A few weeks ago, we wrote a blog post about the British Columbia Supreme Court (BCSC)’s decision regarding assisted suicide. As mentioned in that post, as well as in our subsequent post about constitutional exemptions, the original decisions were already in the process of being appealed.
You will recall that the BCSC made two findings:
- that section 241(b) of the Criminal Code of Canada (“s.241(b)”) is unconstitutional, because it discriminates against persons with disabilities (but that that law would remain in effect in one year, thus giving the government time to deal with the declaration of invalidity); and that
- in the interim, in order to provide Ms. Taylor with the only meaningful remedy, she was granted a constitutional exemption (i.e.: despite the law still being in effect, she could, during the next 12, commit physician-assisted suicide).
The finding of unconstitutionality is set be heard by the British Columbia Court of Appeal (BCCA) in early March 2013. In the meantime, the parties agreed to argue about the issue of the constitutional exemption. The exact issue in question: whether or not to grant a “stay” to the constitutional exemption (i.e.: put the exemption on hold until the whole matter is heard next March [in other words, take away Ms. Taylor’s constitutional exemption]). The parties’ submissions were heard on August 3, 2012 and a judgment was issued on August 10, 2012.
In short, the constitutional exemption stands. Between now and the time at which the BCCA decides on the issue of the constitutionality, Ms. Taylor is free to find a doctor to help her commit suicide, and, if she does, that doctor will be exempt from prosecution under s.241(b).
Why? Well that is a little more complex. In a nutshell , in deciding whether to grant a stay, the Court, in accordance with the law governing the granting of stays, had to look at 3 things (there is almost always a 3-part test!):
- whether there was a serious question to be tried;
- whether Ms. Taylor would suffer “irreparable harm” if the stay were granted (i.e.: if her constitutional exemption was taken away from her); and
- whether the “balance of convenience” favours granting the stay.
So what did the Court say? Not surprisingly, on the first question, it found that the issue was, indeed, quite serious.
On the second issue, the Court noted that Ms. Taylor would suffer irreparable harm. Madame Justice Prowse noted:
The first, and most significant, is the irreparable harm which she would suffer if her condition deteriorated to the point where she wished to exercise her rights under the exemption pending the resolution of this appeal, but, because of the stay, she was unable to do so. In that circumstance, all of her worst fears would be realized and she would be forced to endure the very death which she has fought so assiduously to avoid […]The second category of irreparable harm […] is the loss of the peace of mind and solace now available to her as a result of the exemption, in knowing that if living becomes unbearable to her for any of the reasons she has given, she can bring her life to an end upon fulfilling the requirements set forth in the order governing the exemption. The exemption also gives her the potential for a longer life since she can continue to live, even in difficult circumstances where she may be incapable of ending her own life, if she still enjoys some quality of life which she considers makes it worth living.
On the third issue, the court found that this potential harm to Ms. Taylor, would outweigh any harm that would come to the federal government if Ms. Taylor were allowed to keep her constitutional exemption. The Court, in responding to the government’s argument that allowing Ms. Taylor’s suicide would appear to the Canadian public as “state-sanctioned” devaluation of human life stated: “I am not persuaded that the harm to the public […] outweighs the harm to Ms. Taylor if she is left without a remedy pending the resolution of this appeal, and possibly at all. She may be a symbol, but she is also a person, and I do not find that it is necessary for the individual to be sacrificed to a concept of the “greater good” which may, or may not, be fully informed.”
So how do we summarize this decision in one sentence?
Well…. Allowing the one physician-assisted suicide may cause the government some harm, but the harm to Ms. Taylor of not letting her do it is worse – so she wins.
The answer, then? No. Unless you are Ms. Taylor, physician–assisted suicide is still illegal.