The federal Minister of Justice tabled this month Bill C-14, respecting medical assistance in dying.\u00a0 A key provision is the definition of a \u201cgrievous and irremediable medical condition\u201d which establishes eligibility criteria for making physician-assisted death lawful. The bill states:<\/p>\n
A person has a grievous and irremediable medical condition if<\/em><\/p>\n (a) they have a serious and incurable illness, disease or disability;<\/em><\/p>\n (b) they are in an advanced state of irreversible decline in capability;<\/em><\/p>\n (c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and <\/em><\/p>\n (d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.<\/em><\/p>\n Subsections (b) and (d) are very contentious, and there will undoubtedly be amendments proposed to delete them.\u00a0 In my assessment, they are both consistent with the Supreme Court\u2019s decision<\/a> on physician-assisted dying in Carter v Canada (Attorney General)<\/em>, and compliant with the Canadian Charter<\/em> of Rights and Freedoms<\/em>.<\/p>\n Consistency with Carter<\/em><\/strong><\/p>\n The Supreme Court of Canada\u2019s (SCC) remedy in Carter<\/em> was a declaration that parts of the Criminal Code were invalid, based on the Charter protection of life, liberty and security of the person:<\/p>\n Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. <\/em><\/p>\n The court\u2019s declaration of invalidity was suspended (or put on hold) until June 6, 2016, to give Parliament the opportunity to come up with replacement legislation. The language in proposed subsections 241.2(2)(b) and (d) of Bill C-14 is not explicitly mentioned in the Carter<\/em> decision.\u00a0 In her recent Policy Options piece<\/a>, Jocelyn Downie concludes that, \u201cthe Bill therefore falls below the bare minimum established by Carter.<\/em>\u201d It is an extraordinary claim that judicial silence ties Parliament\u2019s hands, a claim that does not withstand careful scrutiny.<\/p>\n Subsection (b) in the bill, on an \u201cirreversible decline in capability,\u201d parallels the language incorporated by Justice Lynn Smith, the trial judge in the Carter<\/em> case. She found that the total ban on physician-assisted suicide was unconstitutional for those experiencing “advanced weakening capacities with no chance of improvement.\u201d\u00a0 Although this language was not explicitly adopted by the SCC judges, they did not reject it either.\u00a0 Indeed, the SCC judges did not even acknowledge that she said it. In not commenting at all, the Court cannot be said to have pronounced on the issue.\u00a0 The SCC was at the very least leaving it open to Parliament to adopt such a limitation, which one presumes Justice Smith included to cover people such as Kay Carter, who suffered from a degenerative disease.<\/p>\n Similarly, although the Supreme Court\u2019s declaration of invalidity in Carter<\/em> does not include any language stipulating \u201cnatural death has become reasonably foreseeable\u201d as in proposed in the legislation, the Court made no pronouncement against such a limitation.\u00a0 In canvassing the international and Quebec experience with regimes of medical assistance in dying, which vary as to whether a patient must in any sense be dying to be eligible, the SCC did not weigh the pros and cons of such a limitation.\u00a0 The SCC\u2019s decision in Carter<\/em> was a declaration against an absolute ban on physician-assisted suicide.\u00a0 It is not a declaration against any future regime of assisted death with safeguards.<\/p>\n The Court\u2019s decision in Carter was not a declaration against an assisted death with safeguards.<\/p><\/blockquote>\n The SCC specifically limited the scope of its declaration:<\/p>\n The scope of the declaration is intended to respond to the factual circumstances of this case.\u00a0 We make no pronouncements on other situations where physician-assisted suicide may be sought.<\/em><\/p>\n And the Court prefaced its declaration of invalidity by noting \u201cthat the impugned laws infringe the rights of people like Ms. Taylor.\u201d Gloria Taylor was a co-plaintiff in the Carter<\/em> case, terminally ill with ALS. One would be hard-pressed to say that the fact the she was dying was not a relevant circumstance.<\/p>\n Protection of the Vulnerable<\/strong><\/p>\n When the Supreme Court gave the federal government a year to come up with new legislation, and then extended the suspension to 16 months, it noted that \u201cComplex regulatory regimes are better created by Parliament than by the courts.