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.

Comparing euthanasia in Canada to assisted suicide in California.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Daryll Pullman

The Journal Bioethics published an article on May 11, 2023 by Daryll Pullman comparing Canada's experience with euthanasia to California's experience with assisted suicide. 

The research article: Slowing the Slide Down the Slippery Slope of Medical Assistance in Dying: Mutual Learnings for Canada and the US provides a significant comparison. Canada legalized MAiD in June 2016 and California legalized assisted suicide in June 2016. In 2021, California's population was 39.24 million and Canada's population was 38.25 million.

Pullman outlines his article by stating:

Despite the rapid rise in the number of MAiD deaths during the brief time Canada has had this legislation, not all are convinced Canada is on a slippery slope; many take comfort in the fact that various lower court decisions expanding access to MAiD have gone largely unchallenged by government, taking this as an indication that all is well... Many who in principle are not opposed to MAiD in all circumstances, are nevertheless concerned about the rapid liberalization of MAiD law in Canada that is effectively medicalizing suicide.

Pullman continues:

MAiD became legal in Canada in June 2016, the same month and year that the End of Life Option Act became law in California. While California’s legislation is modeled closely on that of other US jurisdictions which have taken a decidedly conservative approach to the legalization of physician assisted death, Canada looked to established European examples such as those of Belgium, the Netherlands and Luxembourg, all of which have embraced more liberal approaches. California has a slightly larger population than Canada, so the two jurisdictions provide a natural comparison of how medical assistance in dying has played out over the first 6 years in two North American liberal democracies.

Pullman compares the Canadian euthanasia data to the California assisted suicide data. There were 10,064 reported euthanasia deaths in Canada in 2021 and 31,664 since legalization in 2016. In California there were 486 reported assisted suicide deaths in 2021 and 3,344 since legalization in 2016.

Pullman begins with the first factor, access to an assisted death.

All US jurisdictions with a legalized end-of-life option require that those who wish to exercise it must have an incurable, terminal condition with a life expectancy of six months or less. Although the Canadian legislation enacted in 2016 did not specify a 6 month time frame per se, it did state that to qualify an individual must have a “reasonably foreseeable natural death” (RFND). However, from the outset in Canada, for a variety of reasons, the RFND criterion was interpreted loosely.

Pullman explains that in Canada, the "reasonably foreseeable natural death" requirement that was interpreted loosely, was struck down by a Quebec lower court in the Truchon decision 2019. Pullman states:

The Quebec judgment effectively separates “suffering” from “end-of-life.” It is now clear that the Canadian legislation is not primarily about hastening death for the terminally ill, but more expansively about ending suffering irrespective of the proximity of that suffering to a patient’s natural death.

Since the Truchon decision was not appealed by the federal or Quebec governments, the decision created a more expansive availability for euthanasia in Canada's law and resulted in the passing of Bill C-7 which further expanded Canada's euthanasia law in March 2021. Pullman explains:

Bill C-7, the revised legislation introduced in the wake of the Quebec decision, reiterates the original legislation in emphasizing that whether suffering is deemed unbearable is up to the individual patient to decide. However, under the expanded criterion virtually any person with an irremediable disease, illness or disability deemed to be experiencing an irreversible decline of capability is now eligible. There is no obligation for medical practitioners to ensure that all other medical options for relief of suffering have been explored

Pullman points out that: 

Once suffering is separated from end-of-life, and MAiD becomes a first line option for ending subjective suffering, however it is construed, MAiD becomes an efficient solution to a variety of complex problems, medical, social, or otherwise.

Pullman continues:

While MAiD is a fully insured service in all Canadian jurisdictions, there is no guaranteed access to medication, housing, or other social determinants of health that ostensibly contribute to the suffering of Canadians everywhere. In one recent disturbing case, a 51-year old woman suffering from multiple chemical sensitivities received an assisted death when her attempts to find adequate housing, free of cigarette smoke and other chemicals, were unsuccessful (Favaro 2022). Although access to MAiD for those suffering from mental illness will not be permitted legally until 2024, already in 2019 an individual suffering from chronic depression was granted MAiD despite the protests of his family. While such troubling cases are reported in the media from time to time, there appears to be little appetite or capacity among various oversight bodies to challenge them. While continuing efforts are being made to ensure that the revised legislation removes “barriers to access,” the matter of effective monitoring and oversight has been neglected. Indeed what are now described as “barriers” were characterized previously as “safeguards”.

