CLF urges Council of Canadian Academies to consider Canada's most vulnerable and broader societal commitments in its review of euthanasia expansion

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Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.
— R v Latimer, Supreme Court of Canada, 2001

Christian Legal Fellowship (“CLF”) filed a written submission on October 6, 2017 to the Council of Canadian Academies. The Council was asked by the Government of Canada to undertake independent reviews on requests for euthanasia in three new contexts (advance requests, requests by mature minors, and requests where mental illness is the sole underlying medical condition). 

CLF urged the Council to consider Canada's most vulnerable and broader societal commitments in its review. A copy of CLF's submission is below - additionalinformation, including sources and expanded arguments, were also submitted in an accompanying Background Paper.

 

Q1. What are your organization’s main issues concerning requests for MAID by mature minors, advance requests, and/or where mental illness is the sole underlying medical condition?

Christian Legal Fellowship’s overarching concern relates to the adverse impact that expanding EAS will have on vulnerable populations, such as: 

  • Patients who do not wish to receive/be pressured to receive EAS;

  • Persons whose sense of dignity and access to “equal concern, respect and consideration” are susceptible to socially constructed conceptions;

  • Patients whose sole or primary underlying condition is a mental illness; 

  • Minors; and

  • Patients who are incapable of providing contemporaneous consent.

No court has conducted a Charter analysis of the rights of such persons in the EAS context; the only persons whose Charter rights have ever been considered in this regard are those of “Ms. Taylor and of persons in her position”.   

No right or freedom is absolute, and this Council must consider the rights and interests of those who will be adversely affected by expanding eligibility, as well as the broader societal impact and the implications of determining that some lives are not worth living. As discussed further in CLF’s Background Paper, it is CLF’s position that if eligibility for EAS were to be expanded, any so-called “protections” or “safeguards” for such persons would be insufficient to protect their s. 7 and s. 15 Charter rights. 

Mature minors

Canadian courts have consistently recognized that children (“mature minors”) are a “highly vulnerable” group in need of protection. The law regularly draws distinctions based on age to protect minors, and in the criminal law context, young people are treated differently from adults because of “reduced maturity and moral capacity”. 

While children are sometimes permitted to make health care decisions, they are not guaranteed an unqualified right to do so; courts have consistently intervened to protect minors from decisions that imperil their health and create unnecessary risk of death. All minors need protection from making “life-threatening mistakes” and “the more serious the nature of the decision and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny will be required”. 

Extending assisted suicide to minors also undermines Canada’s international commitments to protect and nurture children to full development. It would result in state-imposed stress and anxiety on children by fostering uncertainty as to their inherent value and dignity; children would be viewed as a category of people the state can be authorized to kill. 

Mental illness

Expanding assisted suicide to non-terminally ill patients “with psychiatric conditions will put many vulnerable and stigmatized people at risk.” Many patients struggling with mental illness are unable to find effective coping techniques for “long periods of their lives” and presenting assisted suicide as a “viable option” reinforces a loss of hope and “demoralization” for struggling patients. EAS also undermines a core clinical imperative of “helping patients even through sustained periods of suffering during which people often lose the will to live and despair about whether things will get better.” An alarming percentage (close to 48%) of mentally ill patients change their minds regarding assisted suicide requests. 

Advance directives

Carter explicitly states that assisted suicide should only be made available where a person “clearly consents to the termination of life.” Consent for irreversible decisions such as to terminate one’s life can only be meaningful where it is truly independent and informed, which is virtually impossible in the context of dementia. 

Many assumptions about advance directives and dementia patients are unfounded. Patients with “moderate to severe dementia can reliably rate their own quality of life”, and studies reveal that such patients “rate their quality of life higher than do their family members who are influenced by their own distress”. 

Finally, the lack of access to palliative care exacerbates the concerns discussed above. It is troubling that so much emphasis has been placed on expanding access to medical assistance in dying, when many Canadians do not even have meaningful access to medical assistance in living.

 

Q2. Please identify or provide relevant knowledge that your organization would like to have considered by the CCA Expert Panel on MAID as it relates to mature minors, advance requests, and/or where mental illness is the sole underlying medical condition. 

