From Day 1, it has been clear that the legal requirement that only people whose natural death was imminent would be eligible for assisted death was unduly restrictive and discriminatory.
What we have, Canada, is not so much a right to die as a right to die if you’re already on the verge of death.
But that could soon, and mercifully, change. In a landmark ruling, Madam Justice Christine Baudouin of the Quebec Superior Court invalidated the “reasonably foreseeable” death clause of federal law and a similar section of Quebec law that says people must “be at end of life” to access assisted death.
She said the restrictions were unconstitutional because they infringed the equality rights of the two claimants in the case, Nicole Gladu, a 73-year-old with postpolio syndrome, and Jean Truchon, a 51-year-old with cerebral palsy. Both were denied assisted death despite living with what they described as persistent, unbearable suffering, and they argued that was discriminatory.
Justice Baudouin agreed: “The reasonably foreseeable natural death requirement deprives both individuals and claimants of their autonomy and their choice to end their lives at the time and in the manner desired,” she wrote in the 198-page judgment.
Practically, the ruling means that Ms. Gladu and Mr. Truchon can now receive an assisted death at a time they choose. But the judge also suspended the application of the ruling to give Ottawa and Quebec City time to modify their laws.
Neither the federal nor Quebec governments have decided whether they will appeal the ruling.
But there is another, similar case, set to begin in B.C. in November. The plaintiff, Julia Lamb, is a woman in her late 20s who has spinal muscular atrophy, a degenerative disease she worries will lead to years of unbearable suffering. Like Ms. Gladu and Mr. Truchon, she has been denied assisted death because her death is not reasonably foreseeable.
Ottawa has long argued that the “reasonably foreseeable” clause was necessary to protect vulnerable people, such as those with physical, psychiatric and developmental disabilities, from being coerced into an assisted death.
But in the Quebec case, Justice Baudouin rejected that argument: “What the plaintiffs are really looking for is that the law recognizes equally the suffering, the dignity and, ultimately, the autonomy of people who, like them, are affected by serious and irremediable health problems, without any hierarchy, whether death is near or not.”
Stated more bluntly: Lawmakers should stop being so patronizing.
Going back decades, the right-to-die battle has always been about autonomy and dignity and choice. As right-to-die activist Sue Rodriguez famously said in 1991: “If I cannot give consent to my own death, whose body is this? Who owns my life?”
Yet, even after the Supreme Court struck down provisions of Canada’s law on assisted death, legislators continued to put up extra hurdles for people with chronic, degenerative conditions that often leave them with disabilities.
People who are mentally competent should have the right to determine how they live and how they die – full stop. No asterisk in the law is justified for those with a disability or a debilitating chronic illness.
Medically assisted death became legal in Quebec in December, 2015, and in the rest of Canada in June, 2016.
As of October, 2018, when the latest data were published, 6,749 Canadians have undergone the procedure, which is colloquially known as MAID (short for medical assistance in dying).
In addition to having a “grievous and irremediable medical condition,” a patient’s death must be “reasonably foreseeable” under federal law.
That clause has been problematic from the outset, because it forces physicians and nurse-practitioners (two of whom must approve a request for MAID) to predict how much time a person has left to live. That means that most patients who are granted assisted death have cancer or neurological conditions such as ALS, which have fairly predictable courses.
The “reasonably foreseeable” rule has also led to some unintended perversity, such as patients starving themselves almost to death to be eligible for medically assisted death, as in the case of Ms. S., a B.C. patient with multiple sclerosis. Justice Baudouin said those stories influenced her ruling.
"If the law, as drafted, is not forcing the plaintiffs to keep on living, it is forcing them to choose between suffering, suffering even more, or suicide,” she wrote.
And, as the learned concluded, imposing this kind of Sophie’s choice on people is “repugnant to common sense.”