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Coming to terms with Canada’s new assisted dying law

Cognitive dissonance is the name given by psychologists to the mental discomfort we experience when different beliefs we hold come into direct conflict with one another.

Cognitive dissonance is the name given by psychologists to the mental discomfort we experience when different beliefs we hold come into direct conflict with one another. Much of the time, dissonance is a brief transitory experience, as we quickly rationalize the conflict and eliminate the discomfort. Other times the process is not that simple and we agonize at some length over how to resolve our conflicting beliefs.

Cognitive dissonance can aptly describe my feelings about the unelected Senate’s efforts in recent weeks to remove the requirement that “natural death” must be “reasonably foreseeable” from the federal government’s assisted-dying bill. After hearing strong opposition to the provision on both ethical and legal grounds, the Senate initially amended the law and sent it back to the House of Commons without the requirement. Ultimately when the House of Commons refused to budge the Senate relented, with many senators expressly noting their lack of a democratic mandate to interfere with house business as their reason for letting the law through. C-14, with the unfortunate “reasonably foreseeable” death requirement, is now law.

The legislation, passed in the House of Commons, essentially stripped Canadians like Kay Carter and “E.F.” of access to assisted death by imposing that requirement.

As I’ve written previously, Kay Carter was one of the individuals with whom the Supreme Court of Canada decision that started this process moving dealt. She suffered from spinal stenosis – a narrowing of the spinal column — which left her in a large amount of pain and robbed her of anything resembling quality of life. But she wasn’t dying and could have spent many more years languishing in pain.

E.F. was an individual who was recently granted the right to die by the Alberta Court of Appeal over the objections of the federal government. Justice Minister Jody Wilson-Raybould has attempted to minimize the gravity of E.F.’s suffering, referring to it as a “mental illness”, but here is how the Alberta Court of Appeal described E.F.’s “mental illness”:

“E.F. is a 58-year-old woman who endures chronic and intolerable suffering as a result of a medical condition diagnosed as ‘severe conversion disorder’… She suffers from involuntary muscle spasms that radiate from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines. Her eyelid muscles have spasmed shut, rendering her effectively blind. Her digestive system is ineffective and she goes without eating for up to two days. She has significant trouble sleeping and, because of her digestive problems, she has lost significant weight and muscle mass. She is non-ambulatory and needs to be carried or use a wheelchair. Her quality of life is non-existent.”

It seems obvious to me that both Ms. Carter and E.F. ought to have access to assisted dying. This left me with some of that nasty cognitive dissonance. On the one hand we have Canada’s upper legislative body, the Senate, which lacks any sort of democratic legitimacy potentially blocking legislation and forcing the hand of the elected House of Commons.

On the other, the simple reality is that it stood as the only political entity with the power – in the short term at least – to block legislation I see as a fundamentally cruel, and likely unconstitutional attempt by the federal Liberals to roll back the rights of suffering non-terminal Canadians granted in the Carter decision.

After wrestling with the issue for several weeks I decided that the ends justified the means in the circumstances. I rationalized my dissonance by creating a narrow exception to the general rule that the Senate ought not interfere with the government’s agenda. When fundamental rights are in jeopardy, anyone, whether elected or not, can act to defend them. Opponents can call that a special pleading if they like but the choices were to create such an exception or support the deliberate denial of fundamental rights. Hardly an easy choice.

To my disappointment, our Member of Parliament Larry Bagnell supported the government’s bill throughout. Bagnell opposed previous legislative attempts to legalize assisted dying and would seem to prefer to define the right as narrowly as possible because he has unfounded fears about assisted dying being conducted without the recipient’s consent. C-14 contains explicit provisions requiring consent, and the potential that some may disobey a law is an argument for proper enforcement, not against the law. I can say that I will take general promises by the Liberal Party to respect the Charter and to be a progressive alternative to the Conservatives in future elections with a grain of salt.

To his credit, Senator Dan Lang voted in favour of the Senate amendment removing the reasonable foreseeability requirement, expressing doubts that the requirement accorded with the Supreme Court’s landmark Carter decision. And when the House of Commons sent the bill back he voted against it – stating that it “takes away the rights of those who are suffering intolerable pain”.

If I am to find a silver lining in the disappointing events as they have transpired in recent weeks it is that the Senate does seem to clearly understand its limited role in the legislative process. I may have been prepared to make a one-off exception because this is a issue of fundamental rights and supported the Senate in its efforts to amend (if possible) and block (if necessary) the legislation. But the other 364 days of the year I’m firmly in the other camp. C-14 may not be law but the processes functioned as they generally should.

And now matters will unfold as they will. As Senator Andre Pratte, as quoted in the Globe and Mail stated: “I am convinced the government is making a serious and cruel mistake by taking away the right to medically assisted dying from a group of patients, those who are not terminally ill yet suffering terribly… [T]he government will answer to the people for that error. And hopefully, in the not too distant future, the courts will remedy that mistake.”

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.