Canada's new medically-assisted dying law

By Justin Ling Web Only

Canada's new medically-assisted dying law

Justice Minister Jody Wilson-Raybould

More than a year after the ruling in Carter v. Canada, the country finally has legislation on physician-assisted suicide — Bill C-14.

And, by and large, the neophyte Trudeau government hasn’t deviated much from the narrow legal path laid out by the Supreme Court of Canada.

But there’s one big exception: To obtain medical aid in euthanasia from a Canadian doctor, nurse, or pharmacist, the patient must be suffering from a disease where death is “reasonably foreseeable.”  That’s somewhat of a departure from the Supreme Court’s requirement that a person must have “a serious and incurable disease, illness or disability” and be in “an advanced state of irreversible decline of capability.”

While that new provisions remain broad and vague — the act stipulates that the order can be given “without a prognosis necessarily having been made as to the specific length of time that they have remaining” — the government concedes that the work required to regulate physician-assisted dying in Canada is far from over.

“We are committed to further studying the contentious issues around mature minors, advanced directives, and situations where mental illness is the sole underlying condition,” said Health Minister Jane Philpott at a Thursday morning press conference.

That trio of issues will be the subject of study by a panel of experts to be appointed by the government, with an eye to addressing those issues in the future.

“The safeguards we put in place sought to ensure that we respect personal autonomy,” said Justice Minister Jody Wilson-Raybould, who added that other considerations, including whether a disease necessarily has to be ‘terminal’ in order to qualify an individual for euthanasia, could come back on the table down the road.

And after consistently asking the previous government to submit its potentially contentious legislation to the Supreme Court for prior review, the new Justice Minister doesn’t sound interested in getting the top court’s analysis on her new legislation.

“It’s my view that it would be very premature to have conversations about references cases,” she said when asked.

And yet part of legislation may find itself the subject of litigation. Because it steps into a realm not addressed in Carter, in determining that only Canadians whose death is “reasonably foreseeable,’ — on top of the conditions set out by and that the condition cause "enduring physical or psychological suffering" that cannot be reasonable relieved.

The new law will also ensure that the patient signs the order in the presence of two independent witnesses, and that two doctors sign affirmations confirming that all the criteria of the law are met. The patient must also wait 15 days before the order is respected — although that can be shortened based on the case.

The law provides that doctors, nurses, and pharmacists can aid in the process, as can other individuals for simple assistance matters, like helping the patient drink or take pills.

In the conditions that are in the bill, and the accesses to the system that are not, the government is not respecting the spirit, argued the BC Civil Liberties Association in a press release issued after the bill was introduced.

“While the legislation permits assisted dying for adults suffering from physical illnesses, and does not include some of the worst ideas recommended by opponents of assisted dying like requiring prior judicial approval — it leaves out entire categories of suffering Canadians who should have a right to choose a safe and dignified assisted death. The inevitable result is that people will be trapped in intolerable suffering, or be left with no choice but to take their own lives prematurely in potentially dangerous situations,” said Executive Director Josh Paterson.

“The Supreme Court did not require that a patient have a terminal illness. The requirement in the bill that ‘natural death’ be reasonably foreseeable could mean that even some individuals whose situations were before the court in the Carter decision might be excluded from being able to have an assisted death,” he continues. “Kay Carter, who was central to our case, suffered from spinal stenosis and was not going to die from that illness. It was not clear that her ‘natural death’ was ‘reasonably foreseeable’ any more than every person who will eventually die.” Spinal stenosis is a degenerative nerve disease that left Carter mostly immobile but which, in and of itself, wasn’t fatal.

For her part, the Justice Minister tried to assuage some of those concerns, saying that because the issue of terminal illnesses wasn’t in front of the court, they simply didn’t consider it.

However, she indicated that doctors would be able to consider the wider impact of the disease — how it could lead to fatal infections, or how it could shorten one’s life — in determining what constitutes ‘reasonably foreseeable.’

Even so, it’s a barrier that is destined to be the matter of debate and possible Charter challenge.

The BCCLA was similarly unimpressed with the lack of consideration for mature minors, advanced permission, or mentally ill patients. Continuing to study the issue, they argue, isn’t good enough.

“This proposal sets Canadians up for years of delay before people who are excluded might have a hope of accessing a peaceful and dignified assisted death. It means that people will continue to suffer unimaginably for several years on end," they write. There is no indication as to whether they would join litigation should it face challenge again.

But this legislation was the product of a deadline. If it is not passed into law by June, a legal vacuum will govern how doctors perform the procedure. Since the Supreme Court extended the deadline for the government to introduce new legislation, courts across the country have been hearing cases from individuals looking to for constitutional exemptions to have a doctor help them end their own lives. Judges have approved more than half a dozen in recent months.

At the announcement, government ministers said that their legislation respects the fact that the Supreme Court has recognized access to euthanasia as a Charter right.

Carissima Mathen, Associate Professor of Law at the University of Ottawa pushed back on  Twitter countering with a different interpretation — “It said certain persons shouldn't be criminally punished for it,” she said.

And indeed, Bill C-14 effectively re-introduces the criminal prohibition on medical assistance in dying, but carves out exemptions that respect patients’ section 7 rights.

The legislation clearly forbids so-called “suicide tourism” by limiting access to the regime to those who would otherwise have access to healthcare covered by a Canadian province or the federal government.

Asked about that distinction, Wilson-Raybould said simply: “We have considered this question in the context of Canada, and in the context of Canadians,” sai

Justin Ling is a regular contributor based in Ottawa and Toronto.

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