Bill C-14, the government's response to the Carter v. Canada Supreme Court ruling 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.
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 that the absolute ban on physician-assisted suicide was contrary to the Charter because it went too far in its attempt to protect the vulnerable -- those who seek death at a moment of weakness. The Supreme Court suspended its declaration of invalidity of this ban until June 6, 2016, in order to give Parliament time to develop a complex regulatory regime.
The most contentious aspect of Bill C-14 is that it is limited to those who are dying, but with no time-limited cut-off. Those who think Bill C-14 is too permissive are seriously constrained by the Supreme Court of Canada's ruling. Any attempt to prevent medical assistance in dying completely is not an option unless the Charter's notwithstanding clause were invoked -- a highly unlikely scenario.
Very restricted access to assisted dying, such as the Conservative (Falk) proposed amendment in the House Committee that sought to limit access 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 Bill C-14. 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 of Canada's declaration said nothing explicit about death being reasonably foreseeable and did not include 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 that 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 those that exist in American states and in Quebec's legislation. It handed over the task of evaluating an end of life stipulation to Parliament.
Much has been made of the comment by Justice Karakatsanis on Jan. 11, 2016, during the hearing on the application to give Parliament extra time to respond. Justice Karakatsanis, in discussing the Quebec legislation, noted the Carter decision rejected "terminally ill." What has been given insufficient attention is that Justice Karakatsanis herself pulled back in the Court's written reasons just four days later. She was one of five judges who said, "we should not be taken as expressing any view as to the validity" of the Quebec legislation.
If Bill C-14 is unconstitutional in being limited to those who are dying, so is Quebec's legislation. The Supreme Court in the second Carter decision was careful to leave the issue open. Despite that, those arguing that the first Carter decision already settled that there can be no end of life stipulation in an assisted dying bill are saying that this matter is not even open for debate.
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 that all that counts is individual autonomy is to deny the social responsibility to protect the vulnerable.
Jean Vanier, interviewed on CBC's As It Happens, 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.
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Here's a look at the state of Euthanasia laws in Canada and their history.
Suicide hasn't been a crime in Canada since 1972. (Shutterstock)
Doctor-assisted suicide is illegal, although the ruling of the B.C. Supreme Court will force Parliament to alter the law within one year. The Criminal Code of Canada states in section 241 that: "Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years." (Alamy)
Passive euthanasia involves letting a patient die instead of prolonging life with medical measures. Passive euthanasia is legal in Canada. The decision is left in the hands of family or a designated proxy. Written wishes, including those found in living wills, do not have to be followed by family or a proxy. (Alamy)
Sue Rodriguez, who suffered from amyotrophic lateral sclerosis (also known as Lou Gehrig's disease), launched a case asking the Supreme Court of Canada to allow her to end her own life on the grounds that the current law discriminated against her disability. Because suicide is legal in Canada and Rodriguez was unable to end her life because of a lack of mobility, she argued it was discriminatory to prevent her from ending her own life with the aid of another. The court refused her request in 1993, but one year later she ended her life anyway with the help of an unnamed doctor. (CP)
Robert Latimer was convicted of second-degree murder in the 1993 death of his severely disabled daughter Tracy. A lack of oxygen during Tracy's birth led to cerebral palsy and serious mental and physical disabilities, including seizures and the inability to walk or talk. Her father ended Tracy's life by placing her in his truck and connecting a hose to the vehicle's exhaust.The case led to a heated debate over euthanasia in Canada and two Supreme Court challenges. Latimer was granted day parole in 2008 and full parole in 2010. (CP)
Former Bloc Québécois MP Francine Lalonde tried repeatedly to get legislation legalizing euthanasia in Canada passed. Bill C-407 and Bill C-384 were both aimed at making assisted suicide legal. C-384 was defeated in the House 228 to 59, with many Bloc MPs and a handful of members from all other parties voting for the legislation. Tetraplegic Tory MP Steven Fletcher, pictured, made the following statement after C-384 was defeated: "I would like to be recorded as abstaining on this bill. The reason is I believe end of life issues need to be debated more in our country. I believe that life should be the first choice but not the only choice and that we have to ensure that resources and supports are provided to Canadians so that choice is free. I believe, when all is said and done, the individual is ultimately responsible. I want to make this decision for myself, and if I cannot, I want my family to make the decision. I believe most Canadians, or many Canadians, feel the same. As William Henley said in his poem Invictus, "I am the master of my fate: I am the captain of my soul."(CP)