Scores of Canadians excluded from assisted dying law eager to join legal challenge

OTTAWA — Scores of suffering Canadians who’ve been excluded from the federal government’s restrictive eligibility criteria for medical assistance in dying are lining up to join a constitutional challenge to the new law.

The British Columbia Civil Liberties Association, which is spearheading the challenge, has been “overwhelmed” by “scores” of responses to its call for help in the case, says Grace Pastine, the association’s director of litigation.

The BCCLA has also been stunned by the response to its crowd-funding campaign to pay for the looming legal battle, which so far features one plaintiff — Julia Lamb, a wheelchair-bound 25-year-old who suffers from spinal muscular atrophy, a degenerative disease that she fears will eventually consign her to years of intolerable suffering.

Just 10 days after announcing the constitutional challenge in late June, the BCCLA met its goal of raising $75,000.

“It is a testament to how important and deeply personal this issue is to so many Canadians” said Pastine.

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But the BCCLA — which spearheaded the four-year legal challenge that led to last year’s landmark Supreme Court ruling striking down the ban on medically assisted dying — will need a lot more donations to compete with the kind of money the federal government is evidently prepared to throw at the issue.

Under Stephen Harper’s Conservatives, the government spent at least $3.3 million on its losing legal fight to maintain the prohibition on assisted dying, according to a document released under the Access to Information Act.

The detailed breakdown of those costs is blacked out, citing “solicitor-client privilege” so it is impossible to tell whether the price includes hours spent by Justice Department lawyers or is just the total spent on outside legal experts. The Canadian Press had asked for both.

Justin Trudeau’s Liberal government has signalled its intention to vigorously defend its new law, which it maintains is a delicate balance between personal autonomy and protecting the vulnerable.

“The last government spent millions in taxpayers’ money to defend, unsuccessfully, a law that caused immeasurable suffering and, in the process, ran roughshod over Canadians’ charter rights,” said Shanaaz Gokool, CEO of Dying with Dignity Canada.

“We question why the current government, with its stated commitment to upholding the charter, would want to adopt the same misguided approach.”

Among those who’ve contacted the BCCLA hoping to join the Lamb challenge as another plaintiff or as a witness is Adam Maier-Clayton, a 26-year-old Windsor, Ont., man who suffers from severe psychosomatic pain brought on by mental illness.

“I want to earn legally the right to terminate the pain that plagues me on a day to day basis,” Maier-Clayton said in an interview.

“But more so than that, I want to be a part of it because … every Canadian deserves this right, the right to have the ability to terminate pain that is chronic, incurable.”

The controversial new law, enacted in June, allows assisted dying only for those in an advanced state of irreversible decline from an incurable condition and for whom natural death is “reasonably foreseeable.” It does not apply to those who are not near death or to those suffering strictly from psychiatric illnesses.

The BCCLA contends the restrictive eligibility criteria violates the charter and does not comply with last year’s Supreme Court’s ruling, known as the Carter decision.

In Carter, the top court directed the federal government to come up with a law recognizing that consenting adults with grievous and irremediable conditions and enduring suffering intolerable to them have a right to seek medical help to end their lives.

Last May, the Alberta Court of Appeal rejected the Trudeau government’s bid to prevent a 58-year-old woman suffering strictly from a psychiatric illness that caused her excruciating pain from obtaining a medically assisted death. The appeal court ruled that the Carter decision did not preclude individuals with mental illnesses or those who were not near death.

The government proceeded with its restrictive new law nonetheless. Maier-Clayton said he now feels “trapped” in an untenable situation.

“Right now, if I want to die, there’s one way out: suicide.”

There is another, albeit gruesome, option. Maier-Clayton could follow the example of Helene L., a 70-year-old Quebec woman with multiple sclerosis who was ineligible under the new law. She died recently after refusing food and water for 14 days — a death Quebec’s health minister, Gaetan Barrette, has denounced as “cruel and inhuman.”

Maier-Clayton has suffered since he was a child with psychiatric illnesses, including generalized anxiety disorder, obsessive-compulsive disorder and major depressive disorder. Although he’s been diagnosed as physically healthy, over the past four years his condition has worsened to the point that he says he’s now in constant agony from pain he describes as feeling sulphuric acid is inside him, “burning my body alive.”

He has undergone extensive tests, tried a dozen different medications and various treatments, including psychotherapy and exposure-response therapy. Nothing has helped; he says his life is “literally torture every day.”

Murray Rankin, the NDP’s justice critic, said the government has let down people like Helene L. and Maier-Clayton.

“They seem to be oblivious to the suffering, the real suffering people are dealing with,” he said.

Joan Bryden , The Canadian Press