How 20 years has changed the debate over assisted suicide

The federal government will argue in front of the B.C. Court of Appeal later this month that the ban on assisted suicide should remain in place.

In Québec, the Parti Québécois government has pledged to introduce before next summer death with dignity legislation as a way to circumvent the Criminal Code.

Since 1993 when the Supreme Court of Canada ruled that Sue Rodriguez did not have the right to have a physician help her end her life, several private members bills on the issue have been defeated in the House of Commons.

Here's a look at where the debate over assisted suicide stands, 20 years ago after Sue Rodriguez brought her case to Canada's top court:

1. The next Rodriguez?

British Columbia Supreme Court Justice Lynn Smith struck down the ban on assisted suicide last June, ruling it was unconstitutional to prevent the sick and dying from asking a doctor to hasten their death.

Smith gave the federal government a year to come up with new legislation, but it appealed and now the case is expected to be heard in British Columbia starting March 18.

In documents filed with the B.C. Appeal Court, the Crown has argued that the Criminal Code bans assisted suicide in order to protect the most vulnerable Canadians – people who are sick, old and/or have disabilities. It said the practice could lead to people being coerced into prematurely ending their lives in moments of depression and despair. 

The case was brought forward by the British Columbia Civil Liberties Association.

'In Holland, what started as a very narrow movement to end insufferable pain at the end of cancer has become a general response to a number of chronic ailments like, for instance, anorexia.' —Tom Koch, bioethics and gerontology consultant

Litigation director Grace Pastine says the most visible plaintiff in the case, a woman with ALS named Gloria Taylor, illustrated the association’s central argument — one of discrimination against people with disabilities. 

"Gloria knew that at a point it would be impossible for her to take her own life," Pastine said. "So Gloria didn't want to be in a position where she would have to take her life early, before she was ready to die.  And the court recognized that that was a type of discrimination against those who are disabled. 

"And it puts individuals who are crippled by disease in a terrible position of having to decide whether to end their life too soon when their life is still worth living, or to wait and know they may no longer have that choice,"

After winning the case last year and having a personal exemption from the law to seek help in ending her life, Taylor died unexpectedly last fall.

• Listen to Alison Crawford's documentary on CBC Radio's The House 

One of the groups with intervenor status at the B.C. Court of Appeal is the Euthanasia Prevention Coalition of British Columbia. Its chair, Dr. Will Johnston, doesn’t mince words regarding the BCCLA's discrimination argument.

"We should be giving the same response to a disabled person who is suicidal than we give to an able-bodied person," Johnston said. "I think it diminishes the civil rights, especially of those who are disabled, when you are essentially setting up an expectation that certain disabilities give you a step up — a heightened qualification for suicide — and that, in fact, by implication you should be contemplating suicide if you have certain degrees of disability."  

No matter how the Appeal Court rules, it is expected the case will end up before the Supreme Court of Canada. 

Interestingly, Chief Justice Beverly McLachlin was in the minority on the Rodriguez decision and in her dissent, articulated an argument similar to the one presented by the BCCLA. 

An excerpt of the decision reads: "Here, Parliament has put into force a legislative scheme which makes suicide lawful but assisted suicide unlawful.

"The effect of this distinction is to deny to some people the choice of ending their lives solely because they are physically unable to do so, preventing them from exercising the autonomy over their bodies available to other people.

"The denial of the ability to end their life is arbitrary and hence amounts to a limit on the right to security of the person which does not comport with the principles of fundamental justice."

2. Québec's dying with dignity legislation

The province has pledged to introduce so-called "dying with dignity" legislation this spring. 

The move comes after years of public hearings by a special multi-party task force as well as a report from a panel of legal experts that advised the Quebec government it could bypass the Criminal Code's prohibition on assisted suicide because end-of-life health care is a provincial responsibility.

Cindy Cowan, 47, applauds the Québec government for moving ahead with legislation. The Toronto woman who volunteers with Dying With Dignity has advanced ovarian cancer.

"I think Ontario is going to be harder. I think it is far more conservative and I think that in places where there is that far more conservative mindset you know the raising of these issues, you know, is deemed to be political suicide, if you will," Cowan said.

