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Last Rights: Women and Assisted Dying  by Jocelyn Downie
Last Rights: Women and Assisted Dying

In the early 1990s, Sue Rodriguez challenged Canada’s Criminal Code prohibition on assisted dying. The 42-year-old, who was living with amyotrophic lateral sclerosis (ALS), fought for the right to end her life at a time of her choosing with the aid of a physician. She believed the ban infringed on her right to liberty and security of the person as well as her right not to be subjected to cruel and unusual punishment, and her equality rights.

However, in 1993, the Supreme Court ruled 5 to 4 that Canada’s law did not violate Rodriguez’s rights under the Charter of Rights and Freedoms. Any limitations created by Canada’s ban on medically assisted dying, the court determined, were consistent with the Charter.

Both female judges on the Supreme Court of Canada at the time—Justice Beverley McLachlin and Justice Claire

L’Heureux-Dubé—dissented from the majority view, which was written by Justice John Sopinka. Justices McLachlin and L’Heureux-Dubé believed that Rodriguez’s Charter rights were violated by the Criminal

Code prohibition on assisted dying.

While Rodriguez was ultimately unsuccessful in court, her tenacious effort brought the issue of assisted dying to the fore and galvanized a movement. Two decades later, Kay Carter and Gloria Taylor picked up where Rodriguez left off. The two women were at the heart of the Carter vs. Canada case, which eventually saw the Supreme Court of Canada declare Canada’s prohibitions on assisted dying a violation of the Charter of Rights and Freedoms.

Like Rodriguez, Taylor had ALS, while Carter had spinal stenosis; both wanted the right to have a physician-assisted death at a time of their choosing. In her 2012 B.C. Supreme Court judgment in Carter vs. Canada, one many regard as a legal tour de force, Justice Lynn Smith ruled that Canada’s ban on assisted dying was a violation of the plaintiffs’ right to life, liberty, and security of the person, and that it did so in a manner that was not in accordance with the principles of fundamental justice. The federal government appealed the ruling to the B.C. Court of Appeal, which overturned Smith’s ruling in 2013.

On February 6, 2015, the Supreme Court of Canada issued its decision in Carter vs. Canada.

The court declared that the Criminal Code prohibitions on assisted dying violated the charter and were invalid. It also suspended the coming into effect of its decision for a year, to give Ottawa time to introduce new legislation, should it chose to do so.

As legislators, women have been central players on the issue since the early 1990s, when Senator Joan Neiman, a champion of the decriminalization of assisted dying, chaired a special Senate committee on euthanasia and assisted suicide.

While the committee ultimately recommended against decriminalizing assisted dying, its final report provided a foundation upon which subsequent legislative reflections were built. More recently, in 2015, Veronique Hivon, a member of the Quebec national assembly, oversaw an extraordinary process of consultation, research and reflection that led to permissive assisted dying legislation coming into force in Quebec.

Meanwhile, in Ottawa, after Justin Trudeau’s Liberals took office in November 2015, the government asked for a six-month extension to come up with a new law. It was given four months, extending the deadline to June 6, 2016. On April 14, 2016, the federal government introduced Bill C-14, its bill on medical assistance in dying.

Immediately, a firestorm ensued over the fact that the government’s proposed bill would have allowed fewer people access to medical assistance in dying than would have been allowed under the terms of the Supreme Court ruling in the Carter case. The bill also would have been more restrictive regarding access to medical assistance in dying than what was recommended by the provincial-territorial expert advisory group on physician-assisted dying and the special joint committee of the House and Senate on physician- assisted dying.

Not surprisingly, there were calls for significant amendments to Bill C-14, and the House standing committee on justice and human rights was tasked with reviewing the bill. But C-14 was returned to the House with only minor amendments. Meanwhile, the Senate put the bill through a “pre-study”—a process used to identify issues of concern in order to give the House the opportunity to make amendments even before sending it to the Senate.

