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View Nathaniel Erskine-Smith Profile
Lib. (ON)
Mr. Speaker, we have a unique opportunity to fix our assisted dying laws and to protect the individual right of all Canadians to make such a fundamental and deeply personal choice for themselves.
I opposed the assisted dying laws in the last Parliament because they were too restrictive. They were not in keeping with the Supreme Court's decision in Carter and I believed them to be unconstitutional, and here we are. A Quebec court found the law to be unconstitutional and we agreed, rightly, to abide by that decision. We have another chance to get it right.
As we look forward to what getting it right looks like, we should also look behind us at the Supreme Court's decision in Carter.
Those in the House have talked about striking a balance between the fundamental freedom of individuals to choose for themselves and the autonomy of the individual to make such a deeply personal choice, and protecting vulnerable persons.
For people who read the Supreme Court's decision in Carter, they will know that the Supreme Court struck that balance with a number of safeguards that look like this: to be eligible for assisted dying, one needs to be suffering intolerably and in an enduring way; one needs to be in a grievous and irremediable condition, an incurable illness; and the individual in question needs to be competent and to clearly consent.
The government in the last Parliament incorrectly, in my view, added an additional criterion for eligibility that one's death needed to be reasonably foreseeable. That is unnecessarily and unduly restrictive. I will get to a court case in particular that explains this in greater detail.
There are two core injustices that the new law proposes to fix. First, the question of removing the “reasonably foreseeable” requirement as a matter of eligibility, and also addressing the case of Audrey Parker.
We had another fundamental injustice where an individual who was eligible for MAID took her life earlier than she otherwise would have, lost time in her life that she otherwise would have spent with her family and loved ones. She was worried about losing competence and being unable to give consent near the very end, despite the fact that was exactly what she wanted.
The Council of Canadian Academies identified three levels of advance request: where an individual is already eligible for MAID, such as in the Audrey Parker case; where an individual has been diagnosed and is not yet eligible, but is on the path towards eligibility; and where someone has not yet been diagnosed, so is farther from eligibility for MAID. In this case we have identified a solution to one of those categories, but we ought to solve advance requests more broadly going forward.
Is the law perfect? No, but it is worthy of our support at second reading. However, there are a number of concerns worth highlighting.
First, while a reasonably foreseeable death is no longer a criterion of eligibility, there are additional hurdles for individuals to pass if their death is not within the near future. One of two practitioners assessing eligibility must have expertise in the condition. Although that sounds very reasonable in theory, my only question for committee members as they look at this is to ensure that is not an impossible barrier in practice, particularly for those in rural communities where such expertise may not exist at all times.
There is also a minimum, and I would say somewhat arbitrary, period of 90 days for the assessment of the request. It looks like a backdoor cooling-off period. It would make far more sense for us to have no time limit and the assessment to be done in the ordinary course, or at least a much shorter time period, because we are talking about people who are suffering incredibly and are competent to make the decision for themselves.
Does it cure the case for Audrey Parker? I think largely it does, but I worry if the main procedure must be scheduled already, what does that mean? If Audrey Parker was in a situation to say, “I am not exactly sure what the time period will be. I know it is not now but I know it will be soon”, is she to have scheduled a particular date, which would make her eligible for the advance request, or are we going to put people in a situation where they are scheduling something earlier than they otherwise would?
Mental health is a real challenge because we are building an additional criterion into this legislation that says:
For the purposes of MAID eligibility, a mental illness is not a “serious and incurable illness, disease or disability”...
It sounds reasonable on its face in many ways, because we can immediately imagine a situation where mental illness impinges upon one's ability to give consent, impinges upon one's ability to conduct himself or herself as a competent person, but that is not always the case.
I am aware of some opposition from the Conservative benches. I am also aware of the number of Conservative MPs who come from Alberta. Therefore, want to quote a case from the Alberta Court of Appeal from 2016.
This is about a 58-year old women, identified as E.F., with severe conversion and psychogenic movement disorders.
The court wrote:
She suffers from involuntary muscle spasms that radiate from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines. Her eyelid muscles have spasmed shut...Her digestive system is ineffective... She has significant trouble sleeping and...is non-ambulatory...While her condition is diagnosed as a psychiatric one, her capacity and her cognitive ability to make informed decisions, including providing consent to terminating her life, are unimpaired.
This women was eligible to take advantage of MAID because we did not yet have an unconstitutional law in place to prevent her from accessing the regime. The Alberta Court of Appeal determined this woman was competent and was able to consent for herself. It noted further that she had consulted with her husband and adult children, who were all in support.
I worry that if we look at restricting mental illness completely, even if it does not impinge upon people's consent or their ability to conduct themselves as competent persons, we are telling those individuals that they are unable to make fundamental and deeply personal choices for themselves and that they have fewer rights than we do. That cannot possibly be right in this society.
This was a recurring problem for the justice department. When it argued the case of E.F. and lost at the Alberta Court of Appeal. it argued that the current criteria meant that terminal illness was required. The court said no. It argued that illness for a psychiatric condition should be deemed ineligible. Again, it lost in the Alberta Court of Appeal.
Therefore, if we are to respect the Carter decision and the precedent in case law since the Carter decision, I do not think we ought to have such a categorical exclusion in our law.
In Carter, the Supreme Court noted:
It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
The Alberta Court of Appeal stated, “The cruelty in the situation is there regardless of whether the illness causing the suffering may be classified as terminal”, and certainly continues to be there regardless of whether the suffering has, as its primary focus, a psychiatric disorder.
As a final note on this subject, this law, if carried forward without an amendment, will treat mental illness as lesser than physical illness, a stigma we have worked hard to combat in other settings.
As I said previously, we have to tackle advance direct requests more seriously than we have in this legislation. I know there is an ability to have this broader conversation later this year, as we revisit this conversation. I certainly think if people are diagnosed with a condition and they can clearly see where it is heading, they should be able to determine their futures. I would want to, as a matter of my fundamental freedoms, be able to determine my future. Also, in directing our own futures, we ought to be able to provide advance requests more broadly and more easily, even if we have not been diagnosed.
I recognize the Council of Canadian Academies has identified that we need certainty. How do we provide certainty? Through sunset clauses. If we have not revisited and re-upped our commitment to our advance request within a certain period of time, then it would fall away. That would allow for certainty to take hold.
There are other things we could look to in the law, including mature minors, because minors have the ability to make life-changing decisions in medical contexts in other settings outside of MAID. However, in the end, this law needs to ensure that anyone eligible for MAID, pursuant to the Carter criteria, continues to be eligible for MAID through this law. It is a matter of fundamental freedoms and dignity in the end.
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