Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), continues to wind its way through the legislative process. The Bill is the federal government’s proposed new law regarding physician-assisted death, in response to the Supreme Court of Canada’s decision in Carter v Canada. The Bill was passed by the Senate on June 15, 2016 with several amendments. Yesterday, Members of Parliament in the House of Commons voted 190 to 108 in favour of the Bill, and sent it back to the Senate.
As we have previously blogged, the Supreme Court of Canada’s landmark decision in Carter v Canada declared that the prohibition against physician-assisted death in the Criminal Code violated the Charter of Rights and Freedoms.
However, in order to provide the government with sufficient time to enact a law that would pass constitutional muster, the Court suspended its declaration that the relevant sections of the Criminal Code were of no force and effect for a period of 12 months. The deadline was set to expire on February 6, 2016.
The Supreme Court subsequently granted a further four-month extension, which was set to expire on June 6, 2016. However, the Court granted an exemption for individuals who wished to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”
In response, the Ontario Superior Court of Justice published a practice advisory that provided guidance on the procedural steps for such an interim application. However, upon the expiry of the Supreme Court’s suspension of its declaration on June 6, 2016, and in the absence of enacted federal legislation, it was unclear if individuals seeking access to a physician-assisted death still had to bring an application before the Ontario Superior Court of Justice for such relief.
As of June 6, 2016, the Ontario government’s website stated that assisted death was legal in Canada, “as long as the criteria set out in the Supreme Court of Canada’s decision are met.”
The government’s website also stated that, while it was not required by the Supreme Court of Canada, patients and healthcare professionals were encouraged “to seek further clarity and certainty about how the Supreme Court’s decision applies to their particular circumstances by bringing an application to the Ontario Superior Court of Justice.”
However, in a decision rendered on June 15, 2016, the Ontario Superior Court of Justice held that judicial authorization is still required in the absence of a federal law.
The Honourable Justice Paul Perell, who had previously rendered the first decision regarding physician-assisted death in Ontario pursuant to the Superior Court of Justice’s interim practice advisory, has held that those seeking a physician-assisted death must still bring an application until the federal legislation is passed.
Given Justice Perell’s recent decision, although physician-assisted death is technically legal in Canada, individuals and healthcare providers in Ontario would be well-advised to consult with a lawyer and bring an application for judicial authorization before making end-of-life decisions.
Thank you for reading,
Umair Abdul Qadir
There has been much in the media lately on the British Columbia Supreme Court decision concering assisted suicide.
In the decision, Carter v. Canada (Attorney General), 2012 BCSC 886 CanLII, the Court struck down the provision in the Criminal Code that prohibits physician-assisted suicide.
(Section 241 of the Criminal Code provides that “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”)
The lengthy, well-organized decision deals with the question in great detail.
One aspect of the decision particularly pertinent to our area of practice addresses the government’s position that the impugned section is necessary in order to avoid the risk of wrongful death of incompetent persons. The government argues that it can be difficult to determine whether a person is capable of making a decision to end their own life.
The court accepted evidence to the effect that, even taking into account the possibility of cognitive impairment or depression in patients, and the possibility that physicians may be influenced by inaccurate assumptions about their patients, it is feasible for physicians to assess competence with high reliability.
The court concluded, on this narrow point, that it is feasible for properly-qualified and experienced physicians to reliably assess patient competence, including in the context of life-and-death decisions, so long as they apply a very high level of scrutiny appropriate to the decision and proceed with great care.
Thank you for reading.
Paul Trudelle – Click here for more information on Paul Trudelle.