Update: British Columbia Court Upholds Woman’s Exemption From Doctor-Assisted Suicide Ban

Following our previous Slaw post, where we commented that the Federal Government decided to appeal the June 15 British Columbia Supreme Court ruling that struck down the Criminal Code ban on physician-assisted suicide, and seeking to stay all aspect of the decision, including the exemption order found in the ruling.

The Attorney General of Canada filed a Notice of Appeal from this decision on July 13, 2012. It is seeking an order staying the provisions of both the declarations of invalidity and the exemption allowing Gloria Taylor (one of the plaintiffs) the option of physician-assisted death under a number of conditions, until such time as the appeal has been heard and decided by the Court. In that regard, the appeal has been tentatively set for hearing for five days commencing March 4, 2013.

The hearing of the stay application was heard August 3, 2012. Prior to the hearing of the stay application, the respondents, Lee Carter, Hollis Johnson, Dr. William Shoichet, the British Columbia Civil Liberties Association and Gloria Taylor, consented to an order staying the declarations of invalidity and the running of the suspension of those declarations as of August 3, 2012, to the date of the decision of the Court on appeal.

This stay order was confirmed by Judge Prowse, who then proceeded to hear the stay on the exemption order permitting Ms. Taylor to seek a physician-assisted death pending the outcome of this appeal.

On August 10, 2012, in a written decision, Judge Prowse concluded that the balance of convenience favours refusing a stay. She further stated that revoking Ms. Taylor’s exemption would cause irreparable harm to her, which outweighs the federal government’s interests.

In the result, and not without some hesitation, I conclude that the balance of convenience favours refusing a stay. I am not persuaded that the harm to the public contended for by counsel for AG Canada outweighs the harm to Ms. Taylor if she is left without a remedy pending the resolution of this appeal, and possibly at all. She may be a symbol, but she is also a person, and I do not find that it is necessary for the individual to be sacrificed to a concept of the “greater good” which may, or may not, be fully informed. The reasons for judgment in this case put squarely at issue the important public values with which this Court (and, likely, the Supreme Court of Canada) will ultimately have to grapple in determining whether, and in what circumstances, assisted suicide may, or may not, be in accord with the public interest, including the interest of that minority of the public in circumstances similar to those of Ms. Taylor. It is apparent there are competing arguments and interests on both sides of the issue which will be elaborated upon as the appeal progresses. The public as a whole will benefit from this process. In the meantime, if it should happen that Ms. Taylor is not present for the end of the story because she exercised her right to end her life in accordance with the exemption, I am not persuaded that the nature of any harm suffered by the public as a result offsets the likely final and irrevocable nature of the harm to Ms. Taylor if a stay is granted.

Hence, Ms. Taylor’s who won a personal exemption from Canada’s ban on doctor-assisted suicide will keep that right as the case is being appealed by the federal government.