OTTAWA — "What the Alberta decision makes me fearful of is that we could, without legislation in place on June the 6th, be in an environment where there is no ability for a person to go to a Superior Court judge and get an exemption. That exemption opportunity ends as of June the 6th." — Justice Minister Jody Wilson-Raybould, May 18, 2016.
Wilson-Raybould signalled last week the Liberal government is concerned about what will happen if there is no legislation in place when the Supreme Court of Canada's landmark decision comes into effect next month.
The government has been stressing the need to pass its bill quickly while it is up against the wall on the deadline set by the top court.
Justice Minister Jody Wilson-Raybould speaks in the House of Commons on Parliament Hill in Ottawa on Thursday, May 19, 2016. (Photo: Adrian Wyld/CP)
Its proposed legislation is slated to clear the Commons next week before it is shipped over to the upper chamber, where it is expected to be closely scrutinized.
A number of senators have already indicated they have concerns about the constitutionality of the bill and have proposed a number of amendments.
As meeting the June 6 target becomes less and less likely, how accurate is Wilson-Raybould's claim that the so-called "exemption opportunity" ends next month?
Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This one earns a rating some baloney — the statement is partly accurate but important details are missing.
In February 2015, the high court recognized the right of consenting adults enduring intolerable physical or mental suffering to end their lives with a doctor's help.
The court then suspended its decision for a year to allow for Parliament and provincial legislatures to respond with legislation that would be consistent with the constitutional parameters set out by the court.
In January, the court agreed to add four months to the federal government's deadline for producing a new law, but with an exemption for anyone who wished to ask a judge to end his or her life earlier.
The government proceeded to introduce C-14 — a controversial bill that has been critiqued by a number of legal experts and groups including the Canadian Bar Association.
The concepts driving the legislation have also been the subject of a judicial rebuttal.
In a decision handed down last week, the Alberta Court of Appeal noted the rationale behind the government's proposed legislation does not comply with the high court’s landmark decision.
The ruling noted the Supreme Court did not "require the applicant to be terminally ill to qualify."
"The decision itself is clear," it said. "No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not."
Grace Pastine, the litigation director of the B.C. Civil Liberties Association, said it is true the so-called exemption opportunity ends as of June 6th, but she characterized Wilson-Raybould's statement as "completely misleading."
Critically-ill Canadians will have access to physician-assisted dying — even if there is no law passed by June 6 — because there will no longer be a need to seek a court exemption and the top court's ruling takes effect, Pastine noted.
Physician-assisted dying will be regulated by the provincial and territorial health care laws as well as the standards of the medical profession, she added, noting patients will also be required to meet the criteria set out by the Supreme Court.
"Physicians will follow the directives of their governing medical colleges ... In short, this will be a medical decision that will be made by critically ill patients and their physicians," Pastine said.
Remarks off base: NDP
NDP justice critic Murray Rankin, a public law expert, also sees Wilson-Raybould's remarks as off base.
The minister is correct to suggest a federal law would promote more reliable access across Canada, but she is wrong to suggest only a federal law can provide it, Rankin noted.
Rankin also pointed to the fact the Alberta Court of Appeal decision highlights how the concepts in the government's proposed legislation are more narrow than the Supreme Court's original ruling.
Ubaka Ogbogu, an assistant law professor at the University of Alberta, stressed an absence of legislation will simply mean no one can be prosecuted as of June 6 for doing exactly what the Supreme Court ruled can be done.
"There is no legal vacuum (as the government has suggested)," he said. "The Supreme Court decision becomes the law and it will then fall to health care practioners, primarily, to decide, if and how they are going to implement that criteria."
"I doubt the minister of justice is deliberately misleading in the sense that an exemption is no longer apt because the law will cease to be in effect for a certain class of persons."
Carissima Mathen, a law professor at the University of Ottawa, said the minister's statement is confusing on its face but she senses Wilson-Raybould was referring to the procedures developed by the courts to evaluate whether the conditions outlined in the Supreme Court's decision are in fact satisfied.
"I doubt the minister of justice is deliberately misleading in the sense that an exemption is no longer apt because the law will cease to be in effect for a certain class of persons," Mathen said.
