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

CLF'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 Attends Ontario's Consultation on "Physician-Assisted Dying"

John Sikkema, CLF Associate Counsel

Last night, I participated in the government of Ontario’s public consultation on physician-assisted dying in London on behalf of CLF.

The consultation, which took the form of a “town hall” meeting, began with a “context setting” presentation by a representative from the Ministry of Health. “As we talk about the kind of death we want,” the presenter said, attempting paradox, “we can think about the kind of life we want to live.”

The presenter briefly reviewed the Carter decision and the Provincial-Territorial Advisory Group’s Report on the issue. He mentioned a few of the Report’s 43 recommendations, including that “physician assisted dying” (“PAD”) be publicly funded, include the choice of assisted suicide or euthanasia, and have no mandatory waiting period. After recapping what the Ontario government has been doing—online surveys, town halls, receiving letters, and internal legal and policy research—the presenter from the Ministry of Health turned over the podium to Ipsos Reid. The research firm conducted a live polling and discussion session on the following questions:

1) Would you consider receiving PAD?

2) Who should carry out the act that causes death—the physician, the patient, either, or other?

3) Where or in what facilities should PAD take place?

4) How should the request should be made—in writing, orally, or both?

5) Would you lose trust in your physician if he or she participated in PAD or refused to participate in PAD, or would it have no effect on your trust in your doctor?

There were roughly 165 live votes on every question. In between each question, attendees discussed, for about 15 minutes, both the main polling questions and related questions. The room was divided into five groups, each with its own moderator.

One available voting option for every question was to respond that PAD is wrong under all circumstances. There were questions from the audience as to why this was an option at all, given that the Supreme Court had created a “right” to PAD. The moderator explained that they did not have that response available at their first town hall, and many attendees insisted that it should be a possible response. One person from the audience pointed out that Parliament could still make PAD illegal and expressed disagreement with the Carter decision.

To the first question, 51 responded that PAD was wrong under all circumstances, while around 80 said that they would be either very likely or somewhat likely to consider it (the remainder being spread between “not likely”, “unsure”, and “prefer not to answer”). When the same question was asked at the end of the evening, 60 people responded that PAD was wrong under all circumstances, though the distribution overall was similar. One audience member encouraged the researchers to not discount the slight shift towards opposing PAD, saying he has never put as much thought into an online survey as he has put into the survey conducted in the course of this evening of discussion with fellow citizens.

For each question in between, the number of people selecting the “PAD is wrong” response varied, as other response options seemed more germane to the question, while conveying a similar sentiment. For example, on the question about losing trust in your physician, 31 people responded that they would lose trust in their physician if he or she participated in PAD, 10 responded they would lose trust if their physician would not participate, 73 responded that it made no difference, and 30 responded that PAD is wrong under all circumstances.

On the question of who should perform the act that causes death, only 5 people voted that the patient should do it, whereas 15 selected “physician”, and 73 selected “either” (around 45 selected the “PAD is wrong” response). Following that question, I explained that, while physician participation in either assisted suicide or euthanasia signals medical approval of the decision to end one’s life, statistics show that where the choice is available, more people choose euthanasia, which may result in more “physician-assisted dying” overall than not making the latter an option. Euthanasia enables a person to be passive while a physician kills them. This is perhaps why the trial judge in Carter said that Ms. Taylor must take the lethal drug herself, unless she was completely physically incapable of doing so. Judging by the reaction to what I said, it seemed many people had not fully understood the significance of the question.

Toward the close of the evening, a young doctor told the audience she had voted “PAD is wrong” for every question, explaining that she went into medicine to care for people, not to kill them. Another attendee said he had lung disease and that it causes him great pain, but applauded the young doctor and said there should be more like her. Others told stories of people they knew who had suffered terribly and only wanted relief. Others told stories of elder abuse and warned about the risks of undue influence. Others told stories of people who wanted to die, but whose minds were changed when people came alongside them to care for them. The level of thoughtful engagement on the issues was encouraging. 

SCC Grants Four-Month Extension for Assisted Suicide Law, Exemptions for Quebec and Individuals

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."

CLF Responds to Draft Policies on "Physician-Assisted Dying"

Derek Ross and John Sikkema

Across Canada, Physicians’ Colleges are grappling with the implications of the Carter judgment for their members and for their mandate to regulate the medical profession. The Supreme Court said that what follows its judgment “is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures” (para 132). However, the judgment as a whole clearly anticipates a legislative response from Parliament before assisted suicide or euthanasia may be provided at all.

Waiting for Parliament

Parliament has not yet legislated on this matter and Carter is due to come into effect on February 6, or six months later if the Attorney General’s request for a further suspension of the ruling is granted by the Supreme Court. Consequently, certain physicians’ Colleges apparently consider it necessary to create policies or guidelines on this matter.

