Five years ago, I agreed to join an “expert panel” of the Royal Society of Canada. Our mandate was to provide a broad assessment of end-of-life care in Canada, and to make recommendations on how it might be improved. One of the recommendations that we made in our 2011 report was that there was no ethical justification for the maintenance of the criminal prohibition preventing physicians from helping their critically ill patients to die a dignified death, one that conformed to their wishes, and avoided them needless suffering.
I was therefore naturally very pleased when the Supreme Court of Canada issued its judgement in the Carter case, declaring that those articles of the Criminal Code were incompatible with Canadians’ Section 7 rights to life, liberty and security of person. Looking back at the 1993 decision in which a 5-4 majority had ruled that those articles were not in fact unconstitutional, a unanimous Court this time argued, in essence, that the empirical environment in which it was now being asked to render judgment had changed. Whereas the earlier Court could plausibly hold that there was no way of guaranteeing that vulnerable persons might not be adversely affected by a change in the law, since no jurisdiction had taken the step that the Court was being asked to take by Sue Rodriguez and her lawyers, today’s Court found itself in quite a different situation. The Netherlands, Belgium, Luxembourg, and Switzerland have all decriminalized physician-assisted dying (hereafter PAD), and have managed to put safeguards in place to ensure that the practice of PAD is not extended to persons who fail to meet its eligibility criteria. There is in the opinion of the nine Justices of the Supreme Court no reason to limit Canadians’ Section 7 rights in virtue of Section 1 concerns about protecting the vulnerable.
(The Court also got around the issue of stare decisis — the doctrine according to which a decision such as Rodriguez should be considered settled law by subsequent courts by claiming, in effect, that it was not so much overturning Rodriguez as it was deciding the issues on the basis of constitutional principles — most notably the principle according to which restrictions to section 7 should not be overbroad relative to the purpose for which a law would purport to limit them — that had not been introduced into Canadian constitutional doctrine at the time of Rodriguez).
So have we reached a happy, final chapter in this political and legal saga? I don’t think we have, at least not just yet. There are a lot of issues left to settle, and many of these will reflect political calculations and machinations as much as they will sober ethical and legal considerations.
The first, and the most obvious of these issues, has to do with the question of who gets to claim the right to PAD, and under what conditions they get to do so. The decision already restricts PAD to competent adults. Thus, the door is not opened to incompetent persons being subjected to PAD on the basis of a third-party assessment. But what are the medical conditions that will be deemed sufficiently grave to qualify? There are at least two dimensions along which answers to this question can vary. First, is it sufficient that a person be suffering from an incurable disease or condition which causes her irremediable suffering, or must the additional determination be made that she is in the final, “terminal” stages of this condition? Consider ALS, the degenerative neurological condition that both Sue Rodriguez and Gloria Taylor suffered from. It is often a slow, though devastating process of deterioration, one which can give rise to unacceptable suffering well shy of the point at which a person can be said to be in the “terminal” phase of the disease. Second, does the suffering that a person is undergoing as a result of her disease have to be reducible to somatic pain, or can it include mental suffering? Depending on where one calibrates the regulations that will govern PAD along these two continuums, one gets a set of eligibility criteria that is narrower or broader. There are other, more procedural decisions that need to be made as well. For example, should there be a “cooling off” period between a patient’s first request for PAD and a second one, in order to determine whether the patient is steadfast in her desire to die? Should a psychiatric evaluation be required? Should a second, independent physician be consulted to corroborate the treating physician’s diagnosis? Again, answers to these questions can give rise to more restrictive or more permissive PAD regimes.
This brings us to the question of how the Harper government will respond to the Supreme Court’s decision. As I see it, it has a number of options. It could invoke the notwithstanding clause, which would allow it to maintain the legislation, at least for five years, even in the face of the Court’s judgment. This is unlikely to happen: though there are significant regional variations, Canadians are broadly supportive of opening the door to PAD. Moreover, support exists even within Harper’s electoral base. This is understandable: there are strong libertarian arguments for allowing Canadian citizens to determine the conditions under which they will choose to face incurable disease. Invoking the notwithstanding clause would not be a politically defensible move.
