OTTAWA – The Supreme Court has added four months to the federal government’s deadline for producing a new law on doctor-assisted death — but with an exemption for anyone who wants to ask a judge to end their life earlier.
The Liberal government had argued it needed the original Feb. 6 deadline extended by six months in order to have the time to craft a proper law. Opponents said that would simply prolong the suffering of many.
“In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria,” the court wrote in a narrow 5-4 decision on the extension application.
“An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now, pending Parliament’s response.”
In a landmark decision last winter, the high court recognized the right of consenting adults enduring intolerable physical or mental suffering to end their lives with a doctor’s help.
It suspended its decision for a year to give Parliament a chance to figure out how to respond. Friday’s extension also excludes Quebec, which already has its own law.
Grace Pastine, the litigation director for the B.C. Civil Liberties Association, called the court’s decision a “tremendous victory” for compassion and choice at the end of life.
“In terms of the personal exemptions, what the court determined was that those individuals should be able to make personal applications to a court to make their right a reality,” said Pastine, whose group is at the heart of the application.
“It is really difficult to overstate just how important and how meaningful that will be for Canadians who are suffering unbearably.”
Still, the divisive issue proved no less so for the court’s nine-judge panel. Justices Rosalie Abella, Andromache Karakatsanis, Richard Wagner, Clement Gascon and Suzanne Cote made up the majority.
Chief Justice Beverley McLachlin and Justices Thomas Cromwell, Michael Moldaver and Russell Brown dissented in part.
The dissenters said they would not have exempted Quebec from the extension, nor would they have allowed exemptions for individuals seeking to end their lives during that period.
“We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering,” they wrote.
“That should be clear from the court’s reasons for judgment on the merits. However, neither do we underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct.”
At least one Quebec patient has already received a doctor-assisted death. The province’s law governing what it calls medical aid in dying went into effect Dec. 10; since then, one patient in Quebec City’s university health care network received the service, a spokesperson confirmed Friday.
Elayne Shapray of Vancouver, who is wheelchair-bound and needs 24-hour assistance because of progressively worsening multiple sclerosis, said she’s disappointed by the court’s decision to grant the extension.
“There were reams and reams of evidence from all sorts of people — ethicists, doctors, other countries — and I think (the government) had it all before them and they could have come up with guidelines by the 6th of February.”
Shapray, who wants the choice of how and when to end her own life, had filed an affidavit with the court in support of the B.C. Civil Liberties Association, which argued against granting the extension.
However, she welcomed the decision to allow exemptions, calling it better than nothing in the face of the delay.
“I think they realize that real people are really suffering. It’s not a matter of politics,” she said.
The original — and unanimous — decision on assisted dying last February came two decades after the court rejected the concept in the Sue Rodriguez case.
The latest decision revolved around two B.C. women, both of whom died before the court ruled, who wished to end their “grievous and irremediable” illnesses with medical help.
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.
Not all observers were satisfied Friday, considering the decision essentially requires patients to mount a court challenge in order to exercise their rights.
“It is not cheap to go to court, so I would call on the government to make this process affordable for people,” said Dalhousie University law professor Jocelyn Downie.
“What you don’t want here is that only the rich are going to be able to access it for the next four months. Is it the case that it is everybody in Quebec and the rich? That would be appalling.”
—with files from Sheryl Ubelacker