State of Affairs: Canada's Medical Aid in Dying Legislation

I have explained on this blog (just see the entry below) how Canada's Liberal government's draft legislation aims to deprive Canadians who are not terminally ill, but who are eligible for medical aid in dying, of their Charter rights. A fairly large number of constitutional law experts, including the lead counsel in the Carter case that led to the Supreme Court judgment, warned the federal government that its legislation would be contested in the courts and would eventually be thrown out by the Supreme Court. Government apparently thought it could thumb its nose at the judgement by redefining clear Supreme Court of Canada criteria and pretending that black is kinda white. Since then two Canadian courts have heard cases where competent patients who are not terminally ill appealed to receive medical aid in dying. Government lawyers in both cases were sent packing and told in no uncertain terms that their insistence on the eligibility standards expressed in the draft legislation is unacceptable because these standards are unconstitutional

Yesterday the Canadian Senate weighed in and removed the terminal illness threshold the Liberals were so keen on, precisely because the majority of Senators realised that the legislation proposed by the federal government is unconstitutional. Our Justice Minister meanwhile insists that her (unconstitutional) 'balance' is just right, and waffles a bit about not further defined 'vulnerable' people that would be best 'protected' if her government's proposed restrictive regime was passed by the Senate. It's only mildly amusing that she deploys the same vacuous rhetoric here that the previous Conservative government deployed.

The question is why the Liberals would engage in that sort of thing. There are persistent rumours that there are a fairly large number of religious conservatives in the Liberal caucus who care more about their religious beliefs then about Canadians' constitutional rights. This in turn forced the Trudeau government to try to legislate hard-right on this issue, to the dismay of virtually every relevant legal expert in the country. What does surprise is that these folks seem to think that their personal beliefs somehow trump their obligation to legislate in line with our Charter of Rights and Freedoms and in line with the criteria the Supreme Court spelled out.

Liberal Government ignores Supreme Court's eligibility criteria on assisted dying

Canada's Liberal government introduced its legislation on assisted dying in parliament. There's a lot to talk about there, but let me focus on the government's most brazen ignoring of the eligibility criteria the Court has established.

Here's the legislative draft proposal

A person has a grievous and irremediable medical condition if

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Compare that to the Supreme Court's criteria:

'‘competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.'

I'm sure even lay persons appreciate that 'd' in the legislative draft is simply too restrictive, given the criteria the Court has set. Terminal illness is not a defensible threshold condition for access. Patients do not have to be in an advanced state of irreversible decline in capability either. Excluding not terminally ill patients from access who meet the above mentioned Supreme Court criteria would clearly violate Canadians' Charter rights. Apparently that is of no concern to our government.

To cut a long story short, if this becomes law, a Charter challenge will occur sooner rather than later, and the matter will be fixed in the Court. It is shocking that a Liberal government would continue the Harper government's tradition of trying to subvert Supreme Court decisions.

Ted Hsu not standing for re-election in Kingston and the Islands riding

Ted Hsu, Liberal MP for Kingston and the Islands declared today that he won't be seeking re-election. In characteristic honesty he explained in his farewell note that it's just too much work to represent our riding in federal parliament. He'll stick around for the remainder of this parliament probably while he's looking for a new job.

I've made no secret out of my strong opposition to Hsu. This guy was never a liberal to begin with. So, I am glad to see soon the back of him. Other than a bizarre pro-life foray in federal parliament, his other claim to fame was to defend science against the Conservative's onslaught. He deserves credit for the latter.

Hsu bet on every candidate other than Trudeau in the federal leadership race. Call him principled or incompetent, as far as his political judgment is concerned, Hsu must have realized that he wouldn't be finding himself in any position of actual influence in the likely up-coming Trudeau administration. Worse, Trudeau made clear that he doesn't want pro-life activists in his caucus. There wasn't really anywhere to go for Ted Hsu. He succeeded remarkably well in terms of isolating himself in the federal Liberal Party and its parliamentary caucus.

Personally I hope Hsu will move to his actual political home, the Green Party of Canada. It's run by fellow Christian Elizabeth May. She is also known to lack political judgment and so engages in political support for racist, homophobic, misogynist sects like Falun Gong.

