What went wrong with Canada's assisted dying law

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Who has the right to die? In his new book The Right to Die: The courageous Canadians who gave us the right to a dignified death, author Gary Bauslaugh examines the stories and experiences of those individuals who want to end their life or have given this practical end-of-life assistance.

These stories now come in the wake of Canada's new controversial assisted dying legislation, which became law in June, that restricts who qualifies for doctor-assisted death to only those "near death."

Kay Carter, a key plaintiff in the case that led to the historic 2015 Supreme Court ruling, would not qualify for doctor-assisted death under the new law.

Below, Bauslaugh describes the aftermath of the new law and how it missed the mark on what it was supposed to help people. Read on and definitely read The Right to Die for more information on assisted dying.

It could have been so simple.

The Supreme Court of Canada made a clear ruling on assisted death and all the Liberals had to do was construct legislation that was in compliance with that ruling. The heavy lifting was already done.

There will always be complaining from those who, mostly on religious grounds, oppose any form of assisted death. But here, in a strong, unambiguous, unanimous ruling by our highest Court, the Liberals were completely free to pass progressive new legislation; indeed they were required to do so. All they had to do was comply with the Court's assessment of Constitutional obligations.

In tennis they call it an unforced error -- like hitting an easy return out of bounds, or double faulting services. It is not a mistake caused by good play by an opponent; it is mistake all of one's own.

Most of the proposed Bill C-14 was okay -- not brilliant but acceptable. But there was one grievous and apparently irremediable error. The Liberals insisted that eligibility for assisted death must be limited to those for whom death is already "reasonably foreseeable" --  an odd phrase that seems to imply that assisted death can only be granted to those who are close to death.

Never mind that this phrase would have disqualified Kay Carter, one of the key plaintiffs in the case that led to the Court's historic ruling.

Forget the pleas of sufferers like Sue Rodriguez, who in 1993 went to court to plead for assistance in ending her life, which encroaching paralysis from ALS was making unbearable even though death was not imminent. Her request for legal help in dying, when she became completely paralyzed and no longer wished to live, was denied by the Supreme Court, in a 5 to 4 vote. The callous injustice of that decision has ever since rattled down through our halls of justice, like the gurgling death sound of the end of mercy.

The Rodriguez case represents one of the most egregious assisted death cases in Canadian history.

Having written extensively about the Rodriguez case for my recent book, The Right to Die, I was stunned to learn that Bill C-14 might fall short in even her case. In the book I look at 40 other Canadian assisted death prosecutions, from 1941 to the present. All involved seeking mercy in cases of desperate human suffering; none of the actions taken, leading to the prosecutions, were malicious.

I was again shocked to see that most of the defendants in these cases would not have been helped by Bill C-14.

When testifying before the House Standing Committee on Justice and Human Rights in May, I pointed this out, emphasizing the irony of introducing legislation that probably would not even have helped Rodriguez.

"We do not see a problem," the Liberals appeared to be saying, as they went on about "protecting the vulnerable" and "providing balance" in the Bill. But it was the Court that provided necessary protection and balance; it is the Liberals who have dropped a heavy, clumsy foot on the wrong side of the scales. And on the wrong side of history.

Looking through the various stories in my book, stories mostly about decent people being prosecuted for choosing mercy over the law, I now feel a sense of betrayal. Have we learned nothing from their courage and compassion?

Is it possible to read, with indifference, the story of Jean Brush, who struggled to follow the desperate wishes of her aging husband Cecil and find a way to bring an end to his increasingly grim and unhappy existence?

Have we learned nothing from the many other suffering people discussed in the book, such as the elderly Victoria couple who could find no way to end their suffering other than leaping together from the window of their 14th floor apartment?

These stories help us understand why the Supreme Court of Canada recognized the inadequacy of our laws prohibiting assisted death and unanimously ruled those laws to be unconstitutional. And these stories make it harder, much harder, to understand why the Liberal Party of Canada pulled so far back from the ruling of the Court.

However, this grievously inadequate law passed by the Liberals cannot, ultimately, be saved by them. One of their spokespeople, Senator Peter Harder, made the odd claim that "… the Bill is Charter compliant. Make no mistake about that." But it is not so, according to constitutional expert Peter Hogg, perhaps Canada's leading expert on Constitutional law, and Joe Arvay, constitutional lawyer and lead counsel for the plaintiffs in the Carter case.

Harder undoubtedly had some sort of legal opinion to bolster his view, but then Dick Cheney was able to get legal opinion to support the idea that waterboarding is not torture.

This point about unconstitutionality is evident even without explication by experts. The Court said that assistance in dying should be granted to competent adults in "grievous and irremediable" suffering, not to some subset of that group, arbitrarily determined by politicians.

The Liberals could have had a relatively easy time of it with a slightly reworded Bill, and Canadians would have had the benefit of a sound new piece of legislation. This was pointed out by many observers, even by a majority in the Senate. But the Liberals, inexplicably, refused to back down.

The offending wording in the new legislation is already being challenged in court, a process that will probably take years and millions of dollars, while many suffering Canadians wait out this new and unnecessary period of uncertainty.

It could have been so simple.

Gary Bauslaugh is a Victoria writer; his most recent book is The Right to Die: the courageous Canadians who gave us the right to a dignified death (James Lorimer and Company, Toronto, 2016). Other recent books include Robert Latimer, A Story of Justice and Mercy (2010) and The Secret Power of Juries (2013), both published by Lorimer.