Legal experts and activists alike were angry Thursday when the Liberal government unveiled its assisted-dying law and, in the process, restricted access to assisted dying to a narrower-than-expected segment of the population.
Within an hour of a new federal law being tabled, critics were already lining up to blast it for excluding mature minors (children under 18), people who have been diagnosed with a degenerative illness like dementia that will affect their ability to consent to assisted death down the line, and people whose natural death is not “reasonably foreseeable.”
That last clause will exclude most Canadians suffering solely from a mental illness who wish to end their lives.
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The CEO of Dying with Dignity Canada, Shanaaz Gokool, expressed her “disappointment and despair“ with a “narrow and discriminatory” piece of legislation.
“Millions of people are going to be told that there is no relief,” she said. “We expected this from the Harper government. We expected better from this Liberal government.”
Toronto emergency room doctor Dr. Brett Belchetz, who sits on Dying with Dignity’s physician advisory panel, said that many parts of the law are solid and appropriate. But he would like to know why the government ignored the advice of a joint parliamentary committee that, after extensive consultation from coast to coast, recommended giving the excluded groups access to assisted death.
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The answer to that question may be relatively simple, according to Queen’s University bioethicist Udo Schuklenk, who is also the former Chair of the Royal Society of Canada Expert Panel on End-of-life Decision-Making in Canada.
The government knows that its new law will almost certainly be challenged in court, Schuklenk said, because the Supreme Court of Canada did not say anything about patients being in an advanced stage of illness, or near death, when it struck down the law against doctor-assisted dying in early 2015.
But the Liberals also need the law to pass before June (when assisted dying will no longer be a criminal offence), and that means making it palatable to MPs. The vote on the new bill will be a free one — except for cabinet ministers, who must vote in favour — so a majority of MPs need to be on-side.
“You know the Conservatives are opposed to this anyway, with the NDP you don’t know what they are doing, and there is a sufficient number of frankly religious members of Parliament, even in the Liberal Party, that might be opposed to this,” said Schuklenk. “So this is why they went for the most restrictive and conservative approach possible.”
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Health Minister Jane Philpott and Justice Minister Jody Wilson-Raybould were asked repeatedly on Thursday morning why the government didn’t heed the advice of the special parliamentary panel.
Wilson-Raybould said she and Philpott had to consider a diversity of views and perspectives, and conceded that the resulting law will be “troubling” for some who are morally opposed to assisted dying. Indeed, those groups were also lining up on Thursday to express their discontent.
“For others it will not go far enough,” the minister added. “We believe that this approach is the best approach.”
Philpott said that as a doctor, she knows personally what it is like to watch someone “die in misery,” but the law must include measures that protect the most vulnerable people in society. She cited the example of her young niece, who has a neurodegenerative condition and is non-verbal.
“Societies are judged by the protection that they provide to the most vulnerable,” the health minister said.
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According to Wilson-Raybould, herself a trained lawyer, the law will withstand any court challenges and it respects the Canadian Charter of Rights and Freedoms. The minister said she plans to publish a paper detailing her reasoning.
The government also plans to examine the thorny issues of mature minors, advanced directives and mental illness and may broaden the law down the road. But that doesn’t change the fact that the Liberals are acting in opposition to the ruling of the courts, Schuklenk said.
“We had a long history under the Harper government of a government basically ignoring or subverting Supreme Court decisions. And what I find deeply disturbing is that we have a Liberal government in their first act of major legislation doing exactly the same thing.”