Dying With Dignity Canada heading back to court to defend Canadians' end-of-life rights

For a second straight year, participating in court challenges has been a significant focus of Dying With Dignity Canada’s advocacy. To keep you up to date, we have assembled the following roundup on what’s happening in the major legal cases we’re working to influence.

Trial date set in Lamb challenge

More than two years after it launched, the B.C. court challenge against restrictions in the federal assisted dying law, Bill C-14, finally has a start date for the trial: November 2019. The long delay is a result of an ongoing battle over the scope of the case and what evidence can be considered by the B.C. Supreme Court.

DWDC is applying to intervene in support of the plaintiffs in Lamb v. Canada, who are challenging the constitutionality of aspects of Bill C-14, including the restrictive “reasonably foreseeable” requirement.

But the government is going further than just defending its assisted dying legislation. Federal lawyers are arguing that the evidence that led the Supreme Court of Canada to strike down the old ban on assisted dying is no longer relevant. If that argument is accepted, it raises the possibility that the same issues that were decided in the high court’s 2015 decision in Carter v. Canada will be re-litigated in Lamb.

On August 28, the B.C. Civil Liberties Association (BCCLA), the legal advocacy group that is spearheading the challenge, announced that it had asked the Supreme Court of Canada to limit the scope of trial. As of the publication of this newsletter, the Supreme Court had not yet decided whether to hear the BCCLA’s appeal on what issues will be up for debate when the case goes to trial next year.

DWDC prepares to make arguments in Quebec challenge

Last year, we told our supporters that we, along with our Quebec sister organization, L’Association québécoise pour le droit de mourir dans la dignité (AQDMD), had been accepted as intervenors in a court case challenging aspects of Bill C-14. One year later, we are now preparing to deliver arguments in the case when it is heard in January.

Launched in June 2017, the Quebec challenge targets eligibility rules in Bill C-14 and in Bill 52, Quebec’s own assisted dying law, that the plaintiffs say unfairly deny them their right to assistance in dying. Montreal residents Nicole Gladu, 72, and Jean Truchon, 50, both suffer from severe, chronic medical conditions and wish to exercise their right to a peaceful death. Both have been told that they do not qualify for assisted dying under Bill C-14 because their natural deaths are not “reasonably foreseeable.”

DWDC and AQDMD will be intervening in support of Truchon and Gladu, arguing that Bill C-14’s “reasonably foreseeable” requirement infringes upon their Charter rights. “This rule discriminates against Canadians who are suffering intolerably but who may have years or even decades left in their natural lives,” said DWDC CEO Shanaaz Gokool.

“Forcing them to live in a state of agony is cruel and it violates the principles that led the Supreme Court to strike down the ban on assisted dying in the first place.”

Sean Griffin and Véronique Roy, of the Montreal law firm Langlois Lawyers, are representing DWDC and AQDMD pro bono in the case.

Ontario ‘effective referral’ case goes to appeal

DWDC is going back to court to help defend an Ontario regulation that protects a person’s right to access medical assistance in dying.

The College of Physicians and Surgeons of Ontario’s (CPSO) policy on effective referral had already survived a court challenge launched by the Christian Medical and Dental Society of Canada (CMDS). But the CMDS has decided to take their case to the next level. The Court of the Appeal for Ontario, the highest court in the province, has agreed to hear the challenge.

DWDC acted as an intervenor in the case at the divisional court level. In October, we learned that we had been granted permission to present arguments when the challenge goes to appeal. As we did the last time around, we will make the case that the CPSO’s policy is essential to preserving fair access to assisted dying for the most frail and vulnerable people in the health care system.

What is the CPSO’s policy on effective referral? In basic terms, it requires doctors who oppose assisted dying to refer a patient who requests it to a clinician, department, or third-party agency that can handle the request. DWDC will argue that the rule strikes an effective balance between a clinician’s right to freedom of conscience and a patient’s right to care.

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