Cristian Legal Fellowship has submitted a written brief to the Parliamentary Special Joint Committee on Physician-Assisted Dying (the “Committee”). CLF’s brief was filed in order to provide clarification on a number of legal points, to outline key concerns surrounding euthanasia and assisted suicide, and to comment on Parliament's responsibility.
The Committee has been hearing from witnesses for the past two weeks. The Committee was appointed to review the Report of the External Panel on Options for a Legislative Response to Carter and other recent relevant consultations and studies, to consult with Canadians, experts and stakeholders, and to make recommendations on the framework for federal legislation that respects the Constitution, the Charter, and the priorities of Canadians.
The Committee’s deliberations have so far been focused primarily on how to make sense of and to implement the Supreme Court’s declaration in Carter that sections 14 and 241(b) of the Criminal Code are “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The problem with the approach to responding to Carter that has predominated so far is two-fold:
First, it treats the Carter decision as dictating the fundamental requirements of any future law on the matter of assisted suicide and euthanasia, whereas the Court clearly stated its intent to avoid usurping Parliament’s role in crafting a remedy.
Second, it treats the Court’s “declaration” (above) as a free-standing statement of a newfound constitutional right—the supposed right of any and all competent, consenting adults with subjectively “grievous and irremediable” conditions to be killed by a physician or to have a physician assist them in committing suicide—which it is not.
In a telling exchange, the Chair of the Committee, Robert Oliphant, asked Dr. Gaind of the Canadian Psychiatric Association what should be considered “irremediable” when it comes to mental illness:
Dr. Gaind: “I don’t know if that’s a question for the [medical] profession to answer or for society to answer…[E]ven with patients with cancer, you can anticipate what the outcome may be, but you don’t know one-hundred percent for sure in many cases. So at what threshold do we say something is completely irremediable or not?”
Mr. Oliphant: “That’s what we’re asking you.”
Dr. Gaind is right. Answering such questions is Parliament’s responsibility, which represents society. However, the starting point for Parliament’s deliberations should not be defining “grievous and irremediable”. Rather, it should be answering such questions as: Why have a law governing assisted suicide and euthanasia at all? What objectives should a new law be designed to achieve? Not only are these good questions to ask at the outside as a matter of good policy making, but the objectives the law serves play a crucial role in determining the law’s constitutionality if the law is subject to a constitutional challenge.
In CLF’s written brief to the Committee, we elaborate on the points made above. We also explain how the scope of Carter has been exaggerated and how misunderstanding Carter creates a risk of foregoing the most important legislative objectives or the most effective means to achieve those objectives out of the mistaken belief that Carter precludes them.