  • October 2017: Background Paper regarding the legal and social impact of expanding MAID to mature minors, where mental illness is the sole underlying medical condition and by advance directive.
  • April 2017: Factum filed jointly with the Evangelical Fellowship of Canada and the Assembly of Catholic Bishops in the case of Christian Medical and Dental Society et al v. College of Physicians and Surgeons of Ontario. The case involves a Charter challenge to (1) a Human Rights policy mandating effective referrals and obligatory emergency care even if it conflicts with conscience or religious beliefs; and (2) a Medical Assistance in Dying policy that specifically requires effective referrals for assisted suicide.
  • March 2017: Oral and written submissions before Ontario’s Standing Committee on Finance and Economics re the Medical Aid in Dying bill (Bill 84). 
  • August 2016: Written submissions urging the Government of Manitoba to introduce legislation protecting freedom of conscience for health care professionals and explaining why forcing health care providers to participate in facilitating the death of a patient would violate the Canadian Charter of Rights and Freedoms. The government subsequently introduced Bill C-34, The Medical Assistance in Dying (Protection for Health Professionals and Others) Act, which specifically protects the rights of those who refuse to aid in the provision of medical assistance in dying on the basis of his or her personal convictions. 
  • May 2016: Written submission filed with the Senate Standing Committee on Legal and Constitutional Affairs concerning Bill C-14.
  • May 2016: Oral submissions before the federal House of Commons Standing Committee on Justice and Human Rights concerning Bill C-14. 
  • May 2016: Written submission filed with the federal House of Commons Standing Committee on Justice and Human Rights concerning the government’s proposed assisted-dying legislation, Bill C-14.  
  • March 2016: Written submission filed with Alberta’s Minister of Health, Minister of Seniors, Justice Minister, Solicitor General and Minister of Aboriginal Relations of Alberta in response to the provincial government’s consultation concerning physician-assisted dying and end-of-life decisions. 
  • March 2016: Open letter to Jody Wilson-Raybould, Minister of Justice of Canada and the Auditor General of Canada, to “express concern about and to rectify certain misunderstandings reflected in the Special Joint Committee’s Report regarding the scope of the Carter ruling and its implications for Parliament’s legislative response.” 
  • February 2016: Written submission filed with the federal Special Joint Parliamentary Committee on Physician-Assisted Dying. 
  • January 2016: Written submission to Ontario’s Attorney General and Minister of Health in response to the provincial government’s consultation concerning physician-assisted dying and end-of-life decisions. 
  • January 2016: Written submission concerning physician-assisted dying with the College of Physicians and Surgeons of Ontario, urging freedom of conscience for health care professionals. 
  • January 2016: Written submission concerning physician-assisted dying with the College of Physicians and Surgeons of New Brunswick, urging freedom of conscience for health care professionals. 
  • December 2015: Factum filed with the Supreme Court of Canada in “Carter II”, urging the Court to extend time for Parliament to pass a euthanasia law and to maintain a national prohibition on euthanasia in the interim. 
  • November 2015: Written submission concerning physician-assisted dying with the College of Physicians and Surgeons of Manitoba, urging freedom of conscience for health care professionals. 
  • November 2015: Written submission in response to invitation, with the federal External Panel on Options for a Legislative Response to Carter v. Canada
  • October 2015: Written submission concerning physician-assisted dying with the College of Physicians and Surgeons of Saskatchewan, urging freedom of conscience for health care professionals. 
  • September 2015: Recommendations concerning the Supreme Court’s decision in Carter to the provincial/territorial Expert Advisory Group on Physician-Assisted Dying. 
  • August 2014: Factum filed with the Supreme Court of Canada in the second appeal for Carter v Canada.
  • December 2012: Factum filed with the British Columbia Court of Appeal in the first appeal for Carter v Canada.
  • December 2012: Factum filed with Superior Court for the District of Trois-Rivières in Leblanc v Canada (Quebec).
  • July 2012: CLF granted the right to intervene, make written and oral submissions and cross-examine witnesses in Leblanc v Canada (Attorney General) & Québec (Attorney General)
  • December 2011: Factum filed with the Supreme Court of British Columbia in Carter Et Al v Canada.

To view CLF's extensive consultation submissions on Assisted Suicide and Euthanasia, as well as other consultation areas, click here.