British Columbia Strikes Down Ban on Physician-Assisted Dying

On Friday June 15, 2012, the British Columbia Supreme Court ruled that the Criminal Code of Canada provisions prohibiting physician-assisted dying unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.

The ruling also says that the Criminal Code provisions are discriminatory for those who are grievously ill or physically disabled and want to have some control over their circumstances at the end of their lives.

The Honourable Madam Justice Lynn Smith said that while she recognized that risks do exist in allowing doctor-assisted suicide, they can be avoided through carefully designed and vigorously monitored safeguards.

My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.

However, it is important to note that the ruling clearly states that the term “physician-assisted” should not include the provision of assistance by persons other than physicians.

The ruling renders the provisions invalid, however, the operation of that declaration is suspended for one year to allow the Federal Government time to draft legislation with the ruling in mind. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.

The conditions include:

(a) Ms. Taylor provides a written request.

(b) Her attending physician attests that Ms. Taylor is terminally ill and near death, and there is no hope of her recovering.

(c) Her attending physician attests that Ms. Taylor has been:

(i) informed of her medical diagnosis and prognosis;

(ii) informed of the feasible alternative treatments, including palliative care options;

(iii) informed of the risks associated with physician-assisted dying and the probable result of the medication proposed for use in her physician-assisted death;

(iv) referred to a physician with palliative care expertise for a palliative care consultation;

(v) advised that she has a continuing right to change her mind about terminating her life.

(d) Her attending physician and a consulting psychiatrist each attest that Ms. Taylor is competent and that her request for physician-assisted death is voluntary and non-ambivalent. If a physician or consulting psychiatrist has declined to make that attestation, that fact will be made known to subsequent physicians or consulting psychiatrists and to the court.

(e) Her attending physician attests to the kind and amount of medication proposed for use in any physician-assisted death that may occur.

(f) Unless Ms. Taylor has become physically incapable, the mechanism for the physician-assisted death shall be one that involves her own unassisted act and not that of any other person.

[1415] Once these conditions are met, Ms. Taylor may then make an application to the British Columbia Supreme Court, without notice to any other party, and upon proof of the above to the Court’s satisfaction, the Court shall order that:

(a) a physician may legally provide Ms. Taylor with a physician-assisted death at the time of her choosing provided that Ms. Taylor is, at the material time:

(i) suffering from enduring and serious physical or psychological distress that is intolerable to her and that cannot be alleviated by any medical or other treatment acceptable to her;

(ii) competent, and voluntarily seeking a physician-assisted death, in the opinion of the assisting physician and a consulting psychiatrist;

(b) notwithstanding any other provision of law, should Ms. Taylor seek and obtain a physician-assisted death, that the assisting physician be authorized to complete her death certificate indicating death from her underlying illness as cause of death.

Neither the British Columbia nor federal governments have indicated yet whether they intend to appeal the decision. But it is expected.

We have already examined this case and the topic in previous Slaw posts here, here and here. So I will not go into further details.

Comments

  1. I note from the letters to the Globe this morning that some physicians are not at all keen on being the ones to have to administer the fatal stroke, whatever it may be. Does the court say why only phyisicians have to do the assisting, as distinct from participating in findings about the incurability of the disease or the mental capacity of the person who wishes to die?

  2. On a different topic: where do courts get the authority to decide that a law is unconstitutional but that decision has no effect for a year? I know that courts can suspend sentences, but surely that is a different matter. How can one suspend a ruling of law, to say ‘but not yet’?

    I understand the convenience of such a system, I just don’t understand the principle.

  3. The judicial explanation is, I think, in the first of the SCC cases that declared legislation unconstitutional and suspended the declaration. I don’t recall the case and I’m too lazy to check. If my memory is correct, the SCC dealt with the small (g) problem that s. 52 of the Constitution Act, 1982, provides that unconstitutional legislation is “of no force and effect”.

    Technically and formally, the decision hasn’t been “made” until the judgment is signed, because until then the judge can change his or her mind; however, I don’t know if that’s part of the dodge.

  4. Where do courts get the authority? The brief answer, according to the early cases at least, was that “the rule of law” was fundamental. This principle, according to The Court in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, 1985 CanLII 33 (SCC) had been recognized explicity (“Canada is founded upon principles that recognize the supremacy of God and the rule of law”) in the preamble to the Constitution Act, 1982 and implicitly (“with a Constitution similar in principle to that of the United Kingdom”) in the preamble to the Constitution Act, 1867 (para. 63, CanLII). In that case, the court said that declaring invalid all the laws enacted by the Manitoba legislature since 1890 would undermine the rule of law (para. 59, CanLII). As the Court said in para. 84, CanLII:

    Nor will the constitutional guarantee of rule of law tolerate the Province of Manitoba being without a valid and effectual legal system for the present and future. Thus, it will be necessary to deem temporarily valid and effective the unilingual Acts of the Legislature of Manitoba which would be currently in force, were it not for their constitutional defect, for the period of time during which it would be impossible for the Manitoba Legislature to fulfil its constitutional duty.

    On the basis of this, Roger Bilodeau’s speeding conviction was upheld in Bilodeau v. A.G. (Man.), [1986] 1 S.C.R. 449, 1986 CanLII 64 (SCC). The interesting question, of course, is whether the same necessity has existed in all the subsequent cases.