Colby Cosh: Our ever-evolving MAID laws

Whether you like MAID 2.0, I think I can dimly discern MAID 3.0 down the road, not too far off

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The Liberal government introduced its latest version of medically assisted death legislation this week. It’s an interesting example of the “dialogue” between the courts and Parliament that is often said to be a feature of our state. The first iteration of the law was passed in 2016 in response to the Supreme Court of Canada’s (SCC) Carter decision the previous year.

In Carter, the SCC had more or less established a right to dispose of one’s life with a physician’s help. When the government cobbled together its first medical assistance in dying (MAID) scheme, the new bits of the Criminal Code contained a requirement that the death of the patient be “reasonably foreseeable,” making euthanasia available only to persons in the late stages of a well-understood terminal condition.

If we think of the good old judiciary-legislature dialogue as a tennis match, this was immediately and widely identified as a fat, juicy lob over the net. Last fall a Quebec court smashed the ball back.

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The Carter ruling had not mapped out an entire legislative scheme for MAID — why, that’s the job of legislators, don’t you know. But according to the principles outlined in Carter, there was no obvious justification for denying MAID to people with diseases that may worsen with age, but have an uncertain mortality outcome. One of the Quebec petitioners had cerebral palsy; the other, post-polio syndrome. Both were losing autonomy as advancing age interacted with lifelong disorders.

The Liberal MAID law 1.0 was preventing some disabled people from exercising what had been agreed to be a right — and was doing it on the grounds that the duration of their suffering was unpredictable. Framed that way, MAID 1.0 appeared not only unconstitutional, but cruel.

But, psst, the Canadian public is not really in favour of complete, unfettered, immediate access to MAID; and so the problem for the government was to design a bill that gives the appearance of prohibiting a precipitous mass scramble for the final exit.

Bill C-7, as the self-summary incorporated at its head explains, repeals the earlier provision that “requires a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying.” But! That phraseology about a “reasonable foreseeable” death plays a larger role in the new law than ever.

C-7 still divides Canadians seeking euthanasia into reasonably foreseeables (RFs) and others. The government’s backgrounder explains that the procedural safeguards for the RFs have been “maintained and eased,” although I am not sure that makes any sense. These patients must get doctors and an “independent witness” to sign off on their MAID request, but they no longer face a lower limit on the time between their application and their assisted demise, and they can consent in advance to MAID and waive the requirement that they give the green light, at the last moment, to death.

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For non-RFs like the petitioners in Truchon, the 2019 Quebec court case that precipitated this new bill, C-7 offers “new and strengthened safeguards,” although these are people who were completely ineligible for MAID under the old law, so that’s babble, too. They have to jump through more or less the same hoops as the RFs, but there’s a heavier requirement for them to be informed of their various treatment options, and they face a 90-day minimum wait unless “the loss of the person’s capacity to provide consent … is imminent.” Since that seems a bit like a description of a person who jumped suddenly to the RF category, the 90-day wait is bound to be almost universal in the non-RF situations.

The Truchon ruling was tough on MAID 1.0 precisely because it effectively made unjustifiable distinctions between the seriously disabled and others. So it remains to be seen whether the courts will accept the validity of this less absolute distinction between the RFs and the non-RFs. The government passed up the chance to appeal Truchon, so it still has that ammunition if it decides it is growing weary of all this dialogue.

But the new law also adds more bait for litigation: under MAID 2.0, persons “whose sole underlying medical condition is a mental illness” are now ineligible, explicitly and outright, for medical suicide assistance. How is that principle likely to fare in a world wherein we are all told, several times a day, that psychiatric illness is no different in nature, seriousness or treatability than physical illness? Is the government prepared to follow up the written law by arguing in a courtroom that, well, actually, mental illness is different?

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So far, government arguments that MAID law needs to be designed to prevent suicide contagion, or restrict impulsive access to MAID, have been ejected by the courts at high speed. The texts of both Carter and Truchon emphasize that individual rights, including this newish one, must be emphasized over speculative social concerns. If only this principle were applied more generally, we could get about nine-tenths of our laws and regulations off the books. But, at any rate, it is the prevailing mood of the courts in this narrow field. So whether you like MAID 2.0, I think I can dimly discern MAID 3.0 down the road, not too far off …

National Post
Twitter.com/colbycosh

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