Right to Die and Capacity Issues


In early summer our B.C. Supreme Court struck down the law prohibiting physician-assisted suicide. It is the Federal Government’s responsibility to respond to constitutional challenges to the Criminal Code and in this case the Federal Government instructed it’s lawyers at the Department of Justice to defend the legislation at the the B.C. Supreme Court level and having lost, we now know that the government will be appealing the decision.

The decision received considerable press so some of you may be familiar with the basic facts.  There were different challenges to the legislation but it was Gloria Taylor’s story that received the most media coverage. She  suffers from amyotrophic lateral slcerosis (ALS) or more commonly known as Lou Gehrig’s disease.  The disease is ravaging and Ms. Taylor’s plea was to permit her to to die with dignity. As reported in the media she is quoted as saying  “What I fear is a death that negates, as opposed to concludes my life….this decision allows me to approach my death in the same way I have tried to live my life- with dignity, independance and grace.”

Madam Justice Lynn Smith ultimately ruled that the Criminal Code prohibition against physician assisted suicide contravened the Charter of Rights in that it unjustifiably infringes the equality rights granted to all Canadians. She gave Parliament one year to draft new legislation; her ruling was suspended during that year but she granted Ms. Taylor an exemption to proceed with physician -assisted death under specified conditions.

Reaction to the ruling has been mixed. The Department of Justice has filed an appeal; and for example the Euthanasia Prevention Coalition condemned the ruling on the basis that it would open the door to elder abuse. He is quoted as follows in the June 15th edition of the Globe and Mail article:

“We think this judgment decided to minimize and disregard the evidence  of harm in other jurisdictions where assisted suicide and euthanasia has been practiced.”

There are various academics and researchers who claim that in those jurisdictions such as Netherlands, Belgium, Oregon and Washington which provide for legalized assisted suicide that there is no evidence of abuse. However others have disagreed particularly with respect to the European experience.

The concern of course is that someones life may be unduly hastened by reason of financial or other motivations from family members who may be able to manipulate the situation. Countering this of course is that not permitting those who are competent to make decisions over their own life is a form of state sanctioned abuse.

The arguments are intense and compelling. Our Supreme Court has weighed in on the side of the right to die with dignity provided strict conditions are met.  Over the next several years our appellate courts will be deciding this issue but in the interim, Ms. Taylor will be the first Canadian who  could choose a physician assisted suicide without any fear of the physician being charged or those around Ms. Taylor being accused of manipulation or abuse.