Justice Minister Jody Wilson-Raybould has made her most compelling argument yet for passing her government's contentious right-to-die legislation without the critical amendment the Senate is calling for. It's an argument that deserves real attention, and not just because of the dangers of the unelected Upper Chamber imposing its will on Parliament.
Bill C-14, as adopted by elected MPs in the House of Commons, limits access to assisted death to patients whose "natural death has become reasonably foreseeable."
This appears to contradict the 2015 Supreme Court ruling that Canada's blanket ban on assisted dying was unconstitutional.
The ruling, in a case known as Carter v. Canada, said that physician-assisted death must be available to any "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."
The Supreme Court decision makes no reference to the necessity for a patient to be at the end of their life, or to be suffering from a terminal illness. At least two subsequent lower-court decisions have questioned such limitations, basing their reasoning on Carter.
But the Liberal government, charged with the responsibility of writing much-needed legislation, felt that it was necessary to add the clause about a foreseeable natural death to Bill C-14. It worried, as we do, about the danger of abuses of the sick, the elderly and the handicapped, and wanted to be certain that consent was honest, informed and clear.
The Senate has led the charge to amend the bill to remove the end-of-life clause, and there is a chance there could be a standoff. So Ms. Wilson-Raybould struck back this week in a background paper sent to all Parliamentarians.
The paper argues that, "the question is not whether the bill 'complies with Carter' but rather, whether it complies with the Charter."
She's right. Carter is not the final word – the Charter of Rights and Freedoms is. The judges themselves wrote that their ruling "is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought." Carter tells us a great deal about what the judges believe are the Charter rights surrounding assisted dying. However, it does not tell us everything about what the Charter, or the judges, might have to say.
The factual circumstances in the Carter case revolved around two elderly women suffering debilitating and painful diseases who wanted to end their lives on their own terms. Both were arguably near the end of their natural lives.
But what if the case had involved a 26-year-old man who suffered from severe depression or some other debilitating mental illness, who could not bear the thought of living out his life under treatment? Or a 35-year-old woman grievously injured in a car accident who is told she will never regain the full use of her limbs, and who is facing many operations and horrific pain during her rehabilitation?
How would the Supreme Court handle those cases? Would it consider the possibility that some patients can recover over time and lead a life they will be glad they have, once the pain ends or becomes tolerable? Would it see a law that aims to protect people from the desire to die in their darkest moments as a violation of human rights?
We have always maintained that the government was right to be cautious in crafting Bill C-14. It represents a dramatic change in Canadian society – so dramatic that the Supreme Court essentially overturned its own constitutional views from less than 20 years ago, in the case of Sue Rodriguez.
Once the new law is adopted, we will be a country whose legislation allows the state to kill its citizens, pure and simple. People often warn against slippery slopes, but this is no slope. This is a precipice from which there is no return.
Ms. Wilson-Raybould is therefore correct to assert that Bill C-14 should be considered in light of the Charter, and she is right to argue that there is more to the Charter than just the verdict of the Supreme Court in Carter – a case involving two very specific instances in which assisted death would make sense to any reasonable person.
Once the law is passed and cases become less straight-forward, as they surely will, those new types of situations can be taken to court. While this might be painful for some, it is a far better way forward than simply opening the door wide and letting all through at once, under the impression, possibly mistaken, that this is what is demanded by the Charter and the Supreme Court.