Cowan wants a doctor to legally help her die in her home, by putting her to sleep while surrounded by her friends, family and three cats.

But Cowan knows the law won’t change in the time she has left, which leaves her with a dilemma. 

"So what are my options, you know, that I'm alone … on my own with nobody here because if folks who I love are around me they'll be at risk of criminal prosecution for assisting me, right?

"And that is unthinkable for me. It's a big fear and worry so, so then I die alone … yeah."

Many predict the legislation will result in a defining debate on the limits of a province to unilaterally take something that is criminally prohibited and make it provincially approved. 

3. Physician-assisted suicide in Europe

Since 1993 Belgium, Luxembourg and Holland have legalized physician-assisted suicide.

In Germany, the country’s medical association has new guidelines that no longer prohibit physicians from helping patients die.

And last December a government-commissioned report recommended France allow physicans to "accelerate death" for terminally-ill people who want to die early.

But a recent high-profile case in Belgium has raised significant concerns that the scope of the legislation there has expanded too far. In December, a Belgian doctor euthanized identical twins, 45.

The brothers weren't terminally ill or in physical pain. They were deaf, going blind and reportedly distraught over never seeing each other again, so they requested lethal injections.

Tom Koch, a consultant on bioethics and gerontology who served as an expert witness for the Crown in the Carter case, says Holland is grappling with a similar situation.

'It was quiet, it was peaceful, it was dignified and she was in the presence of her family. I think that's probably the best death that anyone could have' —Andrew Taylor on the death of his wife, Meg

"In Holland, what started as a very narrow movement to end insufferable pain at the end of cancer has become a general response to a number of chronic ailments like, for instance, anorexia."

Koch says it would be hard for any government to set out who should be entitled to have someone help end their lives.

"What about the people with high spinal injuries?" Koch said.

"Why stop there when we've got the stroke patients, and if we're doing that, aren't we discriminating against the cancer patients? And then why aren't we basically going to allow the anorexic to kill herself and the person who's just had two kids die and says I have nothing to live for anymore, is there any difference?"

4. Dying with dignity in the U.S.

Oregon passed its Death With Dignity Act in 1994 and Washington state enacted similar legislation in 2009. 

In those jurisdictions, physicians may prescribe lethal doses of medication to mentally competent patients with less than six months to live, but they must have made two requests 15 days apart, been examined by two doctors and informed of all options, including hospice and palliative care.

Washington state produces annual reports on its law.

Tim Church speaks for the department of health.

"Nearly 80 per cent of the people who have used this law had cancer," said Health Department spokesman Tim Church. "Another 12 per cent had some kind of neurological disease, like Lou Gehrig’s disease; and then a smaller percentage, about 10 per cent, had some sort of heart or respiratory disease."

Andrew Taylor’s wife Meg, who suffered from brain cancer, used the act in October, 2011. 

"We wanted to ensure that it was her real and true desire," he recalled. "We had two separate social workers [who] came and talked privately with her and they both affirmed that it was her true desire."

Wiping tears from his eyes, Taylor said it was an honour to help fulfill his wife’s final wishes with her brother, sister and their two children by her side. 

"She had her last breakfast with us and then, when the time came, we all gathered in the bedroom. The tumour had taken away her ability to see anything on the left side so we were on the right side where she could see us.

"The volunteer, from an organization called Compassion and Choices, dissolved the pentobarbital in about half a cup of water. Meg raised it to her lips and drank it. By the time she had finished drinking it she was asleep and 10 minutes later she was gone.

"It was quiet, it was peaceful, it was dignified and she was in the presence of her family. I think that's probably the best death that anyone could have," Taylor said.

5. Little movement in Parliament

Parliament continues to feel pressure to decriminalize assisted suicide.

Since the Rodriguez case in 1993 there have been at least nine private member’s bills proposing so-called dying with dignity legislation. 

The last effort, brought by Bloc Québécois MP Francine Lalonde in 2010, was defeated 228-59.

On March 18, the B.C. Court of Appeal will hear from the federal government, whose lawyers will argue the province’s top court should uphold the constitutionality of section 241 (b) of the Criminal Code, which makes it an offence to help someone commit suicide.