In just three months, the Supreme Court of Canada’s partial invalidation of the criminal prohibition on assisted suicide in Carter v Canada will take effect.
Christian Legal Fellowship (CLF) was an intervenor in Carter at all three levels of court (see CLF’s facta here), relying on the core legal (and for CLF, religiously-informed) principle of the inviolability of life. CLF advocated that the lives of all persons are equally valuable, despite the many inequalities (physical/mental ability, bodily health, etc.) that might exist, and that the state must guard the lives of all persons impartially, and not differentially value their lives.
Parliament has established an “External Panel on Options for a Legislative Response to Carter v. Canada”(the “Panel”). The Panel’s mandate is to consult with key stakeholders on issues that are fundamental to a federal legislative response to the Carter ruling and to provide a final report to the Ministers of Justice and Health.
CLF was invited by the Panel to engage in a direct consultation based on its interventions in Carter. CLF, represented by Executive Director Derek Ross and associate legal counsel John Sikkema, met with the Panel today in Toronto and made both oral and written submissions on a number of questions of law and ethics (written submissions available on CLF’s website).
CLF submitted that the broader ethical, moral, social, and cultural issues resulting from the legalization of physician-assisted suicide were not adequately addressed in Carter and need to be carefully examined before a new regime is introduced. CLF stressed that more time is needed for this vital process and encouraged the panel to recommend that Parliament request an extension of time to do so.
CLF also submitted that the Supreme Court of Canada (SCC) in Carter did not impose a value judgement that assisted suicide and euthanasia are good “services” for society that must therefore be funded and facilitated by the government. Rather, the SCC ruled that a blanket criminal prohibition was a broader than necessary means for achieving Parliament’s legislative objective—which the SCC interpreted as protecting vulnerable persons from being induced to commit suicide in a moment of weakness. CLF’s submission explained that it remains open to Parliament to re-enact a complete ban pursuant to the objective of maintaining the longstanding legal principle of the inviolability of life (an issue which was not addressed by the SCC in Carter), and detailed why a complete ban remains the best legislative option available.
Should Parliament choose not to (re)enact a complete ban, however, CLF submitted that Parliament retains jurisdiction over the “matter” of assisted suicide and must enact strict limits on this practice, along with comprehensive safeguards and oversight mechanisms, to protect the vulnerable in as much as this is possible. CLF also advocated for improved access to good palliative care for patients.
Finally, CLF advocated for the protection of physicians’ (and others’) freedom of religion and/or conscience by making it an offence to pressure a person to participate, directly or indirectly, in assisted suicide or euthanasia.
CLF was also invited by a group established by provincial/territorial governments - the Canadian Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying – to participate in a separate consultation by completing a detailed survey. The survey contained questions on a wide range of issues including eligibility for “aid in dying”, how capacity should be assessed, the role of physicians and other health care workers, the role of health care institutions, conscientious objection, regulatory oversight, and various procedural matters.
The underlying premise of the survey, however, was that either the provinces or the medical regulatory bodies should develop legislation or policies to ensure “equitable access” to “aid in dying” as a medical service. CLF’s response to the survey (available here) emphasized that Carter required a limited exception to a Criminal Code prohibition, the parameters of which should be set out by Parliament, and that in light of the limited scope of its declaration (para 127), assisted death should be exceedingly rare. CLF also submitted that this process was premature in light of the fact that legislation has not yet been enacted by Parliament.