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Globe editorial: One year later, is assisted death too hard to access?

It has been one year since Parliament passed Bill C-14 and made physician-assisted death a reality in Canada. Based on data gathered by the CBC, close to 30 Canadians are availing themselves of this legal right every week.

That's four people, every day, making the conscious decision to die at the time and place of their choosing, surrounded by their loved ones, putting an end to intolerable pain and suffering caused by an incurable medical condition.

That's not a huge number. Health Canada estimated in April that assisted deaths accounted for 0.6 per cent of all deaths nationwide between the time Quebec legalized it in December 2015 – six months before Ottawa – and the end of last year.

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But it's not an insignificant number either. Every state-sanctioned death matters, because terrible risks arise when a legislature allows people to aid in the demise of others. It should always be difficult to receive permission from the state to hasten someone's death, and to oblige the state – that's all of us – to assist in that death.

And yet the question now is, have we made it too difficult?

This week, two people suffering from incurable but not yet terminal conditions filed suit in Quebec Superior Court, arguing that their constitutional right to an assisted death is being denied by Bill C-14.

Nicole Gladu, 71, and Jean Truchon, 49, are both "condemned to a life of complete dependency and a total loss of their autonomy. The plaintiffs would rather die with dignity than live with intolerable suffering," according to their suit.

Their requests for medically-assisted deaths were denied because of a clause in C-14 that requires that "their natural death has become reasonably foreseeable."

"Reasonably foreseeable" is a muddy definition, but well intentioned. The Trudeau government put it into the law to prevent someone who is grievously ill or injured, but not terminally ill, from taking an irrevocable step in his or her darkest hour.

It also protects vulnerable patients who are elderly, sick or mentally disabled from being coerced into a decision by unscrupulous third parties.

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But that limit was not mentioned in the 2015 Supreme Court of Canada decision that said that assisted death is a Charter-protected right. The ruling only said that physician-assisted death must be available to any "competent 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 Court said nothing about the right being dependent on a person's death being reasonably foreseeable. Many people protested the Liberal government's decision to include this condition. The Senate threatened to refuse to pass the bill if it wasn't removed.

But Justice Minister Jody Wilson-Raybould made a sensible counter-argument. She pointed out that the Court's decision revolved around two elderly women who were already at the end of their lives. The justices themselves said that "we make no pronouncement on other situations where physician-assisted dying may be sought."

It was left to Parliament to imagine those other situations, and the Liberals chose – sensibly, in our opinion – to impose a blanket limit that would prevent Canadians from making hasty decisions.

A year later, we now have concrete examples of "other situations" that raise questions about that limit.

Along with the suit filed in Quebec, there is another in British Columbia brought by two women. One woman, Robyn Moro, is 68 and suffering from Parkinson's Disease. The other, Julia Lamb, is 26 and has been afflicted with spinal muscular atrophy her entire life.

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The Quebec government, too, is seeking clarity on the "reasonably foreseeable" clause following two tragedies in that province. In one, a man paralyzed by a brain illness was denied an assisted death, so he went on a hunger strike until he was so ill that he qualified.

In another case, a man has been charged with second-degree murder in the death of his wife, who suffered from the onset of Alzheimer's and was ineligible for a legally assisted death. The man, François Cadotte, wrote on his Facebook page that he "cracked" and "gave into her demand for help in dying."

The common denominator in all of these cases is that people were, or still are, doomed to continue suffering – both physically and emotionally – for years. At least two died horrible deaths. In the case filed in Quebec this week, both plaintiffs insist they will find a way to kill themselves if the court doesn't rule in their favour. Ms. Gladu says she will go to Switzerland, where assisted suicide is legal.

These cases are agonizing to read about, and the suffering of the plaintiffs raises some important questions. Regardless of how the courts rule, it appears that Bill C-14 could be preventing assisted deaths that many Canadians would see as reasonable. Ottawa should clarify the intention of its contentious clause.

But that does not change the fact that the government's cautious approach has been the right one. There should be a high hurdle to obtaining a state-sanctioned, assisted death. That is critical, because more and more people are going to demand them in the coming years.

Bill C-14 obliges the government to report to Parliament before the next election on allowing advance requests from people at the beginning stages of an incurable condition that may render them cognitively unable to agree to being killed, as the current law requires, when their time arrives. It will also have to report on extending assisted death to children, and to people with mental illnesses.

These are hard choices. By going slowly, Ottawa has given Canadians time to come to grips with something that cannot be taken lightly, or be allowed to become routine.

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