By now, most Canadians will have heard of the Supreme Court of Canada’s ruling on physician-assisted death.
This is likely the most important decision in Canadian legal history, at least since the Privy Council declared women to be “persons” for constitutional purposes in 1929 or the Patriation Reference in 1981.
Whether one agrees with the outcome or not, the Carter decision was a very strong ruling. The court issued its reason per curiam, meaning that no particular judge signed the reasons. This signifies a particularly unified unanimous decision. Second, the court rejected virtually all of the government’s arguments in a direct and terse fashion. Lastly, for what it’s worth to those who believe in “activist” judges, seven of nine judges were appointed to the court by Prime Minister Stephen Harper.
However, proponents of physician-assisted death are not out of the woods yet. In the usual way, the court gave Parliament 12 months to re-jig the law so that it will conform with the charter. The court has done so in many other cases, most recently in the Bedford decision on prostitution. The rationale behind this is that, where an entire part of a law is declared to be invalid, Parliament is best-suited to craft a response.
This is especially important where a law is going to be constitutional and legal in most cases (i.e. where a person is not suffering or terminally ill), but arguably requires a specific regulatory regime for particular cases.
The law declared unconstitutional is a criminal law, meaning the federal government is the one responsible for it. The feds have three options here: (1) it could off-load responsibility to the provinces as being a matter of healthcare to be regulated like any other medical procedure; (2) just like the Morgentaler abortion case in 1988, it can do nothing and let a legal vacuum develop; or (3) it could pass a new law trying to conform with the constitution, just as it did in the Bedford case. Many commentators think option #3 is the most likely outcome.
Whatever that new law might be, it will be controversial. Some, like Stockwell Day, are calling for a replacement law to be written “as narrowly as possible”. That might mean that, while a new law will ostensibly be constitutional (or the Harper government will tell Canadians that they have complied with the Carter decision), it will be extremely difficult for people to meaningfully access physician-assistance in ending their lives. A few ways they might do this would be to create burdensome medical requirements or to require court approval before an end-of-life procedure can be carried out. Jodie Lazare, a doctoral student at McGill Law, has already expressed serious concern that is rightly shared by many Canadians.
One commentator, Prof. Jocelyn Downie has already suggested and drafted legislative amendments, which borrows language directly from the Carter decision.
In its ruling, the court expressly refused to craft any kind of mechanism for a constitutional exemption in the next 12 months. That was because Gloria Taylor, the only party to the case who might have resorted to physician-assisted death, passed away between the trial decision and the Supreme Court ruling. None of the remaining parties (Dr. Schoichet and the healthy children of Lee Carter) were seeking an exemption.
However, at trial, Madam Justice Smith granted Taylor an exemption on certain very specific conditions and with a prior court order. This included the involvement of at least three physicians, thorough evidence of deeply-informed consent, and that she be “near death”. Madam Justice Prowse of the B.C. Court of Appeal upheld that exemption, despite fierce opposition from the federal government.
In my mind, that leaves some room, however small, for a court application by an affected individual in the next 12 months for relief in the form of physician-assisted death before a new law comes into place. It would have to rely to a great extent on the conditions attached to the exemption granted to Taylor, which were very, very specific.
It would also be balanced against a court’s desire to not usurp new legislation before it is even tabled (assuming it is eventually tabled). Despite what many say, courts are very reluctant to interfere with legislative objectives.
It would be an extraordinary remedy, but, then again, people looking for it would also be living in extraordinary circumstances.
The author would like to acknowledge the revision and feedback of Chelsey Roy in this piece.