After Sophie Kiwala's selection for our provincial government I hold little hope that the local Liberal riding association will be able to find a competitive replacement for Mr Hsu, but apparently that doesn't quite matter. Kingston seems to elect whoever the Liberals decide to put up. Interesting times ahead.

Quebec Liberals Sabotage Assisted Dying Legislation

This week's column in the Kingston Whig-Standard.

KINGSTON - What a week this has been.

With cross-party support in Quebec’s National Assembly, the legislature was scheduled to pass Canada’s first legislation aimed at permitting assisted dying. The bill as it stood would have permitted assisted dying in very carefully circumscribed circumstances. To be eligible, patients must suffer from an incurable illness and be in an advanced stage of irreversible decline, there must be no prospect of an improvement of their condition, they must also suffer from constant and unbearable physical or psychological pain, and they must be legally competent when they ask for assistance. Oh, and, given that a large majority of Canadians support such legislation, they also added the proviso that you would have to be insured in Quebec, presumably to prevent us folks living in provinces run by church-controlled parliamentarians from driving over to Quebec when we have decided that our time has come.

No doubt, Mr. Harper’s attorney general stood at the ready; he would have taken this legislation to the Supreme Court of Canada. After all, while health care is a provincial matter, there’s also the federal Code criminalizing assisted dying. Quebec’s legislators in Bill 52 asserted loud and clear their authority over matters health care. Quebec’s attorney general would have been ordered to cease prosecuting health-care professionals who assist Quebecers in their dying, provided they adhered to the criteria laid out in the legislation. Mr. Harper’s government, having so far thrown not too much meat in the direction of the Conservatives’ evangelical voter base, would not have let this opportunity pass to represent the religious right’s interests in this matter.

Would have been, could have?

It didn’t happen, courtesy of Quebec’s Liberal party. Before I get to that, though, let’s take a step back and look briefly at the history of Quebec’s cross-party effort aimed at passing legislation that permits assisted dying in the province. Support for such legislation among Quebecers runs these days above 80%, so this particular legislative effort did not take a lot of political guts to put into motion. It all began with the province’s former Liberal premier Jean Charest installing a Committee on Dying with Dignity. After his defeat at the hands of the PQ, this cross-party supported initiative continued under the leadership of the PQ. Eventually Bill 52 was produced, again with support of all factions in the National Assembly. It took no less than four years of public hearings, expert testimony and parliamentary debate. In the end, the document produced was very much in sync with what you can describe as best European practice on this matter. That said, if you’re opposed for religious reasons to assisted dying, you won’t like it, no matter what. If you belong to the majority of Canadians who want such legislation to come about, the safeguards put in place to prevent abuse of the vulnerable would likely have swayed you to support this bill.

The last reading of this bill in the National Assembly this week was expected by most observers to be a mere formality. After all, the Liberals in the province started it all, the PQ continued the process. How often do these two parties, in Quebec of all places, agree on anything of substance?

Much to the horror of the Liberals in the National Assembly, the PQ currently enjoys an all-time high in opinion poll after opinion poll. They are well on course to form a majority government if an election were held today. The Liberals? Well, not so much.

There must have been some hope among Liberal party strategists that the budget the PQ planned to introduce would have permitted the Liberals to inflict some damage on the province’s governing party. They wanted to ensure the document could be properly debated after the two-week recess the National Assembly began at the close of business on Thursday. So they tried hard to drag out the debate on Bill 52 to prevent the PQ from introducing the budget this week.

The PQ, on the other hand, seems determined to call an election during the recess. Of course, the Liberals aren’t terribly keen on an election campaign in Quebec at this point in time. Their current leader, Philippe Couillard, is proving to be a vote destroyer not dissimilar to what Michael Ignatieff and Stephane Dion were for the federal Liberals. And now Couillard added another nail in the coffin of Quebec’s Liberal party. By means of procedural shenanigans, he prevented a vote on Bill 52. He claims, disingenuously, that there just wasn’t enough time to debate this bill properly. Unlike the PQ and the two other smaller parties in the National Assembly, the Coalition Avenir Quebec and Quebec Solidaire, the Liberals were not willing to stay long enough to permit a vote on Bill 52. As a result, Bill 52 died on the order table.

