Jan 18, 2016

Exemptions to Suspensions of End of Life Provisions

Carter v. Canada (Attorney General), 2016 SCC 4 (CanLII)
As expected, the Supreme Court of Canada granted an extension this week on the assisted dying legislation stemming from the Carter decision. The Court did not grant the 6 month extension sought by the government, but instead extended it by 4 months to match the delay stemming from the election. The interesting twist here was the legislation in Quebec around end of life care, coming into force on December 10, 2015. The Court provided an exemption to the province, without weighing in on the merits of the Act itself. The Court also considered the state of individuals who were waiting for these changes over the past year. The novelty of this situation was expressed as follows:
 [6]   This is the first time the Court has been asked to consider whether to grant individual exemptions during an extension of a suspension of a declaration of invalidity...
Those individuals, as I've previously noted, are most significantly impacted by the extension in question. As a result, the Court allowed for an exemption for those individuals by applying to the Superior Court if needed. The dissent, which would not have provided the exemptions to Quebec or the individuals in question, stated the following, which is an interesting commentary on the legislative branch and division of powers:
[14]  ...We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering. That should be clear from the Court’s reasons for judgment on the merits. However, 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 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.
What this decision has not done is what Emmett MacFarlane describes as "further delay access to medical aid in dying." The exemptions, innovative as they are, strike a balance between deference and protection of the Charter rights identified in Carter. MacFarlane suggests that a new criminal law is not necessary given the criteria already indicated by the Court. This is not a properly analysis of the law, as the Court's statements on these issues were simply a guideline to the legislature to create a Charter-compliant provision in the Code.

He states, "The law cannot deny assisted suicide to competent adults who clearly consent and who suffer from a grievous and irremediable medical condition causing intolerable suffering to the individual." The problem here is how competency is determined, especially at the end of life, and where the complexities of multiple medications and physical and psychological ailments may be co-present.

Although MacFarlane is correct that the delivery of services must be done provincially under the constitution, any new provisions would still have to provide some direction on the absence of "true" consent. The Court had referenced at para 27 the trial judge's exercise of reviewing evidence to detect coercion, undue influence, and even ambivalence. But the process of obtaining truly informed consent requires,

..."a carefully-designed system” that imposes strict limits that are scrupulously monitored and enforced.

That careful system will ultimately be designed provincially. What the federal government will do is delineate the proper limits of that system has proper limits, and where it enters the realm of criminal law.