OTTAWA — Jody Wilson-Raybould says the government's proposed new law on assisted dying does not need to comply with the Supreme Court's landmark ruling on the issue.
The justice minister makes the argument in a background paper sent Monday to all parliamentarians as the Senate continues to debate proposed amendments to the controversial Bill C-14.
Senators last week voted to delete the central pillar underpinning the bill — its requirement that only those near death would be eligible for medical help to end their lives — and replace it with the more permissive criteria set out by the Supreme Court in the Carter decision, which struck down the blanket ban on assisted dying.
Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott appear as witnesses at a justice and human rights standing committee on Parliament Hill in Ottawa on Monday, May 2, 2016. (Photo: Sean Kilpatrick/CP)
But the paper contends: "The question is not whether the bill 'complies with Carter' but rather, whether it complies with the charter (of rights)."
Carter versus charter
It maintains the bill's constitutionality "will not be determined by a simple comparison of the bill to the Carter decision." Rather, it will involve an assessment of the bill and the "new and distinct purposes" behind the provisions that restrict the right to an assisted death to those who are close to death.
Whereas the blanket ban on assisted dying had only one purpose — to protect the vulnerable who might be induced in moments of weakness to end their lives — the paper says the proposed new law is aimed at pursuing additional objectives: for instance, to ward against the "normalization" of suicide and to counter negative perceptions of the quality of life of the elderly, ill or disabled.
Consequently, the paper maintains that limiting assisted dying to those who are near death is "fully consistent" with the charter of rights, even if it is much more restrictive than the eligibility criteria set out by the Supreme Court in Carter.
The Supreme Court directed that medical assistance in dying should be available to clearly consenting, competent adults with "grievous and irremediable" medical conditions that are causing enduring suffering that they find intolerable.
C-14 would allow assisted dying only for consenting adults "in an advanced stage of irreversible decline" from a serious and "incurable" disease, illness or disability and for whom natural death is "reasonably foreseeable."
The background paper notes that the top court, in a previous ruling, has recognized that Parliament need not pass laws that are in "slavish conformity" with its rulings. Moreover, it says the Supreme Court has signalled that it will give "a high degree of deference" to whatever regulatory regime Parliament comes up with.
"The government's position is that the Supreme Court did not intend, in declaring the total prohibition invalid, to constitutionalize any particular legislative model — let alone the broadest possible model, which exists in only three jurisdictions in the world," the paper says.
However, Josh Paterson, executive director of the British Columbia Civil Liberties Association, a plaintiff in the Carter case, said it doesn't matter "how many new purposes they put in the bill or how many bells and whistles and safeguards they impose," the legislation is unconstitutional because it maintains an absolute prohibition on assisted dying for all those who are not close to death.
"The government's position is that the Supreme Court did not intend, in declaring the total prohibition invalid, to constitutionalize any particular legislative model — let alone the broadest possible model, which exists in only three jurisdictions in the world."
Canada's leading constitutional authority, Peter Hogg, last week noted that the top court specifically directed the government to enact legislation "consistent with the constitutional parameters" set out in the Carter decision. Excluding all those who are not terminally ill from the right to assisted dying is not consistent with Carter and will thus be inevitably struck down, he told a Senate committee.
Wilson-Raybould's background paper appears designed to counter the impact of such arguments, as the government braces for an impasse with the Senate over the near-death proviso.
The government has signalled that it won't accept the Senate's amendment to delete that provision but some senators are vowing to insist upon it. That could result in the bill bouncing back and forth between the two houses of Parliament until one side gives in.
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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.