Lametti appointment raises hope for less restrictive assisted dying law

Joan Bryden, The Canadian Press

OTTAWA — The appointment of David Lametti as Canada’s new justice minister has given new hope to those who believe the Trudeau government’s law on medically assisted dying is too restrictive.

Lametti was one of just four Liberal MPs who voted against the government’s 2016 legislation that made it legal for incurably ill Canadians to get medical help to end their suffering — provided they are already near death and meet other strict criteria.

In a Facebook post to his Montreal constituents at the time, Lametti expressed concern that the law was too restrictive and would not meet the eligibility criteria set out by the Supreme Court in a landmark 2015 ruling that struck down the prohibition on assisted death.

“As a professor of law in Canada for 20 years and a member of two Canadian Bars, I also worry about passing legislation that is at serious risk of being found to be unconstitutional. On these grounds, I was not able to give it my vote in good conscience,” he wrote.

In a cabinet shuffle Monday, Prime Minister Justin Trudeau plucked Lametti from the backbenches to take over Justice from Jody Wilson-Raybould, who introduced the assisted dying law and who has resolutely rejected calls for changes even in the face of anguished pleas from grievously ill Canadians.

“We’re not considering changing something in the legislation,” Wilson-Raybould said in November, rejecting a deathbed plea for changes from Audrey Parker, a Halifax woman with terminal breast cancer.

“We’re confident in the legislation that we brought forward, that it finds the right balance in terms of being able to access medical assistance in dying, protecting the autonomy of individuals to make the appropriate decisions for themselves as well as protecting vulnerable individuals.”

Parker, whose cancer had spread to her brain, opted to end her life earlier than she wanted because she feared she’d eventually lose the mental competence required to receive an assisted death.

Given his previously stated views, Shanaaz Gokool, president of Dying with Dignity Canada, is hopeful Lametti might be more receptive to Parker’s plea.

“Our hope is for the country that the new justice minister will follow through on what he’s already said and what he already knows that (the law) doesn’t do enough for the most vulnerable people,” she said in an interview.

With only five months left before campaigning begins in earnest for the Oct. 21 federal election, it’s doubtful the Trudeau government has the time or inclination in the next few months to address the three big issues that were left unresolved when the law was passed: whether to extend the right to an assisted death to mature minors and those suffering strictly from mental disorders; and whether to allow people who fear losing mental capacity to make advance requests.

But Gokool said the Parker case has shone a spotlight on one aspect of the law that could be changed relatively easily right away — the stipulation that a person must be able to give consent immediately prior to receiving an assisted death.

Parker had been assessed and approved for an assisted death, having given her informed consent and met all the other eligibility requirements. But she felt compelled by the law to take that route sooner than she wanted while she still had the mental capacity to give her consent again in the moments before receiving help to die.

Gokool said she’s encountered many other Canadians who have been similarly forced cut short their final days or who have reduced needed pain medication for fear it will rob them of their capacity to consent. Others, who’ve been approved for an assisted death, have ultimately been denied the service because they couldn’t give last-minute consent.

Dying with Dignity Canada intends to launch a campaign next month to pressure the government to enact “Audrey’s amendment,” changing the law so that someone approved for an assisted death can sign a declaration ensuring they won’t be denied if they lose mental capacity before it is carried out.

“The real question is do we want more Audrey Parkers?” said Gokool. “There’s something so — I think perverse is the word — where we’re putting people who are already eligible, they meet the criteria as it stands … in this sort of situation.”

The Trudeau government’s law allows assisted dying only for consenting adults “in an advanced stage of irreversible decline” from a serious and incurable disease, illness or disability and for whom natural death is “reasonably foreseeable.”

In its 2015 ruling, the Supreme Court suggested a more permissive approach, allowing the procedure for competent adults with “grievous and irremediable” medical conditions that are causing enduring suffering that they find intolerable. The top court did not limit the right to those near death or with terminal illnesses.

Even as Lametti settles in to his new job, courts in Quebec and British Columbia are in the process of hearing constitutional challenges to the law launched by Canadians with degenerative diseases who contend the foreseeable death provision robs them of their right to an assisted death.

Groups representing Christian doctors across the country are also appealing a court ruling that upheld Ontario’s regulation requiring doctors who refuse to provide assistance in dying to refer patients to someone who will perform the service.

Last month, the government received expert reports it had requested from the Council of Canadian Academies on the unresolved matters of mature minors, advance requests and people suffering strictly from mental illnesses. At the government’s instruction, the reports made no recommendations.

The government has yet to issue any detailed response to those reports.