Physician Assisted Suicide (PAS) in
Canada: the Carter v. Canada lawsuit
Part 14 of fourteen parts
Man in Ontario granted PAS.
Parliament passes a law to legalize PAS.
2017: Court clears up law's ambiguity.
2016-MAR: A terminally ill man in Toronto applied to the court for PAS (Continued):
His daughter had filed an affidavit saying that:
"It is crippling emotionally to see someone you love in so much pain, so much distress." 1
On MAR-17, a hearing was held in Ontario Superior Court. Justice Paul Perell granted to A.B. an exemption to the existing law so that he could obtain medical aid in dying (M.A.I.D.) Justice Perell said that the petitioner's condition and circumstances met the High Court's requirements for an exemption. He was bedridden, mentally competent, and in extreme pain, even though he has been receiving narcotics for control of pain. Justice Perell determined that the plaintiff had initiated his own request for assistance in dying without manipulation or pressure from others.
Superior Court Justice Perell said A.B.'s condition and circumstances met the criteria for such an exemption. He is:
- Mentally competent,
- In extreme pain, and
- Freely making the assisted-death request without coercion or manipulation from others.
His lawyer read A.B.'s personal statement after the judge issued his ruling, saying that the decision:
"... relieves me from the mental and physical pain, should I so choose. But what is really important is that it allows me to be in control of when and how my journey will end. This is a right of human dignity and I am thankful that I no longer have to live under a cloud of stigma and shame that I feel as I slowly and painfully lose control. ... My hope is that our government will see fit to make permanent changes in the law so that no other family will have to do this ever again. I believe firmly in the right to die with dignity and that it is a right that should be available to all Canadians to exercise according to their circumstances and beliefs." 1
After the decision, Emma Carver, one of A.B.'s lawyers, said on CBC's Metro Morning Friday radio program:
"I don't think there was a dry eye in the room. ... It was an amazing recount of his life. It almost felt like a eulogy as the judge started to talk about his circumstances. ... It was a very unique [sic] court case." 2
The next day, MAR-18, A.B. died with medical help. His family issued a remarkable statement, saying:
"Today, A.B., our dear husband, father and grandfather passed away in peace and dignity with the assistance of his caring physicians. It was his life and his choice and we support him in that choice unconditionally.
We are so thankful for the ongoing care, guidance and medical assistance from his enlightened and compassionate physicians, who like A.B., believed strongly that an individual deserves to be the author of their own journey's end when the pain is intolerable and there is no further hope for recovery.
We are grateful to our lawyers Andrew Faith and Emma Carver of Polley Faith LLP who helped us understand every nuance of this case and unwaveringly helped our treasured A.B. to stand up for his rights and articulate his reasoning to the courts.
Finally, we would also like to thank Superior Court Justice Paul Perell for listening so carefully to our story, applying the law and understanding the critical need for a speedy decision based on A.B.'s considerable and growing pain and suffering.
Seeing our beloved A.B. calm, peaceful and without stigma and shame at his life's end gives us the strength to weather our grief at his departure. In death, he has been restored to the strong, vibrant, and dignified man we knew before cancer and extraordinary pain brought him to his knees. Knowing that his wishes were carried out takes away the sting of his death. The courage he showed us at the end will dwell in our hearts forever and eventually allow the sun and the stars to shine bright enough on our family to mend the hole that is left because of his death.
We are so very proud that he used his last limited energy to fight for something he believed in so fundamentally: the right to decide when he was ready to pass and the right to have the assistance to do so with comfort and dignity. It was his most fervent hope that our government will take the steps necessary to ensure that all Canadians can gain this right — without having to battle in the courts — should they choose to exercise it according to their own circumstances and beliefs.
