There is a lot that is right about our government’s proposed legislation. It would permit physician assisted dying (“PAD”) to people who have a grievous and irremediable medical condition, have requested PAD free from undue influence, and have given informed consent. Informed consent conceptually includes a couple of important concepts. One is the requisite mental capacity to give consent; the other is the complete understanding of all other treatment options.

Paragraph 241.2(2) of Bill C-14 elaborates on what grievous and irremediable means and that is where it gets into trouble. By playing with the definition of grievous and irremediable, Bill C-14 restricts access to PAD more narrowly than what the Supreme Court of Canada said was constitutional in paragraph 127 of its 2015 decision in Carter v. Canada (Attorney General).

Sub-paragraph 241.2(2)(b) introduces the concept of an advanced state of irreversible decline in capability into the definition of grievous and irremediable. This is worrying on three fronts, first is the possible and troubling suggestion that only people who can’t commit suicide qualify for PAD. This strikes me as being unconstitutional insofar as no medical or pharmaceutical supports would be available to this person if that is what is intended.

The second problem is vagueness of the use of the word capability. As I read this sub-paragraph, an advanced state of irreversible decline in capability suggests to me as though the legislation is looking for the presence of a high degree of mental or physical disability. A high degree of mental incapability is problematic because such a person could not give informed consent. A high degree of physical incapability would limit PAD to persons with illnesses or conditions that don’t severely disable them physically but still cause suffering that they find unendurable. Cancers come to mind, here.

Last, of course, incapability is an add-on and not part of the test that the Supreme Court gave us so the question of its constitutional validity is inevitable.

Perhaps the biggest add-on to the Supreme Court’s test is in sub-paragraph 241.2(2)(d) of Bill C-14. That sub-paragraph incorporates into the definition of grievous and irremediable the notion that natural death must be reasonably foreseeable after taking into account the person’s medical circumstances without there necessarily being a specific prognosis of the amount of time the person has to live. The trouble with this add-on is that — if it means anything at all — it is likely unconstitutional. It is unlikely that our government intended the wording to refer to the inevitability of death for all of us. It is more likely that the wording intends to restrict PAD to people who are dying somewhat more quickly than the rest of us (as far as medical science can predict). The effect of this add-on is that the legislation would only to legalize hastening death for those of us who are already dying. This would leave all of those individuals who have a serious and incurable illness that is causing them intolerable suffering, but is not killing them, without access to PAD. That is also likely unconstitutional.

For more information, please contact the law office of Aarbo Fuldauer LLP at:

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]

Olivier Fuldauer
Barrister & Solicitor
www.aflawyers.ca

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*