What the court actually said about MAID for the mentally ill

The court never did write ‘yup, there’s a charter right to suicide’ in big letters with a Sharpie

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I’ve spent some time studying the remarkable letter issued last week by Trudo Lemmens, the University of Toronto law prof and anti-“MAID” crusader, which has an impressive list of co-signers from legal academe. It’s remarkable because it boils down to a plea to the justice minister of Canada, David Lametti, to please stop lying to the public. This is not something that happens every day.

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Lametti intends to change the law in order to make medically assisted suicide available to persons whose intolerable suffering is caused only by a mental illness, although as it happens, he delayed the expansion by another year almost at the exact moment the letter was released. The minister has repeatedly asserted that he is bound by “the courts” to legalize medical assistance in dying (MAID) for psychiatric patients. The letter insists politely that the courts have not yet done any such thing, implying that lawful assisted suicide for psychiatric reasons is, under current law, just a free policy choice by the Liberals.

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It’s an awkward exercise. When you go through the key points in the Lemmens letter, you can’t directly contradict any of them. The letter reframes the 2015 Supreme Court decision, Carter v. Canada, that threw aside the court’s own hesitant precedents on medically assisted suicide. Carter struck down parts of the Criminal Code that outlawed such assistance, invoking changed social values and international experience with legal euthanasia. Lemmens points out, however, that the Carter court did not positively confirm the existence of a “broad constitutional right to obtain help with suicide via health-care provider ending-of-life.”

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The Carter case didn’t include mental patients as plaintiffs. The court’s decision touches on evidence concerning Belgian cases in which patients were euthanized for psychiatric reasons, but notes that these cases “would not fall within the parameters suggested in these reasons” — a bit of gibberish that seems to indicate that the constitutional status of assisted suicide for mental illness alone might still be an open question.

And in finally obliterating part of the Criminal Code, the justices (who did so unanimously) tacked on a coy note that, “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.”

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All these points seem perfectly accurate, but being presented in this manner makes one begin to wonder what eight years of fuss have been about. Well, if you’re an active news consumer, you know the answer. The court never did write “yup, there’s a charter right to suicide” in big letters with a Sharpie. What it did say, many times over, is that the bundle of charter rights to life, liberty and security of the person can under some circumstances include choosing the timing and manner of one’s death.

The court didn’t define those circumstances narrowly, but its analysis focuses almost exclusively on the patient’s capacity for voluntary consent — consent that many mentally ill people are, and will be, perfectly able to exercise. And lower courts, obliged to “pronounce on other situations” despite the Supreme Court’s refusal, have given MAID lots of leeway, though not yet on the psychiatric front.

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So when Lametti says he has to follow the courts in providing for mental-illness MAID … well, is it a lie, or is it a natural, albeit personal, interpretation of which way the winds are whooshing amid the canyons of appellate law? As a lawmaker, he has been tasked with constructing a policy on assisted suicide with no positive advice from the Supreme Court. What he has been told is that he must obey the court’s dogma of minimal rights impairment and avoid constructing any bright-line rule that will deny assisted suicide to suffering individuals judging their own situation.

It is black-letter law, spelled out in Carter, that this suffering can be purely psychological, and doesn’t have to involve physical pain or disability. So from Lametti’s point of view, we may be left with a question of whether Parliament, asked by the Supreme Court to solve two plus two, can give any answer apart from four.

National Post

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