Introduction

2,420 years ago Socrates was in prison awaiting execution. One of his followers begged him to escape, saying “But Socrates, you have been condemned to death.” In refusing to escape, Socrates responded “We are all condemned to death.” That remains true today. No one reading this is immortal.  At some point, for all of us, the question may no longer be “how do you want to live?” but “how do you want to die?”

A Quebec court recently held in the Truchon case (discussed later in this post), that the requirement in Canada’s MAiD law that the person’s “natural death must be reasonably foreseeable” was unconstitutional.  In essence, the court found that this legal provision was an unnecessary limit on the right to this medical assistance for people with intolerable suffering, merely because the time of death was unpredictable.  The federal government did not appeal this judicial decision but accepted its correctness.  It introduced Bill C-7 into Parliament to remove this unconstitutional provision.  Bill C-7 is now in the Senate for review. 

Given the landmark Carter case, which struck down the Criminal Code prohibition against MAiD, Bill C-7 doesn’t fix all of the constitutional problems with the current law.  There is still the constitutional issue to be litigated yet again, of excluding mental illness as the sole underlying medical condition for access to MAID.  But Bill C-7 is an important step in the right direction, and should become the law for that reason.

I acknowledge that Bill C-7 doesn’t deal with the need to improve palliative care in Canada and to provide better resources and services to individuals with disabilities, mental illness and dementia, especially outside large urban areas. But that is a question of resources and spending, not legal drafting; refusing to pass Bill C-7 won’t fix these resource problems, but will prevent an important correction in the law.

The MAiD Debate: Right to Life versus Right to End Life

The only issue before the Senate now is how to comply with the Truchon ruling. Yet Bill C-7 has reignited in the media (but fortunately, not in the Senate) the entire MAiD debate, going far beyond the narrow amendment in the Bill.  In the media the parties to the debate offer two diametrically opposed views of the rights in issue: the right-to-life  (RTL) and the end-of-life rights.  To me, despite the emotional arguments, the resolution is legally easy: Everyone has a right to life, but, as with any other right, everyone has the right to decide when to stop exercising that right.

With Bill C-7 the RTL argument is not about a fetus, which has no choice in the abortion decision. It is about the RTL of adults, who do have a choice.  They can, under Canada’s existing MAiD law, decide whether to die slowly and in pain, until death finally ends their suffering, or die mercifully and quickly at a time of their choice. But the requirement in the current law, that natural death must be reasonably foreseeable, imposes a high legal barrier to eligibility for MAiD.  As the court found, it excludes many people suffering intolerably from accessing MAiD, for no valid reason.

The alternative to assisted dying isn’t living happily ever after, it’s unassisted dying. For some of us unassisted dying will be quick and relatively painless, but unfortunately for you, or me, there may be months or years of prolonged physical and emotional suffering.  MAiD isn’t mandatory.  If you consider it immoral don’t do it. But don’t prohibit others who need it from accessing it.

I am surprised from reading Senate speeches that a few senators appear to oppose Bill C-7. Small-l liberals and small-c conservatives alike normally support freedom of choice and individual autonomy against Big Government’s intrusiveness into private decision-making.  But now some seem to believe there is the need to legislate more “safeguards” to protect the vulnerable. In this context, “safeguard” is a nicer word than “barrier”, but has the same effect.  Despite repeatedly raising the speculative fear of heightened risks for so-called vulnerable people, they never provide any empirical evidence that there is actual, widespread abuse, or risk of it.  Perhaps their opposition is based on religious belief, but being presented as protecting the vulnerable.

I respect all religious beliefs, including the belief that MAiD is inconsistent with someone’s religion.  However, a large majority of Canadians don’t share that religious belief. When legislating it is important to distinguish between enacting a secular law that applies to all Canadians regardless of their religious beliefs (if any), versus legally imposing upon all Canadians the beliefs of any one religion.   

And then there are the doctors.  No healthcare practitioner who objects to providing MAiD for religious or moral reasons is compelled to do so. Only a small portion of doctors are willing to provide MAID.  It is not something they were trained to do. It takes a lot of their time and doesn’t pay well.  Doctors aren’t just looking for an opportunity to end patients’ lives.

