Ottawa given another chance to re-argue facts used in Carter case

Dying With Dignity Canada is disappointed by a judge’s decision to allow the federal government to re-argue the facts used in the landmark Carter v. Canada case.

The decision came in response to the British Columbia Civil Liberties Association’s (BCCLA) application to have elements of the Lamb v. Canada constitutional challenge to the federal assisted dying law heard in an expedited manner. The BCCLA sought to prevent the federal government from re-litigating issues already decided in Carter.

But Chief Justice Christopher Hinkson, of the Supreme Court of British Columbia, ruled on October 11 that the feds should not only be allowed to introduce “relevant, current” evidence, but evidence that was already covered in Carter.

“This ruling has a devastating impact on the suffering Canadians who are experiencing intolerable pain and would have qualified for an assisted death under the Supreme Court’s ruling, but have been cruelly abandoned by our current legislation,” said DWDC CEO Shanaaz Gokool. “We are deeply disappointed by this decision because it means these individuals will have to face prolonged suffering as they wait out what promises to be a lengthy and expensive trial.”

After the BCCLA’s ground-breaking Carter case led to the Supreme Court of Canada unanimously striking down the federal prohibition on assisted dying in 2015, the federal government passed Bill C-14, its assisted dying law, on June 17, 2016.

Just 10 days later, the BCCLA and Julia Lamb, a 26-year-old B.C. woman with spinal muscular atrophy, launched a constitutional challenge to the law’s restrictive eligibility criteria and its requirement that only those individuals whose natural deaths are “reasonably foreseeable” can qualify for medical assistance in dying. The challenge asserts that this restrictive requirement leaves countless desperately ill Canadians trapped in intolerable suffering that could last for years or even decades.

The federal assisted dying law and its “reasonably foreseeable” clause have also been challenged in Quebec, where two plaintiffs — Jean Truchon and Nicole Gladu — argue that the federal and Quebec laws violate their Charter rights. DWDC will serve as an official intervener in the Quebec court case, alongside the Quebec-based Association Québécoise pour le droit de mourir dans la dignité (AQDMD), and will be closely watching the Attorney General’s approach to this challenge.

“With a longer trial now expected for Lamb, this opens up the opportunity for Quebec to lead the way again when it comes to assisted dying,” Gokool said. “We expect a two-day hearing in Quebec by the end of 2018.”

In the meantime, DWDC will continue to follow the Lamb v. Canada case closely and look for opportunities to support the challenge.

“We succeeded in defeating the government’s arguments in the Carter case and we will succeed in defeating them the second time around,” said Caily DiPuma, the BCCLA’s acting litigation director.

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