OTTAWA — A joint committee dealing with the most emotional of issues to come before this Parliament has boldly opened the door to assisted dying for adolescents and children in this country.
The committee, chaired by Toronto Liberal MP Rob Oliphant and Conservative Sen. Kelvin Ogilvie, pulled very few punches in its report released Thursday, recommending the removal of many roadblocks to assisted death, broadening it to include those with psychological suffering and calling for the right to prior consent following the diagnosis of an illness that would lead to loss of competence.
It is the age debate, however, that was the most contentious subject before the committee and it is one issue that could split Canadian political opinion, regardless of the overwhelming support for the right to assisted death.
The committee — with the exception of Conservative MPs who issued a largely pre-ordained minority report — recommended the right to physician-assisted dying be extended to minors after a three-year study period following the enactment of a national law, expected in June.
Should the Liberal government accept this recommendation, it would move this country into assisted-dying territory known in only two countries in the world: Belgium and the Netherlands.
Belgium waited 12 years before extending assisted dying to minors. The committee recommendation goes well beyond existing legislation in Quebec and, opponents are saying, beyond the Supreme Court of Canada ruling, which was silent on the question of age.
Belgium has no age restriction on physician-assisted death, but there are a host of safeguards, including a diagnosis of a terminal illness, unbearable suffering, proof that the child understands the request, and is in a position to make the request him or herself.
In the Netherlands, children between 12 and 16 must be able to express their own views, but still need parental consent. Between 16 and 18, parental consent is not required.
The majority on the committee essentially said that “suffering is suffering” and argues that a 17-year-old suffering intolerably should not have to arbitrarily wait until 18 to exercise a charter right available to adults.
Throughout its deliberations, Oliphant says, the committee tried to stay true to the Charter of Rights and Freedoms. It did so when it came to age, but also realized that additional safeguards would be needed to deal with the development of the adolescent brain, the potential of taking advantage of youth and their vulnerability.
Oliphant and his committee majority want the three-year period to be used by the government to study the “moral, medical and legal” issues surrounding the concept of it what it calls a “mature minor” and it wants this studied by health specialists, youth advocates, academics, ethicists as well as minors themselves and their families. It follows a similar recommendation by UNICEF Canada.
But how young?
“The real issue is capacity,’’ Oliphant told me, citing a Supreme Court decision to uphold a Manitoba ruling in which a young girl under 16 refused a blood transfusion. The top court ruled the right to make such decisions varies in accordance with the level of maturity, the degree to which that maturity is scrutinized, and the consequences of the decision.
What about the rights of parents of a 15-year-old deemed to be competent and wishing to end his or her life?
“It is hugely tough,’’ Oliphant says. “We considered that question. In the end, that will have to be considered by the minister. At the same time, there is case law that says it is not the parents’ concern.’’
The federal justice minister, Jody Wilson-Raybould, would go nowhere near this in receiving the report. She and her cabinet colleagues will have to craft legislation and have it pass both chambers by June 6.
Wilson-Raybould says she will seek “balance in our approach that recognizes the autonomy of individuals, that recognizes the need to protect the vulnerable, that respects the conscience rights of medical practitioners.’’
But this joint committee has done a lot of the really tough work.
“I can’t tell you how many MPs came to me and said, ‘Thank you for doing this work, I’m not sure I could. This is so hard,’ ” says Oliphant.
He knows the depth of the emotions at play and the pain that the death of children brings, having officiated at funerals where the agony is compounded by the size of tiny coffins, he says, holding his arms perhaps a metre apart.
“When your spouse dies you are widow or widower, when your parents die, you are an orphan,’’ he says, “but when your child dies, there is no word for it. It is just too awful.’’