Amendments to the law need to take into account the fundamental rights of disabled Canadians. Severe restrictions in the legislation must be lifted.
Now that the federal government has tabled proposed amendments to the law governing medical assistance in dying (MAiD), it’s imperative that the law’s severe restrictions be lifted so that personal autonomy is respected. The law has forced disabled Canadians seeking MAiD either to attempt to take their own lives or suffer indefinitely.
The amendments in Bill C-7, An Act to Amend the Criminal Code (medical assistance in dying), propose a two-criteria system – one for Canadians and the other for Canadians whose death is reasonably foreseeable.
We need to make sure the proposed amendments, tabled in Parliament on February 24, 2020, go far enough to fully correct the legislation, which the courts have struck down as unconstitutional.
Bill C-7 is the federal government’s response to the Quebec Superior Court ruling in Truchon v. Attorney General of Canada, which said the requirement of a reasonably foreseeable death to be eligible for MAiD was discriminatory.
Bill C-14, which has come to be known as the MAiD law, has been widely criticized by civil liberties organizations and the Canadian Bar Association. They have urged the government to correct its unconstitutionality. In the legal community in Canada, there is agreement on this: the legislation is unconstitutional.
The unconstitutionality comes down to the 2015 Carter v. Canada Supreme Court case ruling, which does not stipulate that your death has to be reasonably foreseeable. The Carter v. Canada ruling was based on intolerable and irremediable suffering, not proximity to death. Kay Carter was an 89-year-old woman with degenerative spinal stenosis; she lived in a wheelchair as her body gradually collapsed on itself. The court found that being allowed to suffer indefinitely and kept alive against her will was unconstitutional. “Reasonably foreseeable death” is found nowhere in the decision.
Yet, the government went on to craft a law that has restricted medical assistance in dying to those applicants with a “reasonably foreseeable death,” a term that is vague and legally undefined. The family of Kay Carter has questioned whether she would have even qualified for MAiD under the current law.
The MAiD law is anything but fair, equitable legislation. Even Justice Minister David Lametti, who was an MP in 2016, voted against the MAiD bill that year, saying: “As a professor of law in Canada for 20 years and a member of two Canadian Bars, I also worry about passing legislation that is at serious risk of being found to be unconstitutional. On these grounds, I was not able to give it my vote in good conscience.”
What are the proposed changes?
Among the most notable changes tabled this week in Bill C-7:
- Removal of the requirement that a person’s death be “reasonably foreseeable.”
- A mental illness is not considered to be an illness, disease, or disability. A person whose sole underlying medical condition is a mental illness will not be eligible for MAiD.
- One independent witness, down from two, must sign a patient’s written request for MAiD.
- The 10-day reflection period is to be removed, meaning a patient does not need to wait 10 days to receive MAiD.
For Canadians seeking MAiD where death isn’t reasonably foreseeable, additional criteria must be met:
- Two independent practitioners must confirm all the eligibility criteria are fulfilled. One of the two practitioners must have expertise in the condition that is causing the person’s suffering. This is significant, as it could create barriers to access for Canadians in rural communities or areas where access to medical experts is nonexistent. It also places a burden on specialists, who might not be willing to give their time and/or approval.
- A person must be informed of counselling, mental health supports, disability supports, community services and palliative care, and be offered consultation with relevant professionals, as available. This is designed as a safeguard to ensure an applicant is aware of all available avenues to reduce suffering, support them in living, and improve their quality of life.
- Practitioners must agree that they and the person have discussed and appropriately considered reasonable means of alleviating their suffering.
- There will be a minimum period of 90 days for the assessment of request. This can be shortened if loss of capacity is imminent and if assessments are complete. This, unfortunately, can mean a person who has been approved because of “irremediable, intolerable suffering” will be forced to tolerate this suffering for another three months.
The government also wants to allow what it calls a “waiver of final consent.” This has been referred to by some as Audrey’s amendment. It would allow for an advanced directive only when natural death is reasonably foreseeable and the following criteria are met:
- A person must be assessed as eligible for MAiD and the MAiD procedure must be scheduled.
- A person must be informed they are at risk of losing decision-making capacity before the scheduled date.
- The practitioner must be willing to provide MAiD on the scheduled day if the patient has lost capacity.
A person can give consent in writing to receive MAiD on a scheduled day, even if they are no longer able to consent. This waives the requirement that consent be expressed immediately before the MAiD procedure. If on the day of the MAiD procedure the person has lost capacity to consent to MAiD, the practitioner can provide MAiD using the written directive or waiver of final consent. Any consent given in advance would be able to be invalidated by the person demonstrating with words or gestures a refusal or resistance to the administration of MAiD at the time of the procedure.
