Earlier this week, the government released the Final Report of the External Panel on Options for a Legislative Response to Carter v. Canada. As previously reported, Christian Legal Fellowship ("CLF") provided, by invitation, both written and oral submissions to the Panel in 2015. CLF's written submissions are available here.
The Panel was appointed by the Federal government in the spring of 2015 and its original mandate was to provide recommendations for a legislative response to Carter. Following the election, however, its mandate was changed by the new government to simply reporting on its consultations with stakeholders.
CLF’s submissions are succinctly but well reflected in the Report at several points. CLF’s concerns surrounding the legalization of assisted suicide and euthanasia are apparent in the Report, although our explanation of how Parliament could continue to prohibit it even after Carter is not set out.
While expressing opposition, CLF’s legal team also decided to weigh in on the need for safeguards if the government does decide to make assisted suicide legal in certain circumstances. On the issue of capacity assessment, for example, the Report (at page 65) quotes Derek Ross for his point, made during oral submissions, that “if lawyers, who are versed in the law and are purported to be experts in a lot of the legal tests related to this issue, [are] not able to detect undue influence in the context of drafting wills, where the stakes are much lower, ... there’s a deep concern ... that physicians will not be able to make that assessment for patients.”
Since capacity assessment has both medical and legal dimensions, CLF, along with other groups, called for judicial oversight, a point also captured in the Report. The Panel made specific reference to CLF’s submission that “because physicians could face murder charges, they should have a court’s authorization as a form of legal protection” (page 94).
The Report also addressed the question of how mental illness might fit within an assisted dying framework. The Panel heard the argument that “even if a person’s mental illness rendered them legally incompetent, that incompetence should not disentitle individuals who otherwise meet the Carter eligibility criteria from accessing physician-assisted dying” (page 60). However, the Panel also reported (at page 60) that CLF and others countered this argument. In fact, as CLF highlighted to the Panel, the Supreme Court in Carter explicitly stated that “euthanasia for…persons with psychiatric disorders” was outside of the scope of its reasons (para. 111), and the trial judge also precluded assisted suicide for those who are clinically depressed (para. 1388).
In addition, the Panel reported that CLF, along with a long list of other groups, called for equal access to quality palliative care across Canada (page 121). A list of other key points from CLF’s oral submissions to the Panel is included at page 32 of Annex E to the Report.
The Panel concluded (page 132):
An important goal in establishing a physician-assisted death framework in Canada should be moving toward consensus. There are divergent views on many aspects of physician-assisted dying, but there are also areas of growing consensus, including a recognition of the need for carefully considered safeguards, oversight and a strengthened palliative care framework to be developed in parallel with one that provides access to physician-assisted dying in accordance with the Carter decision. Whatever system is put in place should be rigorously researched and evaluated periodically to foster improvements, if necessary.
CLF is grateful for the opportunity to participate in this process. The Panel’s Final Report is now being considered by The Special Joint Committee on Physician-Assisted Dying, a Parliamentary Committee.