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Why Not a Notwithstanding Pause for MAiD?Why Not a Notwithstanding Pause for MAiD?

Why Not a Notwithstanding Pause for MAiD?

Don Hutchinson argues the Trudeau government should consider the Constitution’s Section 33 opt out rather than rush to pass expanded medically assisted dying legislation under a court-imposed deadline.

Don Hutchinson
7 minute read

At the Trudeau Government’s request, the House of Commons Standing Committee on Justice and Human Rights has deemed a bill to be of such priority that it be fast-tracked through the evaluation process: Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). The Senate has adopted a similar pace. Its’ Standing Committee on Legal and Constitutional Affairs has initiated a pre-study of the bill.

Why the urgency?

C-7 proposes amendments to the Criminal Code that would expand the eligibility for medical assistance in dying (MAiD) to include people with disabilities and chronic illness, as well as reducing requirements for witnesses and wait times on requests from people with terminal diagnoses. MAiD is the statutory exception to criminal prohibitions against counselling suicide, aiding in suicide, or killing another person.

The reason given for the government’s push to have the committee act with haste is an effort to meet the second deadline extension granted by the Quebec Superior Court following a judge of that court concluding in September 2019 that the Trudeau Government’s 2016 MAiD legislation was unconstitutional. The original deadline was six months from the decision in Truchon c. Procureur général du Canada. That deadline was extended to June 2020 due to consequential delays arising from the federal election, and then to December because of Covid-19 related disruption to parliamentary sittings.

MAiD was introduced to Canada in 2016. Then Minister of Justice Jody Wilson-Raybould presented Bill C-14, An Act to amend the Criminal Code and make related amendments to other Acts (medical assistance in dying), as the government’s response to the Supreme Court of Canada’s 2015 decision in Carter v. Canada (Attorney General). C-14 limited MAiD to end-of-life terminal medical circumstances, affirming “the inherent and equal value of every person’s life” and acknowledging the “irrevocable nature of ending a life.” Legislated safeguards included: written confirmation by two medical or nurse practitioners that the patient met the requirements for MAiD; the patient’s request had to be in writing, witnessed by two independent persons; and, a ten-day waiting period.

Considered essential to C-14’s passage by Parliament was the requirement that a comprehensive parliamentary review of the legislation be undertaken before the end of June 2021.

As noted, Parliament’s MAiD initiative was the result of the Supreme Court of Canada decision in Carter, a judicial ruling that overturned the Court’s relatively recent in constitutional law terms 1993 decision in Rodriguez v. British Columbia (Attorney General). The Carter decision was sufficiently recent that Beverley McLachlin participated in both, dissenting from the majority in 1993 and leading a unanimous court as Chief Justice in 2015.

Both decisions were evaluations of the Canadian Charter of Rights and Freedoms section 7 “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Both cases pitted the concept of the autonomy of the person desiring suicide against the state’s interest in prohibiting one or more individuals from contributing to the death of another.

In the Rodriguez case, a majority of the Court concluded the prohibition on assisted suicide did not violate principles of fundamental justice, and recognized the State’s legitimate interest in the sanctity of human life. Two decades later, in Carter,the Court arrived at a different result. The justices found the prohibition on physician-assisted suicide for a person living with a degenerative illness deprived that person of life if they were required to make a decision about suicide prior to losing their physical capacity to take their own life. In effect, the criminal prohibition imposed a premature death in violation of the principle of the sanctity of life.

Although the Supreme Court was unanimous, Canadians were divided on the issue of doctors intentionally administering lethal doses of medication to patients. Some considered this measure as compassionate – comparable to, although more than, putting down a beloved pet – relieving pain when death was imminent. Others saw MAiD as a betrayal of the belief that human life has unique value, one not to be compromised by state-sponsored killing – a position affirmed by the national consensus that developed with Canada’s abolition of the death penalty in the 1970s.

Canadians remain divided, but most had accepted the Wilson-Raybould legislation, C-14, as it confined MAiD to situations where people were medically diagnosed with natural death that was reasonably forseeable.

The decision of a single judge in Truchon found the reasonably foreseeable death requirement was not expansive enough, violating both the Charter’s section 7 right and section 15’s guarantee of equality rights for a person with disabilities of a nature that prevented ending their own life through suicide.