Our grandpa, dad, husband was a proud citizen of this country and believed Canada to be the best place in the world. In his memory, we will do everything we can to continue to make this a reality which includes making certain that the legislation to allow physician assisted death is enshrined –- quickly and permanently." 2
Earlier that month, in a separate petition, Justice Thomas McEwen heard arguments from lawyers representing A.B., to keep his identity, his family and his physicians secret. TV networks CBC, CTV, the Globe and Mail newspaper and Postmedia Network had asked that the they be allowed to identify his health care providers. Justice McEwen ruled against the media's request, say that:
"... the confidentiality order is necessary in order to ensure that the applicant, his family, physicians and other health-care professionals are not deterred from participating in a charter application for fear of unwanted publicity and media attention." 2
2016-JUN: Parliament passes a law to legalize PAS throughout Canada:
The Supreme Court of Canada had ruled during 2015-FEB that the section of the Criminal Code of Canada that prohibits medical aid in dying (a.k.a. physician assisted suicide) was unconstitutional. They instructed the federal government to modify the Code on or before 2016-JUN-06. Bill C-14 to amend the Code was passed by the House of Commons on 2016-MAY-31, with a vote of 186-137. Four Liberal Members of Parliament voted against the bill; 14 Conservative MPs voted for it; the NDP party opposed it unanimously.
It was a controversial bill for various reasons:
- Some opposition was -- and remains -- based on many persons' sincere religious belief that suicide is always immoral and that only God should decide when a person is to die.
- Others opposed the concept of medical aid in dying (MAID) because they feared that vulnerable people might be persuaded against their will to seek help to die. Others might believe that it was their duty to die to minimize the burden on others.
- There was concern over one phrase in the bill. It says that a person would only qualify for physician assisted suicide if their death is "reasonably foreseeable." That is a curious limitation. The plaintiff in Supreme Court case, Gloria Taylor, 63, was suffering from late-stage ALS -- a.k.a. Lou Gehrig's disease. It is a dreadful disease, particularly in its later stages, as muscle activity -- including that needed to swallow and to breathe -- degenerates. Once diagnosed with ALS, a person can expect to live only a few years of gradually increasing disability until they are finally die in a gruesome death of asphyxiation. At the time that the Supreme Court of Canada ruled in her case and granted her the right to obtain medical aid in dying, it was universally agreed that she was suffering a fatal disease. However, her life expectancy could not be predicted with any accuracy; she might suffer for many months or even a year or more. A person with the same illness in mid-2016 would probably not qualify for medical assistance in dying under the new wording of the Criminal Code.
MP Murray Rankin of the NDP, who voted against the bill, said that certain Canadians who are not able to take their own lives without assistance will be: "... condemned to intolerable suffering."
- The term "reasonably foreseeable" is ambiguous. A doctor might fear being charged with murder if they helped a patient to die and a prosecutor disagreed that the patients death could not be estimated accurately, and thus was not "reasonably foreseeable." 3
The bill passed to the Senate who debated the bill for two weeks and refused to accept it as written. They altered the bill with seven amendments. The main amendment would allow suffering persons to qualify for medical aid in dying (MAID) even if their death from natural causes was not imminent or foreseeable. They passed the amended bill by a vote of 64 to 12 with one abstention and sent it back to the House of Commons. 4
On 2016-JUN- 16, Health Minister Jane Philpott and Justice Minister Jody Wilson-Raybould announced that that the government would accept most of the amendments that the Senate approved for C-14. However, they did not support the Senate's main amendment. Wilson-Raybould said that Philpott:
"... and I are confident that the original language in Bill C-14 strikes the necessary and appropriate balance ... [between] personal autonomy and eligibility for medical assistance in dying with the necessary and fundamental protections that need to be in place to protect vulnerable people."
Bill C-14 was sent back to the Senate for final approval. It would allow assisted dying only for consenting adults who are:
"... in an advanced stage of irreversible decline [from a serious and] incurable [disease, illness or disability and for whom natural death is] reasonably foreseeable."
On 2016-JUN-17, the Senate accepted the amended version by a vote of 44 to 28. 5
Senator Andre Pratte, Independent, said:
"I am convinced the government is making a serious and cruel mistake by taking away the right to medically assisted dying from a group of patients, those who are not terminally ill and yet suffering terribly. But the government will answer to the people for that error and hopefully in the not too distant future the courts will remedy that mistake ... I believe we have worked well and done all that we could to warn the government of its error."
Joan Bryden, writing for the Canadian Press, said:
"Some other senators, who are morally opposed to assisted dying and would have preferred an even more restrictive law, also voted for the bill in the belief that a law governing assisted death is better than no law at all."
