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Supreme Court reverses ban on doctor assisted death; unconstitutional

OTTAWA – The Supreme Court of Canada has unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and ``irremediable'' patients.

The historic, groundbreaking decision from the country's top court sweeps away the existing law and gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable suffering – physical or mental – to seek medical help ending their lives.

The judgment, which is unsigned to reflect the unanimous institutional weight of the court, says the current ban infringes on all three of the life, liberty and security of person provisions in Section 7 of the Charter of Rights and Freedoms.

It does not limit physician-assisted death to those suffering a terminal illness.

``For seriously and incurably ill Canadians, the brave people who worked side by side with us for so many years on this case – this decision will mean everything to them,'' said a visibly overjoyed Grace Pastine, the litigation director for the B.C. Civil Liberties Association.

The court clearly instructs parliamentarians that current laws ``unjustifiably infringe (Section 7) of the charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.''

The pressure will now be on Parliament to act in an election year, as the court says no exemptions may be granted for those seeking to end their lives during the 12-month suspension of the judgment.

Friday's decision was spurred by the families of two now-deceased British Columbia women, supported by Pastine's organization.

Gloria Taylor, who had a neurodegenerative disease, eventually died of an infection. Kay Carter, then 89, travelled to Switzerland, where assisted suicide is allowed.

Taylor had won a constitutional exemption at a lower court for a medically assisted death in 2012, but that decision was overturned in subsequent appeals.

``Justice, dignity and compassion were the defining qualities of my mother,'' Lee Carter told a crush of reporters after the decision came down.

``We just felt that it was a fundamental right for Canadians that they should have this choice.''

She called it ``a huge victory for Canadians and a legacy for Kay.''

Hollis Johnson, Kay Carter's son-in-law, called her ``a vibrant and intelligent woman'' who ``dreamed of legal change for all Canadians, because she believed the laws forced people like her to suffer needlessly at the end of their lives.''

The Supreme Court gave a ringing endorsement of the original B.C. trial judge's findings, albeit not for a constitutional exemption.

The decision reverses the top court's 1993 ruling in the case of Sue Rodriguez, a fact the decision attributes to changing jurisprudence and an altered social landscape.

Two decades ago, the court was concerned that vulnerable persons could not be properly protected under physician-assisted suicide, even though courts recognized the existing law infringed a person's rights.

But the experience of existing jurisdictions that permit doctor-assisted suicide compelled the courts to examine the record.

The B.C. trial judge ``found no compelling evidence that a permissive regime in Canada would result in a 'practical slippery slope,''' wrote the top court.

``An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy,'' the judgment says.

``The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies the right to request a physician's assistance in dying.''

The ruling goes on to state that ``by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of person.''

The nine Supreme Court justices also note that when their court struck down the country's prostitution laws in 2013, it recognized that the legal conception of ``gross disproportionality'' has changed since the Rodriguez decision.

``By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the law interferes with some conduct that has no connection to the law's objectives,'' says the judgment.

``The blanket prohibition (on physician-assisted death) sweeps conduct into its ambit that is unrelated to the law's objective.''

The court agreed with the trial judge ``that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them.''

Toronto health lawyer Mary Jane Dykeman says the decision that the prohibition on physician-assisted dying violates the s. 7 and 15 Charter rights of capable adults who are “suffering intolerably as a result of the grievous and irremediable medical condition” and is not justified under s. 1 of the Charter is not unexpected.  

Dykeman, partner at Dykeman Dewhirst O’Brien LLP, notes that the unanimous decision is a sharp contract to the high court's 5-4 ruling more than two decades ago in the case of Sue Rodriguez.

"However, it has generally been acknowledged that societal norms have shifted, with a focus on the right of capable individuals facing end of life in extremely difficult circumstances and asking for options," she tells AdvocateDaily.com

To that end, Dykeman says that the court’s decision should in no way impede the positive steps taken to date to implement a robust system of palliative care in Canada, and that those initiatives should be reinforced in tandem with the other rights the court has created with today’s decision. Special attention must also be paid to thoughtful implementation, such that protections for vulnerable groups are robust.

She also says this decision will necessarily impact any legal challenge to Quebec’s medical aid in dying law, which comes into force in December 2015 – and that other provinces and territories, as well as the various medical associations, will also be reviewing these developments very carefully as they determine how to move forward.

The court noted it is for Parliament and provincial legislatures to respond, should they wish to, by enacting legislation – and the court did not agree that the federal government lacks the jurisdiction to legislate on physician-assisted dying. 

"One of the practical effects of a decision of this magnitude, with all of the media attention it garners, is that some patients and families will request this assistance over the next days and weeks, in advance of provincial and federal rules being written," Dykeman says. "Those advising hospitals and physicians have prepared guidance on how to address these requests in these early days, given the Court’s clear message that no exemptions can be granted to those making requests for such assistance at this time."

© 2015 The Canadian Press

- With a file from AdvocateDaily.com

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