Life is a gift and death an unmitigated evil…
That is, until we've watched a spouse wither away from terminal cancer or nursed a loved one whose mind is disintegrating under the onslaught of Alzheimer's. Experiences like these transform our view of life and death, leaving their value anything but absolute.
In fact, life is not always a gift nor is death an unmitigated evil. For some, the thought of yet another day of excruciating pain or mind-numbing emptiness turns death into a welcome relief. I applaud the Supreme Court (SCC) justices for having the courage, finally, to say as much; and for recognizing such suffering for what it is: cruel and unnecessary.
According to the court, our right to Life, Liberty and Security of the Person includes the right to die with dignity, and to seek the help of a physician. The ruling opens the door to a kinder, more humane future. But first, the federal government must get us across the threshold.
Achieving this in the four months allotted is possible, as long as the government is firmly committed to the goal, which, presumably, it is. The Liberals, after all, are the Party of the Charter and will defend this right with the same determination as gender equality, religious freedom or free speech.
So what do Canadians need from Ottawa on PAD?
Actually, not much. Notwithstanding all the talk of complexity around the issues, the federal role is relatively limited here, though vital. Legislatively, it is the provinces who will do most of the heavy lifting, because they will deliver this new “service.”
In fact, the provinces and territories, led by Ontario (but without Quebec), have made real progress over the last year. They struck an Expert Advisory Group whose report sets out a comprehensive plan for a pan-Canadian approach to PAD, based on the SCC decision.
The federal government, however, controls the Criminal Code, which trumps the regulatory powers of the provinces. So it falls to Ottawa to provide a legal framework to support the provincial regulation. Basically, Ottawa's job is to say what can be done so the provinces can say how it will be done. So what should it say?
Quebec's ground-breaking legislation on the right to die came into effect last December and it has been justly praised for its work. The government had the foresight to act before anyone else, spending four years researching the subject and talking with Quebeckers about the issue.
The legislation was a significant step forward. It declared that patients who are at the end of life, in unbearable suffering, and have a terminal disease, have the right to PAD. Now the yardsticks have moved again.
The SCC ruling not only accords this right to patients who are terminally ill, but more generally to those suffering from a “grievous and irremediable medical condition.” Appropriately, nothing in this says the condition must be terminal, nor that it must be physical.
Presumably, it could be a progressive mental illness, such as Alzheimer's, or even profound and irremediable depression—which takes us a big step beyond Quebec's legislation.
This has also set off alarm bells among opponents of PAD, who argue that the decision places Canadians on a slippery slope that could endanger the most vulnerable groups—the elderly, the young or those with severe illness or disabilities.
The claim is groundless. None of our governments believes, for example, that anyone with depression should have access to PAD. Adequate regulations can and will guard against abuses.
The Court's ruling charts the right path. It puts illnesses on a continuum where the distinction between physical and mental is left undefined. The Court thereby rightly recognizes that grievous and irremediable suffering takes different forms.
The federal government's job is to capture this in criminal law, first, by ensuring the definition of “grievous and irremediable” includes this continuum; and, second, by providing benchmarks that will ensure access to the service requires a combination of informed consent and an evidence-based assessment of the patient's condition, carried out by qualified individuals.
This, in turn, will involve a complex set of regulations, ranging from adequate oversight to clear criteria for consent. Further questions include who should be allowed to provide the service and how to deal with conscientious objectors.
The special parliamentary committee will have to grapple with these questions as it sets its benchmarks—and the provincial report is an excellent guide—but it will be up to the provinces to provide the regulations that, ultimately, will answer them.
In the end, the criminal law alone cannot force provinces and territories to provide the full service to their citizens, but it can prevent them from using their regulatory powers to block it.
So the role of the Government of Canada is to create a level playing field for all Canadians, ensuring that everyone has equal access to the service, just as earlier governments fought to ensure mobility and access to social services across the country.
When it comes to our Charter rights, we are all Canadians. If the Charter signifies anything about Canada, it signifies this. If the Party of the Charter stands for anything, it stands for this.
Dr. Don Lenihan is Senior Associate, Policy and Engagement, at Canada 2020, Canada's leading, independent progressive think-tank. Don is an internationally recognized expert on democracy and Open Government. He is currently the Government of Ontario's principal advisor on its Open Dialogue Initiative. The views expressed here are those of the columnist alone. Don can be reached at:[email protected] or follow him on Twitter at: @DonLenihan