Canada's Troubling Normalization of Euthanasia as Health Care: Part 1: There is NO CONSTITUTIONAL RIGHT to euthanasia (MAiD) in Canada

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Trudo Lemmens

The American Journal of Bioethics published on October 25, 2023 an excellent article by Professor Trudo Lemmens entitled: When Death Becomes Therapy: Canada's Troubling Normalization of Health Care Provider Ending of Life. Trudo Lemmens, is Professor and Scholl Chair in Health Law and Policy at the University of Toronto. (Link to the article).

I have decided to comment on this article by separating the main topics to enable it to be fully appreciated. 

Lemmens begins his article by commenting on a research article by Daryll Pullman who compared Canada's euthanasia law to California's assisted suicide law:

Undeniably, a strikingly higher number of people die with direct health care provider involvement in Canada’s euthanasia regime, euphemistically termed “Medical Assistance in Dying” [MAiD], than under a California-style assisted suicide system. Daryl Pullman (2023) rightly identifies several key reasons: the fact that in about all cases it involves a lethal injection by health care providers, rather than assisted-suicide with self-administration of medication; the law’s vague and broadly interpreted access criteria; “acquiescence and [...] indifference of federal and provincial authorities, the courts, and medical associations”; and, briefly mentioned, the failure to treat ending of life as a last resort (Pullman 2023). Particularly the last points are worth exploring further since they are likely among the key reasons why Canada’s regime results in substantially higher percentages of euthanasia deaths even when compared to the few other liberal euthanasia regimes, and with an accumulation of reports of arguably troubling practices. These points are also connected to the law’s origin in constitutional litigation, which has had a remarkable impact on the Canadian debate and policy.

Lemmens discusses how Canada passed its law after a Supreme Court decision, and then expanded it after a Québec lower court decision that was not appealed by the federal government:

Indeed, the Supreme Court’s Carter decision did not create an unrestricted constitutional right to physician-ending-of-life but only invited parliament to legalize some form of “physician assisted dying” (Grant 2023; Lemmens, Kim, and Kurz 2019). It issued broad parameters for law reform, tied its reasons to the “circumstances of the case” (a case of a patient approaching her death) and confirmed the role of the criminal law in protecting life. Yet despite the case’s limitations, advocates for broad legalization, advisory committees in which the latter often received influential positions, health professional organizations, and media commentators, quickly embraced a rhetoric of a “constitutional right to MAiD,” focusing largely on access and expansion (Gaind et al.2022).

The parameters of the law are still a matter of interpretation. Lemmens comments on the Truchon court case:

The Quebec Truchon judgment mentioned by Pullman, which declared the safeguard of the restriction to end-of-life unconstitutional, was a trial court decision that was not binding on higher courts and outside Quebec (Lemmens and Jacobs 2019; Grant 2023). Yet, the federal government invoked the decision, disingenuously claiming its hands were tied, to push for expansion of MAiD, including for mental illness (Lemmens 2023a).
 
The decision not to appeal the Truchon decision, which was publicly announced in the midst of a federal election in Quebec, a province in which the expansion of MAiD appeared very popular, seems an example of instrumental political use of a judicial process. How the government subsequently failed to consult with disabled persons, Indigenous communities, and others particularly affected (the former in fact explicitly treated as intended “beneficiaries” of an expanded MAiD law), by invoking court-imposed urgency; and then pushed through a new law, in the midst of the pandemic, and against the explicit objection of nearly all disability advocacy organizations,various Indigenous organizations, and international human rights rapporteurs and experts; and how, contrary to its initial endorsement of evidence-informed prudence, it ended up including MAiD for sole reasons of mental illness (Gaind et al.2022), will remain a stain on Canada’s human rights record. Commentators have rightly argued that the expanded MAiD law is discriminatory, since it deprives disabled persons who are not approaching their natural death from the same protection against premature death that others continue to receive (Grant 2023; Lemmens and Jacobs 2019). Indeed, facilitating the death of others, even when they consent, remains criminally prohibited, and others continue to be protected by suicide prevention policies. But even merely procedurally, it is hard to think of a more explicit ignoring of “nothing about us without us,” a participatory principle reflected in the United Nations Convention on the Rights of Persons with Disabilities.

Lemmens states that by:

Invoking a seemingly unrestricted constitutional right to MAiD, or perhaps intimidated by the perception of its existence, not only many politicians and MAiD advocates, but also health care providers and health profession organizations largely stopped engaging meaningfully with evidence-informed clinical, ethical, and policy arguments about potential benefits and harms of expanding MAiD. The parroting of rights rhetoric, with frequent references to “discrimination,” distorted the Canadian debate. Proportionality review embedded in constitutional or human rights-analysis must be informed by evidence-informed clinical, policy and ethical arguments. Yet, in Canada, rights rhetoric largely replaced evidence-informed debate.

Lemmens provides a thorough explanation of how Canada went from legalizing euthanasia and assisted suicide to it becoming a "right" to die (which does not exist).

By claiming that there is a "constitutional right" to be killed, the Canadian debate turned from debating the issue openly to the implementation of wider and wider access to killing.