The federal government is seeking a six-month extension until Aug. 6. It argues that there is insufficient time to enact appropriate legislation by the Court deadline of Feb. 6.
Robert Frater, representing the Attorney General of Canada, pointed out the court has granted extensions on other Charter matters, but none “go to life and death issues” like this one, and require two levels of government to legislate.
Frater also told the court that the federal government will not stand in the way of Quebec's intention to implement immediately even if the Court grants an extension. That led several justices to ask if that indicated an inconsistency regarding the position Ottawa is taking on its jurisdiction over the Criminal Code.
Quebec went ahead with its euthanasia law in Dec., arguing its so-called “medical aid in dying” legislation is health care and therefore under provincial jurisdiction.
“You’ve got the criminal law power,” said one justice. “But you’ve just said to us, if in fact they go ahead in Quebec, there are no criminal law consequences . . .”
Chief Justice Beverley McLachlin asked if each territory and province “adopted their own scheme would there be any need for any federal legislation?”
She questioned whether the federal government was making the call as “a matter of political acceptance,” or whether it was accepting it “from a legal point of view.”
Frater explained that in light of a Quebec Court of Appeal decision in December that allowed the province to go ahead with its medical aid in dying bill, Quebec's assisted death law was now “the rule of law” so the federal government was accepted it for practical reasons.
“We are not in any way ceding jurisdiction,” he said.
A lawyer in favour of no delay said he “adamantly opposes an extension,” but it if is granted, the second option is to “grant a mechanism” for those seeking exemptions, said Joseph J. Arvay.
He said Canada’s “acceding to Quebec’s” desire for an exemption “is “just politics.”
“It’s not principled,” he said. “It would be principled to give the exemption to everyone. If you give the exemption to everyone, maybe you need a judge to determine” who would qualify for a doctor-assisted-death.
Arvay also said the Court had “already read down the legislation,” by saying physician-assisted death should only apply to adults, to those who are competent and suffering intolerably.
Justice Michael Moldaver asked if he meant “we should be reading as if the Criminal Code had already been amended, “that we read in the law?”
“That’s what you did!” said Arvay.
Moldaver said maybe Parliament will want to require judicial oversight and other measures to ensure that “as far as possible we will not be killing people who shouldn’t be killed.”
Parliament may also want to define competence “for Criminal Code purposes, for allowing someone to deliberately take someone’s life with impunity.”
Arvay argued “real suffering people” will face “the very cruel choice” while waiting for assisted suicide to come into effect. People are either “going to suffer horribly or die prematurely” because they choose to commit suicide earlier than they might if the legal option to have a physician-assisted death is available to them, he argued.
He told the justices the only Criminal Code issues under debate were those that arose from the Provincial-Territorial panel’s recommendations: whether or not physician-assisted-dying should be allowed to mature minors; whether laws should protect not just the doctor but also the healthcare team; whether nurses would be allowed to carry out assisted deaths; and whether assisted deaths should be given to those who were competent at time of an advanced directive, but not competent later. The other Criminal Code matters were decided in the Court's provisos decision, according to Arvay.
Malliha Wilson, speaking on behalf of the Attorney General of Ontario, said Ontario supported the federal government’s seeking an extension, because without a Criminal Code amendment, uncertainty is created regarded what the provinces and territories can and cannot do. She also spoke of the need to prevent “medical tourism” resulting from different rules across the country.
Jean-Yves Bernard for Quebec Attorney General defended its medical aid in dying bill as provincial jurisdiction and part of a continuum of care including palliative care.
Towards the end of the hearing, Moldaver pointed out if the Court did not grant an extension, Parliament could still use the notwithstanding clause or override provision of the Charter to obtain a delay.
After the hearing, Canadian Association for Community Living executive vice president Michael Bach told journalists it supported the extension because there are not enough safeguards for vulnerable people.
“We don’t have access or a right to palliative care in this country,” Bach said. “We are going to give a right to assisted suicide before we give a right to palliative care.”
Bach warned of coercion seen in other jurisdictions and forcing people into making unwanted choices.
Bach said his organization and the Council of Canadians with Disabilities say physicians should not be authorizing assisted death. A court, a tribunal, an independent panel, not a “physician in his or her office,” should make the determination, he said.
Canada’s euthanasia and assisted suicide regime will be “the most permissive in the world,” he said. In countries where euthanasia is not restricted to terminal illness, “at least you have the right to palliative care.”
Rhonda Wiebe of the Council of Canadians with Disabilities said she is worried lack of support for people like herself might lead to her becoming vulnerable to pressure to end her life.
“On bad days on days, when my mental state is such it becomes overwhelming to be a person with disabilities, I want to have the supports in place,” Wiebe said. “If a non-disabled person says ‘I feel suicidal today,’ all kinds of mechanisms click in place.”