Euthanasia in Canada
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Bill C-14, passed by the Parliament of Canada in June 2016, amended the Canadian Criminal Code so as to legalise both physician-administered euthanasia (PAE) and physician-assisted suicide (PAS), and to govern access to both procedures in Canada. Neither euthanasia nor assisted suicide are available to minors, nor on the grounds of mental illness, long-term disability, or any curable condition. To prevent suicide tourism, it is available only to residents eligible for Canadian healthcare coverage. Advance directives are not allowed in Canada for voluntary euthanasia and patients cannot arrange to consent "in advance" to dying later at the hands of a caregiver (such as in cases of dementia or Alzheimer's disease where patients may want to die after they reach an advanced state of mental decline).
Canada's assisted dying law includes legal safeguards aimed at preventing abuse and ensuring informed consent. Neither the legal witnesses, nor the physicians involved, can have any legal or financial interest in the outcomes of the patient. Consent must be repeatedly expressed, not implied, including in the moment right before death. Consent can be revoked at any time, in any manner. There are no consequences for backing out and there are no limits to how often it can be requested.
To receive a medically assisted death, patients experiencing intolerable suffering must sign a written request expressing their wish to end their life in front of two independent witnesses who can both confirm it was done willingly free of coercion, 10 clear days before the date of death. Next, two physicians and/or nurse practitioners must independently confirm their written agreement that the patient has an incurable grievous and irremediable medical condition that is in an advanced state of irreversible decline, that the patient's natural death is reasonably foreseeable, and that the patient is capable and willing of receiving a medically assisted death. If they are eligible, patients must be informed about their palliative care options to relieve end-of-life suffering before they can die.
Assisted suicide was previously prohibited under the criminal code as a form of culpable homicide. The prohibition was overturned in a February 2015 decision by the Supreme Court in Carter v Canada (Attorney General), which ruled that adults with grievous and irremediable medical conditions are entitled to physician-assisted suicide. The Court delayed its suspension of invalidity for a period of 12 months, to allow Parliament the opportunity to amend its laws, if it so chose. In January 2016, the Court granted an additional four-month extension to the suspension to allow for further time. As an interim measure, it ruled that provincial courts can now begin approving applications for euthanasia pursuant to the criteria in the Carter decision. On 6 June 2016, the suspension of invalidity expired and the law was struck down. On 17 June 2016, a bill to legalize and regulate assisted dying passed in Canada's Parliament.
The current law's requirement that a natural death must be "reasonably foreseeable" or "incurable", has been controversial for how it vastly limits the original Supreme Court of Canada ruling mandating assisted dying be made available to all adults with "grievous and irremediable" medical conditions. The British Columbia Civil Liberties Association (BCCLA) is challenging the constitutionality of the current law because it excludes people with long-term disabilities, and those with "curable" medical conditions whose only treatment options people may find unacceptable. The BCCLA argues these medical conditions should qualify under the court's definition of "grievous and irremediable".
- 1 Canada's law on medical assistance in dying
- 1.1 Availability under the law
- 1.2 Must have a 'grievous and irremediable' medical condition
- 1.3 Legal safeguards
- 1.4 Summary of legal steps
- 2 Permissiveness of current law
- 3 Arguments for
- 4 Arguments against
- 5 Legal history
- 6 Ciarlariello v. Schacter
- 7 Court Decision in the Sue Rodriguez Case
- 8 See also
- 9 References
- 10 External links
Canada's law on medical assistance in dying
On 17 June 2016, Bill C-14 to legalize and regulate assisted dying passed in Canada's Parliament. This section outlines the details of this law. Strict rules govern access to assisted suicide. If they are not met, anyone who aids another person in killing themselves is guilty of a crime. Canada's law on assisted dying does not allow advance directives, nor does it allow it for minors or people who are suffering from a mental illness.
Availability under the law
Under Canadian law, a person may access medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
Must have a 'grievous and irremediable' medical condition
Before a request for an assisted death can be fulfilled, at least two physicians and/or nurse practitioners must confirm independently that the patient indeed has a "grievous and irremediable medical condition." The two medical practitioners or nurse practitioners who make this determination must be independent from one another (i.e., one cannot work under the authority of the other), and have no legal or financial interest in the outcome of the patient.
The law states that for a patient to have a grievous and irremediable medical condition eligible for assisted dying, they must meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
When drafting the law in 2016, the last clause requiring death to be "reasonably foreseeable" has been controversial for how it narrows the scope of the original Supreme Court of Canada ruling as it excludes most mental illnesses or long term disabilities, vastly limiting who may have access to the procedure.[according to whom?]
