COVID-19 Creates an Urgent Need for Legal Clarity in Medically Assisted Death (MAID)

 

A small percentage of Canadians infected with COVID-19 will die from the virus.  Their death will usually be horrible: lung failure creating oxygen deprivation, causing multiple organ failures.

Ventilators are used to pump oxygen into these compromised lungs, to give the patient a chance to recover.  However, the majority don’t recover, particularly not the elderly and those with other serious medical problems.  Such patients may occupy a scarce ventilator for days or weeks, with death inevitable and foreseeable.  Canada does not have enough ventilators, and it looks like we will be unable to acquire them soon enough for everyone in need.

Some very sick patients who will not get a ventilator will die slowly, from gradual suffocation.  With insufficient ventilators, physicians will have to make the godlike decision of who lives and who dies.  Physicians may be less tortured and traumatized if they know that those they have selected to die can choose, through medically assisted death (MAID), not to die slowly and painfully.  But this law is controversial. It was held unconstitutional in a recent court decision. When the law is unsettled it is risky for physicians to administer MAID because the consequence might be criminal prosecution.

For anyone whose death is reasonably foreseeable (with or without a ventilator), the current law permits a patient to choose MAID, provided they meet the legal requirements.  Most of these legal requirements can be met, but one could be an obstacle.

This is the requirement that the patient must read a request form and sign it in the presence of two independent witnesses.  Criminal Code Section 241.2 (3) (c) requires the medical practitioner or nurse practitioner who will administer the drug to:

(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) [if the patient is too ill to sign personally] — before two independent witnesses who then also signed and dated the request; [underlining added]

Today, it would be unsafe for two witnesses to be near someone dying from COVID – 19 to watch the patient read and sign a form.  It would only be safe to do this virtually, e.g., via smart phones.  The legal question is whether the word “before” in the above-quoted law should be interpreted literally, as meaning physically in front of the witnesses, or whether it should be interpreted purposively.  The Supreme Court of Canada has repeatedly held that our laws should be interpreted purposively, which requires determining the purpose of the law.

In my view the purpose is to ensure that the patient made the request voluntarily (without pressure from family or medical staff), understood what they were requesting, and gave their informed consent.  This can be determined without being physically present.

Another requirement is that the two witnesses must sign and date the request form.  Again, a purposive interpretation would see these two signatures as being to provide the evidentiary record of the witnessing.  This could be done through a typed signature sent via text or email, or even via oral instruction to sign on their behalf given to someone physically present with the patient.

If our pet dogs or cats are terminally ill and suffering greatly we can end their lives humanely.  Should we not be able choose the same compassionate end for ourselves if we are unlikely to recover?

The Canadian Medical Association, which issues guidelines to physicians, should obtain a legal opinion (if it has not already done so) to provide physicians with guidance on how to administer MAID in the age of COVID – 19.  If necessary, the Prime Minister should recall a quorum of Parliament (as he did last week for financial assistance) to amend the Criminal Code to remove the legal uncertainty surrounding MAID.  This would help those of us who are likely to die soon to choose not to live their last few days on earth slowly suffocating in isolation.

Emergency Powers Without An Emergency?

Prime Minister Trudeau has been pressed by reporters about the COVID-19 “nuclear option” – invoking the federal Emergencies Act.

PM: “At this time we do not see the federal emergencies act as an essential tool today, but we are continuing to look at the situation and will make decisions based on the best recommendations of science.” (Saturday, March 21)

Provinces and territories are closing their borders to inter-provincial travel and shutting down all but essential industries. A COVID-19 positive woman was arrested in Quebec City for taking a walk while quarantined.  As the financial and emotional costs of self-isolation mount, is there still no emergency?  And what comes next?

Apparently, what comes next arrived yesterday (March 25) : Bill C-13, enacted by Parliament in the early hours of the morning. It grants emergency spending powers without a declaration of emergency.  Why does it matter?

Continue reading “Emergency Powers Without An Emergency?”

COVID-19 and the Cabinet’s Emergency Powers.

