The answer is no.
First of all, it's interesting that although the trial judge in the Carter case used language that was somewhat similar to “an advanced state of irreversible decline”, she used the language to say that the person had to be in an advanced state of weakening capacities. We didn't argue that. She came up with that on her own. Interestingly, though, the Supreme Court of Canada did not adopt the trial judge's position on that one point; they essentially adopted the trial judge's position on everything except that one point. I see the clause's words “advanced state of irreversible decline in capability” as very similar to what I think the trial judge was getting at.
One problem I have with that clause is that I really don't know what it means. If it requires some sort of progression of “worseness”—I'm not sure whether that's a proper phrase—then I reject it.
One reason we argued against “terminal” is that we had in mind, most notably, a person by the name of Tony Nicklinson, whom you around this table have probably heard about, the man who had locked-in syndrome. He was struck down by a massive stroke when he was 50 years old. He couldn't move one muscle in his body, other than his eyelids—or, I believe, his eyeballs—and yet he was going to be in that condition for at least 20 years. We thought, it's one thing to suggest that someone might be able to tough out the suffering for a few months when death is imminent, but to suggest that someone has to tough it out for 20 years is just inhumane; it's just cruel; it's a form of torture.
When Tony Nicklinson was struck down by this stroke and had developed something called locked-in syndrome, was he already in an advanced state of irreversible decline in capability? Maybe he was, if all that means is that you're symptomatic rather than having something you worry about, but if it requires some sort of progression, a getting worse, well, he wasn't going to get any worse.
So I have a problem with that clause. It raises more questions than it answers. The whole purpose of this legislation, as I heard when the federal government appeared at the Supreme Court of Canada to request an extension, is provide clarity for the medical profession. The medical profession might be chilled by just the Carter decision alone. This, then, was designed to provide clarity. Well, this just adds uncertainty; it doesn't provide any clarity.