Opinion: Flawed right-to-die law guarantees a Supreme Court challenge

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By Dale Peacock

It’s been almost 25 years since the Supreme Court of Canada told Sue Rodriguez she had no legal right to take her own life. After being diagnosed with Lou Gehrig’s disease, the B.C. woman made national headlines and captured the public’s attention by asking a simple question: “If I cannot give consent to my own death, whose body is this? Who owns my life?” she asked in a video statement prepared for members of Parliament.

Rodriguez asserted that the time and manner of her death should not be decided by the whims of her awful disease or by the law. She further asked that if she were incapable of taking her own life, that it be legal for a doctor to provide her with the means to do so. She changed Canadians’ way of looking at the issue and today a vast majority of us agree with pretty much everything Ms. Rodriguez proposed.

The attorney general of the day was heard to say back then, “Let’s go slow on this,” about the right-to-die legislation. And we’ve gone slowly…interminably slowly.

Last year Canada’s Supreme Court overturned the laws that forbade doctors to help someone die. The court stated that adults living in intolerable physical pain or suffering psychologically from an incurable medical illness have the right to die.

Last Friday Canada’s Parliament adopted a doctor-assisted dying law but it excludes those who are suffering intolerably but not necessarily at the end of life. If Sue Rodriguez were alive today and in exactly the same position she STILL would not be able to get a doctor to assist in her death.

I don’t know if claims that the law is unconstitutional or if the Senate’s new ‘activism’ is undemocratic as has been suggested. But I do see the new legislation surrounding the issue of availability of assistance in a ‘reasonably foreseeable death’ as a huge disappointment. It is simply too narrow and restrictive.

In fact, I believe that the only thing that is ‘definitely reasonably foreseeable’ is a successful Supreme Court challenge by another Sue Rodriguez or Gloria Taylor or Kay Carter. These courageous Canadians and many others fought to bring about the Supreme Court’s Carter decision, and others will take their place until that ruling is properly implemented. As always, it will fall to the brave to lead the fearful.

Canadians are strongly in support of both physician-assisted death and allowing people to request suicide before they become too ill to do so. Advance consent would allow someone with dementia or other diagnosis to sign a document while they are still legally competent requesting an assist with death at some point in the future. What they don’t want is to have to go to Switzerland and have an assisted death too early just because they are too afraid to trust that a flawed system here will work when they need it.

A Forum Research poll asked, “Do you approve or disapprove of allowing assisted death for those who have signed advance consent?” Fully 74 per cent said they did.

Dying with Dignity advocates that “anyone with a grievous and irremediable medical condition” and “enduring suffering” would be eligible for an assisted death but what they and the majority of Canadians got is a watered down version that pleases almost no one.

The polls seem clear and the anecdotal evidence is overwhelming. Who of us doesn’t know someone who suffered an awful death? Some of them have made it public.

Dr. Donald Low, who guided a Toronto that was gripped by fear during the 2003 SARS crisis, taped a video saying he didn’t fear the death he knew was coming. “What the end is going to look like, that’s what’s bothering me the most,” he says. His wife said though her husband did not die in pain, his final days were a struggle as he lost control of bodily functions and struggled to breathe. “That was not a dignified death that he died,” she said.

Closer to home Rev. Derek Shelly wrote about his father’s death on Facebook in a posting he calls, Sunday Musings. Here is an excerpt.

Shelly says, “My main musings today involve my own father’s death that occurred nearly 33 years ago. It was a time before advance care directives (ACD). Palliative care and hospice care were in their infancy, and doctor-assisted death was likely happening but not legally. The main purpose of medicine and health care was to keep people alive. That was the situation for my father who had suffered a brain aneurysm.”

Reverend Shelly goes on to describe his father’s decline and that he (Derek) knew that his father did not want to go on if he was – in the language of that time – a vegetable. He continues, ” For those 10 days, the man I knew as father lay motionless in a hospital bed being kept alive by life support waiting for his system to shut down which it did. (Interestingly enough, his heart which had been a major problem that even kept him out of WWII, was the last organ to stop.)  Under the new law recently passed by our government, my father would not have made the cut. His advance directive didn’t exist at least in writing. I am hopeful that he would have been allowed home if the medical team decided to remove the respirator.

He concludes, “If we have good palliative care, and honour ACD’s more fully, and learn to treat dying as a part of living we will find that a good death is possible which means a good life is as well.”

It’s come to this: MPs couldn’t live with expanding the right to die as the Senate proposed and the Senate gave up.

So where are we now? I guess that suffering Canadians who don’t meet the government’s restrictive eligibility criteria will now have to go back to the courts to challenge it. And here we are one step ahead yet, practically speaking, not much better off than Sue Rodriguez was 25 years ago.

Dale Peacock

Dale Peacock

Following a career in the hospitality sector and the acquisition of a law and justice degree in her 50s, Dale embarked on a writing career armed with the fanciful idea that a living could be made as a freelancer.  To her own great surprise she was right.  The proof lies in hundreds of published works on almost any topic but favourites include travel, humour & satire, feature writing, environment, politics and entrepreneurship. Having re-invented herself half a dozen times, Dale doesn’t rule anything out.  Her time is divided equally between Muskoka and Tampa Bay with Jim, her husband of 7 years and partner of 32 years.  Two grown ‘kids’ and their spouses receive double doses of love and attention when she’s at home. 

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2 Comments

  1. I certainly agree with this article in that I too believe that our politicians once again have dropped the ball. Very little has changed .. Even today there is very little “power” in Advance Care Directives – even when an ACD is provided the person with Power of Attorney can change his or her mind and override the wishes of the dying.
    Palliative Care needs to be improved – it is happening- but once again, as Dale mentioned – slowly (too slowly).
    If the answer to dying with dignity is good palliative care, then we need to do more. But there are times when even the best palliative care may not be enough. Too often, I have heard the comment “we treat our animals better” – we don’t let our beloved pets suffer, but for some reason (likely because we say we value human life more than our pets – do we?)
    As a minister of religion (that’s what the government calls me) – I have written else here on Doppler On-line that God (the divine, the supreme other, etc.) is in all of us, and it is love that heals not medicine. Medicine can and sometimes does provide cures, but real healing happens in the case of terminal illnesses when dying and death are treated with love first. (Editorial note: See Derek’s comment here https://doppleronline.ca/huntsville/speak-up-huntsville/#comment-3353)

  2. Dale, we are again in almost total agreement; although you certainly refused to acknowledge it in your rebuttal to my previous article. C-14 is deeply flawed with respect to the requirement of “foreseeable death”.

    Although I still entertain a few quibbles vis-à-vis Carter vs. Canada, it is superior to both Rodriguez vs. British Columbia and C-14. As I mentioned prior, we have a Consent and Capacity Board in Ontario with the ability to interpret and execute ACD’s justly. An equivalent National Board would provide the checks and balances, which are absent in the Carter ruling at present.

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