The federal government is currently working on legislation that responds to the Supreme Court’s Carter v. Canada (AG) decision, in which the Court invalidated an absolute prohibition on physician assisted dying and invited the legislator to develop a “carefully designed and monitored system of safeguards.” The Carter decision declared the criminal prohibition void insofar it prohibits physician assisted dying for a “competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” The Court provided no further detail about how to implement these ‘parameters’, and stated explicitly: “the scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.” The case involved people who were terminally ill and/or, in the words of the trial judge in the case, people with “advanced weakening capacities with no chance of improvement.” In fact, at the trial level the claim made by the British Columbia Civil Liberties Association was also narrowly framed as a claim to recognize the right to physician assisted dying of those “who are suffering unbearably at the end of life.”
Since the Carter decision came out, both a Provincial Territorial Expert Advisory Group Report and a Joint Parliamentary Committee Report issued recommendations that go way beyond the Carter decision and recommend now a regime that, if followed, would make Canada’s “medical-aid-in-dying” regime the world’s most open-ended regime with the lowest regulatory safeguards. Both reports recommend as main protective measures a competency and informed consent assessment by one physician, with a confirmation of that assessment by a second physician. Both reports pay lip-service to the need for better palliative care, and reject a ‘palliative care filter’, which would make appropriate access to palliative care a pre-requirement for access to physician assisted dying. They also recommend providing access to physician assisted dying without restrictions as to the type and nature of disease (i.e. not restricted to end of life situations and terminal illness, and including mental health conditions), and expanding access to mature minors. They do so notwithstanding the fact that the Supreme Court rejected additional evidence it received about increasing problems with Belgium’s euthanasia regime, currently the world’s most open-ended regime, because, so it argued, the evidence related to the reported Belgian cases “would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.” The Court further emphasized that Canada could avoid the problems associated with Belgium’s regulatory regime because “the cases … were the result of an oversight body exercising discretion in the interpretation of the safeguards and restrictions in the Belgian legislative regime — a discretion the Belgian Parliament has not moved to restrict. These cases offer little insight into how a Canadian regime might operate.” This can hardly be seen as anything else than a recognition that Canada can and should develop a more careful regime with more stringent safeguards than the Belgian regime. Yet, both the Provincial Territorial Expert Advisory Group and the Joint Parliamentary Committee have recommended transforming the Court’s very general parameters into legal criteria for access, thus creating an open-ended regulatory regime that would do exactly the opposite. Because of these recommendations, a very careful consideration of the evidence of problematic practices in countries with open-ended regimes, such as Belgium and the Netherlands, becomes more than ever important. I encourage those involved in the debate and those interested in these issues, which affect all Canadians, to read my detailed chapter recently released on SSRN, in which I discuss the lessons Canada should learn from the Belgian experience.
The narrow basis of the judgment in Carter, and even more so the Court’s explicit recognition of the appropriate role of the criminal law in protecting vulnerable people make it clear that the legislator can and should opt for a more restrictive regime that provides an appropriate balance between access to physician assisted dying and protection of the vulnerable. In fact, Parliament has constitutional obligations that those supporting an open-ended regime have so far remarkably ignored. Constitutional Law scholar Dianne Pothier, professor emeritus of Dalhousie University, recently released the so far most careful constitutional analysis of the Carter case in which she emphasizes that “those vulnerable under a regime of physician-assisted death do have constitutional rights that Parliament cannot ignore. If Parliament were to ignore the vulnerable by having insufficient safeguards, that becomes open to a constitutional challenge from the other end compared to Carter.”
For these reasons, I am explicitly supporting the recommendations embedded in the ‘Vulnerable Persons Standard’ which has been released last month and has received the support of a host of patient and disability advocacy groups, professional organizations, and associations with a wide variety of ideological and religious affiliations. This Vulnerable Persons Standard emphasizes, in line with Carter, that physician assisted dying should be accessible to those who are suffering unbearably from a grievously and irremediable condition at the end of life, and that a prior vulnerability assessment should ensure that vulnerable people are not inappropriately put at risk of premature death. As a recent press release emphasized, this approach, which combines access to physician assisted dying with appropriate protection for and care of those who are vulnerable, is a more appropriate response to the Supreme Court’s decision, and is more in line with Canadian values.
In the coming days, I will be posting here copies of a variety of short opinion pieces on the debate, which I co-authored with colleagues from the University of Toronto and with David Baker, a graduate of our Law Faculty and a leading human rights litigator, in which we lay out some of the reasons for a cautious and more careful regulatory approach along the lines of the Vulnerable Person Standard.