The problem CLF has identified with such policies, however, is that they attempt to instruct physicians on whether or not and how to participate in an activity that remains criminal in all but the limited circumstances that fit within Carter. The Supreme Court did not clearly delineate the boundary between criminal and non-criminal assisted suicide and euthanasia or set out the necessary procedural safeguards, nor did they intend to, but left that up to Parliament. It was, after all, criminal law provisions that were in issue and the Court reaffirmed Parliament’s criminal jurisdiction over this matter. So while there may be some role for the Colleges to play, that role is not instructing physicians on how to comply with the limited judicial invalidation of certain criminal provisions.

Misreading Carter

In previous communications, we explained how the Colleges of Saskatchewan and Manitoba misapply Carter in their policies. Our submissions to those Colleges are available (here and here). This month, CLF has also made submissions to the Colleges of New Brunswick (here) and Ontario (here). We identified and explained similar issues to those Colleges.

One important point of explanation is that the declaration of invalidity in Carter was strictly and expressly limited in scope to the factual circumstances of Ms. Taylor, the plaintiff in the case who had ALS, a debilitating and fatal illness. For a concise explanation of the limited scope of the declaration of invalidity in Carter, see “Misreading Carter”.

Yet the Colleges of both New Brunswick and Ontario communicate to physicians through their draft documents that psychological suffering alone is enough to qualify a person for assisted suicide or euthanasia. CLF explains in its submissions why this falls outside the parameters of the Carter ruling.

The Colleges can wait

The Supreme Court was clear that its judgment does not oblige physicians to provide “physician-assisted dying”. The Colleges, therefore, can wait. They are under no obligation to establish policies on this matter when the state of the criminal law is not yet clear. In fact, they would do well to discourage physicians from participating in order to avoid criminal or civil liability, at least until Parliament and the provincial legislatures have clarified these matters through “a carefully designed and monitored system of safeguards” as mandated in Carter (para. 27).

Physicians not obliged to provide assisted suicide

The SCC in Carter made it clear that nothing in its judgment “would compel physicians to provide assistance in dying” (para 132). A recent poll of Canadian physicians revealed that 63% would not consider providing medical aid in dying, with a further 8% undecided. As the court acknowledged in Carter, “a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief” (para 132). Nevertheless, the Ontario College’s Interim Guidance document requires physicians to participate in the form of effective referrals, regardless of their personal beliefs. CLF explains in its submissions that nothing in Carter requires this or creates any burden on physicians or the College to facilitate access to assisted suicide and euthanasia. Rather, as the Court said, Carter “simply renders the criminal prohibition invalid.”

As CLF has stated in 2014 submissions to the College, “Physicians do not practice medicine in a moral or ethical vacuum. To the contrary, a physician’s ethical framework does, and should, inform the care they recommend and provide.” We were pleased to learn that this sentiment was echoed in the Canadian Medical Associations’ recent submission to the CPSO, which stated:

“It is in fact in a patient’s best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement…[M]edical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.”              

The CMA has called on the CPSO to remove its “effective referral” requirement, as has CLF.

Closing Thoughts

A remarkable element of the response to Carter, both from physicians’ Colleges and the Provincial-Territorial Expert Advisory Group’s Report, is the effort to transform assisted suicide and euthanasia from a crime in 2015, to a publicly-funded, readily and equally accessible “health care service” in 2016. The provinces, physicians’ Colleges, and individual physicians supposedly all have a role to play in realizing the “right” to readily access “death with dignity”. But there is no such right. Carter simply held that the criminal provisions were inconsistent with section 7 of the Charter based on a particular interpretation of the objective of those provisions and a particular set of adjudicative facts. Invalidating a criminal prohibition against something is not the same as establishing a positive right to it. Indeed, section 7 of the Charter has never been interpreted as creating positive rights—the right to receive something from the state as opposed to the (negative) right to be free from state interference. Will Canada’s first “positive right” under section 7 be the “right to die”?

Quebec Court of Appeal Overturns Ruling on Bill 52

In D’Amico et Saba c Procureure général du Québec, the Court of Appeal of Quebec overturned the Superior Court’s finding that Quebec’s law is inoperative under the doctrine of paramountcy. The Court of Appeal reasoned that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, but the federal assisted suicide law violates the Charter.  

CLF was granted intervener status in this constitutional challenge to Quebec's euthanasia legislation (Bill 52 - An Act Respecting End-of-Life Care). CLF raised the concerns of faith-based health care institutions and medical professionals about participating in euthanasia or assisted suicide. CLF also spoke to the issue of paramountcy, in support of similar arguments advanced by the parties challenging Quebec’s law (a physician and a woman with a disability) and (initially) by the Attorney General of Canada.