Canada's law has what it calls "robust safeguards to prevent errors and abuse in the provision of medical assistance in dying." The drafters of the law argue they protect "vulnerable persons... from being induced, in moments of weakness, to end their lives."
Two independent witnesses
Any person who is at least 18 years of age and who understands the nature of the request can act as an independent witness, unless they:
(a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death; (b) are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides; (c) are directly involved in providing health care services to the person making the request; or (d) directly provide personal care to the person making the request.
Two independent medical opinions
Both medical practitioners and/or nurse practitioners involved must independently confirm via a written opinion both their agreement that a person has "a grievous and irremediable medical condition", and their agreement that the patient is capable and willing of receiving a medically assisted death. The medical or nurse practitioners making this determination must be independent (i.e., one cannot work under the authority of the other), and have no legal or financial interest in the outcome of the patient. A medical practitioner or nurse practitioner who helps in providing medical assistance in dying can be considered independent if they:
(a) are not a mentor to the other practitioner or responsible for supervising their work;
(b) do not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, other than standard compensation for their services relating to the request; or
(c) do not know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.
10 day waiting period
Due to the "irrevocable nature of ending a life", to receive medical assistance in dying, patients must sign and date a written statement confirming their request to die in the presence of two independent witnesses, 10 clear days before the day they will die. If death or a loss of a capacity to provide consent is imminent, both medical practitioners or nurse practitioners can agree to waive or shorten the 10 day waiting period.
If the person requesting medical assistance in dying is unable to sign and date the request, another person—who is at least 18 years of age, who understands the nature of the request and who does not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person's death—may do so in the person's presence, on the person's behalf and under the person's express direction.
Must be informed about palliative care
Before they can continue with receiving assisted dying, patients are required to be informed about what means are available to relieve their suffering, including palliative care options, to make sure that patients don't rush into the decision based on misconceptions or misinformation about what their future life may bring.
Express consent required right before death
A patient who chooses to pursue medical assistance in dying can revoke their consent at any time, in any manner, without fear of consequence. In addition to this, the law also requires the patient to be informed repeatedly and clearly that at any time they have a right to refuse medical assistance in dying.
Patients must again give express consent of their wish to receive medical assistance in dying immediately before they receive it, and they must also be given an opportunity to withdraw the request immediately before the procedure is performed.
If a patient has difficulty communicating, before the procedure can be performed physicians must ensure that all necessary measures have been taken to ensure a reliable method of communicating with the patient exists, so that patients at all times can understand the information provided to them, and can adequately communicate any decision they make back.
Because of the law's strict insistence on express consent being present at all times, Canada's law does not allow advanced directives, or for people to consent in advance to receiving a medically assisted death at a later time, as those suffering from Alzheimers or dementia may want to arrange.
Summary of legal steps
The actual text of the law states that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must
(a) be of the opinion that the person meets all of the eligibility criteria
(b) ensure that the person’s request for medical assistance in dying was:
- (i) made in writing and signed and dated by the person or by another person who is an independent observer, and
- (ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
(c) be satisfied that the request was signed and dated by the person—or by another person under subsection (4)—before two independent witnesses who then also signed and dated the request;
(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1);
(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent;
(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or—if they and the other medical practitioner or nurse practitioner referred to in paragraph
(e) are both of the opinion that the person's death, or the loss of their capacity to provide informed consent, is imminent—any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;
(h) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying; and
(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.
Permissiveness of current law
Within the broader assisted suicide debate, Canada's laws are lenient in some areas but stricter in others. The law is lenient given that fewer than a dozen countries permit voluntary euthanasia in any form. Canadian lawmakers said they closely studied the experience of other countries when deciding which aspects of voluntary euthanasia to allow, and which parts not to allow.
Canada's law is consistent with many other nations that allow voluntary forms of euthanasia in requiring at least two physicians to overlook the details of a diagnosis. It follows Oregon's law in requiring two witnesses also.
Uniquely, Canada's delegates the power of deciding medical eligibility for an assisted death to both physicians and nurse practitioners, a flexibility added in response to the concerns of rural areas who often struggle with having a shortage of doctors.
Canada's law is more restrictive than that in Belgium or the Netherlands in that it does not permit minors or late aged teenagers access to assisted dying. Canada also does not allow assisted suicide on the grounds of mental illness, a practice allowed in the Netherlands, Belgium, and Switzerland.
