Carter v. Canada

CLF Submissions Well-Reflected in External Panel's Report on PAD

LF's Associate Counsel John Sikkema, left, and Executive Director Derek Ross, right, after completing their submissions to the External Panel on November 3, 2015. 

LF's Associate Counsel John Sikkema, left, and Executive Director Derek Ross, right, after completing their submissions to the External Panel on November 3, 2015. 

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. 

CLF Appears at SCC Motion to Extent Carter Deadline

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 Carterthe 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.

Appellants' Position

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.

Moving Forward

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.