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This article was published 8/6/2016 (1574 days ago), so information in it may no longer be current.
Bill C-14, the government’s response to last year’s Supreme Court ruling — the Carter case — on medical assistance in dying, is generating a lot of criticism from diametrically opposed perspectives: those who think it too permissive and those who think it is too restrictive.
University of Ottawa constitutional law expert Errol Mendes, in testifying before the Senate committee, was right to invoke the old adage: "Perfection is the enemy of the good." That is especially apt when there are so many different versions of what constitutes the perfect where assisted dying is concerned.
The Supreme Court of Canada concluded the absolute ban on physician-assisted suicide was contrary to the Charter of Rights and Freedoms because it went too far in its attempt to protect the vulnerable — those who seek death in a moment of weakness and ruled that medical assistance in dying should be available to clearly consenting, competent adults with "grievous and irremediable" medical conditions that are causing enduring suffering they find intolerable.
The court suspended its declaration of invalidity of the ban until Monday’s missed deadline in order to give Parliament time to develop a complex regulatory regime.
The so-called Carter decision was the end of a long legal battle waged by Lee Carter on behalf of her mother Kay, who was suffering from agonizing and irreversible — but not terminal — spinal stenosis and travelled to a Switzerland clinic in 2010 to end her life at the age of 89.
And that's the most contentious aspect of the tabled legislation; it denies the right to doctor-assisted suicide to patients whose death would not be expected in the near future. There is disagreement about whether it would apply to patients in Carter's situation.
Very restricted access to assisted dying, such as the one proposed by Manitoba Conservative MP Ted Falk suggesting that access be limited to those whose death is expected within 30 days, would almost certainly fail a charter challenge.
Those who think Bill C-14 is too permissive should consider the consequences of defeating or significantly delaying the bill. It would only make things far worse from their perspective. That’s because having no criminal legislation — and thus only the Supreme Court of Canada’s ruling invalidating the ban on physician assisted dying — now results in much wider access than under Bill C-14.
At the other end of the spectrum are those who think wide access is constitutionally required, and that Bill C-14 is unconstitutional in its limitation to those with a reasonably foreseeable death. They claim that since the Supreme Court’s declaration said nothing explicit about death being reasonably foreseeable, or any other end-of-life stipulation, there cannot be any such limitation. If an end-of-life stipulation were allowable, the argument goes, the Supreme Court would have said so.
The opposite point is more compelling.
If the Supreme Court had already determined Parliament could not adopt an end-of-life stipulation, it would have explained why not. But it never weighed the pros and cons of any end-of-life stipulation, such as exists in some American states and in Quebec’s legislation. It handed over the task of evaluating an end-of-life stipulation to Parliament.
The principled defence of Bill C-14 — why it warrants being found to be constitutional — is that the risks of error are much higher for those not already close to death. The error in question is subjecting people to premature death who may have changed their minds if death had not precluded that option. To claim all that counts is individual autonomy is to deny the social responsibility to protect the vulnerable.
Humanist Jean Vanier offered sage advice in advocating caution. The Supreme Court ruling has not obliterated suicide prevention as important public policy. Bill C-14 may not be perfect, but it is far better than the alternatives of wide-open access.
Dianne Pothier is professor emeritus, Schulich School of Law at Dalhousie University. Her expertise includes constitutional and disability law.
Updated on Wednesday, June 8, 2016 at 11:04 AM CDT: Corrects photo caption misidentification.
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