Tale of death that took 'painful eternity' opens right-to-die case

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The words of a man who died in agonizing pain and those of his wife, who wept helplessly at his bedside for days while his life slowly ebbed, were read into the court record during the emotional opening of a right-to-die case.

With a dozen lawyers in attendance, a packed public gallery inside and a crowd of placard-waving protestors opposed to change on the Supreme Court of British Columbia steps outside, lawyer Joseph Arvay started dramatically by reading the affidavits of Peter Fenker, and his wife, Grace.

"It was a horror to watch Peter labour to die," said Mr. Arvay, quoting Mrs. Fenker, whose husband died last month while waiting for the trial.

"Four days may not sound like a long time, but it is a painful eternity when you are watching your beloved husband suffer. I will never forget the pleading look in his eyes as he asked me to help him and there was nothing I could do."

Mr. Arvay is representing a group of people – including B.C. resident, Gloria Taylor, who is dying of amyotrophic lateral sclerosis (ALS) – who are trying to have the Criminal Code changed so that those who are terminally ill have the right to assisted suicide.

The governments of Canada and British Columbia are opposing the application, the first constitutional challenge on the issue since 1993, when Sue Rodriguez, a Victoria woman dying of Lou Gehrig's disease, failed in a case before the Supreme Court of Canada. Ms. Rodriguez subsequently committed suicide with the help of an anonymous physician.

The court heard Monday that Mr. Fenker, a 71-year-old retired logger who was diagnosed with ALS three years ago, did not kill himself. Instead, he slowly deteriorated until he reached the state he graphically described in an affidavit sworn last August.

"I cannot stand or walk on my own because I do not have any muscles or fat. There is no strength left in my body … I am wasting away … I am a skeleton," said Mr. Arvay, quoting Mr. Fenker's affidavit. "I still have my mind, but it is a terrible thing to be a mind trapped in a wasted body."

A few weeks after swearing that affidavit, Mr. Fenker began to cry out from constant pain. He was taken to hospital and sedated. But after a few days, the painkillers stopped working.

"It slowly became clear to me that my beloved husband, the father of my sweet girls, was struggling as he waited to slowly die," Mr. Arvay said, picking up the narrative for Mrs. Fenker. "I caressed him and kissed him, but nothing registered … nothing helped him. My heart was breaking."

Mrs. Fenker described how she and her two daughters sat by his side day and night, hoping he could hear them and "speaking to him softly, telling him to let go."

After four days his toes started to turn a deathly purple and the colour slowly worked up to his knees, his elbows, his finger tips.

"We cried throughout the entire day as we watched him slowly succumb to death," said Mr. Arvay, relating the words of the bereaved wife to the hushed courtroom.

"He stared at me but could not form words. I knew what he wanted. He wanted to die. He wanted me to help end his suffering … I felt helpless. I felt bitter that Peter was forced to suffer … He was [a]good and kind man; he did not deserve to have his life end this way."

Mr. Arvay said Mr. Fenker wanted a medically assisted death, so that he might die with dignity.

"This lawsuit came too late for Peter Fenker. We hope by this lawsuit to allow Gloria Taylor to avoid Peter's fate," he said.

Ms. Taylor, who befriended Mr. Fenker in an ALS support group, was not in court, but is expected to appear Dec. 1.

"It was important … for the court to hear … the human side of this case because the court's going to hear a lot of expert evidence … but at the end of the day this case is about real people," Mr. Arvay said outside court.

Donnaree Nygard, representing the federal Department of Justice, told court that "the stories are heart wrenching … but that does not mean that we should euthanize people … because there are other individuals that would be put at risk."

She said society cannot abandon those who might choose assisted suicide because they feel "they are a burden to their families and society."

George Copely, speaking for the B.C. Attorney-General, said the case should be dismissed because it is "virtually indistinguishable" from the Rodriguez case ruled on by the Supreme Court 18 years ago.