John Warren of Dying with Dignity Canada on Carter v. Canada

By John Warren

John Warren is vice-chair of the board of directors of Dying with Dignity Canada. 

Our fight

The British Columbia Civil Liberties Association (BCCLA) has been seeking to change the laws in Canada that govern physician-assisted suicide for people who are terminally ill since they initiated the “right to die with dignity” lawsuit (Carter v. Canada), in which we provided evidence, in 2011.

This Wednesday, Oct. 15, we’ll join many interveners to present additional evidence to the Supreme Court of Canada.

We hope that the judges will uphold the decision of Justice Lynn Smith of the B.C. Supreme Court in Carter v. Canada 2012 BCSC 886, and instruct parliamentarians to write and pass a law that will both allow for medically-assisted dying, and contain strict controls to protect the vulnerable.

*Editor’s note: interveners include the LAO-funded specialty legal clinic HALCO, the HIV/AIDS Legal Clinic (Ontario)

Compassion for those who are suffering

Currently, a person with a serious, terminal illness is condemned to die at the end of their natural life because they have no choice.

Even though their suffering and pain may be unbearable to them, they must hold on to the bitter end unless they decide to end their own life—which they may be physically unable to do. And if anyone is in a position to show them compassion and decides to help them end their lives, that person is at risk of prosecution and up to 14 years in jail.

In this legal environment, there are only three dismal options for those who are sick and suffering.

One, they can suffer until they die.

Two, they can reduce their suffering themselves by dying prematurely while they can still end their own life—in which case their options may be limited to a violent end.

Or three, they can ask someone to help them, thus endangering the freedom of that person.

A human rights issue, plain and simple

Discrimination based on disability contravenes human rights. By criminalizing the act of assisting a suicide the law discriminates against disabled people, who may not be able to commit suicide without help from another person.

We believe that the right to choose medical help to die is important for any adult who is mentally competent, and who is suffering intolerably. It is also important for all Canadians who believe that they have the right to control their own body. As Sue Rodriguez asked 21 years ago, “If I cannot give consent to my own death, whose body is this? Who owns my life?”

The counter-arguments

Some believe that God gives us life and it’s only up to him to take it away, and they have every right to make their own choice. Others are concerned that allowing a little compassion will create a slippery slope that would eventually endanger the elderly, children, the disabled, the poor, etc., but this concern is eliminated when all the evidence to the contrary proves it to be unfounded.

Prohibiting physician-assisted suicide won’t prevent any deaths. We’re all going to die. So this is not a matter of life or death; it’s a matter of quality and personal choice in dying, and it’s a matter of compassion for those who are suffering.

Who this would affect

We expect that a decision in our favour would provide relief for those who are suffering and an improvement in the physician-patient relationship in Canada. Currently, only physicians can decide on requests by patients for medical help to die and, if they follow a patient’s cry for help, the physician is subject to criminal charges and jail. With a new law, patients would know with certainty that they could choose medical help to die.

As for the scope of this kind of legal shift, it’s unlikely that the SCC will specify the wording to be used in any new legislation. That would be up to Parliament when a law is drafted. At that time, we anticipate that laws now in effect in the ten jurisdictions where medically-assisted dying is already legal will be reviewed and used to design a law that will help and protect all Canadians .

However, we can look to the Quebec legislation for an example. It says the patient must be:

  • a resident, an adult, capable of giving consent to care;
  • at the end of life, suffering from a serious and incurable illness;
  • in an advanced state of irreversible decline of capability and,
  • experiencing constant and unbearable physical or psychological pain which cannot be relieved in a manner the patient deems tolerable.

Looking toward the future

New legislation on this issue would, we hope, deal with medically-assisted dying as part of the continuum of health care and include a national plan for palliative care. It would also, with luck, generate a continuous dialogue in the media, which, in turn, would lead to conversations around the kitchen table by all Canadian families about choices at the end of life and the need for advance care plans.