If you have been paying attention to the whirlwind of media popping up around Canada’s medical assistance in dying legislation this month, by now you’re probably very confused. On September 11th, the Quebec Superior Court released its decision of the Truchon & Gladu case, finding that the “reasonable foreseeability of natural death” criterion is unconstitutional for being too restrictive. Then, on September 18th, the British Columbia Civil Liberties Association (BCCLA) came forward saying that the Lamb case before the Supreme Court of British Columbia has been adjourned indefinitely. An expert witness in that case felt that Julia Lamb would be eligible for medical assistance in dying if she were to apply, due to a lax interpretation of the law put forth by the Canadian Association of MAiD Assessors and Advisors (CAMAP), a self-selected group of health professionals who advocate for broad access to medical assistance in dying.
So where does that leave us? Is Canada’s medical assistance in dying law too restrictive or not? Can only people who are dying access an assisted death, or can others, like Julia Lamb, who has a disability but is not dying?
For clarity’s sake, here’s a recap:
- In 2015, in its Carter decision, the Supreme Court of Canada struck down a portion of Canada’s Criminal Code that prevented individuals from helping a person to commit suicide. It put a year stay on the decision, allowing for Parliament to respond.
- Canada did indeed respond by consulting with Canadians and studying how medical assistance in dying is applied in other jurisdictions.
- In 2016, medical assistance in dying was legalized and limited to those who are at the end of their natural lives.
- Parliament did so in order to meet clear objectives, including: to recognize the irrevocable nature of ending a life, to affirm the inherent and equal value of every person’s life including in particular those who are elderly, ill, or disabled, and to prevent suicide.
- Advocates for wider access began launching challenges almost immediately. Two court challenges, Lamb in BC, and Truchon and Gladu in Quebec were filed by persons with disabilities who claimed that they wanted to access medical assistance in dying even though their deaths were not foreseeable.
- The Quebec Superior Court decision in Truchon and Gladu was rendered on September 11th. It struck down the requirement for a reasonably foreseeable natural death. The court rejected the legislation’s objective to affirm the inherent and equal value of every person’s life. The government has until October 11th to file an appeal.
- The Lamb case was adjourned on September 10th because an expert witness, Dr. Madeleine Li, had written in her testimony that Julia Lamb would likely be approved for medical assistance in dying given how the law is being applied in BC. Even though the Crown’s legal team clarified that Li’s testimony doesn’t grant Lamb access to medical assistance in dying, Lamb spoke at a press conference, saying that she had “won the right to an assisted death.”
In wrestling with this dilemma, Krista Carr, the Executive Vice President of Inclusion Canada, which had intervenor status in both cases, shares that “neither interpretation of the law is consistent with the objectives of the legislation. Those objectives matter. Preventing discrimnation and stigmatization for people with disabilities matters. Inclusion matters. Suicide prevention matters.”
“This is why we need an appeal of Truchon and Gladu”, added Joy Bacon, Inclusion Canada’s president, “we need clarity from the Supreme Court. This law is taking on a life of its own; we need an authoritative analysis that respects the seriousness of what is at stake here. And if we can keep the law intact until the evidence-based legislative review scheduled for June of 2020, even better.”
Inclusion Canada calls upon Attorney General David Lametti to appeal the Trucho and Gladu decision, and for him and Health Minister Ginette Petitpas-Taylor to affirm the facts: that the reasonable foreseeability criterion still stands, and if medical practitioners do not follow all safeguards, they will be engaging in a criminal act. Without clarity, lives are at risk.