Caution must be exercised
These amendments could set the table for further court challenges. If the government continues to restrict access that does not respect the rights outlined by the Charter (sections 7 and 15(1)), further cases are likely.
Section 7 of the Charter of Rights and Freedoms states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
To prohibit access to assisted dying for any group limits their right to life, liberty, and security, when the result of prohibition is that some individuals are compelled to take their life prematurely, as Jocelyn Downie explained in the Carter v. Canada case.
Furthermore, it denies people the liberty to make decisions about their own health and medical care and bodily integrity. Allowing a Canadian to suffer intolerably also impinges on the security of the person.
Section 15(1) states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
If medical assistance in dying is limited to select categories of the population, the government is denying equal access and thereby the right to equal benefit of the law. Both sections 7 and 15(1) have been used in court cases to reinforce equal access to MAiD.
As MPs begin to debate the proposed amendments, let’s hope for less of the paternalism that infused the initial legislation. That legislation was passed by many of the MPs who will be voting this time. The individual must have autonomy over a life after a diagnosis and a decision about their death.
Safeguards for disabled Canadians
There is a worry among disability rights organizations that an expanded MAiD could erode disability supports and lead people to encourage death over life for disabled Canadians. They fear the message a more expansive MAiD could send to disabled persons, as Catherine Frazee, former chief commissioner of the Ontario Human Rights Commission, has said.
However, equal, fair access to MAiD would empower disabled Canadians, giving them the same autonomy that others have in making their own choice on assisted dying. Disabled Canadians have not been given the right to make their own choice about MAiD because of so-called safeguards that restrict it to those with reasonably foreseeable deaths.
Disabled Canadians have successfully defended their Charter-given rights in some of our nation’s highest courts. From Carter v. Canada in 2015 to Truchon v. Attorney General of Canada, Lamb v. Canada, and A.B. v. Ontario (Attorney General), the plaintiffs were disabled Canadians. We would not have medical assistance in dying in this country without the efforts and courage of disabled Canadians. It’s about time they have the full rights they have demanded.
The current legislation has excluded disabled Canadians from having the autonomy that Carter v. Canada afforded. In Carter v. Canada, the Supreme Court was clear on what it considered to be the criteria for access to medical assistance in dying: “A competent adult person who clearly consents to the termination of life and 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.”
It was a decision arrived at on the basis of suffering, not the end-of-life or the need to protect populations. If the government had considered the Carter v. Canada decision, any disabled Canadian enduring intolerable suffering would have the right to access.
The government speaks of individual autonomy but hasn’t respected it in legislation. The government talks about protecting the vulnerable, yet Audrey Parker of Halifax famously had to use MAiD earlier than she wanted to. Other Canadians have committed suicide after being denied a medically assisted death, including Saskatchwan’s Cecilia Chmura, Quebec’s Jacques Campeau, BC’s Adam Ross, and Ontario’s Adam Maier-Clayton.
There are those who are waiting in limbo for the government to adopt the amendments like Justine Noel, my common-law partner for whom I am a caretaker. For two years, she has struggled to access a medically assisted death. She would qualify except that her death isn’t “reasonably foreseeable.” In Truchon v. Attorney General, Justice Christine Baudouin called the limitation of a reasonably foreseeable death “a flagrant contradiction of the fundamental principles concerning respect for the autonomy of competent people” and referred to it multiple times in her 187-page ruling as discriminatory.
And then there are those who have pursued VSED, voluntarily stopping eating and drinking, as Jocelyn Downie has written.
The government has used language like “safeguards” to rebrand restriction, constitutional violations and suppression of rights.
Is MAiD for mental illness possible?
These amendments aren’t a cure-all. MAiD is still denied to Canadians whose sole diagnosis is mental illness. What will it take for them to be afforded their Charter rights?
Ken Chan, a 62-year-old Canadian military veteran with depression, committed suicide on the stairs of the Alberta legislature in December 2019, less than an hour after sending emails to federal and provincial health ministers urging them to expand access to medical assistance in dying. Will it take deaths, suicides and evidence of mistreatment before people with mental illness can draw on their Charter rights?
Canada has an opportunity to create legislation that is fair and balanced, something every Canadian deserves. There’s no room for partisan politics. This is a chance to produce legislation that is constitutionally sound.
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