However, the bill was passed by the House without addressing the issues identified in the Senate pre-study.

When the bill came before the Senate, senators put forward suggestions for major amendments.

Some suggestions would have made the legislation more permissive, while others would have made it more restrictive. One group of senators sought to make the legislation consistent with the conclusions of the Supreme Court of Canada in the Carter case, as well as consistent with the Charter of Rights and Freedoms. They also sought to remove some of the restrictive provisions in the bill, including the following additional requirements for access

to medical assistance in dying:

(a) that a person would have a serious and incurable illness, disease or disability;

(b) that a person would have to be in an advanced state of irreversible decline in capability;

(c) that a person’s illness, disease or disability, or their state of decline, would have to cause them enduring physical or psychological suffering that was intolerable to them and that could not be relieved under conditions that they considered acceptable; and

(d) that a person’s natural death would have to be reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they had remaining.

A majority of senators agreed that the bill should be amended to reflect the Supreme Court of Canada’s less restrictive criteria for access to medical assistance in dying—that is, to simply require that a person have “a grievous and irremediable condition causing enduring and intolerable suffering.”

The bill was then sent back to the House of Commons with amendments, but the House rejected almost all of them (including the Senate’s proposed less restrictive Carter- and charter-compliant criteria). The Senate backed down when the bill came back from the House and the legislation passed, and came into force on June 17, 2016.

Although the Senate’s more permissive amendments did not become part of Canada’s new law, many of the most important interventions were made by a number of female senators during the Senate debates on Bill C-14.

Speaking in support of an amendment that would have included access to medical assistance in dying through requests made in advance of the loss of the capacity to consent, Senator Nancy Ruth expressed her view on medically assisted dying and gender. “The facts are that women are more likely to be the caregivers to others, to their parents, to their in-laws, their husbands, sometimes their children and friends,” Ruth said. “Women are paid and unpaid. We live longer. We often outlive our own caregiver, family and friends, and we spend our last days in institutional settings, more or less alone, and more or less dependent upon the effect of systemic disadvantage.”

Speaking in support of an amendment that would have removed Bill C-14’s requirement that a patient’s “natural death” must be “reasonably foreseeable,” Senator Frances Lankin told the Senate, “You can say it is the whole basket of things, but if I, as a 62-year-old, had the same conditions as the 90-year-old in the Ontario Superior Court decision [in which a patient was granted a judicial authorization for medical assistance in dying prior to the legislation coming into force], with the same frailties and medical conditions, but I have many more years to my natural foreseeable death, I wouldn’t qualify under this bill. That to me raises a spectre of ageism in a health care system where it is already rife, and this suggests to me potential for rampant growth of that.”

Also speaking in support of that failed amendment, Senator Chantal Peticlerc, a former Paralympic athlete, addressed the issue of assisted dying and disability. “But let me tell you, there is nothing more frustrating, when you are a person with a disability and vulnerable, than to feel as if you have no control over your own life,” she said. “When you have a disability, the worst part is feeling as if you have no control over your own life and your own body.... It happens to me from time to time. … I can only imagine how someone would feel if they were vulnerable, in great pain and unable to have control over their own choice. That, to me, would be betrayal not only of the body but also from our country…. There is a fine line between protecting the vulnerable and patronizing them. It is my personal belief that this bill is crossing that line. That is not acceptable.”

Opposing an amendment that would have required those seeking medical assistance in dying to obtain authorization from a court beforehand, Senator Mobina Jaffer, Canada’s fi rst Muslim senator, raised the issue of immigrant women’s poverty.

“But I want the bill for the immigrant woman, who is sleeping in a hospital, who has no access to funds and cannot get legal aid in my province,” she said. “You can’t get legal aid in my province if you have a child that’s being abused. You can’t get legal aid in my province in custody cases. Do you think that an immigrant woman sitting in the hospital is going to be looked at by legal aid? Forget it. It’s not going to happen.”