"My reading of what she was saying is even that level of scrutiny by the judiciary will cease to happen as of June 6 because ... the courts are no longer authorized to consider exemptions."
Trudo Lemmens, a law professor at the University of Toronto who specializes in health law and policy, said the minister's remarks are reasonable.
Most physicians can and indeed should be reluctant to actively participate in life-ending actions in the absence of a legislative framework, he noted.
"Other provisions of the criminal code can apply," he said.
"And we should also be worried about those who feel all too comfortable to be involved in life-ending measures without additional safeguards in place and clear criteria."
Lemmens also noted the Alberta court dealt with its interpretation of the original Supreme Court ruling, not with the constitutionality of the proposed legislation.
Those who say that courts will reject the constitutionality of the bill, simply by looking at what the Alberta Court of Appeal ruled, are making premature statements, he said.
Wilson-Raybould's claim that patients will no longer be able to go to a Superior Court judge to seek an exemption as of June 6 is confusing for a number of reasons. However, the minister is correct to note the exemption opportunity will cease to exist on this date.
For these reasons, the minister's statement receives an assessment of some baloney.
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
No baloney - the statement is completely accurate
A little baloney - the statement is mostly accurate but more information is required
Some baloney - the statement is partly accurate but important details are missing
A lot of baloney - the statement is mostly inaccurate but contains elements of truth
Full of baloney - the statement is completely inaccurate
ALSO ON HUFFPOST:
A look at some jurisdictions where right-to-die laws are in place. (Information courtesy of The Canadian Press)
A right-to-die bill was adopted last year, the first legislation of its kind in Canada. The law, scheduled to go into effect in December, stipulates that patients would have to repeatedly ask a doctor to end their lives on the basis of unbearable physical or psychological suffering. They would have to be deemed mentally sound at the time of the requests. The law, however, is being challenged in court by two Quebec-based groups on the grounds that it undercuts sections of the Criminal Code that outlaw assisted suicide and euthanasia. The federal government has expressed its opposition to the legislation but is named as a defendant in the court challenge because it is responsible for the Criminal Code.
The results of a referendum made Oregon the first U.S. state to make it legal for a doctor to prescribe a life-ending drug to a terminally ill patient of sound mind who makes the request. However, doctors cannot administer the life-ending drugs and the patient must swallow them without help. Patients must state three times -- once in writing -- that they wish to die, and those statements must be made at least 15 days apart. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind. The law took effect in late 1997, and through June, 2014, just over 800 people had used the law.
The state became the first in the U.S. to allow a person's right to die through legislation rather than through a court decision or a referendum result. Vermont's law, which took effect in May 2013, is closely modelled on the system in Oregon and uses the same safeguards. Patients must state three times, including once in writing -- that they wish to die. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind.
In January 2014, a judge ruled that competent, terminally ill patients have the right to seek their doctors' help in getting prescription medication if they want to end their lives on their own terms. The state's attorney general is appealing the ruling, and a decision on whether it will be upheld is expected later this year.
A referendum saw the state enact right to die legislation in 2008. As in Oregon, patients with less than six months to live must administer the doctor-prescribed lethal medication on their own. According to a government report, 549 people applied for the right to die between 2009 and 2013. Of those, 525 actually took their own lives.
In 2009, the state's Supreme Court ruled that Montana's public policy supports mentally competent, terminally ill patients being able to choose aid in dying. Physicians are allowed to prescribe medication that patients must administer themselves. More detailed legislative bills have been introduced in the state but have not passed. The court ruling still stands today, but data about its usage is not available.
A law passed in 1942 forbade anyone from helping someone kill themselves for selfish reasons. As a result, people arguing that they are assisting with a suicide for unselfish motives are not considered to be committing a crime. Suicides can be assisted by people other than doctors and no medical condition needs to be established. Switzerland is the only country that allows foreigners to travel there for the purpose of ending their own lives.
In the Netherlands, euthanasia is legal under specific circumstances and for children over the age of 12 with parental consent. In Europe, patients don't have to prove that they have a terminal illness -- establishing unbearable suffering is usually sufficient. Dutch doctors are allowed to perform euthanasia if a patient whose unbearable suffering has no hope of improvement asks to die with a full understanding of the situation. A second doctor must agree with the decision to help the patient die.