OTTAWA (CCN) — The Supreme Court of Canada (SCC) on Jan. 15 granted the federal government an additional four months to craft legislation on assisted dying.
The same day, Quebec reported its first patient to die by lethal injection under its so-called “medical aid in dying law.”
The federal government had sought a six-month extension on the Carter decision that struck down Canada’s Criminal Code provisions against assisted suicide last February. The SCC had suspended the decision for a year to give Parliament time respond but the Feb. 6 deadline was rapidly approaching with no legislation yet in the works.
The SCC also granted Quebec an exemption from the extension that keeps the Criminal Code provisions against euthanasia and assisted suicide in place. The court also granted individual exemptions to suffering individuals who may apply for an physician-assisted death through a superior court judge.
While the nine SCC justices were unanimous in granting the extension, they were sharply divided on the 5/4 majority’s decision to grant the Quebec and individual exemptions.
The majority said they granted the Quebec exemption because the Attorney General of Canada did not oppose it. The justices said their doing so “should not be taken as expressing any view as to the validity” of Quebec’s medical aid in dying act.
The majority argued individual exemptions should be granted so as to not “prolong the suffering” of those who met the criteria they identified in Carter: “adults who have a grievous, intolerable and irremediable medical condition.”
“The prejudice to the rights flowing from the four-month extension outweighs countervailing considerations,” the justices wrote. “Moreover, the grant of an exemption from the extension to Quebec raises concerns of fairness and equality across the country.”
The minority, which included Chief Justice Beverley McLachlin, said while they did not underestimate the suffering of those who must wait an additional four months, “neither do we underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct.”
“The complexity results not only from the profound moral and ethical dimensions of the question, but also from the overlapping federal and provincial legislative competence in relation to it,” the minority wrote. “The Court unanimously held in its judgment on the merits that these are matters most appropriately addressed by the legislative process. We remain of that view. That the legislative process needs more time is regrettable, but it does not undermine the point that it is the best way to address this issue.”
Euthanasia opponents reacted with concern. Euthanasia Prevention Coalition executive director Alex Schadenberg said the SCC in allowing superior court justices to allow individual exemptions have, in effect, “legalized” euthanasia and assisted suicide “without any definition on how a superior court judge can make decisions to allow people to die by lethal injections or lethal doses.”
“This gives the judges no parameters,” he said. “It is wide open to the decision of the judge on how he or she feels that day.”
Schadenberg also opposed the Quebec exemption. Quebec had already told its prosecutors not to prosecute physicians giving lethal injections, he said.
Catholic Civil Rights League president Phil Horgan also pointed out the Quebec and individual exemptions amount to “legislative pronouncements” on the part of the SCC and “may be signaling a form of law that Parliament should enact going forward.”
“The political situation is still unprepared to deal with it,” he said. He noted the report of an independent external panel headed by experts in the field has not been released to the general public. The MPs and Senators of the Parliamentary joint-committee on physician-assisted dying have only recently been appointed and had their first meeting scheduled for Jan. 18.
The majority justices “are creating a new regime of their own making,” in devising the “judicial application procedure,” Horgan said. “Where was that in the Criminal Code? Where was that in the original Carter decision?”
“Many judges will have to give serious thought about what conscience rights they have in dealing with such potential applications,” he said. “It’s a trenchant example of how laws in our country are increasingly being made by five lawyers on the Supreme Court of Canada.”
Horgan said Parliament still has to flesh out the conscientious rights for health care professionals in the legislation.