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After court decision, some call for nothwithstanding clause

By Michael Swan
The Catholic Register

03/04/2015

TORONTO (CCN) — A number of voices including prominent McGill University ethicist Margaret Somerville have called on the federal government to trump the Supreme Court’s assisted suicide decision with the notwithstanding clause — the controversial section 33 of the Charter of Rights and Freedoms which allows Parliament to pass laws contravening some rights and liberties for up to five years before legislators have to re-vote on the matter or craft new legislation.

In a Feb. 19 letter to Justice Minister Peter MacKay, the founding director of the McGill Centre for Medicine, Ethics, and the Law wrote him of the “gravity” Canada faces as a result of the Carter decision.

“This decision does not represent an evolution in the foundational values that bind us together as a society, but a revolution, a radical departure from upholding the value of respect for life,” said Somerville.

She said the decision also strikes down the section that “provides that consent to the infliction of death is not a justification for inflicting death” thus allowing physicians to kill their patients.

“This constitutes radical change, not only for individual Canadians, but also, to the institutions of both law and medicine, because the law is changed to allow killing and physicians are authorized to carry it out,” she said.

Euthanasia Prevention Society executive director Alex Schadenberg, Conservative MP Maurice Vellacott, former Liberal MP Pat O’Brien and others have also stepped up since the court rendered its historic ruling Feb. 6.

“The one way to reverse the decision is the notwithstanding clause,” Schadenberg told The Catholic Register.

“Now is the time for Parliament to act with courage, for the sake of all Canadians, and for the future of Canada,” said Vellacott.

“Some government at some point will have the guts to use it,” said O’Brien.

Both politically and legally, however, the notwithstanding clause seems like a long shot.

“I wouldn’t count on that,” federal Justice Minister Peter MacKay told The Canadian Press.

The notwithstanding clause has never been used at the federal level. It has been used at the provincial level, primarily in Quebec, which is not a signatory to the Constitution.

Section 33 of the Charter was introduced during negotiations on patriating Canada’s Constitution in 1981 at the urging of provincial leaders. It was seen as a way of maintaining the supremacy of Parliament. A simple majority vote in Parliament is all that’s necessary, but the legislation must specify which rights are being overridden.

Legally, the first question is what precisely the notwithstanding clause should be applied to, said University of Toronto constitutional law professor Cheryl Milne. Are anti-euthanasia campaigners asking for the notwithstanding clause to maintain the existing Criminal Code sanctions or do they want it to protect a new, restrictive assisted suicide law from legal challenges?

Schadenberg, who has launched an online petition in favour of using the notwithstanding clause, says he’s talking about keeping current Criminal Code provisions on the books. He’s not sure whether the clause would be needed to protect any new legislation but he can’t imagine any new law that would satisfy the Supreme Court’s directions.

“It would be a very wild bill. It would be a very extreme bill, because the language of the (Supreme Court) decision was extreme,” Schadenberg said.

Schadenberg wants assisted suicide regulated by criminal law because the only other option would be to define assisted suicide as health care.

“Calling killing health care is simply an idea that’s too Orwellian to consider,” he said.

It’s not so much legal complexity as political reality that Schadenberg is fighting against, said Milne.

“Fundamentally, the notwithstanding clause is a political tool that has political reasons for being used. It’s not so much an academic or pure sort of constitutional law issue,” Milne said.

Going back more than 20 years, polls have consistently shown a solid majority of Canadians in favour of legalizing physician assisted suicide. Last year an Ipsos Reid poll showed 84 per cent of Canadians favoured allowing doctors to help some people kill themselves.

“I’m not sure the right question is always being asked, but I still think that a large number of people think there should be some kind of provision for physician assisted death,” said Milne.

Milne points out that the Supreme Court does not force anyone to ask for assisted suicide and doesn’t force any doctor or nurse to provide the service.

“Let’s be clear about that. It’s taking something out of the criminal code and saying we’re not going to call this a crime,” she said. “There’s no mandatory aspect of that in terms of what doctors choose to do.”

Though Schadenberg’s first line of defence is outright rejection of the Supreme Court decision, he also argues the notwithstanding clause would give legislators time to craft better legislation.

“The Supreme Court gave the government 12 months to devise some sort of legislation, whatever that would look like,” he said. “Knowing that there’s an election in October, is the 12-month time frame realistic? . . . We need laws that absolutely protect people at the most vulnerable time of their lives. How are you going to craft that? It cannot be done easily, especially considering the wording of this decision. The government needs time. Canadians need time to really think about how this decision could affect them.”

The Liberal Party introduced a motion Feb. 24 asking that Parliament set up an all-party parliamentary committee to study the matter so that legislation can be put in place before next October’s federal election.

“Canadians expect their elected representatives to take a leadership role on this issue and engage in a responsible and respectful way,” said Liberal Party of Canada Leader Justin Trudeau. “That is why we are calling for a special parliamentary committee to immediately begin discussions and make recommendations for a framework that will respect both the Charter of Rights and Freedoms and Canadians’ priorities.”

The Liberal motion, which was debated in the House of Commons Feb. 25, would have required an all-party committee to begin consultations in March and to present recommendations by mid-summer.

“Physician assisted dying is a complex and deeply personal issue, and Canadians are looking for a real conversation about strengthening end-of-life care and support, including palliative care,” said Trudeau. “It now falls on us, as legislators, to act, and that means leading a broad and inclusive discussion with all Canadians.”

The Conservative government has indicated it is in no hurry to respond to the Supreme Court decision, since polls show physician assisted suicide is popular with Canadians, especially in Quebec. Instead, the government is focusing on its anti-terrorism legislation that is similarly popular with voters.

Schadenberg finds himself in the minority among assisted suicide opponents — including some who made their case before the Supreme Court. Living with Dignity and the Physicians’ Alliance Against Euthanasia were represented in the courtroom and have responded to the decision with calls for tight, careful regulation but said nothing about overriding the court.

“We encourage parliamentarians to eventually frame in the strictest possible way any exceptions to prevent anyone from being unjustly euthanized without their consent,” said a joint statement from the two organizations. “To avoid abuse and extensions found in Belgium and the Netherlands, Canada must impose much stronger safeguards than those established in the laws and regulations of those countries.”

Neither the executive committee nor the permanent council of the Canadian Conference of Catholic Bishops have discussed calling for the notwithstanding clause, though it may come up in discussions scheduled for March 17 to 19. None of the bishops who have individually reacted have mentioned the notwithstanding clause.

Almost all the bishops who have reacted, including CCCB president Archbishop Paul-André Durocher, have called for serious efforts to extend effective, quality palliative care to all Canadians in all communities.

“The Canadian Conference of Catholic Bishops will continue to promote palliative and home care, and to encourage all the faithful to work for the betterment of the elderly, the disabled, the ill and those who are socially isolated,” wrote Durocher.

The bishops are supported by the Catholic Women’s League of Canada, who reacted to the Supreme Court ruling with another call for “compassionate and competent palliative care services for the dying, their families and their friends.”

NDP MP Charlie Angus was quick to point out the government is already on record as supporting a pan-Canadian palliative care strategy. The Conservatives voted for Angus’ Motion-456 last year, which called on the government to create a national palliative care strategy.

“It’s really simple, a vote is a vote and a promise is a promise,” Angus said in a release.

“The Conservatives have a majority government and no excuse for inaction.”

(With files from Deborah Gyapong.)

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