OTTAWA—A proposed new federal law that imposes strict conditions on the right of Canadians to end their lives with medical assistance is a betrayal of the woman whose case was central to the Supreme Court’s decision to strike down the ban on assisted death, critics say.
Kay Carter would not have qualified for an assisted death under the law proposed yesterday by the Trudeau government in response to the top court’s landmark ruling, said the British Columbia Civil Liberties Association, a plaintiff in the case.
The 89-year-old B.C. woman suffered “excruciating physical and psychological distress” from spinal stenosis, but was not facing imminent death, the BCCLA said.
Under the proposed new law, to be eligible for a medically-assisted death, a person must be someone who is “suffering intolerably” and for whom a natural death is “reasonably foreseeable.”
They also must be a consenting adult, at least 18 years old, with a serious and incurable disease, illness, or disability, and be in “an advanced state of irreversible decline.”
“It was not reasonably foreseeable that Kay would die a natural death from her underlying disease,” noted BCCLA litigation director Grace Pastine.
“We think it’s shameful that the woman who was at the very heart of this litigation would be a person who would not qualify for a compassionate and peaceful death.”
Carter travelled secretly to Switzerland in January, 2010, where she was able to legally obtain medical help to end her life.
Her daughter, Lee Carter, who carried on her mother’s fight for the legal right to an assisted death in Canada, agreed her mother would not have qualified under the new law.
“I feel angry, I feel sad, I’m bitterly disappointed,” she said in an interview.
“It’s like we’ve gone through this for five years—and for what?”
The “foreseeable death” provision shocked those who had claimed victory last year when the Supreme Court struck down the ban on assisted death as a violation of the right to life, liberty, and security of the person.
“This is a way of saying [the disease must be] terminal without saying terminal,” said Shanaaz Gokool, head of Dying with Dignity Canada.
That, she said, blatantly disregards the court’s ruling that a new law must recognize the right to a medically-assisted death for a clearly-consenting adult who has a “grievous and irremediable medical condition” that “causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The court did not specify that the illness must be terminal or that the individual must be at death’s door; it said only that the incurable condition must be intolerable to the individual.
Nor did the court confine its ruling to those suffering physical illnesses.
The proposed law does not apply to those suffering only from mental illnesses, or to so-called mature minors who otherwise may meet all the criteria except for age.
Nor does it allow those with competence-eroding conditions, such as dementia, to make requests in advance for medical assistance to die at a certain point in the progression of their disease.
Justice minister Jody Wilson-Raybould said those controversial, complex issues require further study which the government—under pressure to meet the court’s June 6 deadline for enacting a new law—didn’t have time to do.
Others say those omissions, along with the foreseeable death provision, virtually guarantee the new law will be challenged and, eventually, struck down.
A number of groups have called on the government to refer the law, once passed, to the Supreme Court to test whether it actually is in compliance with the charter of rights—rather than forcing sick and dying individuals to launch their own court challenges.
But Wilson-Raybould said it’s “definitely too early to speculate” on that.