MP Harold Albrecht calls for notwithstanding clause to allow for more discussion

On Feb. 25, the Report of the Special Joint Committee on Physician-Assisted Dying was submitted to Justice Minister Jody Wilson-Raybould and it is expected to form the basis of the legislation the government will propose governing euthanasia and assisted-suicide. The report of the committee did not reflect the view of all 16 MPs and senators, as Conservative MPs dissented from the report and its 21 recommendations.

Wilson-Raybould said her department will look at the recommendations “to take an empathetic approach” as “we look to create balance” in protecting the rights of the vulnerable and the conscience rights of medical professionals on one hand, with “the autonomy of individuals” seeking physician-assisted suicide on the other. Wilson-Raybould said the government will not be rushed to meet the June 6 deadline for a new law, saying the Justice Ministry will work “very diligently” to bring forth a bill.

The report recommendations includes calls for active euthanasia, that it not be limited to those with terminal illness, allowing for people with mental illness, that assisted-suicide be available with advance directives, and eventually be offered to teens (“mature minors”). The committee recommended that allowing doctors to kill “mature minors” should be put off for three years.

It also demands that medical professionals who refuse to kill their patients refer them to physicians who will and that euthanasia and assisted-suicide be available in all publicly funded health institutions, including religious ones.

The report said anyone with an “irremediable” medical condition, terminal or not, should have access to so-called assisted-dying, if the pain was enduring or intolerable. It did not clarify whether a patient would have to exhaust his or her treatment options. It also recommended that mental illness and psychiatric conditions were reason alone to qualify for assisted-suicide. The committee said patients had to be “competent” and have two doctors independently determine whether an individual was both competent to make the choice and suffering irremediable suffering. Without offering guidance to how this would be done, the committee asserted it had “faith in the expertise of Canadian health care professionals to develop and apply appropriate guidelines for such cases.”

The report also recommended that requests for a doctor’s assistance in dying be done in writing when possible and be witnessed by two individuals who do not have a conflict of interest.

The euthanasia advocacy organization Dying with Dignity Canada welcomed the report. “Dying With Dignity Canada is cheering the recommendations of Parliament’s Special Joint Committee on Physician-Assisted Dying,” it said in a press release, as it urged “the federal government to base new legislation for aid in dying on the policy proposals laid out in the committee’s final report.”

The report, which refers to “assisted dying” and not assisted suicide or euthanasia, claims to be a “patient-centred approach” but Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, said it was “oriented to how medical professionals will cause the death of their patients.” Schadenberg said the report’s recommendations go beyond the 2015 Carter Supreme Court decision, which is forcing the government to come up with a new law before the extended June 6 deadline. In Carter’s unsigned unanimous decision, the Court said a person had to be a “competent adult who clearly consents to the termination of life.”

Schadenberg said, “the recommendations would permit a wider regime for euthanasia that exists in Belgium, where the law has grown out of control.”

The Council of Canadians with Disabilities and the Canadian Association for Community Living said in a press release, they “are extremely dismayed that the recommendations contained in the report released today by Parliament’s Special Joint Committee on Physician-Assisted Dying will jeopardize the lives of vulnerable Canadians,” because “they do not follow the Supreme Court’s call for ‘stringent limits that are scrupulously monitored and enforced’.”

David Baker, a constitutional lawyer who represented the CCD and CACL before the Supreme Court in the Carter case, and Trudo Lemmens, University of Toronto professor in health law and, wrote in the Globe and Mail following the release of the report, that it went beyond the scope of the Carter decision. Baker and Lemmens wrote, “The court foresaw it (the government) enacting a ‘complex regulatory regime’ of ‘carefully designed and monitored safeguards.’ Unfortunately, the federal report released yesterday recommends exactly the opposite, and proposes the world’s most open-ended regime with arguably the lowest safeguards.”

Conservative MP Michael Cooper (St. Albert—Edmonton) was joined in a dissenting report by Mark Warawa (Langley-Aldergrove) and Gerard Deltell (Louis-St-Laurent), as well as, Harold Albrecht (Kitchener-Conestoga), an alternate member of the committee. They said the committee’s recommendations go beyond what was required by the Supreme Court, going so far to say it does not “conform to Carter,” because it “falls far short of what is necessary to protect vulnerable Canadians and the Charter protected conscience rights of health professionals.”

In interviews with the media, Cooper went further, calling the recommendations “radical” and “dangerous.”

Albrecht also launched a petition calling for the government to invoke the notwithstanding clause, which would set aside the Carter decision for five years, so that Parliament could take its time to deliberate on the recommendations and find the correct safeguards, if there are any, to conform to the Supreme Court’s directive.

Campaign Life Coalition and the Euthanasia Prevention Coalition have also called for invocation of the notwithstanding clause with the hope that a constitutional amendment outlawing assisted suicide and euthanasia be enacted.

Disability rights groups such as CCD and CACL are urging “the government to adopt a stronger system of safeguards, and to adopt a clear standard for protecting vulnerable persons.”

Constitutional lawyer and Euthanasia Prevention Coalition counsel Hugh Scher told Advocate Daily the proposals are overly broad, and may give the government cover for a slightly narrower but still insufficiently protective law. Scher said, “but the reality is this represents a dangerous experiment in social policy that is taking Canada into uncharted territory.” He is worried that even if the government implements some restrictions, that eventually Canada’s euthanasia regime will resemble what the committee is recommending.