“We respect your religious views, but they cannot, in a secular society, trump our clients’ constitutional rights.”
Joe Arvay, lawyer, responding to religious testimony in the Supreme Court of Canada’s hearing on assisted death
On February 6, 2015 the Supreme Court of Canada unanimously ruled that the prohibition on assisted suicide, as specified in the Criminal Code of Canada, was unconstitutional, and the Court gave direction on how this should be remedied by new legislation. The responsibility to make a legislative change fell to the new Liberal government, which passed Bill C-14, on medically-assisted death, on June 17, 2016.
The Court had specified that, according to our Charter of Rights and Freedoms, all competent and consenting adults who have a grievous and irremediable medical condition that causes enduring and intolerable suffering should have access to assisted death. Bill C-14, however, fell somewhat short of that directive. In Clause 241,2(2)(d) the Liberals arbitrarily limited eligibility to those for whom natural death is “reasonably foreseeable.” Many observers, including eminent Constitutional lawyers Peter Hogg and Joe Arvay, felt that the imposition of this limitation was a violation of constitutionality as determined in the Court ruling. The Court specified the eligibility of “competent and consenting adults …” with grievous and incurable medical conditions, not just those about to die anyway.
The requirement that death must be reasonably foreseeable was indeed a major limitation in the bill – a limitation that not only appears to be unconstitutional but which deprives many Canadians of the right to seek medically-assisted death. In May 2016 I spoke to the Standing House of Commons Committee on Justice and Human Rights about this serious problem with the proposed legislation. I spoke about my recent book (The Right to Die, April 2016) which reviews the significant court cases involving assisted death in Canada since 1940. It appeared that at least half of these cases would not have been alleviated by the new legislation, largely because of the reasonably foreseeable clause. In September 2016 I prepared a Government of Canada e-petition on the same issue and was successful in getting the necessary 500 signatures to have the petition presented in the House of Commons, which happened February 6, 2017.
I was far from being the only person to protest this limitation in the legislation. There were a great many others who felt that Bill C-14 is a betrayal of all the work that had been put in by so many people to get the court to the point where it could make its sweeping ruling. With that ruling and with the new legislation in the works, it appeared that Canada would finally have strong and compassionate assisted death legislation – legislation that would save many people from agonizing suffering and save many more from worrying about reaching a state of unendurable pain but being ineligible for assisted death. With the Supreme Court ruling, our legislation could have been among the best and most compassionate in the world. Instead, while better than nothing, it, is tragically inadequate, leaving many desperate people with no prospect of relief from their pain.
The offending clause remained and Bill C-14 passed. A challenge was inevitable, and the BC Civil Liberties Association, which took the lead in the original case (Carter vs. Canada), quickly formulated a new case on behalf of Julia Lamb, suffering from spinal muscular atrophy, type II, a hereditary disease that causes weakness and wasting of the voluntary muscles. Her death was not reasonably foreseeable, but she faced the possibility of many years of debilitated suffering. She wanted to know that she could get assistance in dying if her condition reached the point of being unbearable. A second plaintiff, Robyn Moro, suffering from Parkinson’s disease, also joined the case.
The first ruling on this case came down from the BC Supreme Court on October 11, 2017. The Civil Liberties Association wanted the finding of facts from the previous Carter case, which led to the Supreme Court ruling, to hold for this case as well. The Carter case produced one of the strongest documents ever to be written in support of the idea of assisted death – written by BC Supreme Court Justice Lynne Smith. This landmark document provided powerful backing for the ultimate decision of the Supreme Court of Canada. Now Smith’s acute and far-reaching analysis may well be irrelevant, as the facts surrounding the issue may be revisited by the new judge.
Whatever happens, the new decision on the case will take months or years to be resolved by the BC Supreme Court, and then it will inevitably go to the BC Appeals Court, and then to the Supreme Court of Canada.
This process will go on for years, with millions of dollars being spent, and with much additional unnecessary suffering by those barred from having access to assisted death. All of this is the result of the Liberals’ unreasonable intransigence on the matter of “reasonably foreseeable” death.
This article is an excerpt from a longer essay entitled “When Metaphysical Beliefs Trump Human Compassion”.
Gary Bauslaugh is a Victoria writer whose latest book, The Right to Die, was published by James Lorimer and Co, Toronto, in April 2016.