A critical flaw in Bill C-14, the federal government’s first go at assisted dying legislation passed back in 2016, manifested in the premature death of Audrey Parker in 2018. Ms. Parker, who was battling Stage 4 breast cancer, said she would have liked to see one more Christmas before opting for a medically assisted death, but she went ahead with it on Nov. 1 after learning the cancer had spread to her brain. Ms. Parker feared that if she waited too long, she might not have the cognitive capacity to offer her consent right before the procedure, as was required by the law.
Bill C-7, which is the government’s second attempt at assisted dying legislation, remedies that issue by permitting an “advance consent” arrangement whereby individuals may consent to medical assistance in dying (MAID) before losing the capacity to consent – a prudent step to address the unintended consequences of the original law, as experienced by Ms. Parker.
But the revised bill goes far beyond allowing advance directives in limited circumstances: Following the September, 2019, Quebec Superior Court ruling that struck down the law’s requirement that natural death be “reasonably foreseeable,” Canada’s proposed legislation now creates a pathway for MAID for people suffering from “grievous and irremediable” medical conditions, but for whom natural death is not foreseeable. Essentially, it allows eligible Canadians not simply to accelerate the dying process to avoid prolonged suffering, but to choose death as an alternative to illness or disability. The government now has until Feb. 26, 2021, to pass C-7 after a third deadline extension from the Quebec court.
The revised legislation is not without its own flaws. Disability activists and experts have argued that the 90-day assessment period for individuals considering MAID whose death is not reasonably foreseeable is too short, particularly since it can take much longer than that for those who, for example, have experienced traumatic and life-altering injuries to adjust to their new realities. Others have argued that the exclusion of those suffering from mental illness is unfair (and likely unconstitutional), since the legislation de facto says that mental illness is not a medical condition and that psychological suffering is less grievous than physical suffering. And the legislation also maintains MAID eligibility only for those 18 years or older, which means that a 17½-year-old patient with terminal cancer does not have the option of dying on his own terms.
Some of these issues can be more easily addressed than others (calling for better protections for those with disabilities is far less fraught than advocating for MAID for “mature minors,” for example) and likely will be tackled in proposed amendments from the Senate. But the trajectory on which this legislation is headed is nevertheless clear, and it’s certainly not toward more stringent regulations on who might be eligible for assisted death. That is an ominous sign to those who oppose the idea of broadened access to assisted dying as a concept and/or those who view death as something that should be a last-resort outcome, and not a choice.
But those are moral positions that have little to do with whether legislation is Charter-compliant, which is ultimately what will determine the outcome of a new law. Some critics of Bill C-7 consider the path on which MAID in Canada is headed to be a “slippery slope,” but the slope is and was always going to be determined by the Charter, as legislators attempt to balance the rights of the individual with the responsibility of the state to protect vulnerable persons. In its Carter decision, the Supreme Court acknowledged that there are risks in assessing decisional capacity as it relates to physician-assisted death, but it rejected the argument that legalizing assisted dying would descend into a slippery slope toward homicide.
The Charter has already been tested on issues of mature minors and their autonomy over their health care decisions. Human-rights legislation prohibits discrimination based on mental illness. If we take the view that the purpose of assisted death is to grant competent individuals the autonomy to choose when to end their suffering, it’s difficult to make a legal case to deny eligibility to those currently excluded under C-7, just as it was to deny Ms. Parker access to MAID under C-14 (though that will likely take a few more court challenges and perhaps a third go at new legislation). To some, it might seem like Canada’s assisted dying laws are spiralling out of control, but in practice, and over time, they are merely falling in line – with the Charter.
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Robyn Urback