There is ordinarily an expectation that a government will appeal the decision of a single judge of a lower court that strikes down legislation passed by that government. It was surprising that the Trudeau Government did not appeal. However, between the enactment of C-14 and the decision of the Quebec Superior Court, there was a change in Justice Minister. Wilson-Raybould was replaced as Justice Minister by David Lametti in January 2019. As noted in this space on November 6, Lametti was one of three Liberal MPs who voted against C-14. He thought C-14 was too restrictive and did not do enough for vulnerable Canadians seeking assisted death.

So, what might Canadians make of today’s urgency to expand C-14 by means of C-7? Is Parliament bound by the Minister’s opinion and the December date?

Another extension of the court-imposed deadline is not unreasonable in light of the prorogation of Parliament by Prime Minister Trudeau in August. Of course, if Parliament had not been prorogued C-7 would have been before the Justice Committee in September rather than November. Prorogation was explained as a necessary pause to reset Parliament. Is the delay caused by prorogation a legitimate reason for either court extension or committee haste?

Alternatively, Lametti and Trudeau have demonstrated willingness to accept the use of the Charter’s notwithstanding clause as Premier François Legault has used it in legislation prohibiting the wearing of religious symbols by government employees in Quebec. Whether one considers the Legault Government’s use legitimate or not, there’s a reason the clause is in our Constitution. Why not consider its use in this situation?

Section 33 of the Charter provides Parliament (or a provincial legislature) with the constitutional authority to declare legislation “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter” for up to five years before it would need to be reconsidered by Parliament. Sections 7 and 15 are the very sections at issue.

With a legislative review already scheduled to be completed by next June – admittedly with the risk of interruption by election – and Canadians divided on what potential amendment to C-14 might look like, this might be an appropriate time to use section 33 rather than risk a judge saying “no” to an additional extension.

A unique word is used 71 times in the Book of Psalms, selah. Sometimes it appears part way through and sometimes at the end of a psalm. Selah expresses it’s a time to pause and reflect. For the singers of a psalm, this might have been a time to listen to the musicians, an interlude.

C-14 resulted in differing implementation measures from province to province because health care is constitutionally provincial jurisdiction. The federal government legalized MAiD, but the provinces determine its execution. One result of the provincial collage has been litigation by physicians, as well as religious hospitals and hospices, who believe their Charter protected conscience rights have been infringed by being required to provide, or refer for, MAiD in contravention of the Hippocratic Oath to “first do no harm” to their patients.

A poll of Canadians by the Angus Reid Institute earlier this year suggests Canadians are developing a consensus in agreement with C-14. Four in five think “it should be easier for individual Canadians to make their own end-of-life decisions.” But Canadians are splintered in their division in regard to the expansion proposed in C-7. Ray Pennings and Angus Reid describe the research here.

Pennings and Reid note, “More than six in 10 Canadians (62 per cent) attach a lot of importance to the possibility that the public health-care system will begin to ignore long-term care and chronic disease in elderly people as MAiD becomes more available.” More than seven in 10 Canadians think the government needs to pay more attention to the provision of palliative care.

The Parliamentary Budget Officer has projected a $150 million reduction in health-care costs if C-7 is implemented. Should life or death decisions be influenced by cost savings?

People with disabilities have highlighted that C-7’s proposed extension of MAiD’s availability, including the removal of C-14’s safeguards, will make MAiD more accessible for them than the supports required for living. Is this what Canadians want?

In the November 6 article Is Politics Putting POGG on Ice? I described the constitutional responsibility of the federal government to “make laws for the Peace, Order, and good Government of Canada” (POGG). There, I remarked that in the framework of POGG “wisdom and fairness are expected from our government… regarding the well-being of all Canadians as its primary pursuit.”

What might be the wise and fair thing in this moment, regarding the well-being of all Canadians as the primary pursuit?

Perhaps, we need a constitutionally authorized pause to listen to Canadians. Not a pause to reset, like the recent prorogation, but a pause to refresh. Whether to refresh like a computer updating content or to refresh like the television commercial suggesting the benefits of an interlude with a cold beverage on a hot day, it seems Canadians are suggesting Parliament is moving too fast.

Perhaps it’s time to listen through the thorough parliamentary review contemplated in C-14, rather than rush Parliament to give a few hours attention to C-7.

Now is a time for the notwithstanding pause that refreshes. Selah.

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