Pullman explains that Bill C-7 led to the medicalization of suicide. It also created a two-tier law whereby people whose "natural death is deemed reasonably foreseeable" could be killed without a waiting period but a person whose natural death is not deemed reasonably foreseeable would have a 90 day waiting period.

Canada's euthanasia law may contravene Article 10 of the UN Rights of Persons with Disabilities that Canada ratified in 2010. Pullman writes:

Human rights observers from the United Nations, including the Special Rapporteur on the rights of persons with disabilities, echoed the concerns of disability rights advocates across the country when they expressed alarm that the proposed expansion of Canada’s legislation would put vulnerable persons at risk. While not speaking on behalf of the United Nations per se, the observers nevertheless worried that the proposed expansion was based on ableist assumptions that devalue the lives of persons with disabilities and suggest the revised legislation might contravene Article 10 on the Rights of Persons with Disabilities, a document Canada had ratified in 2010.

Pullman explains the difference between euthanasia and assisted suicide deaths.

Another significant difference between Canada and California concerns the mode of death offered under the respective legislations and the role of medical professionals in the process. California, like all US jurisdictions that allow physician assisted death, permits physicians to prescribe a lethal dose of medication, but prohibits them from actively participating in terminating their patient’s lives by administering the medication. This is described as the oral protocol; terminally ill patients are responsible for filling the prescription, and then ingesting it at a time of their choosing should they decide to complete the act. Canada’s legislation is more liberal in that it permits physicians and nurse practitioners to actively end patient’s lives through the administration of a lethal dose of medication intravenously, irrespective of whether the patient is suffering from a terminal illness. While all Canadian jurisdictions (except Quebec) allow for the oral protocol, it is rarely used. Only 7 of the 7,588 MAiD deaths reported in 2020 and 7 of the 10,064 deaths in 2021 utilized the oral protocol.

Another difference between California's assisted suicide law and Canada's euthanasia law is the percentage of people who are approved for an assisted death who change their mind or die a natural death.

Pullman explains that in California 30–35% of individuals who were approved for an assisted death either never filled the prescription, or, having filled it, decided against using it, thus dying of natural causes whereas in Canada. In Canada, only 2.5% of individuals deemed to have met the criteria for MAiD in 2020, and 1.9% in 2021, withdrew their request. Health Canada’s 2021 report indicates that 13.1% of those deemed eligible for MAiD died of natural causes before MAiD could be initiated.

Once approved for death, Canadians are far more likely to die an assisted death than those in California. Pullman suggests that the low percentage of people who change their mind in Canada suggests a need for closer scrutiny. He writes:

The foregoing raises the question of what constitutes a truly autonomous choice. In light of the dramatic difference in the total numbers of medically assisted deaths in Canada as compared to California and other US jurisdictions, as well as the relatively low number of Canadians who decide against completing the process once initiated, the role of the medical professional in these respective processes demands closer scrutiny.

Pullman further questions the nature of autonomy in Canada's euthanasia law.

Put otherwise, the California protocol aims to ensure that this most momentous and final decision is indeed an autonomous one. The Canadian approach is more ambiguous in this regard. While the proponents of MAiD insist that honoring patient autonomy and individual choice is their driving principle, the role of the health care practitioner in first assessing whether the patient meets the increasingly expansive criteria for an assisted death, and then acting as the direct cause of the patient’s death by administering the lethal medications, renders this claim suspect.

The expanded MAiD criteria has led to nearly every Canadian who request MAiD being approved. Pullman states:

Physicians and other health professionals ostensibly involved in their care can serve as a controlling influence by virtue both of their perceived powerful role in society in general, as well as their direct involvement as care providers, however that care is construed. It is notable in this regard that while only 75% of requests for MAiD in Canada were approved in 2020, 99% were approved in 2021 indicating that assessors are becoming increasingly comfortable with the expanded criteria... This will become a particularly acute concern when the eligibility criterion are expanded yet again to include those suffering from a mental illness, but with no other underlying physical ailment.

