Saturday January 09, 2016

Liberals hoping for extension on physician-assisted suicide, but Supreme Court might not oblige

A.B. said his only regret was having to wage a court battle in his final months.

A.B. said his only regret was having to wage a court battle in his final months. (Chris Kreussling)

Listen 6:35

Time is ticking down for the Liberal government to draft new laws regulating doctor-assisted dying.

Last February, the Supreme Court ruled that Canadians with unbearable suffering should be allowed to end their lives with the aid of a physician but it suspended the decision — and it gave Parliament one year to enact new laws. 

But so far the government has done little to respond to the ruling — preferring to go to the Supreme Court to beg for an extension to draft a "comprehensive response," to the court's judgment. The top court will render its decision on an extension on Monday.

Government lawyers have argued that their work "can not reasonably be completed before [the] Feb. 6, 2016" deadline. 

The Liberals have promised to strike a joint parliamentary committee, composed of MPs and Senators, to adequately study the issue and concoct a solution that will balance the Court's ruling with protections for the vulnerable and doctors reluctant to participate in any sort of assisted-dying regime.

But progress on assembling the membership of that committee has been slow. Andrew Leslie, the Liberal's whip, refused to answer questions from CBC News this week about the committee's composition. So far, only the names of senators have been released.

Despite the legislative conundrum, "we certainly do not enter a grey zone" if the Court denies the government an extension, Carissima Mathen, an associate professor of law at the University of Ottawa, said in an interview with Terry Milewski on CBC Radio's The House

"It's important to note that the Supreme Court — when it ruled last February — did not strike down the law prohibiting assisted suicide in its entirety. It said, as applied to a certain group of persons, the law is unconstitutional: namely for competent adults with an irremediable conditions that causes them suffering.

"For those persons the law cannot prohibit them from seeking assistance to die. And so, if there is no extension, those persons then can exercise that constitutional right but that will then depend on issues of access and that will very much be a local issue," Mathen said. 

Justice lawyers are concerned that if the Supreme Court's decision stands, without new legislation on the books, consensual killings and assisted suicide — not just those of the physician-assisted variety — would be permitted.

Moreover, the government does not want a patchwork of legislation across the country; and yet Quebec has already enacted its own legalization of sorts for physician-assisted suicide after years of debate.

And while the Quebec Superior Court had initially struck down that legislation, the Court of Appeals overturned that decision in late December.

All of this has given the federal government a greater incentive to act quickly to rewrite the laws of the land to adhere to court rulings.

Mathen said the Court will likely be uneasy with an extension, in part because any further hold up could be interpreted as a violation of a person's fundamental liberties.

"It's true that we had an election, we had a change in government, but none of that was unknown. Those possibilities were not unknown when the question of the length of the delay was being argued last February. And on the other side we have a profound constitutional violation," she said. 

Mathen said that physician-assisted suicide should be compared to other criminal code provisions that the top court has struck down.

"If we were to look at the idea of an exemption that would keep a law in force whereby people would be kept in prison according to an unconstitutional law, I think we would have quite a negative reaction to that.

"And what the plaintiffs in this case are saying is that people who are seeking this assistance are in a similar kind of prison and to keep them there for an additional length of time is a profound violation."