However, in contrast to laws in states like Oregon that only allows assisted suicide if there is a prognosis of death within 6 months, Canada's law keeps vague exactly how soon a death must be "reasonably foreseeable" in order to qualify for assisted dying, keeping this matter of judgement up to individual medical practitioners.
As well as "assisted suicide" in the strict sense of the term—in which patients administer the medicine that kills them directly by themselves—Canada's law is more permissive in this area as it allows practitioners to euthanise patients who want to die but who are physically unable to kill themselves.
Canada also allows its mandatory 10 day waiting period requirements to be waived for those "whose death or loss of capacity to consent is imminent", provided this is agreed upon by both physicians or nurse practitioners. This is more flexible than euthanasia laws seen in places such as the United States, where waiting periods are firmly fixed into law as legal requirements that must be met.
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The Panel of judges hold the value of individual autonomy over one's body. The right of individual autonomy is reflected in the decisions that have been taken by the Supreme Court of Canada since 1982, when the Charter of Rights and Freedoms was established in Canada’s Constitution.
Individual cases have such as the Ciarlariello v. Schacter and Rodriguez v. British Columbia taken these issues decision making factors in healthcare. In Ciarlariello, the Courts declared patients right to refuse treatment and to withdraw from treatment even after it has begun. Justice Cory wrote:
every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one’s own body. This includes the right to be free from medical treatment to which the individual does not consent. This concept of individual autonomy is fundamental to the common law.
In Rodriguez, Justice Sopinka refers autonomy over ones body and the "control over one's physical and psychological integrity". Sopinka argued that autonomy is about free choice, and that patients should not be subjected to treatment unless they have complete consent. She added that consent must come from a cognitively competent individual and must be informed about his or her decision. Autonomy is a central value in requesting the assistance in dying. The argument for assisted death is the belief that individuals should be able to live their lives accordingly without the law making those decisions for them because the state should only protect the lives of citizens with respect to their own choices. The idea of autonomy is based on the idea that deciding how we die belongs to our own choices and thus the decision of requesting medical aid to die should be based on personal choice.
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The main argument that interferes between a legal standpoint and a moral standpoint is the fear that assistance with suicide will be administrated to less fully competent patients. Therefore, decriminalizing assisted suicide might lead to involuntary euthanasia causing a slippery slope. The slippery slope argument against assisted death takes on the concept that assisted death on incompetent patients is unavoidable. The argument against assisted death points towards safeguards in decriminalizing assisted suicide.
Laws on assisted suicide
Suicide was decriminalized in Canada in 1972. Physician-assisted suicide has been legal in the Province of Quebec, where it is referred to as "medical aid in dying", since June 5, 2014. It became legal in the entire country in June 2016 after the criminal prohibition was struck down and subsequently new legislation was passed in Parliament pursuant to a 2015 Supreme Court of Canada decision.
Before it had been amended in 2016, the Criminal Code of Canada stated in section 241(b) that "Every one who ... (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years"
On June 15, 2012, in a case filed by Gloria Taylor, the Supreme Court of British Columbia ruled that provisions in the Criminal Code prohibiting doctor-assisted suicide were unconstitutional as they apply to severely disabled patients capable of giving consent. The court ruled that the Criminal Code provisions "infringe s. 7 [and s. 15 ] of the Charter, and are of no force and effect to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship". Moreover, the court found that the relevant sections were legislatively overbroad, had a disproportionate effect on people with disabilities, and were "grossly disproportionate to the objectives it is meant to accomplish."
The landmark decision on this topic was provided by the Supreme Court of Canada on February 6, 2015 in the Carter v Canada (AG) case. The unanimous judgment overturned the legal ban on doctor-assisted suicide. However, the court provided the federal government with 12 months to enact the necessary legislation (such as revising the Criminal Code) to make doctor-assisted suicide legal across the country. The federal government subsequently requested a six-month extension for implementation; the arguments for this request were scheduled to be heard by the federal Supreme Court on January 11, 2016.
The province of Quebec had legalized doctor assisted suicide in June 2014 as well as in late 2015 the province's Court of Appeal confirmed that their law did not contravene the country's Criminal Code because of the Carter v Canada (AG) ruling of the Supreme Court of Canada.
