Justice Minister Jody Wilson-Raybould responds to a question about assisted dying legislation tabled by the government Thursday April 14, 2016 in Ottawa. (Photo: Adrian Wyld/CP)It's also not complying with the top court's ruling, known as the Carter decision, when it excludes people suffering solely from psychiatric conditions, the judges say. The judicial smack-down comes at a particularly inopportune moment for the federal government, just as it is trying to persuade MPs and senators that its restrictive new law on assisted dying complies with the Supreme Court's ruling and with the charter of rights. The bill is expected to be put to final vote in the House of Commons, where MPs are being allowed a free vote, by the end of this week.
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"The decision itself is clear. 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."
Gloria Taylor suffered from amyotrophic lateral sclerosis. (Photo: The Canadian Press)The appeal court rejected the federal argument, saying it "is not supported by the words of the (Carter) decision as a whole, nor by the principles articulated in the decision." "Given the importance of the interests at stake, it is not permissible to conclude that certain people, whose circumstances meet the criteria set out in the Carter 2015 declaration and who are not expressly excluded from it, nevertheless can be inferentially excluded," the panel of judges said. "It is not appropriate, in our view, to revisit these issues, which were considered at length and decided by the Supreme Court in Carter 2015." In setting out the parameters for an assisted death, the appeal judges noted that the Supreme Court did not "require the applicant to be terminally ill to qualify." "The decision itself is clear. 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."
"It is not appropriate, in our view, to revisit these issues, which were considered at length and decided by the Supreme Court in Carter 2015."The appeal court was particularly dismissive of the federal argument that the Supreme Court's references to "end of life" care suggest it intended to limit the right to assisted dying to the terminally ill. "Physician assisted death is about terminating one's life, ergo the comparison to 'end of life care.'" As for precluding those suffering solely from psychiatric conditions, the appeal court said the federal government has taken portions of the Supreme Court ruling out of context. In fact, the issue of whether those with psychiatric illnesses should be excluded was "squarely" before the top court, which nevertheless "declined to make such an express exclusion as part of its carefully crafted criteria." "Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria," laid down by the Supreme Court, the appeal court judges concluded.
Attorney General as 'adversary'The appeal court also questioned the appropriateness of the federal government appealing a court-ordered exemption to the ban on assisted death. In agreeing to allow exemptions back in January, the Supreme Court "did not intend this to be an adversarial process," the trio of judges noted. Moreover, the top court intended superior courts, not federal or provincial attorneys general, to be the "gatekeeper" of exemptions until a new law is enacted. "Can it be said to be in the public interest to have the Attorney General of Canada (Jody Wilson-Raybould) assume the role of adversary when she is not satisfied that the application meets the Carter 2015 criteria? We do not think so."
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