HALIFAX, N.S. June 12, 2016/ Troy Media/ – The federal government’s response to the Supreme Court of Canada ruling on medical assistance in dying offers a fair compromise.
Bill C-14 is generating a lot of criticism from diametrically opposed perspectives – those who think it too permissive and those who think it is too restrictive.
Errol Mendes, in testifying before the Senate legal and constitutional affairs committee, was right to invoke the old adage: “Perfection is the enemy of the good.” That is especially apt when there are so many versions of what constitutes the perfect where assisted dying is concerned.
The Supreme Court concluded that the absolute ban on physician-assisted suicide was contrary to the Charter of Rights and Freedoms because it went too far in its attempt to protect the vulnerable – those who seek death at a moment of weakness. The court suspended its declaration of invalidity of this ban until June 6, in order to give Parliament time to develop a complex regulatory regime.
The most contentious aspect of Bill C-14 is that it is limited to those who are dying but with no time-limited cut-off. Those who think Bill C-14 is too permissive are seriously constrained by the court’s ruling. Any attempt to prevent medical assistance in dying completely is not an option unless the charter’s notwithstanding clause were invoked – a highly unlikely scenario. The Conservatives proposed that access be limited to those whose death is expected within 30 days. That very restricted access would almost certainly fail a charter challenge.
Those who think Bill C-14 is too permissive should consider the consequences of defeating or significantly delaying it. That would only make things far worse from their perspective. That’s because having no criminal legislation – and thus only the Supreme Court’s ruling invalidating the ban on physician-assisted dying – results in much wider access than under Bill C-14.
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At the other end of the spectrum are those who think wide access is constitutionally required, and that Bill C-14 is unconstitutional in its limitation to those with a reasonably foreseeable death. They claim that since the court’s declaration said nothing explicit about death being reasonably foreseeable, or any other end-of-life stipulation, there cannot be any such limitation. If an end-of-life stipulation were allowable, the argument goes, the court would have said so.
The opposite point is more compelling. If the court had determined that Parliament could not adopt an end-of-life stipulation, it would have explained why not. But the court never weighed the pros and cons of any end-of-life stipulation, such as exists in American states and Quebec. It handed the task of evaluating an end-of-life stipulation to Parliament.
Much has been made of the comment by Justice Andromache Karakatsanis on Jan. 11 during the hearing on the application to give Parliament extra time to respond. Karakatsanis, in discussing the Quebec legislation, said “whereas in Carter we rejected terminally ill.” What has been given insufficient attention is that Karakatsanis herself pulled back in the court’s written reasons just four days later. She was one of five judges who said, “we should not be taken as expressing any view as to the validity” of the Quebec legislation.
If Bill C-14 is unconstitutional in being limited to those who are dying, so is Quebec’s legislation. The Supreme Court in the second Carter decision was careful to leave the issue open. Despite that, those arguing that the first Carter decision already settled that there can be no end-of-life stipulation in an assisted dying bill are saying that this matter is not even open for debate.
The principled defence of Bill C-14 – why it warrants being found to be constitutional – is that the risks of error are much higher for those not already close to death. The error in question is subjecting people to premature death who may have changed their minds if death had not precluded that option. To claim that all that counts is individual autonomy is to deny the social responsibility to protect the vulnerable.
Philosopher and theologian Jean Vanier, interviewed on CBC’s As It Happens, offered sage advice in advocating caution. The Supreme Court ruling has not obliterated suicide prevention as important public policy.
Bill C-14 may not be perfect but it is far better than the alternatives of wide open access.
Dianne Pothier is professor emeritus, Schulich School of Law at Dalhousie University. Her expertise includes constitutional and disability law.
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