LAWYER SLAMS DYING BILL-Proposed draft flies in face of ‘Carter’ ruling

By Ian Macleod
Post Media
May 06, 2016

Wheelchair-bound Joseph Arvay rolled into a parliamentary hearing on Thursday and loudly slammed the Liberal’s draft law on medically assisted dying as fatally flawed, patronizing to the disabled, unquestionably unconstitutional and, if left unchanged, bound to be repudiated by the Supreme Court of Canada.

assisted dying

“I think I probably know better than anybody what this case is about, what it stands for,” Arvay began. He recounted how he was the lead lawyer for the family of the late Kay Carter, the British Columbia woman at the centre of the Supreme Court’s landmark 2015 “Carter” decision allowing certain severely ill adults to arrange their deaths to end their suffering.

The highly successful British Columbia constitutional law lawyer and his co-counsel on Carter coined the phrase “grievous and irremediable,” a crucial bit of language the high court later formally adopted to describe the medical condition a person must be experiencing to be eligible for an assisted death.

“Those were our words,” Arvay declared.

Yet when Bill C-14 was unveiled by the Liberal government in April, “grievous and irremediable” had become “grievous and incurable,” a condition appreciably different from what the court embraced in its judgment, Arvay told the Commons’ justice committee members. Another new and vague term — “reasonably foreseeable” death — surfaced in its text.

“We were very deliberate in our choice of words as they were chosen to ensure that the right to physicianassisted (death) not be limited to those whose illness or disease or disability was ‘terminal’ or any euphemism such as where ‘their natural death has become reasonably foreseeable,’ said Arvay.

“We deliberately left out ‘incurable’ because incurable doesn’t capture the necessary requirement,” he explained. “You may say, ‘well ‘reasonably foreseeable’ is different from terminal.’ Well it’s not, it’s just a different way of defining terminal. And that’s simply contrary to Carter.”

Nowhere in the judgment did the Supreme Court allow that eligible patients must have a terminal condition.

“In fact, there’s much in the Carter decision that is inconsistent with that,” Arvay told the parliamentarians. “The court rejected any requirement that the person be terminally ill.” (Some legal experts believe a separate law in Quebec restricting medically assisted dying to the terminally ill is now constitutionally suspect.)

The contentious wording, Arvay said, fundamentally violates the court’s ruling by re-defining who is entitled to a medically assisted death and excluding the physically disabled, “whose death is not reasonably foreseeable,” said Arvay, who is paraplegic.

His argument stands in stark contrast to the position of many disabled rights organizations. The Council of Canadians With Disabilities, among others, says C-14, even with its narrow language, doesn’t go far enough to protect vulnerable people from being pushed, in moments of weakness, from ending their lives.

Arvay characterized those critics as misguided. “To suggest that most disabled people, whose deaths are not foreseeable, are somehow incapable of making an informed decision about whether or not to seek assistance in death” is wrong.

“It is very clear to me that the primary purpose and certainly the effect of the ‘reasonable foreseeability’ clause is to deny most physically disabled persons — whether disabled from birth or from some trauma or accident mid-life or from a stroke later in life — the choice of a physician-assisted death,” he wrote in an accompanying brief to the committee.

“I reject the idea that all or even some physically disabled persons will somehow be consciously or unconsciously duped or cajoled by their family or even their doctor into believing that they would be ‘ better off dead.’ This view denies the physically disabled their agency and autonomy; it treats us not only as some homogeneous group, but as if we are all children; in a word it is infantilizing of the physically disabled.

“For all of us, it is our medical condition that is very real and for some of us that medical condition causes intolerable suffering and relief from that suffering cannot be denied just because most can otherwise tolerate it or adapt to it.”

C-14, if passed, would amend Criminal Code provisions against assisted dying to exempt medically assisted dying. The existing laws expire June 6 and the government is racing to meet the deadline to avoid a legal limbo.