Unconstitutional

Unconstitutional

Landmark assisted suicide case raises "arguable grounds for appeal"

British Columbia’s Supreme Court ruled last week that provisions of the Criminal Code that ban physician-assisted suicide are unconstitutional. Madam Justice Lynn Smith suspended her ruling for one year to give Parliament time to draft new legislation. A government spokeswoman said Ottawa is still reviewing the judgment, but her reminder that Parliament voted not to change the physician-assisted suicide law just two years ago has only added to the sense that there will be an appeal.

Ms. Taylor – a 64-year-old who suffers from Lou Gehrig’s disease – was granted a constitutional exemption that permits her to proceed with physician-assisted suicide during the one-year period, though she must meet a number of conditions.

Jason Gratl, a lawyer who represented the Farewell Foundation for the Right to Die, an intervenor in the case, said others will go to court to try and get the same exemption.

“My client is prepared to assist people in applying for a constitutional exemption of that type,” he said in an interview Sunday.

Mr. Gratl said he believes government will appeal the ruling. When asked what the grounds for an appeal might be, he said he could see “approximately half a dozen weak and unpersuasive, but arguable, grounds for appeal.” One potential ground, he said, could be whether the decision in the Sue Rodriguez case overrides this one. Ms. Rodriguez lost her challenge of the physician-assisted suicide prohibition in the Supreme Court of Canada in 1993.

Julie Di Mambro, spokeswoman for federal Justice Minister Rob Nicholson, said a decision on whether to appeal has not yet been made.

“This is an emotional and divisive issue for many Canadians. Parliament voted as recently as April 2010 not to change these laws,” she wrote in an e-mail. Ms. Di Mambro added government has until July 16 to file an appeal.

Joel Bakan, a law professor at the University of B.C. and a constitutional expert, said Madam Justice Smith’s decision was “very cogently reasoned.” Mr. Bakan said he wouldn’t speculate on whether there would be an appeal, but noted there are always arguments to be made in constitutional law.

“Ultimately, the argument from the other side is going to turn on ‘slippery slope’ kind of reasoning, that you have to ban it all, because you can’t be sure that any exceptions that are put in place will actually be deployed in ways that protect people who are in vulnerable positions,” he said in an interview.

Ricardo Smalling, a research fellow in the faculty of law at Queen’s University, said he’s “virtually certain” there will be an appeal. Mr. Smalling said government lawyers will likely say the information the judge used to make her decision wasn’t accurate, or wasn’t supportive of her findings.

The Archdiocese of Vancouver over the weekend called for government to appeal a ruling it termed “extremely flawed and dangerous.”

Ms. Taylor has not indicated what her plans are since the judgment was issued. She said in a statement last week that the decision allows her to approach death the same way she’s tried to live her life – with dignity, independence and grace.

She’s expected to speak at a news conference in Vancouver on Monday.

(Published by The Globe and Mail - June 17, 2012)

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CEBID - Centro de Estudos em Biodireito