Assisted Dying Finally Becomes Law

After pushing it through the Senate on Friday morning, the House of Commons finally voted for Bill C-14 on Friday afternoon. The Department of Justice has created a Q&A page on the Bill and some of the related issue.

The Senate attempted to modify Bill C-14 to adjust the issue of reasonable foreseeability, but were unsuccessful in doing so. This issue was especially important in light of a recent decision by the Alberta Court of Appeal, which indicated this criteria was not necessary under the 2015 Carter decision.

The Department of Justice has responded to this concern in an addendum to their legislative background released last week,

The constitutionality of Bill C-14 will not be determined by a simple comparison of the Bill to the Carter decision. Rather, it will involve an assessment of the provisions of the Bill in light of its new and distinct purposes, as compared to the purposes of the total prohibition, and the legislative record.

In other words, they expect that any constitutional challenges will be saved by s. 1. And constitutional challenges there may very well likely be.

It’s a good thing the Bill was passed though, because rather than having another Morgentaler on assisted dying (i.e. the lack of any statutory guidance), we may have had a hodgepodge of common law decisions created by the courts. That’s because two days before the Bill was passed, Justice Perrell ruled that the absence of any legislation in this area would still require guidance and control by the judiciary.

The exemptions which were provided by the Supreme Court of Canada this past January extended the time for government to create law up to June 6, 2016. Nobody was really sure what would happen on June 7, because the the Supreme Court was silent on that issue. Everyone expected the government would have passed the law within that time frame. Justice Perell had to consider an application which fell outside of that.

In O.P. v. Canada (Attorney General), [2016] O.J. No. 3122, Justice Perell stated,

 

50 The end of the suspension of invalidity that demarcates the commencement of the third phase has created uncertainty about the state of the law about physician-assisted death across the country. Physician-assisted death is a constitutional right, but in the absence of new legislation, there is nothing to ensure compliance with the rule of law and no safeguards against potential risks to vulnerable people. As a further source of uncertainty, while there is no prohibition against physician-assisted death and thus, in theory, no need for constitutional exemptions, nevertheless, as noted above, practically speaking, physicians and healthcare practitioners willing to assist in a physician-assisted death feel that it is too risky to assist without assurance that there is no exposure to civil, criminal, or disciplinary liability. Thus, court orders appear to be a practical necessity.
[emphasis added]

Justice Perell justified this under Section 24(1) of the Constitution Act 1982, which provides the court the power to grant remedies which are appropriate and just in the circumstances. He interpreted the Carter 2 decision as more than just creating an exemption, but also carving out a Charter remedy to empower courts to provide this relief. At paragraph 53 he concluded, “The parameters of physician-assisted death are not a matter to be left unregulated by the rule of law.”

 

Although Bill C-14 may not be perfect in everyone’s minds, it’s still a better alternative than the burgeoning body of common law assisted dying decisions, which over time would have resulted in inconsistent applications across different jurisdictions.

The jurisdictional issue will still be pertinent, as provinces will have the ability to regulate and legislate in the area of assisted dying from a health perspective, with the exception of federal provides of health services.

Provinces can be expected to pass legislation in other areas of assisted dying, including special training where needed, the documentation required, and other implications in insurance law.

Quebec is currently the only province with legislation in place. Bill C-14 goes further than Quebec, and allows for assisted suicide and voluntary euthanasia, whereas the province only provides for the latter. The reasonable foreseeability requirement in C-14 is broader than Quebec’s requirement for the treatment to be provided at the end of life.

In other ways, C-14 is more restrictive than Quebec, requiring any intolerable suffering to be caused by the applicant’s medical condition.

Any way you look at it, despite the new legislation, the development of assisted dying law in Canada has a long life ahead of it still.

 

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