Udo Schuklenk holds the Ontario Research Chair in Bioethics at Queen's University. He chaired the Royal Society of Canada expert panel on end-of-life decision-making, which recommended a permissive assisted-dying regime.
The magnitude of what happened with regard to Bill C-14 is difficult to overstate. A purportedly liberal government chooses, against overwhelming legal advice, to ignore the Supreme Court's minimum criteria that desperately suffering patients would have to meet in order to be eligible for medical aid in dying (MAID). The court's eligibility criteria for MAID: 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." Our government introduced a more limiting criterion: for those seeking MAID, "their natural death has become reasonably foreseeable."
There has been a lot of debate between proponents and opponents of this very restrictive regime. I will not delve into the details of those discussions here. Suffice it to say that support among legal experts for the constitutionality of the government's limiting of criterion No. 2 to medical conditions causing a reasonably foreseeable death is sparse. Indeed, courts in both Alberta and Ontario have granted MAID to patients whose medical conditions were not likely to lead to a reasonably foreseeable natural death. In a scathing rebuke, the Alberta Court of Appeal sent government lawyers packing, noting that "nowhere in [the Carter v Canada decision] is the right to physician assisted death expressly limited only to those who are terminally ill or near the end of life.' The court further stated that the cruelty of not allowing assisted death remains regardless of whether the illness causing the suffering may be classified as terminal."
We find ourselves in this situation because our "sunny days" government actively ignored the advice it received on this matter from some of the country's leading legal luminaries, including Joseph Arvay, the lead lawyer in the Carter case, which led to the Supreme Court judgment. The Liberals also ignored recommendations provided by a special task force struck by the provinces and territories as well as those issued by the joint parliamentary special committee. Even the Senate proved its value as a review chamber, trying unsuccessfully to get the federal government to abide by the Supreme Court criteria. There really was a consensus that only a Carter-compliant regime would do.
All of this was cast aside by the Trudeau government, successfully egged on by anti-choice activists and academics. Our Justice Minister busied herself by approvingly retweeting links to documents produced largely by religious anti-choice activists and, as reported in this publication, declared that the legislation does not need to comply with the Carter decision.
By ignoring the Supreme Court, Mr. Trudeau's government is following in Stephen Harper's footsteps. His Justice Minister uses the same rhetoric Mr. Harper deployed to justify his government's stance in the then-lost Supreme Court case. It's about "vulnerable" people who purportedly need to be protected against their own competent choices. Canadians with legal capacity are thus declared ineligible based on their "vulnerability." There is nothing in the Charter of Rights and Freedoms that justifies limiting our rights on such a vague and overly broad standard.
What next? The federal government refuses to refer its legislation for review to the Supreme Court because it would be thrown out there. Instead, it forces provinces to also establish unconstitutional MAID regimes. All of this will eventually have to be changed. Perhaps the government hopes that once its conservative regulatory regime has been forced upon the country, the Supreme Court will see the errors of its ways and reverse its decision. This is somewhat doubtful given how carefully argued this particular decision was.
What's left for us to do?
Support desperately suffering patients who would be eligible under the Supreme Court criteria and ineligible by the Bill C-14 standard in their march through the legal system.
Encourage our provinces to refer the legislation to their highest courts with a view to fast-track the Supreme Court review this government justifiably fears.
Hold your MPs accountable. My Liberal MP, while busily taking selfies collecting garbage during Environment Day, did not think it necessary to reply to constituents contacting him about this matter.
Last but not least, provide financial support to Dying with Dignity and the BC Civil Liberties Association as they likely will have to bankroll the next round of court cases that the federal government is cruelly forcing on desperately suffering Canadians.
Freedom of choice will emerge as the winner in this battle. It always does.