Photo by Jacob Wackerhausent on iStock
Recent news stories highlight the deeply troubling nature of Canada’s MAID framework. These stories share how an Alberta father sought to save the life of his 27-year-old autistic daughter by turning to the courts.
The father (“WV”) successfully applied to court for an injunction stopping his daughter (“MV”) from receiving euthanasia (“medical assistance in dying” or “MAID”), but MV, in turn, successfully applied to have the injunction set aside.
In the end, the court found that the harm done to MV by forcing her “to choose between a life she has decided is intolerable and ending her life without medical assistance” was greater than the harm to WV – that of the immeasurable loss and profound grief his daughter’s death would cause. “The choice to live or die with dignity” was MV’s alone, and the injunction was set aside.
In this case, the evidence showed that MV’s only medical diagnosis was autism.
In many ways, this should not come as a surprise. We know that people have chosen medically-assisted death for reasons including isolation or loneliness, being a perceived burden to their loved ones, existential suffering, loss of dignity [1], homelessness, poverty, inadequate housing, lack of disability supports, and little or no access to appropriate palliative care.
“In this case, the evidence showed that MV’s only medical diagnosis was autism.”
This court decision has many parts that need attention and discussion. But for now, we’ll focus on two. First, the decision sheds light on the lack of recourse available to even the closest family members when attempting to preserve the life of their loved ones once MAID machinery is in motion.
The judge found the only part of the MAID process a court can judicially review is whether Alberta Health Services (AHS) followed its own policy and the legal requirement of having “independent” MAID assessors. In each of MV’s two MAID assessments, one doctor assessed her as eligible and one doctor did not. After the second finding of ineligibility, AHS offered MV a “tie-breaking” assessment. AHS selected her first, approving assessor as the “tie-breaker.” The court expressed concern that choosing the same doctor “arguably decided the outcome of the process” and should be reviewed.
Without allowing for this limited judicial review, accountability is limited to “criminal prosecutions, wrongful death suits, and complaints to professional governing bodies.”
But by setting aside the injunction (giving WV a 30-day window in which to appeal and/or ask for an extension on the 30 days), the judge gave effect to the very problem he identified – only reviewing MAID assessments after death.
Second, the decision demonstrates the absolute necessity of life-affirming care organizations and how freedom of conscience and association intersect to preserve them.
Life-affirming care is committed to providing, facilitating, and offering the very social supports that, without which, many MAID patients have chosen death. This care demonstrates that there is dignity and worth in every single person, that all people are valued, that all people have a place, and that dignity and worth are not dependent on a person’s health, stage of life, or ability.
This form of care is a collective expression of conscience about the value, worth, and dignity of all human life. For some, this view is informed by religious beliefs, but that isn’t always the case. As such, a life-affirming commitment is better and more broadly understood as conscience.
“there is dignity and worth in every single person…all people are valued…all people have a place…dignity and worth are not dependent on a person’s health, stage of life, or ability.”
Though often forgotten or conflated with religion, freedom of conscience is an independent right with independent content. It is found in section 2(a) of the Canadian Charter of Rights and Freedoms. For our Supreme Court, “it is easy to see the relationship between respect for individual conscience and the valuation of human dignity” and its central role in a free and democratic society.
Freedom of association is found in section 2(d) of the Charter. It has largely been applied by courts to union situations, but its fundamental purpose is much broader: It is meant to protect individuals from “state-enforced isolation in the pursuit of his or her ends,” to “empower vulnerable groups” and make possible a “more equal society.” Association is particularly important for the exercise of other freedoms, including conscience.
“No one should feel that life is not an option.”
The intersection of freedom of conscience and freedom of association should serve as protection for, and promotion of, life-affirming organizations. These organizations proactively address root causes that lead people to seek MAID and tackle rapid, seemingly unchecked MAID expansion. They create safe spaces, provide meaningful and supported options for living, and promote the value, worth and dignity of all people.
We don’t know yet what the ultimate outcome will be for 27-year old MV and it is disheartening to see court decisions paving a path to suicide, to see MAID assessments unchecked, and MAID assessors unaccountable.
But it is an encouragement to see life-affirming organizations committed to aiding the vulnerable by honouring their God-given dignity and providing hope, love, and support. We can and must continue to improve the quality of life for all and to advocate for robust constitutional protection for the essential work of life-affirming organizations. No one should feel that life is not an option.
About the Author:
Deina keeps up to date on legal, regulatory and policy developments for member charities and is in-house counsel to CCCC. She finds constitutional and administrative law fascinating (for real!) and is passionate about religious freedom. Deina went to law school in Ottawa, followed by an LL.M. from Osgoode. She knows firsthand the rewards and challenges of charitable work, having served on a variety of boards. Her spare time is spent with family, baking, running, and training her unruly but adorable rescue dog.