March 21, 2020.  Briefing by Prime Minister Trudeau, responding to a question:

PM: “We have not removed from the table any options. We are looking at a broad array of measures that we can move forward with. At this time we do not see the federal Emergencies Act as an essential tool today, but we are continuing to look at the situation and will make decisions based on the best recommendations of science.”

Question: “What do you need to see before declaring a federal emergency?”

PM: “I think the key issue is are there things that we need to be able to do as a government that we cannot do with the very strong existing regulations that are in place and that our government has as tools.”

 

Background

 

You would have to be a hermit living in a cave not to have heard of the COVID-19 pandemic.  Governments all over the world have introduced special laws to deal with the emergency.  As the rates of infections, hospitalizations and deaths have increased, so has the severity of government responses.

But the existing legal powers of government may soon become insufficient.  Prime Minister Justin Trudeau has recalled Parliament to enact legislation permitting special financial measures to support Canadians impacted by the closing of schools, workplaces, restaurants and bars.  That is his first Parliamentary step, but probably not his last.

There are two Canadian laws that have never been used before, but may have to be if conditions worsen.  These are the Emergencies Act and the Quarantine Act.  I had not been familiar with either of these laws until this pandemic arose, but now have read them both.  Fortunately, because these laws have not been used before there is no large body of case law to wade through to understand how they have been interpreted.  Because they have never been interpreted, my interpretation is as good as, or as bad as, anyone else’s.

As between the two laws, I would expect the federal government to use the Emergencies Act first, and if it later becomes necessary, to use the Quarantine Act.  Both of these laws give the government extraordinary powers of a somewhat dictatorial nature.  Because giving a government dictatorial powers is always dangerous, these laws provide some soft safeguards which, one can only hope, will prove to be adequate.

Continue reading “COVID-19 and the Cabinet’s Emergency Powers.”

That Pipeline Again

Background

In a previous blog post (The Crown’s Duty to Consult First Nations) I criticized the August 30, 2018 Federal Court of Appeal (FCA) decision quashing the Cabinet’s approval of the Trans Mountain Pipeline expansion.  Since then there have been new hearings by the National Energy Board and new consultations with First Nations, resulting in a new Cabinet approval on June 18, 2019.  That new approval was challenged again in the FCA.

On February 4, 2020 the FCA issued its decision (Coldwater Indian Band).  The FCA upheld the Cabinet’s decision as being reasonable, including the Cabinet’s finding that the consultations with the opposed First Nations had been proper.

 

Two Panels, Two Attitudes

There are some interesting differences between the 2018 FCA decision and this one. The heroes and villains have changed places.  In reading this panel’s thorough and detailed legal analysis I was struck by what I read between the lines.  The critical tone of this panel in describing the posturing in the submissions of some of the First Nations is a sharp contrast to the critical tone of the 2018 panel in describing the Crown’s consulting staff.

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Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?

If you have not read Part 1 of this post I suggest that you read it first, here. This Part is for those interested in law and how it develops but is not a technical law journal article. For anyone wanting a detailed legal analysis I suggest reading Paul Daly’s 5 blog posts starting here.

A Bit of History

Changing Courts, Changing Attitudes

Until about the early 1980’s most Canadian judges were men, usually appointed from law firms representing businesses and governments.  Judges appeared generally sympathetic to litigants like their former clients and less sympathetic to unions, women and the less fortunate in society. As a broad generalization, judges were to the political right of the average Canadian.

Gradually, judicial appointments became more diverse and judicial attitudes evolved. The attitude change was substantially influenced by administrative law professors like Bora Laskin (who eventually became Chief Justice of the Supreme Court of Canada). Some law professors (then and now) serve as labour arbitrators or members of administrative tribunals like Labour Relations Boards or Human Rights Commissions. Unions will reject the appointment of arbitrators unless they believe them to be at least somewhat sympathetic to unions. Hence these arbitrators and labour board members led the way, both in law journal articles and as judges, to offset the perceived judicial bias against unions and labour relations adjudicators.  The attitude moved leftwards and has remained there, but whether you see this as having moved to the political centre or to the left of centre depends upon your political views.