Remarkably, Couillard was quick to declare that if the Liberals form the next Quebec government, they would reintroduce Bill 52 unchanged. Now, you got to ask yourself three questions here: First, as the PQ’s Stephane Bedard pointed out, what exactly do the Liberals think hasn’t been discussed during the last four years of hearings and deliberations? Second, why would the Liberals, in the unlikely event that they form the next provincial government, introduce exactly the same bill that they could not support this last week? Surely they must have issues with the bill that worry them. Finally, if they don’t have serious problems with Bill 52, why didn’t they permit a vote on it?

It is pretty clear that the Liberals in Quebec sacrificed Bill 52 for purely election strategic reasons. Given the popularity of the bill in Quebec, let me predict that the PQ will hammer them in their election campaign also on this issue. It’s going to be a vote winner for them.

Udo Schuklenk holds the Ontario Research Chair in Bioethics and Public Policy at Queen’s University, between 2009 an 2011 he chaired an international expert panel drafting a report on end-of-life issues in Canada on behalf of the Royal Society of Canada. He tweets @schuklenk.

Oh well, democracy first-past-the-post style

Canada's progressive parties (ie the Greens, Liberals and the NDP) owe the progressive majority in Canada a very big apology. They (together with the country's electoral system) are primarily to blame for the fact that a 39% share of the vote translated into a majority conservative government. It's a silly system where such a minority of the vote (a significant minority of the vote against a 58% share on the progressive side of things) can attain majority power. I for one hope that the NDP and Liberals will stop slaughtering each other, get their heads together and create a social-liberal party along European lines to stand against the conservative minority in the country that otherwise will keep on running this place in perpetuity.

Part of the Liberal Party of Canada's problem is that it is not so clear any longer what it is that it stands for, ideologically. The liberal matters (privacy, abortion, gay rights, name it) have by and large been decided in Canada in support of liberal core values. It's not clear what else the party would have to offer to its electorate unless the conservatives decide to undermine those rights. Incidentally, how little the party has left in terms of ideological conviction is best displayed by the election of its Kingston and the Islands candidate, Ted Hsu. Hsu, a self-proclaimed pro-lifer, ran on a platform that was decidedly incoherent. He droned on about liking the Cuban health care system yet wanted to contract out government services. His campaign within the Liberal Party's for selection for the local candidacy for parliament was - in my judgment - decidedly homophobic in its implicit attacks on the only openly gay candidate who was also competing in that race. All of this - these days - is fair game in the so-called Liberal Party of Canada. You might want to study Hsu's supporters attacks on me on this blog. They truly speak volumes. It is no big surprise then, to my mind, that the Liberal Party of Canada has been reduced to what it is today. Political liberalism would show itself to be decidedly intolerant toward such behaviours and views. Hsu, by the way, won the local race. His main competitor on the conservative side of things was a candidate whose main claim to fame was that she doesn't like paying taxes. The choices the local ridings were given by the two mainstream parties (well, as far as the Liberals are concerned, formerly mainstream) were painful to watch in action.

One of the few bright sights in this election was that of the Green Party leader Elisabeth May getting elected to a seat - incidentally unseating a conservative government minister. Having been a Green politician in another life I am naturally thrilled that she made it, alas even the Green contribution to the vote splitting will undoubtedly have helped the conservatives attaining majority power.

Well, there we go, alea iacta est...

Anonymous vouching and such stuff

Some time ago I attacked Ted Hsu on this blog. Ted Hsu, whatever one might think of him, deserves credit for at least saying what he believes in, even if that does not win him votes, and even if - in the eyes of this commentator - his stances on important issues do not add up. I respect people I disagree with, as long as they have thought about what they believe in, and as long as they put their names to their views.

Bizarrely, yesterday a friend or acquaintance of Mr Hsu told me (in a response to the same blog entry) both how much of a person of integrity Mr Hsu is (I have no reason to doubt his integrity and have never suggested otherwise) and that he's progressive (I have serious reason to doubt that, but then, I suspect what's progressive these days is very much in the eyes of the beholder). Mr Hsu's friend or acquaintance also kind of vouched for Mr Hsu, he or she gave a character witness. Nothing at all is wrong with  this. Where the witness giving turned bizarre was when the friend of acquaintance decided to attack me anonymously. When questioned the rationale given was that he or she always uses his or her pseudonym on the internet. Obviously, if you were to use the pseudonym Don Quixote on the web and you decided to give witness on your friend, you do make a fool of yourself. Why should anyone care about an anonymous writer vouching for someone else about whom we actually know more than about the writer who busies him- or herself vouching?

At least this is something I won't hold against Mr Hsu. You cannot control your friends and acquaintances who decide to praise you anonymously.

For what it's worth, the Liberal Party riding association chose Mr Hsu as its candidate for parliament in the next federal elections. Congratulations are due to Mr Hsu. He fought a bitterly contested campaign well, and he won (no doubt the other pro-life candidate's second preference votes would have flown to him, because he failed to win outright in the first round). Nonetheless, a win is a win is a win! Good on him!

I have supported Bill Flanagan, who lost narrowly to Mr Hsu. Let me predict then that our riding will fall to the conservatives (whose pro-life candidate offers a more coherent conservative package than Mr Hsu) in the next election as a result of this decision of the local Liberal party's membership. But hey, that's what democracy is all about.

Ted Hsu - Liberal Pro-Life Pro-Choice Candidate

There is an interesting race going on in the Liberal riding of Kingston and the Islands. The current member of parliament, Peter Miliken, has decided to step down. Unsurprisingly - we're not in North Korea after all - there's a bunch of candidates gearing up to become the next official Liberal party candidate for parliament.

Five people - sadly all guys - are on the ticket. It's been all a quite Canadian  affair - as in polite, not to say sedate - so far. That is until one of the candidates, Ted Hsu (a Princeton trained physicist) decided to go on the attack. Hsu is an interesting chap. I went to the first all-candidates event the Liberals organised. Being a bioethics professor, I worked for the last year or so fairly intensely on a Royal Society report on end-of-life decision-making in Canada. I asked Hsu where he stands on the matter of decriminalising assisted dying in some form or shape. Anywhere between 60-75% of Canadians (more than 80% in Quebec) support such a policy change. To my surprise Hsu prevaricated and went on to say that he would have to be very very certain that that would have to be a good idea. That his electorate overwhelmingly supports such a policy change was of little consequence to him. The language of 'very very certain', of course, makes no sense. Either you're certain or you're not. There is no such a thing as 'very very certain'. I became suspicious that Hsu might actually be a closeted pro-lifer. I disagree but respect folks holding such views. However, I am skeptical as to whether the Liberal party is really their natural home. Hsu put his foot in his mouth during the event on some other issues. For instance, he praised Cuba's health care system and suggested that we'd learn from it, while he busily suggested the outsourcing of government services. Doesn't really gel, or does it?

Well, Hsu's public stance on the pro-life issue doesn't exactly gel either. During the second all-candidates' event, when pressed, he acknowledged to be a pro-lifer. Some of my feminist colleagues have suggested that pro-life is a euphemism hiding what really amounts to an anti-choice and anti-freedom ideology. Good on Hsu for being honest on this sensitive issue though. Obviously the question then remains how that hangs together with his professed liberalism. Well, in a youtube attack video going after one of his competitors, Bill Flanagan, Hsu comes out both as pro-life and pro-choice. - Think having your cake and eating it... - He explains that he supports women's legal right to choose, and that he would not curtail the use of Canadian tax monies to support developing world health services that support abortions. Of course, being pro-life - by definition - means to subscribe to the view that abortion is akin to murder.  You know, your baseline as a pro-lifer is the idea that fetal cell accumulations should be treated as if they were persons (as Catholics want us to see it). So, here we have a professed pro-lifer who subscribes to the view that tax monies should be used to support what pro-lifers considers akin to murder.

Mr Hsu, this stance of yours doesn't gel. It's comparable to saying that you're against nuclear power, that's it's a bit like a crime against humanity (pro-life ideologues are wont to comparing abortion to the Holocaust, mass murder, genocide and other such niceties), but that you won't switch off any existing legally operating power plant. I wonder how you would deal, if you ever got elected, with proposed legislation designed to decriminalise assisted dying? Your very very certain is clearly just a cover for saying 'never'. I for one am not looking forward to any conscience vote you might be able to cast should you ever get elected, Mr Hsu. I'm glad to note that at least you wouldn't touch existing legal reproductive rights of women, even though you subscribe to ideological views that consider those exercising such rights as murderers. I have got to say, this is about as plausible as celebrating Cuba's health system and wanting to outsource government services.

What's next Mr Hsu?