We Don’t Need Another Morgentaler in Canada on Assisted Suicide

The purpose of government, when it is functioning properly, is to pass laws. These laws should be carefully contemplated, debated, and revised before drafting.

But sometimes there’s a greater urgency in this function, which has arose in the aftermath of Carter v. Canada, where the Court ruled in February of this year:

Section 241 (b) and s. 14  of the Criminal Code  unjustifiably infringe s. 7  of the Charter  and are of no force or effect to the extent that they prohibit physician-assisted death 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.

The declaration was suspended for one year, with the intention that the government could amend the offending provisions to comply with the Charter. A parliamentary committee was convened to advise the government of the necessary changes.

Although there have been several concerns raised over the composition of the panel, which includes witnesses relied upon by the Federal government before the Court in Carter, there’s a bigger issue here with the committee – they haven’t been working for the last little while. The little matter of an election usually gets in the way of the ordinary business of making laws, and the recommendations for creating them.

The Liberals promised a reconstituted all-party special committee during the campaign, which would consult with experts and Canadians to develop recommendations for a constitutional legislative framework.

This was only necessary because earlier this year the Conservatives voted against a Liberal motion for a similar type of committee which would report back to Parliament by mid-Summer. Instead, the consultation process the Conservatives promised had barely gotten underway, and the months leading up to the election focused on a variety of less pressing but more politically charged issues.

If the current government does nothing, and it’s impossible to see how they could broach such a complicated and sensitive subject as physician-assisted suicide in such a short period of time, then we will be left in a situation where these provisions under the Code are invalid and there is no comparable law to replace it. This would be a similar situation as abortion following R. v. Morgentaler 27 years ago, where no law has followed the Court’s decision.

Unlike abortion though, where most Canadians are content to live in a country where we turn a blind eye to the subject and allow it to continue based on individual preference, there are far more compelling interests at stake here.

The implication of inaction over the Carter decision would be to allow all consensual killing and assisted suicide in Canada, whether there was physician involvement or not, or any oversight for that matter. The vulnerabilities of individuals at the end of life, and potential for a rise in elder abuse, necessitates that some for of legislative reform is undertaken.

The other reason why there is a pressing need for legislation in this area is that the provinces are also struggling with similar issues. Earlier this week, Quebec Superior Court Judge Michel ruled against the province that their provincial law allowing for some terminally-ill patients may use medical assistance to end their life, which was set to take effect Dec. 10 of this year, still violated the current provisions of the Criminal Code.

Where the Federal government has been inactive in reforming this area of law, some of the provinces have been making progress in this respect. Harmonization between both levels of government in the steps undertaken would benefit all Canadians, and would avoid duplication of research, as well as conflict in principles.

Fortunately the government asked the Court for a 6-month extension on the deadline set to expire in February 2016. The Factum filed earlier this week focuses on 6 issues:

1. The test for extending a suspension
2. The need for the extension
3. Diligence by the government
4. Length of suspension sought
5. Impact of rights holders
6. Legal uncertainties in remedy granted

The government relied on R. v. Schachter, which they summarized as follows,

The main issue must clearly be whether the circumstances prompting the original suspension have changed in any way: has the need for a suspension been attenuated, or have the potential negative consequences of continuing a suspension been reinforced.

Although the Court in Schachter never so explicitly enunciates the principle in this manner, the situation has not changed for the better. If anything, for those Canadians in palliative care awaiting the constitutional amendment, they experience an ongoing violation of their s. 7 rights. This is a quite significant impact to right holders, but so is the risk of premature death contrary to the true wishes of individuals in these situations.

The Court itself recognized at para 78 that Parliament should take the time to weigh and balance the issues, and that a large amount of deference is afforded to their decision in this respect. The length of the suspension is not extraordinarily significant.

Similar extensions have been provided in the past. But here we have individuals affected at the end of their life who may never live to see the changes at all

The diligence by the government is difficult to assess. Although the previous party in power did not do enough to facilitate the passing of legislation, even after an election, this is still technically still a continuous governmental infringement on a pressing and substantial Charter right. The currently governing party attempted to remedy this while in 3rd party opposition status. What is more significant are the measures the government is currently taken underway to address the issue now, including bringing the new Minister of Health up to speed.

The most compelling government argument is advanced over the uncertainty of the remedy provided by the Court, quoted above. The Factum states,

25. There are two possible readings of this part of the judgment. Either the Court has struck down the provisions in their entirety, or the provisions have been “read down” (or an exception has been “read in”). This ambiguity gives rise to a very high level of legal uncertainty. Moreover, without a comprehensive legislative response, each of the interpretations results in unacceptable risks, uncertainty, or both. If the provisions have been struck down, all consensual killings and assisted suicides (not just physician-assisted ones) would no longer be criminal offences after February 6, 2016. If the provisions were read down, much would still be unclear, for example: in what precise circumstances a physician would be able to benefit from the exception; what steps a physician would have to take to determine the genuineness of the person’s wish to die; how to respect some physician’s reluctance to participate.

The Court is likely to provide the extension to the government. There’s too much at stake here, and the Court has rightly expressed too much deference to the government on this issue to provide an explicit remedy themselves.

Although physician assisted suicide currently only affects those of us who are in palliative care, it’s an issue that will affect all of us at some point in our lives, or at least as we approach the end of it. This is an issue which all Canadians should be involved in, and something we should be paying closer attention to over the next 8 months.