Pullman points out the difference with assisted suicide from euthanasia.

California and other US jurisdictions that permit only the oral protocol, mitigate the physician’s potentially coercive influence to some extent by legislating their arms-length participation in the process. While the oral protocol is an option in Canada, it is almost never used, hence its mitigating effects are negligible at best.

Daryll Pullman does not end his article by suggesting that legalizing euthanasia (homicide) is the problem, but rather he suggests that the lack of oversight and the liberal interpretation of the law has led to Canada's acceptance of killing.

I disagree Daryl Pullman's point of view. I am convinced that there is only one clear line, that being, is it acceptable to kill a person or is it not acceptable to kill a person. If it is acceptable to kill a person, even under stringent rules, killing has been approved and the line has been crossed.

The pro-euthanasia lobby will claim that the rules are unjust and demand expansions to the law.

Euthanasia and assisted suicide must never become legal because it permits one person to kill another person. If it becomes legal then the law must be reversed.

Citation

Assisted suicide becomes a wider option in Canada.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

The Halifax Examiner published an article on January 13 by Yvette d'Entremont concerning new options for assisted suicide in Nova Scotia and Canada. The article outlines how nearly every (MAiD) assisted death is done by euthanasia (lethal injection) in Canada. A lethal drug cocktail has now been approved to enable an "oral option" otherwise known as assisted suicide.

d'Entremont reported Jocelyn Downie, Canada's leading pro-euthanasia academic, as stating:

“Ultimately it’s grounded in the twin values that should be behind our MAID decisions, which is respect for autonomy, so the capacity for self-determination, for charting the course of your own life and death, and then the alleviation of suffering,” Downie said in an interview.

“This is just another element in respecting autonomy. It’s providing another pathway for people to realize their goal of alleviating their suffering on their own terms. It’s not the kind of development that we’ve seen in the past few years. It’s not seismic. But I think it’s consistent and it’s a completion.”

Memorial University medical ethics professor Daryl Pullman who published an Impact Ethics piece last November comparing the number of MAID deaths in Canada in 2020 to the “dramatically lower” number that occurred in California under its assisted suicide law. d'Entremont reported Pullman as stating:

…Given the significant number of patients in California who meet the criteria for an assisted death, who receive the lethal prescription, but then never follow through, for some simply knowing they have the option seems sufficient,” Pullman wrote.

“The decision not to follow through with ending one’s life is also a matter of autonomous choice. But it is a choice that seems all too rare in the Canadian context, and we should worry that some who initiate the MAiD process might then feel compelled to follow through.”

My anecdotal experience from talking with friends and family members of people who have died by (MAiD) euthanasia in Canada is that there is pressure to complete the act. I refer to it as getting on the euthanasia train. There are very few places where the train stops in Canada.

Concerning the radical difference between the number of assisted deaths in California as compared to Canada, Pullman states: 

“Doesn’t this disturb anybody that these numbers are so blatantly different,”

Pullman expresses further concern about the expansion of Canada's law to permit euthanasia for mental illness alone. d'Entremont reports:

“The Canadian Parliament seems more interested right now in waxing the runners on the sleigh than in actually trying to assess whether or not the hill we’re going down is pretty steep. We seem to be rushing headlong for a precipice here,” Pullman said.

“We’re medicalizing suicide in Canada, effectively, so that people who, for whatever reason, judge their life to be unacceptable they can, under this legislation, get medical assistance in ending their life and that’s a little bit disturbing.”

The approved protocal for assisted suicide (oral option) requires that an IV be inserted first in case the assisted suicide drug cocktail doesn't work.

Downie disagreed with Pullman, but that is not surprising because she has radically promoted euthanasia for years.

The article concludes by stating that according to Nova Scotia Health, since 2018, of the 1,389 patients, 29 (2.1%) who were referred for MAID have paused or withdrawn their MAID requests.

When only 2.1% of the people in Nova Scotia who ask for euthanasia change their mind, clearly the mantra's of choice and autonomy ring hollow.