Critical euthanasia safeguard at risk

01 October 2019

The Canadian government chose not to appeal a court decision that struck down a key safeguard in the euthanasia/assisted suicide law. What now?

In September, a Quebec court struck down a key safeguard in the euthanasia/assisted suicide law. A B.C. court challenge of the same safeguard has been adjourned after a government witness reported that the law is flexible enough that it can be broadly interpreted by practitioners to provide MAID to people who are not terminally ill or near the end of life.

The federal law currently requires that, in order to be eligible for MAID, a person’s natural death must be “reasonably foreseeable.” Quebec’s Act Respecting End-of-Life Care also requires that a person be at the end of life in order to be eligible for euthanasia.

Quebec case

Jean Truchon and Nicole Gladu challenged both the federal and Quebec law restricting assisted death to those who are at the end of life or whose death is “reasonably foreseeable.” The September 11 decision by Justice Christine Baudouin of the Quebec Superior Court found the requirement to be unconstitutional, violating the equality provisions of the Charter.

Justice Baudouin’s decision is suspended and will not take effect for six months (March 2020). This gives the federal and provincial governments time to put alternative provisions in place. At the end of the six months, if the decision has not been appealed, a person in the province of Quebec will be eligible for MAID even if they are not near the end of life.

The federal and Quebec governments had one month from the date of the decision to appeal it to the Court of Appeal (a deadline of October 11), but they chose not to appeal. The EFC had asked the Attorney General of Canada to appeal the decision.

B.C. case

Julia Lamb, a 28-year-old B.C. resident with spinal muscular atrophy, and the BC Civil Liberties Association launched a challenge of the “reasonably foreseeable” requirement after federal MAID legislation was passed, in June 2016. Recently, however, a government expert who provides MAID, Dr. Madeline Li, filed a report to the court that described a scenario in which some doctors would find Lamb to be eligible for MAID.

As the report explained, Lamb would be at risk of a chest infection if she stopped using her nighttime ventilator, which might allow a doctor to consider her death “reasonably foreseeable.” Dr. Li’s report is quoted as stating, “The law as it stands contains enough flexibility in the interpretation of the end of life criteria that it is not a barrier for practitioners who are comfortable with expanding access.” Dr. Li’s report was not contested. The case has been adjourned.

The EFC had been granted co-intervener status with Christian Legal Fellowship in the Lamb case and had planned to argue for the sanctity of human life and the need to maintain the existing safeguards in order to protect vulnerable Canadians from harm.

This development is very concerning because it indicates that some medical practitioners are interpreting the “reasonably foreseeable” safeguard so broadly as to make it ineffective as a safeguard.

Why this safeguard matters

When the euthanasia/assisted suicide legislation was being debated, many argued that the legislation was intended to hasten the death of people who were dying and in pain, to bring about the death of someone who was already dying so that their suffering wouldn’t be prolonged.

Removing the requirement of natural death being “reasonably foreseeable” means that people with disabilities or chronic illness who are not dying or near the end of life may be considered eligible for euthanasia and assisted suicide.

People with disabilities already face significant hurdles in receiving adequate medical care and support. Many people with disabilities hear the message from society and from the medical community that their lives are not worth living.

There are many accounts of people with disabilities choosing death because they are not able to receive adequate medical care and support to live. And some people with disabilities are already facing unsolicited and unwanted offers to choose death.

It is essential that we affirm that the lives of people with disabilities or chronic illness have immense value and ensure the care and support they require for LIFE is available. One way we do that is to ask for the “reasonably foreseeable” safeguard to be defended in the courts.

Action steps:

  • Ask your local candidates if they will support Canadians with disabilities and advocate for the safeguard of a person’s death being “reasonably foreseeable” in order to be eligible for medical assistance in dying (MAID) to be upheld.
  • Contact Minister of Justice and Attorney General of Canada David Lametti. It's now too late to ask him to appeal the Quebec decision, but you can still express your concern at email: [email protected]. If you want to use the EFC’s sample letter (either .docx or .pdf), you will need to adapt it slightly since it was written before the appeal deadline. Also check out the letter the EFC actually sent as well.

Author: Beth Hiemstra, EFC Policy Analyst