The state of assisted-dying legislation after Carter

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On November 13, 2015, newly elected Prime Minister Justin Trudeau provided his Minister of Justice, Jodi Wilson-Raybould, with a mandate letter. First on the list of priorities is that Ms. Wilson-Raybould "lead a process, supported by the Minister of Health, to work with provinces and territories to respond to the Supreme Court of Canada decision regarding physician-assisted death."

It has been nine months since the Supreme Court released its ruling in Carter v. Canada, 2015 SCC 5, striking down the constitutionality of Sections 14 and 241(b) of the Criminal Code which prohibit physician-assisted suicide. The Court in Carter departed from the 1993 ruling in Rodriguez, which also dealt with the issue of physician-assisted suicide. In that case, the Court found that the provisions prohibiting physician-assisted suicide violated the individual's right to life, liberty and security, but in a manner that was justified under Section 1 of the Charter of Rights and Freedoms. By contrast, the Court in Carter found that the offending provisions of the Criminal Code infringed on the individual's right to life, liberty and security, as well as the right to equal protection under the law in a manner that could not be justified.

The Supreme Court suspended the declaration of invalidity of these sections of the Criminal Code for 12 months, allowing the federal and provincial governments one year in which to amend legislation so that it would comply with its decision.

Consultation mechanisms

Quebec is the only province to have enacted its own legislation in response to Carter, arguing that the matter relates to health care and thus falls within the jurisdiction of the province. Quebec's legislation is expected to take effect on December 10, 2015, in advance of the February deadline.

But it remains unclear how the remaining provinces will respond in time for the deadline of February 2016.

Unsurprisingly, the Conservative government made minimal progress in developing legislation following Carter. A full six months after the decision was released, Justice Minister Peter MacKay and Health Minister Rona Ambrose announced the creation of an "external panel" to provide recommendations to the government on compliance with the Court's ruling. The makeup of the panel was heavily criticized for bias, given that two of its three members testified in favour of the Crown's case against physician-assisted suicide. The government's online survey was also subject to attack on grounds that its questions did not accurately reflect the Court's ruling, and were designed to manufacture fear. (One question asks, "To what extent do you agree or disagree that you (and others in this same scenario) should be able to receive a physician's assistance to die: if you are 17 years old, have a full and complete understanding of your condition and wish to die?" notwithstanding the fact that the Carter decision clearly applies only to those over the age of 18).

Alongside the federal consultative regime, the province of Ontario established a provincial-territorial expert advisory group and solicited feedback via an online survey. The province's survey delves into the mechanics of the proposed legislation. It includes questions about a mandatory "cooling off" period following a patient's request for physician-assisted suicide, a formal dispute resolution process if a family does not agree with a patient's request, and whether a patient requesting physician-assisted suicide should have to undergo a psychological assessment.

Crafting legislation that balances access with protection

Certainly, any legislation will need to strike a balance between the individual's right to physician-assisted suicide and the protection of vulnerable and marginalized persons. Much hinges on the interpretation of the Court's assertion that candidates for physician-assisted suicide "must be competent adults who clearly consent to the termination of life, and have a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual."

Unsurprisingly, stakeholders have highly variable, and sometimes opposing views of what constitutes  "grievous and irremediable medical conditions," how to assess "competence," and how to measure "clear consent." 

The British Columbia Civil Liberties Association (the "BCCLA"), in its stakeholder report to the province of Ontario, argues that the ruling in Carter does not require that the individual be competent at the time that consent is provided. On that basis, they propose that physicians be allowed to rely on "advance directives" provided by the patient. The BCCLA further suggests that "grievous and irremediable" is sufficiently defined in the Criminal Code, and any further qualifications of medical conditions will cause complication, exclusion from access, and costly legal challenges. Finally, the BCCLA opposes the mandatory implementation of a "cooling off" period. 

By contrast, the Canadian Medical Association, in its draft report on physician-assisted suicide, defines consent as a "an evolving process requiring physicians to communicate continuously with the patient," requiring that patients be mentally capable of making a decision at the time of the request. The CMA does not comment on whether the legislation should restrict the definition of "grievous and irremediable" conditions, but sets out a "process map" which integrates "cooling off" periods following the patient's oral requests for physician-assisted suicide.

The advocacy group Dying with Dignity has predicted that advance care directives will likely not be permitted in the legislation.

Conclusion

It is likely that the government will request an extension to allow time to develop legislation, though advocates for physician-assisted suicide have urged against it. As has been noted elsewhere, the failure to enact legislation will simply mean that physician-assisted suicide will be governed by provincial health laws and existing medical standards, not that a "legal vacuum" will result.

Any legislation must include safeguards that will protect parties that might be vulnerable to abuse. While it is regrettable that individuals like Donna DeLorme were denied a dignified death as a result of delays by the federal government, Mr. Trudeau's letter to his justice minister suggests that this will be a priority for the Liberal government.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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