Yesterday, the Supreme Court of Canada further suspended its Carter judgement for four months, reflecting the length of the interruption of the work of Parliament caused by the 2015 election. All nine judges agreed on the extension after hearing arguments on a motion earlier this week. CLF intervened in that motion.
The Court was split 5 to 4 on the other issues, namely (1) whether Quebec’s “medical aid in dying” law should be exempt from the continued application of the criminal provisions in Question and (2) whether individual exemptions should be available across the country through application to a judge.
To both exemptions, the majority said “yes” and the minority said “no”.
Exemption granted for Quebec’s “medical aid in dying” law
Quebec argued the exemption was needed to clarify the legal position in Quebec, given that its law permits “aid in dying” while the criminal law does not, and to avoid the chilling effect of the threat of possible criminal law violations. “In view of this, and having regard to the fact that the Attorneys General do not oppose”, the majority granted the exemption. For now at least, Quebec’s Act Respecting End-of-Life Care (ARELC) governs, but the majority noted that its ruling “should not be taken as expressing any view as to the validity of [Quebec’s law].”
John Sikkema, CLF’s Associate Counsel, who appeared for CLF at the motion, comments: “There is no precedent cited or explanation given for why clarifying the state of the law in a particular province or the supposed need to avoid the ‘chilling effect’ of the threat of committing criminal activity justifies exempting a province from criminal prohibitions that continue to apply in the rest of the country.”
The minority would not have exempted Quebec. In their view, the exemption would neither add to nor take away from “whatever clarity existed in the province of Quebec when the ARELC came into force.” The minority also cites the fact that the Minister of Justice in Quebec has issued a directive to the Director of Criminal and Penal Prosecutions not to prosecute any physician who follows the ARELC.
Individuals throughout Canada may apply to superior court for exemptions
The majority also granted an option for individuals to apply to a superior court for authorization to receive physician-assisted suicide during the four-month extension. Dissenting on this point, the minority highlights that in Carter (2015), the Court held unanimously that such a mechanism for individual exemptions would "create uncertainty, undermine the rule of law, and usurp Parliament's role. Complex regulatory regimes are better created by Parliament than by the courts." (para 125).
CLF Executive Director Derek Ross comments: “Less than a year ago, a ‘complex regulatory regime’ was considered necessary to minimize error and abuse and the suspension was given to afford Parliament time to create one. Today, a narrow majority of the Justices are prepared to permit assisted suicide in the absence of such a regime, and without clear guidance to assist lower courts in deciding individual exemption applications.”
The majority limited the availability of this remedy to applicants who fall within the scope of the declaration set out in paragraph 127 of Carter. As Gerald Chipeur, Q.C., who represented CLF in Carter, explains, eligibility for court-approved assisted-suicide will be limited: "Applicants will need to demonstrate that they are in a position similar to the factual circumstances in Carter, which involved an adult patient with advanced ALS, a physically debilitating and ultimately fatal disease. Based on the limited scope of the court's declaration, children, the non-terminally ill, and those suffering only from psychological (and not physical) illness would not qualify.”
CLF submissions reflected in minority judgment
CLF intervened at the motion, arguing that this matter involves serious questions of public morality and core societal values, which require careful review and clarification in the criminal law. Those arguments were reflected in the closing words of the minority's judgment:
"[We do not] underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct. The complexity results not only from the profound moral and ethical dimensions of the question, but also from the overlapping federal and provincial legislative competence in relation to it. The Court unanimously held in its judgment on the merits that these are matters most appropriately addressed by the legislative process. We remain of that view."