Unbearable pain and death are not your average dinner table conversation topics. Most of us avoid thinking about these realities until we cannot. Yet the prevalence of severe pain calls for a close look at the choices available to those who suffer.

Pain is unfortunately common among Canadians. Approximately one in five adults live with chronic pain.¹ Almost half of these adults have suffered for longer than 10 years, and about one third experience pain severity of 8-10 on a 10-point scale.² As high as these numbers are, chronic pain is just one type of unalleviated suffering decreasing Canadians’ quality of life. The magnitude of our pain problem begs the question – when modern medicine reaches its beneficial limits, who gets to decide the limits of suffering?

Among those who suffer most are the Canadians fighting for the right to die with medical assistance. Prior to 2016, there was a complete criminal prohibition on assisting death in Canada.³ For many experiencing intolerable pain, this prohibition was a trap; confined inside deteriorating, painful bodies, the law prevented them from choosing death as a last escape.⁴

A small group of seriously ill British Columbians joined the BC Civil Liberties Association (“BCCLA”) in 2011 to fight for greater choice amidst intolerable suffering. Their constitutional challenge, Carter v. Canada⁵, was built on the belief that controlling when and how we die is integral to the life, liberty, and security of seriously ill Canadians.⁶

In February 2015, the Supreme Court unanimously agreed, finding it unconstitutional to deny a medically assisted death to any competent, consenting person who suffers from a serious and incurable medical condition that causes them enduring, intolerable suffering (the “Carter criteria”).⁷ After receiving evidence from those suffering in life, as well as from those suffering in the process of dying, the court did not include an end of life criterion.

The Canadian government responded to the Carter decision by implementing Bill C-14 in June 2016, effectively adding an end- of-life requirement to the Carter criteria. Now, in order to access a medically assisted death, Canadians must meet the Carter criteria while also meeting the government’s additional end-of-life requirements, including that their natural death be “reasonably foreseeable.”⁸ Put simply, the current law means that the longer doctors expect you to live with your intolerable pain, the less likely you are to be eligible for a medically assisted death.

Julia Lamb is one of the Canadians living in uncertainty under the current law. As an infant, Julia was diagnosed with Spinal Muscular Atrophy – a disease that has brought her a lifetime of pain. She is now 26 years old, and fears what will come next as her body continues to degenerate. Others in her condition have lived into their 40s and 50s. Julia dreads being forced to spend many years trapped in severe suffering, and seeks the peace of mind to know that when her suffering becomes intolerable, she will have a way out.⁹

In late June 2016, Julia joined the BCCLA to file a second constitutional challenge – this time to the end-of-life requirements created by Bill C-14. The Lamb case argues that denying medically assisted deaths to people like Julia, who satisfy the Carter criteria but are not close to the end of their natural life, is an unjustifiable violation of their section 7 and 15 Charter rights.¹⁰ The Lamb case is currently before the BC Superior Court.

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1. Donald Schopflocher, Paul Taenzer and Roman Jovey, “The Prevalence of Chronic Pain in Canada” (2011) 16:6 Pain Res Manage 445. | ↩
2. Ibid. | ↩
3. Former ss. 14 and 241 of the Criminal Code, R.S.C., 1985, c. C 46 (“Criminal Code”), amended on June 16, 2016. | ↩
4. See Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519. | ↩
5. 2015 SCC 5 (“Carter SCC”). | ↩
6. See plaintiffs’ pleadings in Carter v. Canada (Attorney General), 2012 BCSC 886. | ↩
7. Carter SCC, 127. | ↩
8. Criminal Code, s. 241.2(2)(d). | ↩
9. Julia Lamb, British Columbia Civil Liberties Association, and Robyn Moro v. Attorney General of Canada, Supreme Court of British Columbia File No. S-165851 (“Lamb”). | ↩
10. See Amended Notice of Civil Claim in Lamb. | ↩