A critical part of Canada’s law on medically assisted death was struck down by a Quebec court on Wednesday – a development a lot of people saw coming from the moment the law was tabled in 2016.
Quebec Superior Court Justice Christine Baudouin ruled in favour of two people who said they were denied assisted deaths on the unfair grounds that their natural deaths were not “reasonably foreseeable,” as the law demands.
Both are suffering intolerable pain and anguish caused by their illnesses and disabilities, and both want to die on their own terms, but neither is about to lose their life to their specific medical condition, or old enough to be considered close to the natural death that comes with age.
The judge struck down as unconstitutional the “reasonably foreseeable” clause in the federal law, and in Quebec’s own law on medically assisted death. She suspended the judgment for six months to give Ottawa and Quebec City time to respond, but also gave the two people who brought the case an exemption that will allow them to proceed with their planned deaths.
The ruling was not unexpected because the federal law, and its Quebec counterpart, set conditions for medically assisted death that are at odds with the 2015 Supreme Court of Canada judgment that ruled denying a severely ill or disabled person the right to die can amount to a violation of their right to life, liberty and security of the person.
The Supreme Court said in Carter v. Canada that physician-assisted death must be available to an “adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The onus fell on the newly elected Trudeau government to amend the Criminal Code to satisfy the demands of the ruling. But where the court set three conditions (including having to be an adult) for qualifying for assisted death, the government felt it needed to add a fourth: that a person’s “natural death has become reasonably foreseeable.”
That restriction was designed to prevent abuse and errors, but the complainants in the Quebec Superior Court ruling are perfect examples of how even such a well-meaning clause can have negative consequences.
Take one of the plaintiffs, Jean Truchon. Aged 51, he was born with cerebral palsy that left him with the use of only his left arm. In spite of his condition, he graduated from university and lived a fairly independent life that included numerous outings and regular games of wheelchair ball hockey.
Sadly, he lost the use of his one arm in 2012, and with it went the life he was enjoying. He now suffers constant pain caused by involuntary muscle spasms and spends most of his day in bed waiting to be cared for.
Similar to the other plaintiff, a 73-year-old woman with polio who had a vibrant working and social life until her condition put her in a wheelchair and in constant pain, Mr. Truchon is an intelligent and thoughtful person who has reached the conclusion, through a long period of suffering, that he wants to end his life.
Every doctor and psychologist who examined him agreed that he qualifies for assisted death – except for the law’s “reasonably foreseeable” hurdle.
Critics of the clause have long argued that it was reasonably foreseeable that a case like Mr. Truchon’s would arise, and the law would be found wanting. In the wake of this week’s ruling, the next Parliament has a problem to fix.
But Ottawa should be wary of simply eliminating the clause, because it is also reasonably foreseeable that too lax a regime could result in a tragic error of the kind the government imagined back in 2016.
Ottawa worried then that a younger person paralyzed in an accident, or suffering from a debilitating mental illness, might opt for assisted death too quickly and miss out on the life they could have had after they adjusted to their new circumstances.
Mr. Truchon himself is proof that people can make rich lives out of the most difficult circumstances, if given the chance. When an anguished person says they wish to end their life, the state should not do anything that might hurry them into an early grave.
But neither should the state patronize people who know their own minds and have suffered long enough. Ottawa was right to be cautious in drafting the law, but the next government needs to strike a better balance.