June 6 is just around the corner and if Parliament doesn’t act by that time assisted dying will be legal in this country without the guidance of any sort of federal legislative framework.
It has now been well over a year since the Supreme Court unanimously determined that this country’s prohibition on physician assisted death was in violation of the Constitution’s guarantees. The original deadline expired in February. The court agreed to give Parliament a little more time to introduce legislation on account of the intervening federal election but suggested that it would not entertain any further extensions.
Yet it has only been within the past few weeks that legislation was finally introduced in Parliament setting out the government’s response to the Supreme Court of Canada’s ruling. At this point it will take lightning fast action on the part of our notoriously slow legislators to actually get anything passed in time.
A good chunk of the blame for the 11th hour start can be properly laid at the feet of the former Conservative government, which dithered and ultimately elected to punt the issue until after the election – wasting two-thirds of the court’s original one-year grace period.
But the Trudeau Liberals are not off the hook either. The government’s response on this issue has, for me at least, been a disappointment. It has now been more than six months since the federal election, and first reading of this new bill only took place on April 14, just over a month and half before the court’s already-extended deadline. Given the importance of this issue and the long lead time provided by the court it is not clear what took so long.
Then there is the bill itself. It is quite limited.
One might be willing to forgive the narrow scope of the new law to a certain extent. It does not allow a person to specify their wishes for assisted death in an advanced directive signed at a time when they still had the mental capacity. It also excludes mature minors.
The government reasonably points out that it is facing a deadline, and since none of these matters were actually ruled on by the court that it ought to take more time to ensure that these more complicated issues are subject to more extensive study and debate – which it has committed to do. Whether it ultimately tosses that hot potato remains to be seen.
What is less forgivable is the attempt to roll back the court’s ruling. The government’s bill imposes a requirement that – before assisted death is permitted -“natural death has become reasonably foreseeable taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.” This is a requirement the Supreme Court never mentioned.
The government calls the language “flexible,” but I’d call it hopelessly unhelpful and vague for those charged with interpreting it. In a sense all death is “reasonably foreseeable,” but that obviously can’t be what the government intends. The government is clearly trying to impose some sort of requirement that the person receiving assistance in dying is nearing the end of his or her days – in defiance of the Supreme Court’s ruling.
The family of Kay Carter – whose case was one of the two brought before the Supreme Court of Canada and which sparked this legislation – have taken issue in the media with this requirement. Ms. Carter suffered from spinal stenosis – a narrowing of the spinal column that left her in severe pain and unable to even move. She required assistance just to feed her and use the bathroom. She had expressed a clear wish that she wanted to die, and the Supreme Court ruled specifically on her case.
But she wasn’t dying. And it would seem that under the new legislation she would not be eligible.
Justice Minister Jody Wilson-Raybould attempted to defend the requirement before Parliament stating that “Kay Carter … who was 89 and according to the court suffered from spinal stenosis, which itself does not cause death but can become life-threatening in conjunction with other circumstances such as age and frailty” would be eligible.
I find that argument less than compelling. A medical practitioner faced with Carter’s situation – where she might last for years suffering in pain – could just as easily conclude that her case does not meet the government’s requirements as proposed.
As the minister notes, Carter’s spinal stenosis would not have killed her, and as her daughter Lee has told the media, “her death wasn’t necessarily foreseeable on account of her spinal stenosis. It may have taken her many years before she died from some other cause.”
It is curious that with almost a year and a half to chew on this ruling, and six months in government, that legislation would be introduced so obviously at odds with the court’s ruling. The government ought to consider amendments to ensure there isn’t another show-down with the court, while more people like Kay Carter are forced to live in agony and suffer the various indignities that conditions like hers entail.
I expected better from this government. Perhaps if the federal government prefers to limit the Supreme Court’s ruling it would be better to have no federal legislation at all and leave the matter to the courts and provincial regulators to sort out.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.