Some disability advocacy groups portray all disabled people as vulnerable victims, with their organization as their rescuers.  Rescuers cannot exist without real or imagined victims to rescue. But it is questionable how representative their advocacy on MAiD really is.  Journalist Joan Bryden interviewed Nicole Gladu, one of the two plaintiffs in the Truchon case, and, in a December 16 Canadian Press story, reported:

Gladu dismisses as [being] paternalistic critics who argue that the bill leaves vulnerable people with disabilities open to being pressured — either directly or indirectly through societal attitudes and a lack of support services — into receiving MAID.

“Vulnerability is a concept used ad nauseam by paternalistic people in good health (for) standing in the way of MAID,” Gladu says. She’s equally dismissive of the argument — advanced by disability-rights groups and echoed by the majority of Conservative MPs — that the bill sends a message that life with a disability is not worth living.

The fear that numerous helpless people with disabilities or chronic illnesses will be pressured into consenting to die, and that these pressured people will fool their doctors into believing that their coerced consent is real, is overblown.

The much repeated argument that the Bill sends a message that life with a disability is not worth living is just spin doctoring.  That message is not in the Bill, but in the eye of the beholder. One could equally well argue that the Bill sends a different message: that when someone’s life is so painfully intolerable to them that it is no longer worth living, Big Brother is not going to deprive them of their autonomous decision to end it.  To fail to respect their right to choose amounts to prolonging their torture.  Do those senators want to send the message that they favour laws that require prolonging torture?

The Evidence Supporting Bill C-7

Bill C-7 became legally necessary because Québec Justice Christine Baudouin held in the Truchon case that the requirement in the MAiD law that death be “reasonably foreseeable” violated the two plaintiffs’ Charter rights.  Neither the federal government nor the Québec government (the two defendants) chose to appeal the decision, but instead, chose to amend their laws to comply with the decision.

The court’s written reasons for its decision are 170 pages and 770 paragraphs long.  The decision is based on the testimony of numerous expert witnesses and an extensive review of the application of such laws in Canada and other countries.  The court’s key findings of fact, based on that evidence, are these (the last of which is the most important):

“4.      Conclusions on the Evidence

[466]   From the evidence as a whole, the Court concludes as follows:

1.      Medical assistance in dying as practised in Canada is a strict and rigorous process that, in itself, displays no obvious weakness;

2.      The physicians involved are able to assess the patients’ capacity to consent and identify signs of ambivalence, mental disorders affecting or likely to affect the decision-making process, or cases of coercion or abuse;

3.      The vulnerability of a person requesting medical assistance in dying must be assessed exclusively on a case-by-case basis, according to the characteristics of the person and not based on a reference group of so-called “vulnerable persons”. Beyond the various factors of vulnerability that physicians are able to objectify or identify, the patient’s ability to understand and to consent is ultimately the decisive factor, in addition to the other legal criteria;

4.      The physicians involved are able to distinguish a suicidal patient from a patient seeking medical assistance in dying. Moreover, there are important distinctions between suicide and medical assistance in dying with respect to both the characteristics of the people involved and the reasons that motivate them;

5.      Neither the national data in Canada or Quebec nor the foreign data indicate any abuse, slippery slope or even heightened risks for vulnerable people when imminent end of life is not an eligibility criterion for medical assistance in dying.

(My bolding)

These judicial findings of fact starkly contradict the prediction that Bill C-7 will create increased risk for people with disabilities.  Bill C-7 will maintain all necessary safeguards, and perhaps some unnecessary ones as well.  But it represents, for now, an appropriate balance between protection of the physically disabled and allowing those suffering intolerably to seek medical assistance to end their suffering. Do those who oppose Bill C-7 want to send the message that they disrespect the judicial process and the constitutional rights of Canadians that it has protected?

The right to life abortion arguments are not being revisited in Parliament.  The similar right to life anti-MAiD arguments have lost in court and should also not be revisited. This obsession to legislate more so-called safeguards is cruelty masquerading as kindness.  Preserving an unnecessary safeguard (that natural death must be reasonably foreseeable), which a court has held to be an infringement of constitutional rights, will just provoke more litigation to reaffirm those rights. Time for all senators to stand up for Bill C-7.