The federal government has again requested an extension from Quebec’s superior court, asking for an additional five months to tie up the changes to medical assistance in dying legislation to bring it in line with the court’s ruling.
The September 2019 Truchon ruling found that an existing clause in the legislation requiring a person’s natural death to be reasonably foreseeable violates the charter rights of Canadians by discriminating against persons with disabilities.
The challenge was launched by a man named Jean Truchon, who was born with cerebral palsy, and suffered from pain and loss of limb function after a decline in his condition. Truchon received his medically assisted death in April.
The ruling would have made the “reasonable foreseeability of natural death” clause in the federal law no longer applicable in Quebec as of the initial deadline of March 12, but would remain in effect in other provinces and territories, meaning that the law would no longer be applied consistently across the country.
In February the federal government asked for and was granted a four-month extension to allow enough time to table, debate and enact legislative amendments that would take into account the ruling and make it applicable nationwide, with a new deadline of July 12.
The set of amendments, which were tabled in late February, removes the necessity that a person’s death must be immediately foreseeable — excluding eligibility for individuals suffering solely from mental illness as a safeguard — in order to access medical assistance in dying. For those whose natural death is reasonably foreseeable, the changes allow a person who may later lose the capacity to consent due to their illness to sign a waiver of final consent prior to that point so their wishes for a medically assisted death can be carried out.
Though some argue the legislation doesn’t go far enough, it was largely applauded by advocacy groups, such as Dying with Dignity Canada.
Pandemic problems
“Certainly we all understand the challenges and the need for the government to focus on COVID-19 and its impact on all Canadians, but we are still talking about people whose lives are impacted daily when we talk about the legislation not being passed.”
- Helen Long, CEO of Dying with Dignity Canada
Initially set to pass through the House of Commons, Bill C-7 has been stalled along with the other bills that had not received Royal Assent before Parliament shut down due to the COVID-19 pandemic.
Because of the pandemic, Parliament in its normal form has been suspended since March and has been replaced by a special COVID-19 committee that includes all MPs. Because of the limited functionality of this temporary quasi-virtual, all-party committee, only emergency legislation related to COVID-19 can be considered passed at least until Sept. 21. Hence the government’s extension request that would allow the assisted dying bill to pass until Dec. 18.
“The COVID-19 pandemic has led to unprecedented challenges, including the disruption of the current parliamentary session. While this legislation remains a priority for the Government of Canada, the realities of the pandemic have unfortunately rendered it impossible to advance Bill C-7 through the parliamentary process in order to meet the current deadline of July 11, 2020,” Justice Mister David Lametti and Health Minister Patty Hajdu said in a statement issued Thursday. “A five-month extension of the ruling’s suspension period is needed to provide sufficient time for Parliament to properly consider and enact this proposed legislation.”
Helen Long, CEO of Dying with Dignity Canada, said while she understands the limitations the pandemic has presented, it’s unfortunate that the circumstances don't allow the government to meet the deadline, which has already been extended.
Long is urging the government to allow Canadians who fall under the criteria covered by the legislation to access a medically assisted death to be granted an exception, something she said has only occurred in one case in Quebec since the ruling. She is also urging the government to get to work on passing the legislation as quickly as possible once Parliament is up and running.
“Certainly, we all understand the challenges and the need for the government to focus on COVID-19 and its impact on all Canadians, but we are still talking about people whose lives are impacted daily when we talk about the legislation not being passed,” Long said.
Final consent: A cruel game of chicken?
Kim King is a medical assistance in dying advocate and a close friend of the late Audrey Parker. Parker, who lived in Halifax, had terminal breast cancer, and days before her medically assisted death she recorded a video calling on Canadians to fight to end the requirement in the medical assistance in dying legislation that requires patients to be conscious and mentally sound at the moment they give their final consent. This amendment, affectionately dubbed Audrey’s Amendment by her supporters, is the basis for the change in the pending federal legislation that allows for patients who may lose capacity later in their illness to sign a waiver of final consent before that point.
King said Parker argued that the requirement to give final consent resulted in a cruel game of chicken for many patients and robbed them of time with their loved ones by forcing them to end their life earlier than they would have otherwise liked.
“I think what Canadians need to consider is the very precious lives of people that are in pain and suffering, and whose families are wanting to have, as we wanted with Audrey, those last precious days. Every day, every week, every month there is a delay, there's more of that happening,” she said.
“If Audrey could guide these conversations now, she would be pushing to say, ‘sooner than later.’”
Bills C-5, C-8, others also stalled
The medical assistance in dying amendments are not the only important pieces of federal legislation that have been put on hold for months due to the COVID-19 pandemic.
Bill C-5, a bill that would require federal judges to take mandatory sexual assault sensitivity training — originally tabled as a private member's bill by former interim Conservative leader Rona Ambrose as her last major parliamentary act — has been shelved for now.
Bill C-8, which would ban the use of conversion therapy, a harmful pseudoscientific practice that attempts to change someone’s sexuality to heterosexual, is also stalled. Conversion therapy is already illegal in several provinces, and the bill would ban the practice nationwide.
“The LGBTQI2S community has fought long and hard to get a bill on the table to address conversion therapy. It is a shame to see Bill C-8 on the list of bills put on hold during this pandemic,” Helen Kennedy, executive director of Egale Canada, said in a statement. “Conversion therapy is a barbaric and discriminatory practice, and at a time when the UN is calling for a global ban on the practice, Canada needs to be stepping up and taking action on the federal level. We cannot afford to push pause on this, or other social issues.”
As for Bill C-5, this is not the first time it has met a setback. The bill, which quickly received unanimous support in the House of Commons in 2017, was stalled repeatedly by senators for two years before dying on the order paper in the last election. The Liberals resurrected it, this time as a government bill, in February.
Though some have raised questions about how effective the bill will be — as the majority of sexual assault cases are unreported, let alone ever see the inside of a courtroom, and the ones that do are overwhelmingly heard by provincial judges — sexual assault educators such as Julie Lalonde say while it’s a stop measure, it’s still a positive step.
“This poor bill has been kicked around a lot, and there's some straight-up impatience on behalf of those of us who do this work,” Lalonde said.
“We’re still having trials, people are still getting sexually assaulted, you're still allowed to go to court right now, there are still criminal charges being laid, and I think the timing in terms of the environment and people's appetite to see change within the legal system, let’s do it.”
Lalonde says she hopes the bill is prioritized by the government and is brought through Parliament as soon as possible, and that it ensures the training includes not only legal considerations but medical ones and that it involves those who are trained in doing front-line support.
“I want it to be really robust,” Lalonde said. “I don't want to miss an opportunity to really delve into making sure people are trauma-informed and understand the neurobiology of trauma and understand the freeze response and so many key basic elements that judges don't know across the board.”
