Liberals ask for court extension for assisted dying bill
Experts fear bill’s failure could lead to two-tiered system in Canada
Ernest Frederiksen says he can’t remember a time he didn’t feel intolerable pain.
“I spend eight to10 hours a day sitting in the same chair, because I’m in too much pain to get up and do anything. I take over 40 pills a day for my various conditions and none of them make it even close to possible to hold down a normal job,” said the 28-year-old Alberta man, who has been living for the past decade with fibromyalgia, a condition that comes with chronic widespread pain.
Frederiksen wants a medically assisted death, but is barred under Canada’s current law governing the procedure because his natural death is not considered reasonably foreseeable.
The Liberal government’s revamped medical assistance in dying (MAiD) law removes that criterion — in response to a Quebec Superior Court decision that found it unconstitutional — but the bill is being held up in Parliament, just days before a Dec. 18 deadline set by the Quebec court.
Bill C-7 finally passed the House of Commons on Thursday in a 212-107 vote, but faces an uphill battle in the Senate, where senators have been deeply divided on the contentious piece of legislation.
The government announced Friday it was asking the court for a third extension to the deadline, which would push it from Dec. 18 to Feb. 26. Justice Minister David Lametti has acknowledged there’s no guarantee the request will be granted.
If the bill does not pass by Dec. 18 and if the deadline isn’t extended, Canadians outside Quebec like Frederiksen who suffer intolerably from incurable conditions and want a medically assisted death, will continue to be barred from accessing it because their natural deaths are not reasonably foreseeable.
Experts say the failure to pass the bill in time will create a twotiered MAiD system in this country, with the regime in Quebec being more expansive and allowing individuals whose deaths are not reasonably foreseeable to access MAiD, but without some of the legislated safeguards proposed in C-7.
“It would just be very unfair to Canadians across the board,” Frederiksen said. “Health-care decisions aren’t something that
should be dependent on where you live.”
The Liberals and Conservatives have pointed fingers at each other over the delay in getting the bill passed on time.
Conservatives filibustered the bill in the House, and argued that the government is trying to rush the bill through amid outcry from disability advocates who have expressed deep concerns with it.
In an interview with the Star on Thursday, Lametti said the bill is about “reducing suffering, and frankly the Conservatives’ delay tactics resulted in us being in a worse position to get this through.”
If the bill doesn’t pass in time and if the deadline isn’t extended, “It creates a number of different uncertainties and quite frankly, increases people’s suffering,” Lametti said.
“That’s the point that gets forgotten. There are real people here.”
And so what could be different after Dec. 18 if the bill doesn’t pass, and assuming there is no deadline extension?
The biggest difference is that individuals in Quebec whose deaths are not reasonably foreseeable, but who meet the other criteria in the current law — such as having an incurable condition and intolerable suffering — would be eligible to access MAiD.
This is as a result of a 2019 Quebec court decision in the case of Jean Truchon, which found the government’s eligibility criteria that a person’s natural death be reasonably foreseeable was unconstitutional. (A handful of Quebecers whose deaths were not reasonably foreseeable have succeeded in having a court grant them an exemption for an assisted death since that ruling.)
But what the failure to pass the bill in time would also mean is that the new safeguards that the federal government has included in its revamped bill for people whose deaths are not reasonably foreseeable would not be in effect in Quebec.
These include a rule that eligi
bility assessments must take a minimum of 90 days. Safeguards in the current law would remain, including the need to be assessed by two different health professionals.
Not passing the bill would also open the door for individuals in Quebec with mental illness as their sole underlying condition potentially becoming eligible for MAiD (though whether it was approved would depend on each individual’s assessment). The government’s new bill had put a ban on that in order to study it further.
Jocelyn Downie, a professor at Dalhousie University who specializes in health law, said the Quebec government or professional regulatory bodies in the province could still bring in their own rules for assessing individuals whose deaths are not reasonably foreseeable.
As for the rest of the country, the failure to pass C-7 by Dec.18 means only those whose deaths are reasonably foreseeable will be able to access MAiD, and people like Frederiksen will continue to be excluded, because the Quebec court decision only applies in that province.
“Members of the public who believe the Quebec court decision was just are going to find that we have a different standard of health care in this country,” said Dr. Stefanie Green, a MAiD provider and president of the Canadian Association of MAiD Assessors and Providers.
“I don’t think that should exist and I don’t think the Canadian public will accept that.”
The bill is now in the Senate, where the upper chamber’s legal and constitutional affairs committee heard from more than 80 witnesses in a prestudy of the bill’s subject matter. It concluded Thursday that the bill remains “contentious,” releasing a report detailing witnesses’ various concerns with it. Conservative Sen. Denise Batters, vice-chair of the committee, told the Star she’s not confident the bill will pass by the 18th, and that a week is not enough time for debate.
“C-7 is not the kind of bill you rush, it’s as important as it gets,” she said. “There’s no way the Senate should be forced into rushing it or rubber-stamping it.”
The bill’s sponsor in the upper chamber, independent Sen. Chantal Petitclerc, said she still has hope that her colleagues can get through it in a week, though she’s become increasingly concerned.
“To me it’s very disturbing that if it doesn’t pass, then because of the Truchon decision, there will be two classes of Canadians when it comes to medical assistance in dying,” she said.
Frederiksen says he’s been following the parliamentary debate with a mix of “exhaustion and disgust.” He quoted Sue Rodriguez, who had fought to change the laws on assisted death in the 1990s:
“If I cannot consent to my own death, whose body is this? Who owns my life?”
Added Frederiksen, “And that’s still the case today.”