Feds are willing to allow it in Quebec which has “a comprehensive scheme” to address the issue, but the rest of the country needs more time to draft laws, a federal lawyer has told judges in the Supreme Court, which earlier struck down the criminal ban.
OTTAWA—Ontario is scrambling to catch up to Quebec where doctors could soon legally aid terminally ill adult patients kill themselves after a stunning offer by federal lawyers to recognize — for now — the legality of Quebec’s right-to-die regime.
Federal lawyer Robert Frater made the surprise concession Monday at a Supreme Court of Canada hearing, where he sought a six-month extension for federal politicians to rewrite assisted suicide laws to provide more “clarity” to protect vulnerable people.
Ontario supports the federal bid for more time and says it, too, is drafting new medical guidelines.
Frater said only Quebec has come up with a “comprehensive scheme” to address concerns of physicians and patients after the high court ruled last year that people suffering a “grievous and irremediable medical condition” must be allowed to seek a doctor’s help to end their lives.
The Supreme Court ruled last winter a federal criminal ban on assisted suicide was unconstitutional, struck it down and gave Ottawa a year to rewrite it. That ruling takes effect Feb. 6.
On Monday, Ontario Premier Kathleen Wynne said her government has asked the College of Physicians and Surgeons, which regulates the medical profession, to draft guidelines for doctors that could kick in right away if the court refuses to grant more time.
“We are acutely aware that if there is no extension that the province needs a protocol in place,” Wynne said. “If there is an extension, we will work with colleagues across the country and with the federal government to work on what that national protocol will be. But in the absence of that we will be prepared to bring that forward and obviously we make that public in due course.”
Ontario lawyer Malliha Wilson told the high court one issue under review is whether doctor-assisted suicide is a right only adults should have, or whether a “mature minor” should also have access. Quebec’s law grants access only to terminally ill adult patients.
Frater said Quebec’s law or any other provincial right-to-die regime may not, in the end, conform to Parliament’s ultimate approach. Not all provinces may even have a complete scheme by that time. But he said it is a reasonable period for legislators to deal with the “difficult” issues involved. “Everyone is doing their level best,” he said.
The federal offer to exempt Quebec doctors from criminal liability during the six months was a surprising move for two reasons: Ottawa previously supported an injunction to delay the Quebec law from taking effect; and it means the criminal law would remain in effect outside Quebec only.
It took several judges aback and prompted sharp questions.
Justices Russell Brown and Michael Moldaver asked if Ottawa was ceding to Quebec its criminal-law making power. Chief Justice Beverley McLachlin questioned Frater whether Ottawa’s position was “a matter of political acceptance or do you accept it from a legal point of view? . . . There still is this niggling problem, isn’t there, of whether the federal government would ever have to legislate if everybody did the same thing as Quebec?”
Justice Andromache Karakatsanis asked if it meant whether any conduct that complied with Quebec’s law would not be considered criminal. Justice Rosalie Abella challenged Frater why the same exemption shouldn’t be extended to individuals anywhere in the country who could persuade a superior court judge they met the conditions set out by the high court in its landmark 2014 Carter decision.
Brown, the last judge named by Conservative prime minister Stephen Harper, raised the possibility that Ottawa could grant itself an extension by simply exercising the constitutional “override” clause — a rarely-used and controversial power that allows legislators to sidestep the Charter of Rights and Freedoms.
“In theory at least if this court doesn’t grant an extension, can’t the minister ask parliament effectively for a suspension by way of exercising the override?” asked Brown.
Frater hesitated before saying the government “has said nothing other than that it will respect this court’s judgment about providing access in some form.”
He clarified that Ottawa has eyed an exemption only for doctors who act in Quebec under that law. He said a case-by-case personal exemption for individuals would not be a “carefully designed and monitored scheme” that the high court’s 2014 ruling called for.
Grace Pastine, litigation director for the British Columbia Civil Liberties Association, which led the legal challenge, said it “simply makes no sense that individuals who are critically ill and suffering could be able to access physician-assisted dying in Quebec but nowhere else in the country. What we’re saying is there has to be consistency for the rule of law to mean anything here.”
She said personal exemptions are not an ideal way to proceed because so few Canadians would be able to afford to litigate their right to die.
Lawyer Joseph Arvay, who represented the families of Gloria Taylor and Lee Carter — the two women in whose name the case was brought — called the federal position “nonsense.”
He said there was no risk of harm to the public if the ruling took effect on Feb. 6 because it already set out limitations or conditions in which physician-assisted suicide would be lawful, and that there would be no vacuum.
“You already read down (narrowed) the legislation. Why did you suspend (the effect of the ruling)? I don’t know that you needed to,” said Arvay. He suggested the federal government appears to be getting cold feet, and is not looking at how to implement the court decision but “whether to.”
Several judges disputed Arvay’s suggestion the ruling effectively drafted a new law. Moldaver said Parliament was given time to rewrite the law “to ensure so far as possible that we are not killing people who ought not to be killed.”
But Arvay said legislative procedural delays should not “trump” the constitutional rights of people who need physician-assisted dying.
“There’s not going to be a rush to the doctors’ offices to die on Feb. 6,” he said. “Most people don’t want to die . . . all physicians will be very reluctant to accede to the request unless a compelling case is made.
The judges reserved their decision.
With files from Robert Benzie
Options for the Supreme Court of Canada:
1) NO. The judges could refuse Ottawa’s request to extend the criminal ban for another six months. Until any new law is passed, last year’s Supreme Court ruling would prevail after Feb. 6. It said assisted suicide is constitutional when it occurs under a physician’s care, for consenting adults who determine they cannot tolerate the physical or psychological suffering brought on by a severe, incurable illness, disease or disability.
2) YES. The judges could grant Ottawa’s request for six more months and subject doctors who assist someone in committing suicide to criminal liability, except in the province of Quebec where physician-assisted dying would be legal under provincial health law once litigation over an injunction is resolved.
3) YES, BUT. The judges could grant Ottawa’s request to extend the criminal law for six more months, but allow individuals to go to court to get a judicial exemption to allow doctor-assisted suicide on a case-by-case basis in the meantime.