Canadians have been waiting to see what the federal government would do with right-to-die legislation ever since the Supreme Court brought down its decision in Carter a year ago in February, and gave the then-government a year to amend the Criminal Code to conform.
The current government hit the ground running on the file after the October election. The Supreme Court gave it a four-month extension and Bill C-14 had its first reading in the House of Commons on April 14. House and Senate committees are now hearing presentations on the proposed legislation.
Kimberly Jakeman of Harper Grey in Vancouver, the chair of the CBA’s End of Life Working Group, will appear before the Senate Legal and Constitutional Affairs Committee on May 10 to present the CBA’s submission on the bill.
CBA policy on the issue, reflected in two resolutions adopted by Council, is to urge the government to pass legislation to conform to the Carter decision. But according to the group, which comprises a cross-section of the diverse areas of expertise in the CBA community, the proposed legislation falls somewhat short of the Supreme Court’s intent.
“Eligibility for medical assistance in dying is set out in proposed subsection 241.2(2) of the Criminal Code,” Jakeman writes in letters to the Senate committee and the House of Commons Justice and Human Rights Committee.
“The heart of this section is a definition of ‘grievous and irremediable.’ The CBA Working Group does not believe that this definition is consistent with the criteria established by the SCC in Carter.”
In fact, the group argues, by adding the requirement that an individual be in “an advanced state of irreversible decline” and that their “natural death has become reasonably foreseeable,” the legislation effectively “narrows eligibility for medical assistance in dying to persons in the advanced stages of a terminal illness.” The group suggests the Supreme Court also intended for the ability to choose medically assisted death to be extended to people whose disease is not terminal per se. The court had the opportunity in its decision to be more restrictive and did not choose to do so, the group says.
It recommends that the definition be removed from the bill and that those eligible include people who have “a grievous or irremediable illness, disease or disability that causes enduring suffering that is intolerable to them.”
The working group is also concerned that the bill doesn’t take into account the realities of the “care continuum.” When a person has a grievous and irremediable condition, they say, health care providers and family members need to be able to talk about plans of care and possible scenarios “without fear of criminal repercussion” even if the person with the condition doesn’t bring up the idea of medically assisted death first. It therefore recommends additional protections for those individuals.
While the working group supports having a signed and witnessed document requesting medical assistance in dying, they say that by imposing a requirement that the witness understands the nature of the request the bill “is onerous and impractical, with loss of privacy implications.”
It also recommends that the proposed subsection 241.2(7) be removed because it includes by reference provincial laws which have not yet been written and may differ by jurisdiction.
The proposed bill does not allow for advance directives, requiring the person requesting medical assistance to remain fully conscious until the assistance is administered, something the working group says “is at odds with the recognition that eligible individuals are enduring intolerable suffering and are entitled to a range of care options, including sedation.” It therefore recommends that the proposed paragraph 241.2(3)(h) be removed.
The government has said that it will take time to address the questions of mature minors and people with mental illness requesting medical assistance in dying. The CBA working group recommends that it do so well before the planned five-year review of the law.
The CBA’s position is that it’s unlikely the bill would survive a Constitutional challenge, and that it cannot support this bill without amendments bringing it in closer alignment with the Carter decision.