rapidly degenerative, always fatal neuromuscular disease, was one of four plaintiffs in the case called Carter et al vs. Canada. She died of an infection in October 2012. The headline-grabbing judgment was appealed by the federal government. The appeal will be heard at the B.C. Court of Appeal starting March 4, 2013.
The case will likely move on to the Supreme Court of Canada, no matter who wins, said both Ogden and Grace Pastine, the litigation director of the BC Civil Liberties Association, a non-profit advocacy group, which is one of the plaintiffs.
Federal criminal laws that prohibit choice in dying are unconstitutional: Justice Smith
“There were two major findings of the court,” said Pastine about the decision of Madam Justice Lynne Smith in June 2012. “The most significant was that the federal criminal laws that prohibit choice in dying are unconstitutional.”
Section 241(b) of the Criminal Code contravenes sections 7 and 15 of the Charter of Rights that protect the rights to equality, life, liberty and security of the person, said Justice Smith. She ruled that Canada’s parliament must amend the Criminal Code and she allowed 12 months to do so, starting after the last appeal is ruled.
“The court was also mindful that Gloria Taylor, the lead plaintiff, had a limited amount of time, and that it was very important for her to have access to physician-assisted dying if she decided that that is what she needed,” said Pastine. “And that’s why the court also crafted a constitutional exemption for Gloria Taylor.”
The federal government appealed both the constitutional exemption and the declaration that the laws were unconstitutional. Since Taylor’s passing, the only issue to be heard in March is the constitutionality of the laws.
20 years ago, Sue Rodriguez was denied access to assisted suicide
Incidentally, 2013 marks the 20-year anniversary of the landmark Rodriguez vs. British Columbia case. Sue Rodriguez was an ALS patient who sought the legal right to assisted suicide. She lost in a 5-4 decision at the Supreme Court of Canada in 1993.
In Rodriguez, the Supreme Court of Canada reasoned that “the purpose of the absolute prohibition against physician-assisted suicide is to prevent vulnerable persons from being induced to commit suicide at times of weakness,” cited Justice Smith in her 323-page judgment.
Sue Rodriguez committed suicide with the help of an anonymous doctor on the day Russel Ogden’s university thesis about organized suicide amongst AIDS patients made headlines. Politician Svend Robinson, who had attended Rodriguez’ death, told the press about Ogden’s ground-breaking research, making him an overnight expert on assisted suicide.
Over the years, Ogden wrote several publications about non-medical suicide methods like helium asphyxiation and attended several self-induced deaths for research purposes, something he feels is personally unsettling, but a fight worth fighting.
How did the Gloria Taylor case, aka Carter et al. v. Canada, come about?
Although several Vancouver lawyers were preparing constitutional complaints about the right for assisted suicide, the Farewell Foundation was the first, filing its constitutional challenge in February 2011. “The BCCLA filed in April,” said Ogden. “We have two different approaches. We advocate for a demedicalized approach and the language in BCCLA is all about medical aid in dying.”
In the spring of 2011, the Farewell Foundation presented five anonymous members seeking assistance in suicide. The B.C. Supreme Court rejected the Farewell Foundation’s petition on grounds that anonymous plaintiffs could not have legal standing.
The BCCLA case gained from adding Gloria Taylor as a plaintiff in summer 2011. Her grave illness cemented the BCCLA’s right to bring the case forward.
In August of 2011, Justice Smith suggested the Farewell Foundation to apply to be part of the BCCLA case as an intervener. Interveners have a unique perspective that can assist the court to understand the issues. They are not present on behalf of the plaintiff or the defendant.
The case cost up to a $1 million worth of pro bono lawyer hours and tens of thousands of dollars from BCCLA funds. “It’s certainly the most expensive case in our history as an organization,” said Pastine.
It was also extensive. “In this case, there was an extraordinary amount of expert and lay evidence for the court,” said Pastine. Experts from Belgium, the Netherlands, Oregon and Washington presented scientific evidence. Affidavits from people with a wide range of illnesses provided compelling examples of suffering and the fear of suffering.
“One of the real tragedies of this case is that so many of our witnesses have now died,” said Pastine. “These are all individuals who were suffering from serious and incurable diseases and who wanted choice in dying.”
What will happen after the appeal is ruled?
Ogden thinks the next step at the B.C. Court of Appeal will be significant, regardless who wins. “The decision by three judges is important, because the possibility of a split decision will help to flesh out which arguments the appeal court believes are the most important from a justice perspective. And then the parties will refine those arguments for the panel of nine judges at the Supreme Court of Canada,” he said.
The lead lawyer for the federal government, Donnaree Nygard, declined to comment.
Meanwhile, a separate, similar constitutional challenge in Quebec has collapsed, because plaintiff Ginette Leblanc, 49, died as a result of ALS on Feb. 2nd, 2013.
On the same day, Farewell Foundation member Ruth Goodman, a 91-year-old from Vancouver, ended her life by drinking a lethal dose of pentobarbital.
Reported by Katja De Bock
These two videos give a good insight into the case: