Do we need a delay on the implementation of assisted dying in Canada?

There's movement on the assisted dying frontiers. Yesterday representatives of religious organisations held a press conference declaring that they are opposed to assisted dying and that we ought to strive to improve palliative care. As far as I can see they are not insisting any longer - democracy be damned - that assisted dying must not come to Canada, no matter what. The reason for this, presumably, has also to do with the fact that their own followers are in favor of the decriminalization of assisted dying. Other than that, they stated the obvious, it's a good idea to improve the state of palliative care in the country. It's not an either-or type situation, of course. We can have assisted dying and improved palliative care!

We also had a federal election that turfed out Stephen Harper and his merry band of evangelical government ministers. After the Supreme Court judgement declaring the bits of our criminal code that criminalize assisted dying unconstitutional - government was given 12 months to change relevant legislation - Mr Harper did nothing to implement the ruling. Eventually, in the dying days of his government, and seeing the writing on the wall for a return to power, he quickly installed fellow anti-choice activists as a federal panel to advise his government on the implementation of the Supreme Court ruling. His political calculus with regard to this panel might well be paying off. Its chairperson was yesterday on the CBC's Power and Politics and announced that he thinks his panel is still appointed to report to government, alas, the government that appointed him doesn't actually exist any longer by the time it plans to release its recommendations. Because it's also so very partisan in terms of its membership, it's unclear why anyone would want to take its views as anything other than the utterances of people who supported the Harper government's efforts during the Supreme Court hearings. They worked tirelessly to prevent Canadians from exercising their constitutional rights. Well, that's true for two of the three panelists.

Comes Justin Trudeau, our Prime Minister elect. He will ask the Supreme Court to give him another 6 months to implement the ruling. Initially I thought that that was not unreasonable, but then I wondered. The delay is supposedly needed for his government to decide on how to regulate the matter. The question is whether that is actually needed. The Supreme Court declared parts of the criminal code invalid. Health care is a provincial matter. The provinces and territories have established a task force aimed at advising them on how to implement the Supreme Court judgment. Quebec's legislation is already in place. Once the other provinces have put their legislation and regulations in place, there does not seem any need for federal regulations.

So, why wait?

Canada's provinces and territories establish expert group to advise on assisted dying

You might recall that the Canadian federal government established an external panel to advise it on legislative options on assisted dying. Telling the Supreme Court of Canada what he really thinks of it, Harper then stacked the panel with anti-choice activists.

Quite clearly Canada's provinces were unwilling to let that charade continue without doing something about it. Today, in a very welcome development, they announced a joint expert panel advising the provinces on how to respond to the Supreme Court judgment. It is a much larger panel consisting of experts with a wide variety of competencies, including nursing, medicine, law and ethics, and comprising of experts from across Canada.

I am certainly looking forward to the results this panel will produce.

Assisted Dying coming to Canada

What a week this past week has been. While I was away on a business trip to Europe the Supreme Court of Canada (SCC) let it be known that it would release on Friday this week its decision on the so-called Carter case, that is, it would pronounce on the constitutionality of the bits and pieces in our Criminal Code that criminalise assisted dying.

Unless you have lived under a rock during these last few years you will know that I spent a significant amount of my time arguing in favour of the decriminalisation of assisted dying in the country, no least in a report of an expert panel the Royal Society of Canada asked me to chair, on end-of-life decision-making in Canada. In addition I wrote a large number of newspaper columns on the issue and gave oodles of TV interviews and what-not to advance that cause.

So, there I was holed up in hotel rooms in Brussels and Geneva trying to respond to media inquiries. Fearlessly I predicted that the court would come to a unanimous decision and that it would decriminalise assisted dying. I couldn't see, given what we know from jurisdictions that have decriminalised, that the Justices would fall for the slippery-slope clap-trap rolled out by religious opponents of assisted dying, and, of course, their biggest ally, the current Attorney General of this country. I also couldn't see that the Justices would wilfully ignore consistent opinion polls suggesting that overwhelming (I mean: more than 80%) majorities of Canadians are in favour of a change toward making assisted dying available.

It turns out, I was right. The SCC came down with this unanimous decision, defining thus who would be able to receive assistance in dying: a '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.'