The government could also choose to do nothing, and let provinces and territories determine for themselves how they will implement PAD regimes. Quebec has struck preemptively by passing Bill 52 last year, and the federal government, tacitly conceding that end-of-life matters are health-related rather than matters of criminal law, could simply cede to provincial legislatures, and to provincial medical associations, the prerogative to regulate PAD.
Finally, the Harper government could, for lack of a better word, “go Bedford”. Remember that in 2013, the Supreme Court, invoking grounds interestingly similar to those appealed to in the Carter decision, issued another unanimous judgment to the effect that Criminal Code provisions that prohibit various practices associated with sex work were incompatible with the section 7 rights of sex workers. Rather than striking these provisions down, the Harper government, in a clear thumbing of the nose to the Court, introduced the Orwellianly named “Protection of Communities and Exploited Persons Act”, that arguably went even further in pushing sex workers into the shadows, thus increasing the risk to which they are subjected. The Act would probably not withstand Charter scrutiny, but, obviously piqued by the Court’s clear unwillingness to be brought to heal, Harper passed it anyway.
There is clearly no love lost between the Court and the Harper Conservatives (despite the fact that, at this point, 7 of the 9 Justices have been appointed by the Conservatives!), and so the temptation might be strong to introduce legislation that thumbs its nose at the Court in much the same way that its reaction to Bedford did. What would the Bedford option be in the case of PAD? Let’s go back to the two dimensions that I described above according to which eligibility for PAD might be established, and to the procedural requirements that would constitute the decision-making procedure for PAD. New legislation might be introduced that would set the eligibility and procedural requirements so narrowly as to make the ensuing law tantamount to the maintenance of a prohibition.
Now, the Court was clearly aware of the risk that the legislative reaction to its decision might be to draft legislation so narrow as to be useless. In its decision (which was, after all, prompted by the case of a woman with ALS who wanted to be able to determine the time of her death, even if that time ended up being months or years before the moment at which she would have died “naturally”), it does not restrict eligibility to individuals in the “terminal phases” of a an incurable disease or condition, nor does it restrict the irremediable suffering that might justify. But the Bedford decision indicates that the Harper government is perfectly capable of introducing legislation that does not clearly conform to the Supreme Court’s strictures.
Here is where Quebec comes in as a potential boon to the “go Bedford” option. The Quebec government, after years of consultation, passed an end-of-life law that, being the result of a cross-partisan process, had to incorporate a number of compromises in order to pass. One of them was that the patient requesting PAD not only be in the grips of an incurable disease causing irremediable suffering, but also that she be “at the end of life” (“en fin de vie”). The legislation does not go into effect until December 2015, so we will have to wait a bit until we know how that phrase is interpreted at the implementation phase, but its last-minute introduction makes it unclear that those afflicted with degenerative conditions like those that Sue Rodriguez and Gloria Taylor suffered from. The Quebec legislation could clearly serve an eventual “go Bedford” strategy on the part of the Harper government. It could point to Quebec’s law as a model of apparently compliant legislation.
Whatever Ottawa does, a spotlight is now placed on Quebec’s own legislation which could bring its own unconstitutionality into stark relief. Though its author, Véronique Hivon, greeted the announcement of the Supreme Court’s decision tearfully, claiming that it removed the last obstacle for the enforcement of the legislation, things might be a bit more complicated. If, indeed, the “end of life” requirement prevents people afflicted with conditions such as ALS from availing themselves of PAD, it might find itself the object of a constitutional challenge of its own, one that would claim that, as presently written, the law violates the rights of persons who, though not at the end of life, are nonetheless in the grips of a condition causing them unbearable suffering. To forestall this, the legislation would have to be rewritten, as my colleague (and Chair of the Royal Society of Canada committee in which I took part) Udo Schuklenk has rightly argued. But the Liberal Party is in power in Quebec now, and it was in large measure the concerns of some of its caucus that led to the “end of life” requirement being introduced in the first place. What’s more, it is presently plowing through an extremely ambitious legislative agenda aimed at cutting into services and administrative structures with reckless abandon. Tweaking its end-of-life legislation to preempt a potential challenge is most likely the furthest thing from its mind.
The final episode in Canada’s twenty-year-plus saga around end-of-life care has yet to be written. And though one can only salute the step taken by the Court in the Carter decision, there are still obstacles that need to be cleared before seriously ill Canadians facing months and years of irremediable suffering can avail themselves of a sane and compassionate PAD policy.