On December 1, 2015, the Superior Court of Quebec declared that portions of the Act purporting to authorize “medical aid in dying” were inoperative because they flagrantly contradict Criminal Codeprohibitions that remain in force. This is known as the doctrine of paramountcy.

The Attorney General of Quebec appealed. The appeal was heard by the Quebec Court of Appeal on December 18. Bob Reynolds, President of the Board of CLF, acted as counsel on the intervention. At the Court of Appeal hearing, Canada reversed its position on paramountcy and supported Quebec’s appeal.

At the Court of Appeal hearing, CLF defended the Superior Court’s judgement on both substantive and procedural grounds. CLF argued that the doctrine of paramountcy must apply in this case to resolve the obvious conflict between portions of Quebec’s law purporting to require “medical aid in dying” to be provided to qualifying persons and Criminal Code provisions which prohibit the same, and that such an outcome was in keeping with the public interest.

The Quebec Court of Appeal overturned the Superior Court’s finding that Quebec’s law is inoperative. The Court of Appeal stated that the court below was wrong on paramountcy. Its reasoning was that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, which is indeed true. But the Court of Appeal reasoned further that the federal law, though it remains in force until at least February 6, 2016 (and possibly longer if the extension requested by the federal government is granted, see intervention in Carter below), is not really “valid”, since it was declared invalid in Carter.

In the view of CLF’s in-house legal team, Derek Ross and John Sikkema, this decision is a problematic one, as they explain:

"In our respectful view, this decision confuses the issue of validity. The reason paramountcy is said to apply only where two valid laws are in place is because it takes two operative laws to have a conflict of laws. Often, in federalism disputes, it will be argued that one or both of the federal and provincial laws in question are ultra vires the enacting body. If one of the laws is ultra vires, it is no longer a law because there was no authority to enact it. There is then only one law, meaning there can be no conflict of laws.

The Quebec Court of Appeal takes the term “validity” as it appears in paramountcy jurisprudence and applies it to Criminal Code provisions that have been declared partially invalid under the Charter of Rights and Freedoms. However, the declaration of invalidity in Carter was suspended for a year. The criminal law provisions currently remain in force. The conflict with Quebec’s law is therefore real and obvious. The reason paramountcy does not apply in cases where one law is invalid is because it isn’t needed—the finding of invalidity or ultra vires eliminates any conflict. A declaration of ultra vires, unlike a declaration that a law violates the Charter, is never suspended but takes effect immediately, meaning the apparent conflict disappears immediately. That is plainly not the case here.

The Quebec Court of Appeal also says (at para. 37) that Quebec’s law fills the legal vacuum left byCarter. The ruling implies that the provinces can fill gaps in the criminal law resulting from a Charterruling, even while criminal law provisions still remain in force. It implies that physicians in Quebec can ignore the criminal prohibitions on assisted suicide and euthanasia because Quebec has legislated on the matter. In essence, it turns the doctrine of paramountcy on its head by making Quebec’s law paramount over federal laws that remain in force."

The Quebec Court of Appeal ruling can be found here (in French).

It is not yet known whether the parties will appeal. CLF will keep its members informed of any further developments.

LSBC's Rejection of TWU Overturned by BC Supreme Court

Yesterday (December 10, 2015), TWU succeeded in its case against the Law Society of British Columbia (LSBC). Justice Hinkson of the B.C. Supreme Court found that the LSBC decision to reject TWU’s proposed law school was both procedurally unfair and substantively incorrect.

Christian Legal Fellowship (CLF) intervened in the proceedings. CLF submitted that it is not contrary to the public interest for a prospective lawyer to study at a law school that adheres to lawful, if unfashionable, ethical beliefs. By characterizing TWU’s admissions policy as discriminatory and making that the basis for not approving its law school, CLF submitted, the LSBC overlooked TWU’s right as a religious educational institution to promote ethics consistent with its underlying beliefs and teachings in order to maintain its religious identity and ethos. CLF also defended the right of religious students to not be deprived of the opportunity to obtain a professional licence because of their religious beliefs or their association with those who hold and manifest such beliefs.

Justice Hinkson found that the LSBC’s statutory authority to consider the “public interest” is broader than the authority to set standards for competence, meaning the LSBC could take TWU’s Community Covenant into consideration in making its decision. The Divisional Court in Ontario held likewise, whereas Justice Campbell in Nova Scotia did not. While this conclusion would seem to open the door to substantive consideration of Charter issues, the case was ultimately decided on administrative law grounds.

This question of the LSBC’s jurisdiction was decided on a correctness standard, in keeping with TWU v BCCT (2001), but in contrast to the recent Divisional Court ruling in Ontario. The standard of review for determining whether the LSBC complied with its duty of procedural fairness was also correctness, and here the LSBC failed.

