Supreme Court won't hear case involving facts used in assisted-dying case

OTTAWA — The Supreme Court of Canada will not hear an appeal from a severely ill woman who wants to accelerate a lawsuit that argues the right to assisted dying is unfairly limited by federal government law.

Julia Lamb and the British Columbia Civil Liberties Association are spearheading a challenge of the law that allows assisted dying only for individuals whose natural death is "reasonably foreseeable.''

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The plaintiffs asked a lower court to prevent Canada from relitigating facts already decided in the Supreme Court's landmark 2015 case that overturned a ban on assisted dying.

They argued that granting the request would mean a quicker trial for their lawsuit and potentially bring relief sooner to suffering Canadians.

The B.C. Supreme Court ruled the government should be given a second chance to argue the findings of fact. The B.C. Court of Appeal declined to overturn the decision.

The country's top court on Thursday declined to hear an appeal. As is customary, no reasons were give for its decision not to hear the case.

"With great respect to the Supreme Court, we are disappointed," said Josh Paterson, executive director of the civil liberties group, which also led the original court challenge.

"What the federal government is trying to do in this assisted-dying case is essentially have a redo of a lot of the evidence and the factual findings that went against them in the original assisted dying challenge that we successfully brought."

The B.C. Supreme Court trial is expected to take place next November.

Paterson added his group will still be able to make the argument at trial that the government is improperly relitigating facts.

"The problem is that once we get to trial, we've spent the money, and the time, and the effort to reprove everything we proved the last time," he said.

"Ultimately it just means that people who are trapped in suffering by the new law will be in that condition for longer."

The Department of Justice said in a statement that the government believes the existing legislation achieves a balanced regime for those trying to access the process, while it protects people who are vulnerable and respects the conscience rights of health-care providers.

The federal government has asserted that new arguments are required because the latest case involves different plaintiffs, a different legal regime and a different set of issues compared with 2015.

The 2015 Supreme Court ruling directed that medical assistance in dying should be available to consenting, competent adults with "grievous and irremediable'' medical conditions that are causing enduring suffering that they find intolerable.

The civil liberties association filed its latest lawsuit within days of the federal law being enacted in June 2016.

The group contends that the law violates the charter by excluding individuals who could live for years with medical conditions that cause intolerable suffering

Lamb, in her late 20s, has spinal muscular atrophy, a degenerative disease she worries will lead to years of unbearable suffering by robbing her of the use of her hands and forcing her to use a ventilator to breathe and a feeding tube to eat.

She was not available for comment on Thursday. Paterson said she's is looking forward to the case being concluded.

Shanaaz Gokool, CEO of Dying With Dignity Canada, said her organization was disappointed with the Supreme Court's decision not to hear the case. She said the court's 2015 ruling gave hope to people who are suffering.

"Unfortunately, for people who are currently outside of the legislation — which is far narrower, much more restrictive, and we believe unconstitutional — they don't have that hope. They don't have that comfort," she said.

People are still going to Switzerland to seek assisted death or are considering options to kill themselves, Gokool said.

For some, simply knowing they qualify for assisted dying gives them the hope they need to live for one more summer or to make it to a child's wedding, Gokool added.

"Some people don't have the option. They could be giving up good, quality life, but they just don't see any other way forward. It's devastating for people in these situations."

A second woman who was also a plaintiff along with Lamb has since died.

Robyn Moro, 68, who suffered from Parkinson's disease, was initially denied medical help in dying because her natural death was not considered reasonably foreseeable. She ended her life with the help of a doctor in 2017 following an Ontario Superior Court ruling that clarified how imminent a natural death had to be to qualify for assisted dying.

— By Laura Kane in Vancouver

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