Ciarlariello v. Schacter
A 1993 decision made by the Supreme Court of Canada that established a patient’s right to withdraw from a procedure that has already begun. Ms. Ciarlariello underwent two angiograms after experiencing bleeding in her brain. During the second procedure, she began to hyperventilate and asked the physician to stop the procedure. Nonetheless, the procedure was completed, and Ciarlariello suffered a severe reaction that left her quadriplegic. 
Until recently, the most prominent case opposing this law was that of Sue Rodriguez, who after being diagnosed with amyotrophic lateral sclerosis (ALS) requested that the Canadian Supreme Court allow someone to aid her in ending her life. Her request appealed to the principle of autonomy and respect for every person, which states that "everyone has the right to self-determination subject only to an unjust infringement on the equal and competing rights of others".
Her main argument for her assisted suicide, however, appealed to the principle of equality and justice which states that "everyone should be treated equally, and deviations from equality of treatment are permissible only to achieve equity and justice". The application of this principle to the case is as follows. Ms. Rodriguez's ALS would eventually lead her to lose her voluntary motor control. Therefore, this loss of motor control is a "handicap of ALS-sufferers".
Because suicide is not a crime, it was argued that Ms. Rodriguez was being discriminated against in her option of deciding to commit suicide with the help of another person due to her disability, without the law "providing a compensatory and equitable relief". Though in 1992, the Court refused her request, two years later, Sue Rodriguez, with the help of an unknown doctor ended her life despite the Court's decision. Due to her death, the Canadian medical profession issued a statement through Dr. Tom Perry and Dr. Peter Graff, who both said that they had assisted some of their patients in speeding up their death.
Court Decision in the Sue Rodriguez Case
The Rodriguez case poses questions of the slippery slope argument. Sue Rodriguez argued that the Canadian government was violating her right to life, liberty and security of the person under section 7 of the Charter by robbing her of the freedom to end her life without assistance. Justice Sopinka stated that: "all persons who of the reason of disability are unable to commit suicide have a right to be free from government interference in procuring the assistance of others to take their life". However justice McLachlin argued that: "our task was the much more modest one of determining whether, given the legislative scheme regulating suicide which Parliament has put in place, the denial to Sue Rodriguez of the ability to end her life is arbitrary and hence amounts to a limit on her security of the person which does not comport with the principles of fundamental justice". Chief Justice Lamer rejected this argument as a legal matter and stated: "While I share a deep concern over the subtle and overt pressures that may be brought to bear on such persons if assisted suicide is decriminalized, even in limited circumstances, I do not legalization that deprives a disadvantaged group of the right to equality can be justified solely on such speculative grounds, no matter how well intentioned ... we simply do not and cannot know the range of implications that allowing some form of assisted suicide will have for persons with physical disabilities. What we do know and cannot ignore is the anguish of those in the position of Ms Rodriguez". The Chief Justice, however did not recognize that Rodriguez was incapable of committing suicide and thus the court refused her request because the legal sanction of euthanasia did not constitute an active effort to restrict liberty and therefore, did not violate section 7 in that way.
Robert Latimer is a Canadian canola and wheat farmer, who was convicted of second-degree murder in the death of his daughter Tracy (November 23, 1980 – October 24, 1993). This case sparked a national controversy on the definition and ethics of euthanasia as well as the rights of people with disabilities, and two Supreme Court decisions, R v Latimer (1997), on section 10 of the Canadian Charter of Rights and Freedoms, and later R v Latimer (2001), on cruel and unusual punishments under section 12 of the Charter.
Canadian Medical Association
Before the February 2015 Supreme Court of Canada decision, the Canadian Medical Association had maintained that it is not up to them to decide on the issue of euthanasia, but the responsibility of society. Though in 1995, the Canadian Senate Committee decided that euthanasia should remain illegal, they recommended that a new category of crime be specifically created for those charged with assisting in suicide, called "compassionate suicide".
Quebec College of Physicians
Before doctor-assisted suicide was made legal in Quebec in June 2014, the Quebec College of Physicians had declared that it was prepared to cross the line on the debate over euthanasia and proposed that it be included as part of the appropriate care in certain particular circumstances.
Quebec National Assembly
On June 5, 2014 Quebec became the first Canadian province to pass right-to-die legislation. The federal government challenged this measure but in December 2015, the Quebec Court of Appeal confirmed that the "medical aid in dying" law would stand in light of the Supreme Court decision in Carter v Canada (AG).
Bills C-407 and C-384
In June 2005, Francine Lalonde introduced in Parliament a private Bill C-407 that would have legalized assisted suicide in Canada, but the January 2006 election ended this bill. Lalonde was re-elected and reintroduced her bill to legalize assisted suicide, which the 2008 election ended.