This is pretty much what we recommended in our report. What I find particularly important about these criteria is that the Justices rejected a threshold requiring that patients must be in a terminal condition, or near the end of life. The current legislation, on this count, in Quebec, will have to be re-written. At the last minute opponents of Quebec's legislation added this threshold, and, thanks to the SCC decision, it will have to be taken out of Quebec's legislation again as it would unjustly deprive people of access to assisted dying who are not close to the end of their lives.

I think, among the important lessons to be learned from all this, is this one: Opponents of assisted dying should reconsider their campaign strategies. They decided that telling anecdotes from jurisdictions that have decriminalised, making up a lot of stuff about things that allegedly happened in such jurisdictions and telling half-truths about what allegedly happened in jurisdictions that have decriminalized worked in their religious echo chamber of pro-life websites, as well as with allied newspaper columnists like the National Post's Barbara Kay and the Toronto Star's Rosie DiManno, and so it would probably work with Supreme Court Justices, too. Turns out, Supreme Court Justices are a bit smarter than DiManno and Kay, who have shown themselves clueless about the issue at hand throughout their years of campaigning in their newspaper columns against assisted dying. The judges looked at the actual evidence and 'rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide.'

The other vacuous agitprop campaign tool deployed by this camp was their ever-growing concern for 'the vulnerable'. Given that they didn't want assisted dying available to anyone, they were careful never to define 'vulnerable'. Turns out, they and their government ally, the Attorney General, really meant everyone. Vulnerability ceases then to be a useful threshold criterion for anything. The Attorney General eventually said, on the Court record, that 'every person is potentially vulnerable.' The Supreme Court called curtains on this rhetoric, too. It states point blank, 'We do not agree.' - 

Aggressive lying and fudging of the issues apparently takes you only that far when it comes to Canada's Supreme Court Justices.

I wonder whether one analysis in the judgment (paragraphs 64-66) could be interpreted as rejecting the Catholic acts and omissions doctrine. Check that one out yourself. Worth a read.

Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation

An exciting day yesterday. I listened all day via live audio-video link to the Supreme Court of Canada hearing on the Charter challenge to Canada's criminalisation of assisted dying. Commentators in the national media are broadly in agreement that the Attorney General of Canada made a hash of it, and that the judges' questioning a least appeared hostile to the government's defense of the status quo. I share that view, being not a lawyer and all. I was pleased to see that the Royal Society of Canada Report I had a hand in producing got a mention in various presentations. One of my colleagues on the expert panel, Jocelyn Downie, live tweeted the event from the SCC. I looked at the list of interveners in the case. There's a whole bunch of them, virtually all of whom are Christian activist groups, some more fundamentalist than others. Their presentations were by and large predictable. There was much hand-wringing about threats to vulnerable disabled people. We know today from jurisdictions that have decriminalised that these threats are entirely imaginary. We also know that these hand-wringers cannot even claim to represent the majority of disabled people in this matter. I wonder how genuine these arguments really are. I suspect they are a last ditch attempt at keeping the SCC from declaring the part of the Criminal Code that criminalises assisted dying unconstitutional. The God folks also served other arguments such as the sanctity-of-life argument. One judge asked a youngish evangelical lawyer what this would imply for a possible future introduction of the death penalty into Canada's legal system. Being a conservative the lawyer couldn't quite bring himself to say that the death penalty would also be wrong. Then there was a lawyer representing groups called the Faith and Freedom Alliance and the Protection of Conscience Project. He didn't address the actual challenge but asked that the Court direct parliament to ensure that health care professionals would not be forced to assist in dying if they had conscientious objections. That, of course, is the case already today in matters such as abortion. However, this lawyer wanted to extend conscience based protections. Today health care professionals are legally required to pass the help-seeking patient on to a health care professional willing to provide the requested service. The lawyer wanted to strike out such an obligation. I am not a fan of conscientious objection rights anyway, so I hope the Court will ignore this. - So, all in all, a nice day of theatre on the stage of the SCC. I remain hopeful that we will soon learn that the criminalisation of assisted dying is unconstitutional in Canada. Fingers crossed, with a hopefully upcoming change in federal government, this could actually result in progressive Canadian legislation on this going forward.