Thank you very much.
I'm pleased to be here today. I just want to say that although I'm not addressing all of our concerns today, the B.C. Civil Liberties Association continues to stand by our previous submissions to the parliamentary committee that went before.
Today my focus is simply on making the bill Carter-compliant. Bill C-14, in our view, must be amended in order to ensure compliance with the Carter decision and with the Charter of Rights and Freedoms. I have to say we were shocked when we first saw this bill and we learned that not only did it ignore many of the core recommendations of the parliamentary committee, but it actually cut out part of the heart of the victory that our organization had won in Carter.
In our view, this bill forgets what the Carter case was about. This case wasn't just about helping people with terminal illnesses to have a dignified death of their choosing; it was equally about ensuring that people who are trapped in unimaginable suffering from non-terminal illnesses have the right to escape a lifetime of indefinite suffering. Both of these kinds of people were before the court, and importantly, our organization was granted public interest standing to argue this case as an institution, in respect of various kinds of patients. The ruling was not limited to terminal cases, as we know from the mouth of the Supreme Court itself in January. It did not limit the decision to terminal people or to people who were foreseen to die.
The government says, well, this restriction isn't a restriction to those who are terminal. We say that the effect is the same, that under this bill, someone needs to be dying in order to qualify. The court itself has said that this is wrong.
We won that victory after years of gathering evidence, of tireless work, of fighting a federal government that opposed the realization of this right tooth and nail. We systematically were able to beat each of those arguments that were mustered by the government over multiple years. We knew, in winning, that this would make a real difference for people who would otherwise suffer intolerable and terrible deaths. We knew it would make a difference for people who were suffering unimaginably from grievous and irremediable illnesses in life, and now we see this victory being hollowed out, being taken right out of the bill for half of those people.
In order to remedy this, we support the amendment that was referred to by Professor Downie in her remarks yesterday. We take the position that prohibiting patients whose deaths are not reasonably foreseeable from having the choice of medical assistance in dying violates the charter, and that the entire section referring to the definition of “grievous and irremediable” in the bill should be eliminated. In its place, we believe that proposed paragraph 241.2(1)(c) should be amended to state that a person must have a grievous and irremediable medical condition, including an illness, disease, or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. This, we believe, will bring the criteria in line with Carter.
If Bill C-14 is not amended to eliminate the requirement that a condition be “incurable” rather than “irremediable”, the requirement that there be an advanced state of irreversible decline, and the requirement that natural death be reasonably foreseeable, the result will be terrible suffering for those Canadians who are barred from accessing medical assistance in dying—and that's what this is about. It's not an academic exercise, or even an exercise, as is often done in this place, quite appropriately, in balancing political interests. It is about the intolerable and unimaginable suffering of real Canadians, and about their rights.
The “reasonably foreseeable” requirement is terribly vague. You've already heard from numerous witnesses who have said so, including The College of Family Physicians of Canada, representing the doctors who are most likely to be dealing with these issues. We believe this requirement, in particular, of reasonably foreseeable natural death, is unconstitutional because it violates the charter right to liberty. It deprives a patient of fundamental choice related to their body. The court concluded that the Criminal Code in its original form, through its blanket prohibition on the right to request a physician's assistance in dying, interfered with liberty by restricting the ability of qualifying patients to make decisions concerning their bodily integrity and their medical care.
It interferes with the charter right to security of the person because it causes a patient to continue to endure suffering, and it interferes with the charter right to life. Since individuals are deprived of the choice of an assisted death, there are some individuals who may take their own lives prematurely in order to avoid intolerable suffering, while they are still physically able to do so.
Now, the government suggests that restricting access to assistance in dying to people whose deaths are “reasonably foreseeable” is justified because it will protect the vulnerable. We've heard already from Mr. Arvay that this argument was used by Canada at court, and the court's decision was clear: Parliament cannot rely on a blanket exclusion of a whole class of people to protect the vulnerable when other less-interfering means are available to do the same thing, for example, to assess decisional capacity on an individual basis. Canada even conceded at the trial, in Carter, and I'm quoting from the Supreme Court reasons:
“It is recognised that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives”.
There's a really easy way to understand this, and it's that these arguments were made already. As has been described, there is a circle, a class of people, who won a right, who were guaranteed a right. Canada tried to say they didn't have that right; they tried to justify it. Those arguments failed, and that right was recognized. Now the government is taking those same people and trying to pull them out of that protection and use some of the same justifications. This isn't a dialogue. This is the court saying, “This is the law” and the bill saying, “No, it's not the law. We say something else is the law. We say something else is constitutional”. That is just wrong, and frankly, we don't think it will withstand a constitutional challenge, and the result will be costly relitigation of the same point that's already been decided by the Supreme Court of Canada.
In the minute I have remaining, I don't want to spend too much time on it, but I do want to touch on this idea of prior judicial approval that continues to come up in committee. It is a complete departure from current end-of-life practices, and it's one that, of course, as many of you will know, Canada has tried before in respect of abortion, and it was rejected in the Morgentaler decision. The court there held that this procedural barrier of prior approval contributed to violating the charter rights of women by creating delay and, fundamentally, by directly interfering with women's autonomy to make choices about their own bodies by putting a state approval in place in front of their choice. Our experience as counsel with the exemptions right now is that prior approval is costly, time-consuming, prone to delay, and a significant barrier to access. It would be a real mistake for Parliament to reproduce a prior state-approval function for this kind of profoundly personal medical decision when it was soundly rejected nearly 30 years ago in relation to other profoundly personal medical decisions.
Thank you.