Ask the Hammer

Did Shakespeare envision the possibility of legally assisted suicide when he wrote that now famous line from Hamlet?

Doubtful, but in our day and age, with TV programs like “Mary Kills People” and Canada’s 2016 Federal law on assisted suicide, the ability for a terminally ill patient to end the suffering is upon us. And rightfully so.

Of course, as with all laws, there are those who are pro and those who are con, not to mention genuine fear of abuse. This debate culminated with the 2015 unanimous Supreme Court Judgment which struck down the section of the Criminal Code that criminalized assisted suicide.

Assisted suicide is available in Switzerland under certain conditions, the primary being that the recipient of the assistance takes an active role in the drug administration and that this is done for no-selfish motives (i.e.: usually no monetary gain is in play).

An initiative to ban assisted suicide (both for residents and non-residents) was launched in Zurich in 2011 and was rejected by 85% of the voters/re: residents and 78%/re: non-residents.

There are also several documentaries on the issue. The Suicide Tourist (2007) is an excellent documentary on assisted suicide and the non-profit organization “Dignitas” in Switzerland (founded in 1998) which helps those who suffer from terminal illness and/or severe physical and/or mental illness.  One must be of sound mind and able, themselves, to perform the last act bringing about their death (i.e.: drink or inject the lethal cocktail), and they must apply by submitting a formal request along with their medical reports. For those with severe psychiatric illness a psychiatrist must submit a detailed report (as required by Supreme Court decision in Switzerland).

In the documentary the cost, in 2007, was around $4,500. As of 2017, that fee has risen to between $8,000 and $12,000, the latter including medical costs, funeral and administration fees. Seems reasonable.

Nonetheless, back home in Canada the debate has been rekindled by, of all complainants, a “suicidal man” looking to challenge as unconstitutional that 2016 Federal law allowing for assisted suicide as decreed by that 2015 Supreme Court case. Mr. Foley alleges his “treatment” consisted of having to choose between suicide and an assisted death given his medical condition (he suffers from a de-habilitating brain disease).

Mr. Foley is arguing that:
– The Federal Government has no jurisdiction over health care via the Canadian Constitution and therefore the 2016 law is unconstitutional.
– He should have been offered a 3rd option; the establishment of comfortable and dignified residency at home with the help of a self-directed health care team, i.e. or, in other words, assisted life with self-directed funding.
– His Charter Rights to life, liberty and security were violated by not being offered the 3rd option.
– The refusal by Mr. Foley to accept one of the 2 options offered [suicide or assisted death] is not a reasonable ground to eject him from the hospital or charge him $1,800 per day to stay there (Government supported senior residences in Montreal cost around $1,800 per month depending on one’s income.

What I am interested in knowing is who exactly should pay for all this in home self-directed care? It is not clear whether Mr. Foley is prepared to pay for it himself. Mr. Foley has been receiving a regime of in-home care under Ontario Health care – but claims it is incompetent and his complaints go unheeded.

The argument on the unconstitutionality of the 2016 Federal Law on “assisted suicide” fails in my opinion. The Government didn’t legislate on Health Care. It legislated, after receiving our High Court decision, that the Government can’t criminalize those who assist suicide, on how such assistance is to be performed so it does not attain criminality.  Moreover, one can’t allege that the Government has no power to make this law on the one hand but state that alleviation of suffering must be the first recourse. That is legislating Health Care.

But even arguing that the Federal Government has no standing vis-à-vis health care issues is legally untenable. If that were the case then sections of the Income Tax Act, a Federal domain, would also be unconstitutional.

I refer to numerous tax deductions for both corporations and individuals pertaining to health costs and insurance, etc. The deductions for medical expenses, medical insurance premiums paid on your behalf by your employer, and disability deductions and benefits are but a few examples.

So folks, if you don’t want even higher taxes in the future, you better hope Mr. Foley’s legal challenge fails.

Me. Hammerschmid has practiced Family Law since 1982; Senior Partner at Hammerschmid & Associates; founding & current member of Family Law Association of Quebec (past Secretary for 28 years). Inquiries treated confidentially: 514-846-1013 or [email protected] © 2016 Linda Hammerschmid