The first Trudeau government – the fresh, sunny one elected to a majority – came to power with a difficult assignment ahead of it.
Elected in October, 2015, it faced a February deadline to legalize medically assisted death. The Supreme Court had ruled a year earlier that denying a severely ill or disabled person an assisted death was a violation of their constitutional right to life, liberty and security of the person. But it suspended its judgment for 12 months, setting up the rookie Trudeau government with its first major challenge.
The government responded with a law that made Canada one of the few countries where people who are suffering intolerable pain can end their lives with the help of a state-funded physician.
But Ottawa also took a gamble. Where the court set three conditions governing assisted death, it added a fourth.
The court’s conditions were that a person had to be over 18, clearly consent to the end of their life and have "a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
Ottawa, worried about both the potential for abuse and the possibility of a person making a rash decision from which there was no return, set a fourth condition – that “natural death” must be “reasonably foreseeable.”
This page agreed with the cautious approach, but it was clear the “reasonably foreseeable” condition was problematic and likely to be tested in court. Which it was. Last year, a Quebec judge struck it down as unconstitutional.
So now, the new Trudeau government – the slightly dulled minority version – has another deadline to meet, this one in March and entirely self-imposed, to amend its law. If anything, the challenge is more difficult this time.
The case in Quebec last year centred on two people who were textbook examples of patients who experienced “enduring suffering” that they found intolerable, yet who were not terminally ill. Both were born with severe medical conditions – polio in one case, cerebral palsy in the other – that they overcame. They lived vibrant lives for many years. But as they aged, their conditions worsened to the point that they were in constant pain, confined to a wheelchair or bed, and dependent on others for their care.
Both wanted to escape the prisons of their bodies, but neither met the “reasonably foreseeable” rule, and were thus denied the right to an assisted death. The court said the Trudeau government’s law was too restrictive in their cases.
Some might suggest that the quickest fix would be to amend the law so that its only limits are the Supreme Court’s three conditions. That way, any adult in Canada suffering intolerably from a medical condition who consents to assisted death can have it – no further questions asked.
But Parliament’s job is more than just taking dictation from the Supreme Court. Applying its conditions, and no other, could mean that a person suffering from severe depression who believes they have no hope of recovery would be eligible for a state-assisted death. It could also lead to people who are horribly injured in an accident demanding a quick out, rather that going through the long and terrible pain of healing and recovery.
And then, there is the possibility of a person being talked into their death by an unscrupulous actor who capitalizes on their vulnerability.
It’s true that Canadians have the constitutional right to life, liberty and security of the person, and that it is cruel for the state to force someone to suffer just because they are not in a position to end their own lives.
But Canada is also full of people who have overcome chronic physical and mental conditions that seem impossible to bear, and who go on to lead full lives for which they are grateful. Ottawa needs to know that, when a person ends their life with the assistance of our medicare system, all other options have been tried.
That assurance could take many forms. It could be a waiting period to rule out the possibility of recovery, and to prevent abuse. It could be investments in better services for people with chronic conditions that cause constant suffering.
But Ottawa should not just throw up its hands and enforce no precautions. That could tilt the balance too far in the other direction. Making access to assisted death too difficult is undesirable, but so is making it too easy.