Assisted dying laws are 'paternalistic and patronizing,' academic says
CTVNews.ca Staff with a report from CTV's Montreal Bureau Chief Genevieve Beauchemin
Published Monday, January 7, 2019 3:46PM EST
Last Updated Tuesday, January 8, 2019 10:02AM EST
Two Quebecers suffering from incurable degenerative illnesses appeared before a packed courtroom in Montreal on Monday to challenge federal and provincial medically assisted dying laws, arguing that the laws are too restrictive because they allow only those whose deaths are “reasonably foreseeable” to qualify irrespective of how much they are suffering.
Nicole Gladu suffers from post-polio syndrome, an incurable disease with symptoms including respiratory muscle weakness, joint degeneration, muscle atrophy and skeletal deformities.
Jean Truchon, the other plaintiff, has cerebral palsy. Both say their suffering is so unbearable that they wish to seek a medically assisted death in order to end their lives on their own terms.
But under the federal government’s medical assistance in dying legislation, only those adults with a “grievous and irremediable medical condition” in an advanced state of irreversible decline and whose natural deaths are “reasonably foreseeable” are eligible. The Quebec law also requires that applicants be “at the end of life.”
Since neither Gladu nor Truchon are near the end of their lives, their requests for a medically assisted death were declined.
Jean-Pierre Menard, the lawyer representing Gladu and Truchon, is expected to argue in court that the narrow scope of the law infringes upon their Charter-protected rights to life and security, as well as to equality.
“They have fought all their lives to be treated equally with others,” Menard said in court, according to The Canadian Press. “These people are at the twilight of their lives, and they continue to have to fight to have an end brought to their suffering.”
The plaintiffs are also arguing that when the Supreme Court struck down laws against medically assisted death, it spoke of suffering, but made no mention of death needing to be foreseeable.
Jocelyn Downie, the James Palmer chair in public policy and law at Dalhousie University, agreed with the plaintiff’s assertion that suffering should be a consideration in medically assisted death.
“The criteria should be about suffering and autonomy,” she told CTV’s Your Morning.
“It has to be about your capacity for self-determination. So if you’re capable of making the decision and your experiencing and enduring intolerable suffering you should be allowed access assisted dying.”
She argued that the current laws are paternalistic and patronizing.
“If the court says the Government got it wrong and that the legislation violates the Charter, then the judge will strike the provisions that are unconstitutional and then they’ll just be gone for everybody across the country,” Downie said.
“What will then happen is we’ll have appeals. I don’t doubt that the Government would then appeal to the Court of Appeal and then to the Supreme Court of Canada.”
She said the court’s decision is ‘extraordinarily important’.
Government lawyers are expected to argue in the 33-days-long hearing that expanding the definition of who is eligible for a medically assisted death could harm vulnerable people, compromise suicide prevention efforts and devalue the lives of those who are ill or who have a disability by sending a message that their lives are not worth living.
Gordon Friesen, who uses a wheelchair, was in court in Montreal on Monday to watch the case unfold. He believes that changing the legislation would leave many Canadians vulnerable.
“Since the end of the Second World War, nobody has dared to bring up the idea (that) a sick man’s life isn’t worth as much as another man’s, but now, they are doing it again,” he told CTV National News.
Since the Supreme Court declared a ban on medically assisted dying as unconstitutional in 2015, more than 3,700 Canadians have received one.
But the law is not without critics who believe its scope is too narrow.
Just last year, Audrey Parker, a Nova Scotia woman suffering from stage four breast cancer, argued that the law did not allow her to end her life with dignity and on her own terms because it requires patients to be lucid enough to consent to it at both the time the request for medically assisted dying is made and in the immediate moments before the fatal injection is administered. She worried that her mental faculties would degenerate before then, leaving her no choice, she argued, but to die weeks before she wanted to.
In December 2018, a panel of experts tabled a report in Parliament at the request of the federal government on expanding the medically assisted dying law. It studied the cases of minors, patients with mental illness or severe dementia and those who, like Parker, wish to make an advance, written request for a medically assisted death before they lose the capacity to consent.
The report, prepared by the Council of Canadian Academies, a non-profit, provided only a summary of the research on the three cases, but did not make any specific recommendations on how or whether Canada should modify its legislation.
Federal Justice Minister Jody Wilson-Raybould said in the wake of Parker’s case that she would not be amending the federal medically assisted dying legislation.
The court’s decision is expected six months after the hearing.
With files from The Canadian Press