Terminal Illness Criteria
A letter about the terminal-illness criterion

August 13, 1999

Hon. Vic Toews, Minister of Justice
Room 104, Legislative Building
450 Broadway
Winnipeg, Manitoba
R3C 0V8


It is my understanding that when your department was consulted by the police, about whether to charge Mr. Doerksen with assisting in his wife's suicide, you deliberated for two months before making your recommendations. This is to your credit. But I respectfully suggest that it is time for some additional deliberation.

A while ago, someone whom I know sent you a letter about the case. From the reply which he received, it appeared that the terminal-illness criterion had played an important part in the department's reasoning. If it did, you are to be commended for being in step with the current law in Oregon and the earlier law in the Northern Territory of Australia.

However, I wish to offer you some of my thoughts on the terminal-illness criterion and why it tends to figure prominently in jurisdictions' initial approaches to assisted-death legislation.

The first point to be made is that there are two parties involved in a dying. There are the watchers (doctors, relatives, bioethicists, politicians) and there is the doer (the person doing the dying). Comparatively speaking, the watchers are young, strong and numerous; the doer is old, weak, and solitary. It is easy to see which party has the greater power.
What this means, for the legal system, is that the watchers rather than the doers have created our present laws about dying. And in so doing they have been guided -- understandably, if not laudably -- by the concerns which are uppermost in their own minds.

Chief among their concerns has been this one: minimizing the extent to which they have to acknowledge responsibility for ending a life. And when aid in dying is provided to someone who is terminally ill, the watcher can say "I didn't really do anything -- the person was dying anyway". This is why the first-stage legislation, in any given place, usually confines assistance to those who are clearly dying.

Yet as time goes by, we become able to acknowledge that even with terminally ill people we have made death happen a little sooner. And we see that this was the right thing to do, because the people wanted to avoid going through the experiences that would have come to them during the weeks or months that were skipped over. Eventually the focus shifts from our own comfort ("Can I bear this responsibility?") to the comfort of the other person ("Can he or she bear these experiences?").

Then we graduate from the criterion of terminal illness to the criterion of incurable and intolerable suffering. Instead of asking "How shall we label or categorize this person's distress?", we ask "How can we alleviate this person's distress, or make it bearable?" And sometimes the answer is "We cannot do either, at least not soon enough or well enough".

Such an answer fills us with sadness, and we may try to comfort ourselves with false hopes. But that comfort accrues to the wrong party. While we dream, the other person continues to live a nightmare.

To be truly just, we must gather our strength and put others first. And we must do this even if it means saving them from unbearable tomorrows in the only way that is currently possible, given the point at which we happen to be situated along the development curve of human knowledge and skill.

Someday Canada will have laws which embody this maturity and courage. It may not happen in your lifetime, and Bert Doerksen may have even fewer years left. But there are powers vested in you which can let a little of the future wisdom into the present. I urge you to open that window.

Sincerely yours,

Ruth von Fuchs
145 Macdonell Ave.
Toronto, Ontario
M6R 2A4