Right, so my fallback would be to do that.
The reason that I believe this is really important—and I note that the Senate-House committee agreed—is that it's safest to simply leave the language to what the Supreme Court crafted in its unanimous decision. It therefore would be less likely that a future court would have to reinterpret their handiwork. We're opening up an awful lot of opportunities for more litigation by suffering people having to go to the Supreme Court to seek clarity on our handiwork. We're here to legislate, and we're creating more obstacles than we need to in order to be consistent with their decision.
It would remove the additional restrictions, which I must emphasize were nowhere to be found in the Supreme Court of Canada's decision. For example, instead of the word “incurable”, they used the word “irremediable” in the courts, for good reason. The patient was entitled, they said, to say that yes, their particular kind of cancer could be cured, but their particular kind of cancer would be so painful in the cure, and perhaps the prognosis of success was so limited, that they would have the ability to say no to that treatment if, in their autonomous judgment, they thought the cure was worse than the disease. They very explicitly didn't use that word, so why would we do so?
Secondly, “advanced state of irreversible decline in capability” is another phrase that comes out of nowhere. When I talk to doctors—and I've talked to many—they have no idea how it would be utilized.
Also, of course, there is the famous “reasonably foreseeable” clause that I won't bother reading. It's so problematic. We heard such an amount of testimony from people about this that I just don't understand why we would want to saddle future suffering people with the need to persuade a particular doctor or doctors or health practitioners that their natural death has become reasonably foreseeable. Once again, it's undercutting the victory of the people who argued successfully that they need not be at the end of life or have a death that's reasonably foreseeable naturally occurring.
For all those reasons, I want to go back and do what the special joint committee did, and that would be to delete this and leave the term to be defined in the common law, as we do with so many other parts of our law. Leave the words “grievous and irremediable” to be determined by jurisprudence going forward. If I'm unsuccessful in persuading people that this is the proper approach, then I would for sure wish to move the amendment that we remove “reasonably foreseeable”—at the very least.