The LSBC “fettered its discretion”, thus violating procedural fairness, by allowing itself to be bound by a popular vote of LSBC members against approving TWU, rather than having the LSBC Benchers make that decision independently after due consideration of the relevant legal issues in play. The LSBC also violated TWU’s right to procedural fairness by depriving it of a meaningful opportunity to present its case fully and fairly to those who had the jurisdiction to determine whether the JD degrees of the proposed law school‘s graduates would be recognized by the LSBC.

With respect to the constitutional freedoms implicated by the LSBC’s decision, Justice Hinkson commented, “I am not persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v. BCCT other than dispositive of many of the issues in this case.” This contrasts with the Divisional Court of Ontario’s finding that TWU v. BCCT was not binding. Justice Hinkson also disagreed with the Divisional Court of Ontario that TWU v. BCCT could be distinguished based on the facts.

Otherwise, however, the decision gave little attention to the substantive Charter rights and freedoms in issue. Justice Hinkson did at least assert that the LSBC is obligated to exercise its statutory discretion in accordance with the Charter, meaning it must conduct a proper balancing of statutory objectives andCharter implications must be conducted. While the outcome is favourable, there was not a declaration that such a balancing must necessarily result in a decision in TWU’s favour.

CLF expects the substantive Charter issues to be addressed in detail in the appeals in Ontario, Nova Scotia, and possibly B.C. if the LSBC appeals.

CLF Appears Before Federal Panel on Assisted Suicide

In just three months, the Supreme Court of Canada’s partial invalidation of the criminal prohibition on assisted suicide in Carter v Canada will take effect.

Christian Legal Fellowship (CLF) was an intervenor in Carter at all three levels of court (see CLF’s facta here), relying on the core legal (and for CLF, religiously-informed) principle of the inviolability of life. CLF advocated that the lives of all persons are equally valuable, despite the many inequalities (physical/mental ability, bodily health, etc.) that might exist, and that the state must guard the lives of all persons impartially, and not differentially value their lives.

Federal Response

Parliament has established an “External Panel on Options for a Legislative Response to Carter v. Canada”(the “Panel”). The Panel’s mandate is to consult with key stakeholders on issues that are fundamental to a federal legislative response to the Carter ruling and to provide a final report to the Ministers of Justice and Health.

CLF was invited by the Panel to engage in a direct consultation based on its interventions in Carter. CLF, represented by Executive Director Derek Ross and associate legal counsel John Sikkema, met with the Panel today in Toronto and made both oral and written submissions on a number of questions of law and ethics (written submissions available on CLF’s website).

CLF submitted that the broader ethical, moral, social, and cultural issues resulting from the legalization of physician-assisted suicide were not adequately addressed in Carter and need to be carefully examined before a new regime is introduced.  CLF stressed that more time is needed for this vital process and encouraged the panel to recommend that Parliament request an extension of time to do so.

CLF also submitted that the Supreme Court of Canada (SCC) in Carter did not impose a value judgement that assisted suicide and euthanasia are good “services” for society that must therefore be funded and facilitated by the government. Rather, the SCC ruled that a blanket criminal prohibition was a broader than necessary means for achieving Parliament’s legislative objective—which the SCC interpreted as protecting vulnerable persons from being induced to commit suicide in a moment of weakness. CLF’s submission explained that it remains open to Parliament to re-enact a complete ban pursuant to the objective of maintaining the longstanding legal principle of the inviolability of life (an issue which was not addressed by the SCC in Carter), and detailed why a complete ban remains the best legislative option available.

Should Parliament choose not to (re)enact a complete ban, however, CLF submitted that Parliament retains jurisdiction over the “matter” of assisted suicide and must enact strict limits on this practice, along with comprehensive safeguards and oversight mechanisms, to protect the vulnerable in as much as this is possible. CLF also advocated for improved access to good palliative care for patients.

Finally, CLF advocated for the protection of physicians’ (and others’) freedom of religion and/or conscience by making it an offence to pressure a person to participate, directly or indirectly, in assisted suicide or euthanasia.

Provincial Response

CLF was also invited by a group established by provincial/territorial governments - the Canadian Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying – to participate in a separate consultation by completing a detailed survey. The survey contained questions on a wide range of issues including eligibility for “aid in dying”, how capacity should be assessed, the role of physicians and other health care workers, the role of health care institutions, conscientious objection, regulatory oversight, and various procedural matters.

The underlying premise of the survey, however, was that either the provinces or the medical regulatory bodies should develop legislation or policies to ensure “equitable access” to “aid in dying” as a medical service. CLF’s response to the survey (available here) emphasized that Carter required a limited exception to a Criminal Code prohibition, the parameters of which should be set out by Parliament, and that in light of the limited scope of its declaration (para 127), assisted death should be exceedingly rare. CLF also submitted that this process was premature in light of the fact that legislation has not yet been enacted by Parliament.