So, Canada has a new assisted dying law… sort of. It may, in fact, become one of those cases of a government trying to be everything to everybody and ending up being nothing to no one.
Kay Carter and Gloria Taylor, the two terminally ill women, for whom the British Columbia Civil Liberties Association (BCCLA) challenged the old law, died long before the Supreme Court ruled on the issue in February 2015.
Carter, according to her sister, died happy with a smile on her face because she was able to go to Switzerland and get medical assistance to end her life. Taylor succumbed to her ALS (Lou Gehrig’s disease), by all accounts a horrific and undignified way to go.
“To take ALS to the end, my wonderful mother spent her last two years on a ventilator, crying silently for hours every day,” wrote Christine Palmer, an advocate for the American state of Oregon’s Death with Dignity legislation.
“Because of the long years of inactivity (she lived for six years from the onset of symptoms), she developed so much fluid buildup (edema) in her extremities, that her skin cracked and broke, leaving the fluids seeping from her bloated body. I’m sorry for the graphic description, but that’s what happens at end stage ALS.”
In its decision, Canada’s Supreme Court ruled “competent adults with enduring, intolerable suffering who clearly consent to ending their lives,” should have the right to ask a physician for help.
While the Supreme Court’s decision left the door wide open for sweeping change, Parliament’s new law is so restrictive as to be almost no change at all.
In a nutshell, to be eligible for medically-assisted death, a patient must meet the Court’s criteria, plus their “natural” death must be “reasonably foreseeable.” In other words, people who have already intolerably suffered, sometimes for years, maybe even decades.
Here’s the thing, the Liberals got themselves elected on the foundation, at least partially, of “evidence-based law-making.” And, in the previous Parliament, they condemned the Conservatives, relentless and rightfully, for passing unconstitutional laws.
All of the evidence in this case points to passing a much less restrictive law. That evidence is compelling and includes the case by the legal team that successfully argued the Carter v. Canada case; the Supreme Court’s judgment, which was based on the Carter evidence; the recommendations of a provincial and territorial special task force; the report of the government’s own parliamentary committee; and amendments to the bill made by the Senate.
It has also been argued that Kay Carter, one of the women whom the Supreme Court determined should have had the right to assisted dying, would not be eligible under the new law’s criteria.
Finally, while the issue was in limbo, even lower courts rebuked the federal government’s interpretation of Carter. In a recent ruling, the Alberta Court of Appeal blocked a federal government intervention in an assisted dying case saying, “nowhere in [Carter] is the right to physician assisted death expressly limited only to those who are terminally ill or near the end of life.”
The Liberals, except for four MPs who voted Nay, and 13 Conservatives, completely ignored all of that and passed a law that is almost certainly going to be proved unconstitutional in the future. Why, for example, did the government refuse to refer the legislation to the Supreme Court? Probably because they are rightfully afraid it would be thrown out there. And how Stephen Harper-esque does that make Justin Trudeau look right now?
With Harper, though, the behaviour was in service of ideology. With Trudeau, it appears to be more of a need to please everybody, thus pleasing nobody and crafting poor legislation.
Senator Mike Duffy called it a “Canadian compromise.” Of course, compromise has two senses: ‘settling a dispute by mutual concession’ and ‘accepting a standard that is lower than desirable.’ This legislation does the former by conceding ground to the non-evidence-based demands of the anti-choice movement. It does the latter by complying with the Supreme Court’s order to craft a new law, but providing an inadequate one.
The government has said it is a balancing act between respecting rights and protecting vulnerable people. It does neither.
And so, while there is a new law on the books, the suffering and the legal battles of those seeking a dignified death will continue.
