Two days after my mother passed away last week, B.C. Supreme Court Justice Lynn Smith ruled the current criminal law that makes physician-assisted death illegal in Canada violates the constitutional rights of three plaintiffs, including 64-year-old Kelowna resident Gloria Taylor.
As a result of the landmark legal challenge launched by the B.C. Civil Liberties Association, Justice Smith said that the current provisions "unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person" of the other two plaintiffs.
What I found curious about this ruling is the fact that my mother's death, like probably hundreds that take place every year in this country, was physician-assisted. Following a family discussion with a palliative care doctor about her prospects for recovery, it was agreed to cease life-sustaining treatment and simply keep her pain free using morphine. Of course, together those hastened her death. In less than a week, her life ended peacefully.
Yet no one will be charged in spite of section 241 (b) of the Criminal Code of Canada, which provides for up to 14 years in jail.
Taylor's situation is somewhat different from my mother's. Mom was 92 and, you could say, while there is a medical explanation for what finally put her in hospital, she was dying because of complications associated with old age. Taylor is almost 30 years younger and has ALS or "Lou Gehrig's Disease." It is a progressive neurodegenerative disease that is terminal and, if allowed to run its course, the patient apparently dies gasping for air. Or as Taylor put it "like a fish out of water."
It was just about 20 years ago that a 43-year-old Victoria woman named Sue Rodriguez, suffering from ALS, attempted to argue for the same relief that Taylor won last week. Rodriguez lost at the B.C. Supreme Court and the B.C. Court of Appeal only to end up at the Supreme Court of Canada where she lost in a 4-5 decision.
Much has changed since then along with our aging population, particularly the proliferation of palliative care that was in its infancy in this part of the world when Rodriguez, ultimately and illegally, found relief in a physician-assisted death.
Palliative care centres are primarily considered places that assist patients and their families in the process of dying.
In fact, in the Taylor case, both the federal and provincial governments opposed striking down the law arguing that there is good medical care for the dying including palliative sedation to reduce end of life pain for patients with terminal diseases such as ALS.
On that point Justice Smith disagreed. She found "palliative care cannot relieve all suffering."
In arguing in court for Taylor, BCCLA lawyers said what Taylor wanted was the option of either having a physician prescribe a drug that she could self-administer to end her life or, if she was too disabled to do that, have the physician administer the drug. They argued that the difference between what Taylor was seeking and the type of physician-assisted death available legally for people like my mother were "legally and ethically insignificant."
It would appear from her judgment that Justice Smith agreed.
One other thing: It is misleading to see what Taylor has been granted to do as "suicide." Suicide, as it is commonly understood, is a violent act committed by a terribly distraught individual.
What a physician-assisted death provides is an end to life that is compassionate and humane, one that can bring solace and peace to the patient.
Justice Smith has given Ottawa a year to rewrite the law but has granted Taylor the option to proceed as she chooses.
It is hard to imagine the feds and the province will not appeal, which is a shame.
