Something north of 8,000 people have died in Canada after its Medical Aid in Dying legislation came into effect in 2016. And now it will probably become even easier after a decision by a Québec judge.
Last week Superior Court Justice Christine Baudouin struck down as unconstitutional a provision in Bill C-14, the federal legislation which restricts euthanasia to terminally ill patients. The clause says that a patient’s natural death had to be “reasonably foreseeable”. This meant, argued assisted dying advocates, that some patients who want to die but have no use-by date must face the prospect of seemingly endless pain.
The judge agreed.
Denying them access to assisted dying is “forcing them to endure harsh physical and psychological suffering,” Justice Baudouin wrote. “The court has no hesitation in concluding that the requirement that their death has to be reasonably foreseeable is violating the rights to liberty and security of [the plaintiffs.]”
Euthanasia supporters were delighted.
“Three years ago, when the [federal] law was being debated, we raised concerns about the reasonably foreseeable criterion, arguing that it does not comply with the [Supreme Court’s] Carter decision,” said Cory Ruf, of Dying with Dignity Canada. He had heard stories of Canadians who travelled to Switzerland for assisted suicide, starved themselves, or committed suicide because they were unable to obtain relief under the current law.
Bioethicist Jocelyn Downie and a colleague commented that Baudouin’s “770-paragraph decision is a damning indictment of the unnecessary cruelty of the ‘reasonably foreseeable’ criterion. Her decision is also consistent with the Supreme Court of Canada’s decision in Carter, the expert opinions of many constitutional law scholars, and the majority of the members of the Canadian Senate.”
However, for Dr Michel Racicot, who represents the le Collectif des médecins contre l’euthanasie (Collective of Physicians against Euthanasia), the judgement sends a bad message.
“If we remove this criterion (to be terminally ill), we do not transform medical aid in dying into help for the dying person; rather, it becomes almost death on demand for people who are suffering, but who may still have to a long life ahead of them.”
Furthermore, at a time when the Canadian government is promoting suicide prevention, removing the “reasonably foreseeable” clause creates a two-tier system of suicide, he observed.
“We're going to have two kinds of suicides: good suicides, which are going to be medical aid in dying for people who are not at the end of life — because it's a form of suicide, no doubt about it — and bad suicides, the ones we are trying to prevent. “
There is a memorable moment in the children’s classic Winnie-the-Pooh which depicts what is happening in Canada. “Here is Edward Bear, coming downstairs now, bump, bump, bump, on the back of his head, behind Christopher Robin. It is, as far as he knows, the only way of coming downstairs, but sometimes he feels that there really is another way, if only he could stop bumping for a moment and think about it.”
Bump, bump bump, down the slippery slope goes Canada’s Medical Aid in Dying legislation – which was forced upon Canadians by their Supreme Court, it should be remembered, not approved by voters in a referendum.
To the great consternation of Dying With Dignity Canada, the “reasonably foreseen” clause in Bill C-14 kept MAID from becoming death-on-demand when it was passed in 2016.
In a bad law, it was a glimmer of common sense. As Dr Racicot pointed out, it protected vulnerable people from ending their lives because they are despondent.
Canada goes to the polls on October 21. Whichever party wins government will have to deal with the judgment by appealing it or simply accepting it.
Unfortunately, things could easily become worse. Three other issues were left up in the air by Bill C-14 – euthanasia for children (minors under 18), advance directives for euthanasia, and euthanasia for mental illness. The current federal government is sitting on reports on each of these issues. Given the precedent of Justice Baudouin’s judgement and intense pressure from the assisted dying lobby, it will be difficult to resist the downward moment of the law towards effective death on demand.
“If only he could stop bumping for a moment and think about it.” Canadians, like Pooh, might not get a chance to do that.
Michael Cook is editor of MercatorNet