On May 13, 2009, Lalonde introduced another bill—Bill C-384—of the same nature as her other two attempts. The Bill was debated in the House of Commons, but died on April 21, 2010 in second reading House of Commons when the vote to advance Bill C-384 to the Justice and Human Rights committee failed 59 to 226. Nearly every member of the Bloc Québécois supported the legislation along with one independent and a handful of Liberal, New Democratic Party (NDP) and Conservative MPs. Every other MP either abstained or voted against the bill.
Conservative Minister of Democratic Reform Steven Fletcher, who is Canada's first quadriplegic Member of Parliament and Cabinet Minister, made a public point of order after the vote to have an abstention recorded for the bill inviting for the discussion.
In December 2014, Conservative Senator Nancy Ruth and Liberal Senator Zlatan Campbell announced they will introduce a bill to legalize assisted suicide to the Canadian Senate. If the bill passes in the Senate, the bill would move to the House of Commons to be debated there before Parliament adjourns for the 42nd Canadian federal election.
Carter v Canada (AG) decision
The Supreme Court of Canada ruling in Carter v Canada (AG) states that the law banning assisted suicide of terminally-ill patients (based on the Rodriguez v British Columbia (AG) decision) was unconstitutional, and violated Section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court issued a 12-month suspended declaration of invalidity.
As a result of the decision voluntary euthanasia was expected to be made legal for "a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition". However, the law as passed was much more restrictive than the court envisioned and remains contentious.
The court decision includes a requirement that there must be stringent limits that are "scrupulously monitored". This will require the death certificate to be completed by an independent medical examiner, not the treating physician, to ensure the accuracy of reporting the cause of death.
The Canadian Medical Association (CMA) reported that not all doctors were willing to help a terminally-ill patient die. However, the belief in late 2015 was that no physician would be forced to do so. The CMA also supports the request to the Supreme Court for a six month extension, said CMA spokesman Dr. Jeff Blackmer, in order to develop educational materials and to train numerous physicians across Canada. However, by late 2015, the CMA had begun to offer educational sessions to members as to the process that would be used.
|An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)|
|Enacted by||Parliament of Canada|
|Royal assent||June 17, 2016|
|Bill citation||C-14, 42st Parliament, 1st Session|
|Introduced by||Jody Wilson-Raybould|
|First reading||April 14, 2016|
|Second reading||May 4, 2016|
|Third reading||May 31, 2016|
|First reading||May 31, 2016|
|Second reading||June 3, 2016|
|Third reading||June 15, 2016|
As required by the 2015 Supreme Court decision, Justice Minister Jody Wilson-Raybould tabled a bill in parliament in April 2016 to amend the Criminal Code to allow medical assistance in dying. Bill C-14 "create[s] exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process". The bill will restrict assisted suicide only to mentally competent adults with "enduring and intolerable suffering" and in cases where death is "reasonably foreseeable". It also mandates a 15-day reflection period.
Bill C-14 passes; to become law
After the House of Commons passed Bill C-14 that would allow for doctor-assisted suicide, it was debated in the Senate in mid-June 2016. Initially, that "House of sober second thought" amended the bill, expanding the right to die. However, when it became apparent that the elected House of Commons would not accept the amendment, a final vote was held on June 18. At that time, a majority agreed with the restrictive wording provided by the House of Commons indicating that "only patients suffering from incurable illness whose natural death is 'reasonably foreseeable' are eligible for a medically assisted death", as summarized by the Toronto Star. Some opponents to the law indicate that the Carter v Canada (AG) decision was broader, including desperately ill individuals and not only those who are terminally ill or near death. The House of Commons did accept a few Senate amendments, such as requiring that patients be counseled about alternatives including palliative care and barring beneficiaries from acting in the euthanasia. Senators such as Serge Joyal who disagree with the restrictive wording believe that the provinces should refer the issue to the Supreme Court of Canada for an opinion in order to preclude the need for individuals to proceed with such an Appeal and incur the significant expense of doing so.
There was also a debate on the issue of suicide in Indigenous communities with MP Robert-Falcon Ouellette (Liberal) voting against the government on C-14. This was the first instance of a government backbencher voting against their party. Ouellette felt that large scale changes to social norms like assisted dying should move very slowly because the impacts will be felt differently across Canada and societies. "While the people of Toronto might want this, the impact in the North will be different. We are not islands unto ourselves."
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