Judges protected labour adjudicators by declaring that labour boards had labour relations expertise equal to or greater than generalist judges. In practice this was usually true.  “Expertise” became shorthand for “stop picking on them” and show some deference. Considerable respect for such decision-makers has been the judicial policy for decades.

Continue reading “Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?”

Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?

Two different biblical answers:

“The Lordvisits the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.(Exodus 34:6-7 = Deuteronomy 5:8-10)

“The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son.”  Ezekiel 18:19-20 ESV

AV

Photo credit: THE CANADIAN PRESS/Chris Young

“Alexander Foley” (above) was born in Toronto in 1994. At the time, his parents were living under false names, posing as Canadians, while being Russian citizens and undercover spies for the Russian foreign intelligence service. The child growing up had no idea that his parents were spies. He believed that his name was Alexander Foley, and that he was a Canadian citizen by birth. He lived as a Canadian child, and held a Canadian passport.

However, in 2010, after the family had moved to the United States, the FBI arrested his parents and charged them with espionage. They pleaded guilty and were deported to Russia. Alexander’s whole world as he knew it fell apart.

He was 16 at the time, and suddenly found himself living in Russia, with the strange new name Alexander Vavilov.  After his parents’ arrest, Alexander wanted to renew his Canadian passport. But in 2014, Canada’s Registrar of Citizenship cancelled his certificate of citizenship, preventing him from obtaining a passport. He challenged her decision in court.

Does Canadian law require that the innocent son (now age 25) be denied Canadian citizenship because his parents were Russian spies?  Should the court allow the Registrar’s decision to remain in force, or should it overrule it? That was the legal issue before the Supreme Court of Canada (SCC) in this case.

But the SCC went beyond Alexander’s personal issue to examine, and to try to repair, the confused state of Canadian law governing judicial review of government decisions. Was  the SCC successful? That is the subject of Part 2 of this post.

 

Continue reading “Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?”

Will the Paris Agreement Fix the ‘Climate Crisis’?

Preparations are now underway for COP25, a global climate conference of thousands of politicians and observers, opening  December 2 in Madrid.  This conference was to be held in Chile, but the Chilean President cancelled hosting it because of violent riots, sparked by large increases in transit fares and electricity prices.

One COP25 agenda item is the 2015 Paris Agreement, which was supposed to fix the climate crisis. Even if there is such a crisis, the Paris Agreement won’t fix it. [But is there really a climate crisis? You may want to read my two earlier posts on that issue, starting here: The Climate Crisis: Don’t Panic, It’s Not the Titanic.]

Everyone talks about the Paris Agreement, but hardly anyone reads it. The mainstream media says it was to reduce global CO2 emissions.  But that is not what the Agreement says or does. It doesn’t require any country to reduce its emissions Some of the planet’s largest emitters say they will increase their emissions — not just a little, but a lot.

China, the world’s largest emitter and growing rapidly, already accounts for 29% of global CO2. (The USA represents only 13%, Canada 1.6%.)  India, with its less developed but rapidly growing economy, creates another 7%. Yet both China and India (and several Africa countries) project increased emissions with no numerical limit.

Even if all the 195 nations that signed the Agreement do what they said they will do, the net effect will be no significant reduction in CO2 emissions. There is a huge disconnect between what the Agreement is supposed to do and what the nations have said they intend to do.

The current panic over the ‘climate crisis’ makes it politically essential for most governments to respond with dramatic displays of determination to “fight climate change” and achieve carbon neutrality by 2050. Unfortunately, as Nobel Prize-winning economist William Nordhaus has written in The American Economic Association Journal of August 2018:

“The reality is that most countries are on a business-as-usual trajectory of minimal policies to reduce their emissions …. The international target for climate change with a limit of 2°C appears to be infeasible with reasonably accessible technologies even with very ambitious abatement strategies.”

The only safe political path between the panic and the possible is to pretend to do the impossible. And that is the real purpose of the Paris Agreement.

Continue reading “Will the Paris Agreement Fix the ‘Climate Crisis’?”