Q&A with Grace Pastine

National: Why for you do you think the law banning assisted suicide is a violation of Charter rights?

Grace Pastine:  In our view (B.C. Civil liberties Association),  there are few rights that are more fundamental, or more deeply personal than the right to determine for oneself how much suffering to endure at the end of life, and whether to seek a doctor’s assistance to hasten death if living becomes unbearable. And in our view the Criminal Code of Canada provisions against assisted dying violate the constitutional rights of the gravely ill because they take away the choice of individuals to make decisions that are fundamental to their wellbeing, and they cause unbearable suffering.

N: Are there presently any options for those wishing to end their lives?

GP: Well at the moment, because of the absolute criminal prohibition, individuals who are sick and dying who wish to hasten death are faced with a cruel predicament. Those who can afford to travel abroad for an assisted death have that option. For example, one of the plaintiffs in our lawsuit, Lee Carter, helped her mother, Kay Carter, travel to Switzerland so she could have a gentle death at the end of life. Of course now, Lee Carter has to live with the possibility that she could be criminally prosecuted for helping fulfill her mother’s end-of-life wishes. Other individuals will attempt silent suicides, alone, behind closed doors, without the advice of a doctor, and fearing that if any of their loved ones know about their plan they could become criminally complicit in that.

Other individuals have the option of refusing food and water to bring about their death. This is a painful choice and is very traumatic for the family members who need to keep vigil by their side. So the options that currently exist are terrible options for individuals who are seriously and incurably ill, and what we argue is that absolute prohibition essentially creates a back alley for assisted dying, just like prohibition once did for abortion. What we argue is that we need to take these practices out of the darkness and expose them to upfront legislative safeguards.

N: Proponents against lifting the ban on euthanasia and assisted suicide worry about the ‘slippery slope’ and worry that vulnerable people will be put at risk. What do you say to that?

GP: That is a good question. I guess the best way to respond to that is that some of the most valuable evidence that was before the B.C. Supreme Court was evidence of years of meticulous study and research as for working and operations of regimes around the world that allow for various forms of physician-assisted dying. So a significant number of countries now allow for physician-assisted dying in some form.  For example,  in the United States the States of Oregon and Washington have passed legislation allowing for death with dignity. Belgium, Luxembourg and The Netherlands also have legalized physician-assisted dying. These regimes are some of the most studied healthcare regimes in the world. And what experience in these countries reveals is that fears about physician-assisted dying are simply unfounded. The feared risks have not materialized and the evidence allays fears of the slippery slope.

N: If physician-assisted suicide was legal, do you imagine any safeguards put in place?

GP: I think there are a number of possible safeguards that could be put place, and this would something that parliament, if faced with the question, will need to consider carefully. And this is something that Madame Justice Clement of the B.C. Court gave careful consideration to as well, drawing on the experience of countries around the world. For example,  in Oregon, an individual who wishes to have the assistance of a doctor needs to make written requests. Those requests must be repeated, and there are minimum waiting periods. And that’s to ensure that the request is genuine and enduring. One possible safeguard might be to require that the individual consult with a doctor who has expertise in palliative care, and that would be to discuss pain management that is available and to make any assistance available, such as counseling or home care, or spiritual services that the individual might desire. But the key is to ensure that there are safeguards that ensure that an individual is making a free and voluntary choice,  that they are free from coercion and any sort of duress. And in our view, this is an option that should only be made available for those individuals who are seriously and incurably ill, and that was also the view of the B.C. Supreme Court.

N: The Supreme Court of Canada has agreed to hear an appeal in the case of Kay Carter and Gloria Taylor. How do you think the Court has evolved in the 20 years since hearing the Sue Rodriguez case? Do you feel it will be different this time around?

GP: I do think it will be different this time around.  There has been a sea change in social and legal thinking on these issues in the last 20 years. When Sue Rodriguez asked Canada’s highest court for the right to choose how and when to die, simply put, to die at home and at peace, she encountered a very divided court. That was a 5-4 decision, and since that time a number of countries around the world have now enacted legislation that allows for physician-assisted dying.  And year after year, in poll after poll, Canadians have overwhelmingly stated that they support a change to the longstanding blanket prohibition on physician-assisted dying.

I also think that in those intervening 20 years there has been some important legal development as well that indicate that the Court might view the issue differently this time.

N: Can you share your thoughts on Québec’s approach with Bill 52?

GP: Well, I’m not an expert on that legislation, so I can only go so far as to say, I think it indicates that the current absolute prohibition we have on assisted dying is completely unworkable and that proposed legislation is really indicative of the public’s wish to see change in the law so that basic human rights can be upheld and so that there can be compassion and dignity at the end of life.