In August, British Columbia Supreme Court Justice Lynn Smith made two important decisions in cases challenging Canada’s laws against euthanasia and assisted suicide.

On August 4, Smith fast-tracked the Carter/Taylor case and on August 17 she rejected a lawsuit filed by the Farewell Foundation for the Right to Die challenging Canadian laws against assisted suicide.

The Carter/Taylor case will be heard Nov. 15. The B.C. Civil Liberties Association is representing Gloria Taylor and the family of Kay Carter, who launched the challenge in April, claiming that provisions in Canada’s criminal code which protect people from euthanasia and assisted suicide are unconstitutional.

The family of Kay Carter accompanied their 89-year-old mother to Switzerland in January 2010 where she obtained an assisted suicide at the Dignitas suicide centre, the tenth Canadian to die at the facility. Carter had spinal stenosis, a narrowing of the spinal chord which results in the body collapsing. The family claims that Kay Carter’s right to assisted death in Canada was denied and that Kay’s daughter Lee Carter and son-in-law Hollis Johnson technically broke Canada’s law prohibiting the aiding and abetting Carter’s suicide and could be prosecuted under a law they claim is  unconstitutional.

Under Section 241 of the Canadian Criminal Code aiding, abetting, and counselling suicide is against the law. At the time, the Vancouver Sun reported that Kay Carter wrote to loved ones from Zurich that “I and I alone made the choice to pursue this path.”

The BCCLA originally launched the case on behalf of the Carter, but on June 28 it amended the suit by adding Gloria Taylor to the case. Taylor, has amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and was told in January 2010 that she would likely die within the year. She is still alive and because of her health, the courts were expected expedite the case. Taylor’s condition, the BCCLA stated, created a greater level of urgency for the case, an argument accepted by Justice Smith.

In its application, the BCCLA stated, “Gloria is terrified of losing control of her bodily functions … One of her greatest fears is to be reduced to a condition where she must rely on others for all of her needs. She does not want to live in a bedridden state, stripped of her dignity and independence.”

The BCCLA hopes to overturn the 1993 Supreme Court of Canada’s Rodriguez decision upholding Canada’s prohibition on euthanasia and assisted suicide.

Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, has warned that, “the Carter/Taylor case has tremendous implications for Canadians,” because “if the BCCLA prevails, the laws that protect Canadians from euthanasia and assisted suicide will be struck down as unconstitutional.” The EPC is seeking intervener status in the case.

The BCCLA claims that Canadians have the right to euthanasia and assisted suicide, which they argue can be legalized with strict safeguards. Schadenberg notes that studies in Belgium and Oregon show that safeguards do not protect the vulnerable. For example, a study published in the CMAJ found that nearly one-third of Belgian euthanasia deaths were done without the consent or request of the patient.

Federal Justice Minister Rob Nicholson was asked about the case by journalists and he said the government had no interest in revisiting the issue. “Parliament passed judgement on that … the question of euthanasia was rejected within Parliament, just within the last year.” In 2010, Parliament voted 228-59 to defeat Bill C-384 which would have legalized euthanasia and assisted suicide.

Schadenberg told The Interim that having failed to get euthanasia legalized through democratic means, they are now turning to the courts to have prohibitions thrown out as unconstitutional. He said that there is no right to assisted death and that public policy should be to focus on alleviating the suffering of vulnerable people, not killing elderly, disabled, and sick individuals.

Justice Smith rejected the Farewell Foundation’s lawsuit – which challenged the refusal by the British Columbia Registrar of Companies to register the group because the aims of the organization, namely to establish a non-profit corporation along the lines of Swiss-based assisted suicide groups such as Dignitas, contravene the criminal code. Smith ruled the Farewell Foundation’s case did not have standing because the suit was filed on behalf of anonymous members. She stated that if the foundation wanted to bring a constitutional challenge, it would have to reveal the members whose health is deteriorating.

However, she informed the group they could apply for intervener status in the Carter/Taylor case. The Vancouver Sun reported that Russel Ogden, founding director of the Farewell Foundation, said he was encouraged by the invitation to intervene by Smith. He said, “I would compare it to someone in a race who knocks over a hurdle … it hurts a bit, you lose a few seconds, but you’re still in the race. You don’t give up.” The Sun reported that the Farewell Foundation would put forward many of the same legal arguments as an intervener in the Carter/Taylor case.