Yukon’s senator is criticizing the federal government’s new assisted-dying legislation, saying it’s too restrictive and doesn’t respect the Supreme Court’s landmark ruling on the issue.
Dan Lang was among the minority of senators who voted against Bill C-14 on Friday. The bill passed the Senate by a margin of 44 to 28, and was given royal assent shortly after.
“I would say that the great number of people that contacted me felt that Canadians should have the right to choose and that choice wasn’t being given in respect to the legislation that came into the Senate,” Lang said.
Lang is taking issue with the fact that the current legislation limits the right to assisted dying to those whose death is “reasonably foreseeable.”
But in its February 2015 decision striking down a federal ban on physician-assisted dying, the Supreme Court of Canada ruled that medical assistance should be allowable for anyone whose condition is “grievous and irremediable.”
The wording in the federal bill raises doubt about whether people with illnesses that are incurable, but not terminal, will be eligible for physician-assisted death.
The Senate had previously amended the bill to read “grievous and irremediable” instead of “reasonably foreseeable,” but the House of Commons rejected the change. That’s why Lang voted against it.
“My position was that I didn’t feel that it met what Canadians were looking for,” he said.
Lang said it would be better to have no federal legislation in place and to let the provinces and territories regulate assisted dying on their own, rather than to have a “flawed law.”
But Robert Zimmerman, chair of the Yukon Medical Council, said that idea is problematic, because it could mean that assisted dying wouldn’t be equally accessible to people in different jurisdictions.
“I think most people wanted to ensure that there was a very harmonious system that was consistent across the country,” he said.
Still, Zimmerman said various aspects of the new bill may well be challenged in court, including the requirement that death be “reasonably foreseeable.”
The new legislation also prevents physician-assisted dying from being extended to “mature minors” and people seeking assisted death because of psychological suffering. It also does not allow for advance directives, which might be sought by people in the early stages of dementia, among others.
The Liberal government has promised to further study those issues, but Lang was skeptical that anything more will be heard on the issue without a court challenge.
“Parliament’s not going to be looking for this kind of debate anytime soon, I’m sure,” he said. “No government will be looking for that debate.”
But Yukon’s Liberal MP Larry Bagnell said the new legislation strikes a good balance between allowing people access to physician-assisted death and “protection of the vulnerable.”
Bagnell voted for the bill in a free vote in the House of Commons on Thursday. Only three Liberal MPs voted against it.
“It’s not the type of legislation that’s ever going to be perfect for everyone,” he said. “I think it protects the vulnerable, but it also makes sure that a lot of people will have access to this.”
Bagnell said he’s heard concern from at least one health-care professional in the Yukon that a less restrictive law would make Yukon doctors unwilling to participate. Doctors are allowed to refuse to assist in a patient’s death as a matter of conscience.
“This is a huge change, so we’ve got to get it right,” he said.
Now that the bill has passed, Zimmerman said, the Yukon will need to decide whether to establish a board or committee to oversee the process in the territory. But as it stands, the Yukon already has a framework in place for regulating assisted dying, which is in line with the Supreme Court ruling.
Any patient seeking medically assisted death must have two witnesses, opinions from two doctors that his/her condition is “grievous and irremediable” and a psychiatric or psychological assessment if he/she may be suffering from mental illness.
Zimmerman said that framework is similar to those in place across the country.
The Senate’s initial opposition to the bill has also raised broader questions about the role of the upper house, particularly now that the former Liberal senators are all independent.
While some argue that the appointed senators should defer to the will of the democratically elected House of Commons, others believe a more independent Senate is better able to check the power of government.
In the end, most senators did side with the House of Commons to pass the more restrictive bill. But Lang said the Senate had a duty to make the amendments it did, even though they weren’t all accepted.
“The fact is that this particular issue has raised the profile of the Senate,” Lang said. “And I think we did the job we were asked to do and it was a privilege to be part of that very historic debate.”
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