OTTAWA, ON - This morning, CLF appeared before the Supreme Court of Canada as an intervener in the Attorney General of Canada's (AGC) motion requesting that the Court suspend its Carter ruling for an additional six months.
In Carter, the Court partially invalidated sections 14 (consent to death) and 241(b) (aiding/abetting suicide) of the Criminal Code. The Court's declaration of invalidity in Carter was initially suspended for a year. That suspension is due to expire on February 6, but no federal legislation has yet been passed in response to the ruling.
CLF's Participation in the Proceedings
CLF’s Executive Director, Derek Ross explains why CLF participated in the proceedings: “As CLF stressed in its submissions, important legal questions raised by Carter remain unanswered, and Parliament must answer these questions before euthanasia is provided by anyone, including physicians. If Carter were sufficiently clear to safeguard the vulnerable and to delineate when assisted suicide or euthanasia does or does not attract criminal liability, the suspension of the declaration would have been unnecessary. However, the suspension was advisable then and is still advisable today.”
The motion was opposed by the Carter Appellants. Also present were the Attorney General of Quebec (AGQ), the Attorney General of Ontario (AGO), the Council of Canadians with Disabilities, the Canadian Medical Association, and Christian Legal Fellowship. The two Attorneys General were the only interveners granted oral argument. However, CLF filed written submissions and our Associate Counsel John Sikkema attended the hearing on CLF's behalf.
Following today’s hearing, CLF Associate Counsel John Sikkema commented, “It was encouraging to see several issues that we raised in our submissions put directly to the parties by the Supreme Court Justices. However, the case for an extension was complicated by the fact that the AGC supported an exemption for Quebec.”
Quebec's Request for an Exemption
Quebec, which has passed its own law purporting to regulate physician-assisted suicide, requested an exemption from the extension, if granted. The AGC argued that the extension was necessary because Carterraises life-and-death issues on which the law must be clear. At the same time, the AGC supported Quebec's exemption request, saying that its concern was with upholding the rule of law and the protection of the public, which Quebec's law purportedly achieves, at least according to the Quebec Court of Appeal in D'Amico (holding that Quebec can go ahead with providing “assisted dying” under its law despite the criminal law provisions that remain in effect).
Questions from the Bench
Justice Karakatsanis asked whether Quebec's law might conflict with the Criminal Code. The AGC responded that, in light of D'Amico, Quebec's law is currently acceptable, although it may conflict with future federal legislation depending on what Parliament enacts. Justice Brown asked whether a province can legislate the distinction between culpable and non-culpable euthanasia. CLF argued that provinces cannot do so, since the dividing line between culpable and non-culpable euthanasia is a criminal (and federal) matter. The AGC replied that Quebec has effectively done so, but nevertheless insisted that Parliament should be given more time so that it can make it clear when euthanasia is culpable or not.
Chief Justice McLachlin then asked: if all provinces were to do as Quebec has done, would federal legislation even be necessary? The Chief Justice also asked whether the AGC's acceptance of Quebec's position was “political” (rather than “legal”) acceptance. In reply, the AGC said that it is not giving up its criminal jurisdiction, but simply recognizing the reality in Quebec in light of D’Amico.
Justice Moldaver observed that Parliament could decide to give Quebec authority to regulate assisted suicide and euthanasia, but questioned whether the AGC could give consent to the Court to create such a scheme by exempting Quebec. This was another point CLF made in its submissions which the AGC did not--that Parliament may or may not decide to create a role for the provinces through the Criminal Code, as it once did with abortion and still does with lotteries, but that the Court should not effectively do so by exempting Quebec, but should respect the separation of powers.
Justice Karakatsanis asked whether the AGC's position implies that Quebec's law complies with the Criminal Code as read in light of Carter. The AGC responded that it was not commenting on constitutional issues, but simply recognizing the D'Amico ruling and its implications. On this point, CLF argued that it would be inappropriate for the Court, on a motion, to decide whether or not Quebec's law fits within the parameters ofCarter and adequately addresses all the legal issues raised by Carter. Zeroing in on this issue, Justice Moldaver asked whether compliance with Quebec's law equated to compliance with Carter. The AGC replied affirmatively. In CLF's view, this is effectively saying that Quebec has delineated criminal and non-criminal participation in assisted suicide or euthanasia--which as a province it cannot do.
The Carter Appellants opposed the extension, arguing that all that needs to be worked out now are the details of providing access, which is the provinces' responsibility. Justice Moldaver pointed out that the issue is about homicide--about intentionally causing another person's death--a point emphasized in CLF's submissions and regrettably absent from the AGC's. Counsel for the Appellants replied that the Court had effectively amended the Criminal Code, thus implying the Court had already answered the criminal law question raised by Justice Moldaver. In the alternative, the Appellants argued that, if the extension is granted, individual exemptions should be available for people who qualify under Carter.
The Court reserved its decision but is expected to rule on the case before February 6, when Carter is due to take effect.
CLF will update its members with any further developments.