Defending your choice in court

DWDC brings the voices of patients to court challenges in Ontario and Quebec.

Dying With Dignity Canada brought the rights of vulnerable patients to the fore during the organization’s first-ever oral presentation in court.

On June 16, Kelly Doctor, of the firm Goldblatt Partners LLP, spoke in front of a panel of three judges on the Superior Court of Justice of Ontario. Representing DWDC, she delivered arguments in support of the defence in an Ontario case that could set an important precedent for assisted dying access in Canada.

The case surrounds regulation that requires doctors who oppose assisted dying to, in a timely manner, refer patients who request it to a willing provider or third-party agency. The College of Physicians and Surgeons of Ontario (CPSO), the province’s medical regulator, approved the policy last year. In response, a coalition of Christian medical practitioners launched a court challenge against the CPSO’s effective referral requirement, arguing that it violates their Charter right to freedom of religion.

Lawyer Kelly Doctor (third from right) delivered oral arguments on behalf of DWDC in a Toronto court in June.

In our 20-minute presentation, DWDC stressed its support for the policy, which we believe strikes a sensible balance between a physician’s right to conscientious objection and a patient’s right to care. Doctor reminded the court that the Ontarians who are eligible to access medical assistance in dying (MAID) under federal law are often among the province’s most physically compromised and vulnerable patients. She cited the affidavit of a physician who had provided assisted dying and testified that two of his patients would have been physically unable to call or email a referral service by themselves. Their ability to access MAID depended on their doctors’ willingness to connect them, directly or indirectly, with the care they were seeking.

In addition, Doctor noted, connecting a patient with a willing provider or referral service doesn’t mean that the objecting physician endorses MAID, nor does it mean that the patient will ultimately access life-ending treatment. "A referral is about giving the person a choice," she said.

DWDC’s presentation came on the third and final day of hearings in the case. The judges then began deliberations. They are expected to release their decision before the end of this year.

Quebecers’ challenge to Bill C-14

Dying With Dignity Canada has also applied to be an intervener in the latest high-profile court action to challenge aspects of Bill C-14, the federal assisted dying law.

The plaintiffs are two Quebec residents who have each lived for decades with severe, debilitating medical conditions. Nicole Gladu, 72, and Jean Truchon, 49, would like to end their lives with the help of a physician, and both appear to satisfy the eligibility criteria laid out in the Supreme Court’s 2015 ruling in Carter v. Canada.

However, for these two Montrealers, access to a peaceful death remains out of reach because of controversial restrictions that elected officials have written into law. Under Bill C-14, only those suffering individuals whose natural death is “reasonably foreseeable” are eligible for access. Similarly, under Quebec’s 2014 assisted dying law, one must be approaching end of life to qualify.

These conditions violate the Charter of Rights and Freedoms because they heap additional, unwanted hardship upon Canadians who are already suffering intolerably, said Jean Pierre Ménard, the lawyer representing Gladu and Truchon, at a press conference in June. “It's absolutely deplorable that these people who meet the law's criteria — a serious and irremediable illness with intolerable suffering — need to go to court to have their rights met.”

In the summer, DWDC submitted a request to the Superior Court of Quebec asking to be an intervener in support of the applicants in the case. If we are accepted, we will present arguments about how Bill C-14’s eligibility criteria unfairly deny many Canadians their right to a peaceful death.

Gladu and Truchon aren’t the first Canadians to go to court to test Bill C-14’s constitutionality. British Columbia’s Julia Lamb made headlines in June 2016 when she and the B.C. Civil Liberties Association launched a court case challenging the law’s restrictive eligibility rules. Lamb, who lives with a degenerative condition that causes the wasting of the muscles, does not want to access assisted dying in the near future, but wants to know that it will be available to her should her suffering become too much for her to bear. In May 2017, Robyn Moro, a 68-year-old Delta, B.C, resident who lived with Parkinson’s disease, added her name to the list of plaintiffs in the Lamb v. Canada case.

Trial dates have not been set for either case.