\u201d The SCC recognized in Carter <\/em>that deference is owed to Parliament, especially in the circumstance where, as with physician-assisted death, the objective pursued by Parliament involves constitutionally protected rights. The protection of the vulnerable \u201cfrom being induced to commit suicide at a time of weakness\u201d is the protection of rights of those who, by definition, are not well placed to advance their own rights. \u00a0The Court did not elaborate on what Parliament would need to do to meet its constitutional obligations to protect the vulnerable from error and\/or abuse, beyond saying that an absolute ban on physician-assisted death was not a proportionate balance between competing constitutional rights.<\/p>\n In Carter<\/em>, the absolute ban on physician-assisted death was found to be a deprivation of life and liberty, contrary to the principles of fundamental justice, in violation of s. 7 of the Charter.<\/em> The SCC found that an absolute ban on physician-assisted death went way too far in pursuit of its objective of protecting the vulnerable.<\/p>\n In contrast, the proposed subsections 241.2(2)(b) and (d) in the legislation are important in designing safeguards against error and abuse.\u00a0 If there is no state of irreversible decline in capability, and death by natural causes is not reasonably foreseeable, the consequences of potential error are substantially magnified. Without the limitations of subsections (b) and (d), physician-assisted death will remove, over a lengthy period, the possibility of a person changing their mind.\u00a0 The odds of a transitory suicidal wish becoming reality increase.\u00a0 There are greater risks that the notion of a disabled life not being worth living will creep into assessments.\u00a0 Thus vulnerability concerns are substantially magnified if physician-assisted death is not limited as in subsections (b) and (d), and thus would weigh more heavily in the balance.<\/p>\n Anyone challenging the constitutional validity of subsections (b) and (d) would not be able to say that they bear \u201cno relation\u201d or \u201cno connection\u201d to the objective of protecting the vulnerable. \u00a0Thus they would not be overbroad.\u00a0 Nor could these stipulations be considered to run afoul of the principle that measures not be grossly disproportionate to the objective Parliament is trying to achieve. Moreover, in the alternative, the government would have a defence under s. 1 of the Charter,<\/em> allowing for reasonable limits on protected rights.<\/p>\n If subsections 241.2(b) and (d) were deleted, physician-assisted dying would be so wide open that the chances increase substantially of people dying who would not choose death if they fully appreciated other options.\u00a0 Vulnerability is potentially a concern for any physician-assisted death (hence the need for other safeguards), but those concerns go way up for people who are not in any sense dying.\u00a0 Thus subsections (b) and (d) are necessary in furthering the important public policy of suicide prevention.<\/p>\n Carter<\/em> puts the onus on Parliament to craft a regime that provides equitable access to physician-assisted death.\u00a0 At the same time, it places on Parliament a responsibility to incorporate sufficient safeguards to protect the constitutional rights of the vulnerable.\u00a0 With competing constitutional rights those claiming a right to die versus those vulnerable to being subjected to premature death it is not open to Parliament to pursue one to the exclusion of the other \u2013 that was ultimately the downfall of an absolute ban on physician-assisted death.<\/p>\n <\/p>\n Do you have something to say about the article you just read? Be part of the<\/em>\u00a0<\/em>Policy Options\u00a0<\/em>discussion, and send in your own submission. Here is a<\/em>\u00a0<\/em>link<\/em><\/a>\u00a0<\/em>on how to do it. |\u00a0Souhaitez-vous r\u00e9agir \u00e0 cet article ? <\/em>Joignez-vous aux d\u00e9bats d\u2019<\/em>Options politiques\u00a0<\/em>et soumettez-nous votre texte en suivant ces<\/em>\u00a0<\/em>directives<\/em><\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" The federal Minister of Justice tabled this month Bill C-14, respecting medical assistance in dying.\u00a0 A key provision is the definition of a \u201cgrievous and irremediable medical condition\u201d which establishes eligibility criteria for making physician-assisted death lawful. The bill states: A person has a grievous and irremediable medical condition if (a) they have a serious […]<\/p>\n","protected":false},"author":913,"featured_media":293660,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"footnotes":""},"categories":[],"tags":[],"article-status":[],"irpp-category":[],"section":[],"irpp-tag":[],"class_list":["post-293662","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"acf":[],"yoast_head":"\n
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