C-14 was signed into law within two hours of its passage by the Senate. 5 They missed the JUN-06 deadline set by the Supreme Court of Canada by 11 days.
The Canadian Medical Association, which has strongly supported C-14, said it was:
"... pleased that historic federal legislation on medical aid in dying is now in place." 5
Webmaster's personal opinion: (bias alert):
I am 80 years of age with a life expectancy of about 8 years. I am one of the lucky octogenarians, in that my mental and physical abilities have not declined much. But I can foresee a significant decrease in the future, which will lower my quality of life. When I reach zero quality of life and begin to go negative, I can imagine a situation in which I would like to end my life but may lack the mental and/or physical ability to perform the task myself. I might wish to obtain medical aid in dying at a time when my death from natural causes would not be "reasonably foreseeable." Bill C-14 was thus a major disappointment to me.
2017-JUN: Ontario court issues ruling to clarify the ambiguity in the PAS law:
An unidentified Ontario woman, "AB," age 77, is suffering from chronic osteoarthritis which she finds intolerable. She requested medical aid in dying from two physicians who both assessed her as eligible for assistance under Bill C-14. However, the physician who was going to give her that help in dying refused to proceed. The problem was over the interpretation of the law's phrase: "natural death must be reasonably foreseeable." It might take years for her body to finally collapse and cause death. It is quite conceivable that a prosecutor could conclude that the woman had many years before a natural death, and charge the physician with murder.
AB filed a case with the Ontario Superior Court of Justice.
Paul M. Perell Associate Chief Justice of the court issued his ruling. He concluded that the doctor's:
"... abundance of caution and apprehensive misunderstanding"
of Bill C-14 was the issue causing the conflict. He ruled that to be reasonably foreseeable, the person’s natural death doesn’t have be imminent or within a specific time frame, or be the result of a terminal condition. He wrote that the legislation is intended to apply to a person who is:
"... on a trajectory toward death because he or she a) has a serious and incurable illness, disease or disability; b) is in an advanced state of irreversible decline in capability; and c) is enduring physical or psychological suffering that is intolerable and that cannot be relieved under conditions that they consider acceptable."
[This case case clearly qualifies as she is an] ... almost 80-year-old woman in an advanced stated of incurable, irreversible, worsening illness with excruciating pain and no quality of life. ..."
"All the court can do in the circumstances of the immediate case is to clarify what Parliament meant in [C-14] so the Physician-1 and other physicians have no misunderstanding about how to comply with the legislation. There is no floodgates concern because the court need do this only once for whatever benefit it may provide to AB and others."
Shanaaz Gokool, the CEO of the Canadian non-profit "Dying with Dignity" believes that the law does not assign a specific time-frame like six months or a year. She said:
"The government has said repeatedly you don’t have to have to be terminally ill, you don’t have to have a time frame, the prognosis that you have doesn’t have to be what leads to your natural death.
We have found an inconsistent application when it comes to the eligibility criteria . . . and I think this decision will go a long way to extinguish that sort of myth." 6
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- "1st doctor-assisted death in Ontario granted to terminally ill Toronto man," CBC News, 2016-MAR-17, at: http://www.cbc.ca/
- "Toronto man who was granted right to doctor-assisted death has died," CBC News, 2016-MAR-18, at: http://www.cbc.ca/
- Paul McLeod, "House Of Commons Passes The Assisted Suicide Bill But It Could Come Back," BuzzFeed News, 2016-MAY-31, at: https://www.buzzfeed.com/
- Joan Bryden, "Assisted dying bill: Senate sends C-14 back to House with 7 amendments," CBC News, 2016-JUN-16, at: http://www.cbc.ca/
- Joan Bryden, "Assisted dying Bill C-14 now law," Global News, 2016-JUN-17, at: http://globalnews.ca/
- Alyshah Hasham, "Advocates hail judge’s decision in woman’s assisted death appeal," Our Windsor, 2017-JUN-19, at: https://www.ourwindsor.ca/
Copyright © 2016 & 2017, by Ontario Consultants on Religious Tolerance
Original posting: 2016-MAR-04
Latest update: 2017-JUN-22
Author: B.A. Robinson