Senator Lillian Dyck, who is a member of the Gordon First Nation in Saskatchewan, challenged arguments by some who claimed that medical assistance in dying should be opposed, in part because of the epidemic of suicide amongst the Aboriginal youth of Canada.

“But I think if we continue to see our [Indigenous] youth in that fashion, if we continue to see them as vulnerable, that is a big mistake. It is a mistake because you are telling them, ‘You’re vulnerable. You’re weak. We’re afraid for you.’ I think that’s an awful message to give to youth,” Dyck told the Senate.

What we see in these statements is a focus on people’s rights and their vulnerabilities, and an awareness of the intersecting axes of oppression in Canadian society. These concerns are obviously not the sole domain of female politicians. For example, this awareness was also displayed by Canada’s first quadriplegic MP, Stephen Fletcher, who tried unsuccessfully to decriminalize medical assistance in dying through a private member’s bill, and Canada’s first openly gay MP, Svend Robinson, who championed Sue Rodriguez in the 1990s. However, the voices raising these concerns through the Senate process were almost exclusively those of women.

Sensitivity to the issues will be needed in the very near future. Federal Minister of Justice Jody Wilson-Raybould and Health Minister Jane Philpott were directed, in the medical assistance in dying legislation, to initiate three independent reviews on topics that were deemed too complex and controversial to resolve in the time the government had to introduce legislation in response to Carter vs. Canada. Specifically, the ministers will initiate independent reviews relating to medical assistance in dying for mature minors and individuals whose sole underlying condition is a mental illness, as well as for those making requests for medical assistance for dying in advance of their loss of the capacity to make such a request.

The impact of Parliament’s future decisions on these issues could be very different depending on a person’s gender, age, culture, ethnicity and income. Shortly, senators and others will be asking such critical questions as:

• Should Canada allow individuals who are under the age of majority but who have the capacity to understand the nature and consequences of the decision to request medical assistance in dying?

• Should Canada allow individuals to have access to medical assistance in dying through a request made in advance of the loss of the capacity to make a request for medical assistance in dying?

• What are the implications for questions about medical assistance in dying through advance requests, given that women represent the majority of those living with dementia and are the majority of informal and formal care-providers?

• What are the implications of studies that have demonstrated gender-patterned results and reasoning with respect to end-of-life decision- making, leaving women vulnerable to not having their wishes respected?

• What are the implications for Parliament’s decisions of the fact that gender is a well-established determinant of mental illness?

• Would those who live in poverty, a majority of whom are women, be disproportionately adversely impacted by procedural safeguards that may be considered for access to medically assisted dying for mature minors or individuals whose sole underlying condition is a mental illness?

The ministers of justice and health will be confronted with such questions the next time Canada’s law on medical assistance in dying comes up for debate.

In the meantime, the legacy of Sue Rodriguez, Kay Carter and Gloria Taylor continues. On June 27, Julia Lamb, a Chilliwack, B.C. resident who has spinal muscular atrophy, announced she is challenging Canada’s new law on medical assistance in dying. While Lamb’s condition does not cause her to experience enduring and intolerable suffering now, she anticipates that it may do so in the future, but before her “natural death” becomes “reasonably foreseeable.” Under Canada’s new law, she would not be eligible for medical assistance in dying.

Lamb believes the newly passed legislation limits her right to life, liberty and security of the person in a way that is not consistent with the principles of fundamental justice in the charter. And she also believes the law violates her right to equality.

The future of Canada’s assisted dying law may not be reasonably foreseeable. However, it’s almost certain that women will continue to play outsized roles as plaintiffs in charter challenges and as litigators, judges, members of Parliament and Senators. 

This article appeared in Herizons Fall 2016 issue. Jocelyn Downie teaches health law at Dalhousie University in Halifax. She was a special advisory to the Senate committee on euthanasia and assisted suicide in 1995.