National Post (National Edition)
Bypassing the courts on assisted dying?
Liberals extend access without top court ruling
PARLIAMENT'S NOT GREAT AT, ON ITS OWN INITIATIVE, MAKING REFORM IN THIS KIND OF AN AREA. THEY TEND TO HAVE TO GET NUDGED. SO YOU DON'T WANT TO LEAVE IT AT THE DISCRETION OF PARLIAMENT TO TAKE IT OUT AFTER TWO YEARS. — JOCELYN DOWNIE
OTTAWA • Canada's medically-assisted death regime potentially took another giant leap forward this week after Justice Minister David Lametti announced the government will support a Senate amendment to eventually allow people suffering solely from mental illnesses to qualify for it.
The amendment to Bill C-7 still needs to pass a final vote to become law, but the Liberals only need one party to support it, and it appears likely they'll get it from the Bloc Québécois.
The government's move followed an intense, extensive and sometimes emotional debate in the Senate over whether excluding mental illnesses from medical assistance in dying (MAID) would be found unconstitutional.
Those in favour of the amendment argue a Charter ruling against the exclusion is inevitable, and the government is saving litigants the time and expense of getting it overturned in court. They also argue that waiting longer on this will only extend the suffering of those who want expanded access to MAID for themselves.
But those opposed contend that it's wrong to assume how the Supreme Court of Canada would rule, and that the government has pre-empted its own parliamentary review on the matter. They say the government is preparing to make a huge change to the assisted dying law without putting it through the full legislative process in the House of Commons.
“There was no full discussion at the House level about mental illness because it was not in the bill,” said Trudo Lemmons, the University of Toronto's Scholl Chair in Health Law and Policy, in an interview. “Here we have an unelected Senate introducing this huge bomb.”
Lemmons was one of the expert witnesses who criticized Bill C-7's expanded access to MAID in testimony at the Senate legal and constitutional affairs committee. But other experts who argued in favour of the bill are happy to see the Senate get its way.
“That's how the process works when you have the House and the Senate,” said Jocelyn Downie, Dalhousie University's James S. Palmer Chair in Public Policy and Law. She said the Senate is fulfilling its role to scrutinize the constitutionality of legislation. “The Senate is saying it's not going to force people who are suffering to go to court yet again … we have a constitutional obligation not to approve things that we believe violate the Charter.”
The Senate's amendment would have seen MAID expanded to mental illnesses in 18 months, but Lametti's proposal extends that to two years to give the government time to convene an expert advisory panel and develop protocols and safeguards. The move may not need any new legislation to proceed.
To understand why the amendment provokes such strong debate among experts, it first requires understanding how we got to this point.
The main impetus for Canada's MAID law is the 2015 Supreme Court of Canada decision R. v. Carter, which ruled that an absolute prohibition on assisted dying violated the Charter (specifically the section 7 rights to life, liberty and security of the person) and couldn't be saved as a reasonable limit. The ruling overturned a previous Supreme Court ruling in 1993.
After winning the October 2015 election, Prime Minister Justin Trudeau's Liberal government introduced Bill C-14, which responded to the Carter ruling and allowed MAID for cases where natural death was “reasonably foreseeable.” At the time, the justice minister responsible for the legislation was Jody Wilson-Raybould.
Out of 176 Liberal MPs who cast votes on Bill C-14, only four voted no. One of them was Lametti, who said he believed the bill should go further in who could access MAID. “As a professor of law in Canada for 20 years and a member of two Canadian Bars, I also worry about passing legislation that is at serious risk of being found to be unconstitutional,” Lametti wrote in a Facebook post at the time.
When it enacted Bill C-14, the Liberal government also committed to two studies. One was to have the Canadian Council of Academies review the scientific evidence in three contentious areas of MAID: requests by mature minors, advance requests, and requests where a mental illness is the sole underlying medical condition. The reviews were released in December 2018.
The other study was a parliamentary review of the legislation to begin five years after it was adopted. This review has not yet started, but Lametti has proposed it begin within 30 days of the new bill being adopted.
In September 2019, Quebec Superior Court Justice Christine Baudouin ruled that Bill C-14's reasonably foreseeable death restriction was unconstitutional, in a case known as Truchon. In other words, the judge ruled that people who were intolerably suffering but not considered to be near death still had a constitutional right to be eligible for MAID.
Instead of appealing the Truchon decision, Lametti — who was named justice minister in January 2019 — said the government would accept it and draft legislation in response. Lametti has since told Parliament that he believes the government would have lost the appeal.
Critics of expanding MAID access believe this was a fundamental misstep, because it means we have to guess at how the Supreme Court would have ruled on whether it's unconstitutional to restrict MAID to people close to death. The Carter decision did not explicitly address this; it addressed the absolute prohibition on assisted dying.
“A fundamental problem here is that we are reacting to one judgment by a lower court judge who has given a certain interpretation of the unconstitutionality of the existing law — which was enacted with a lot of debate only five years ago,” Lemmons said. “There are certainly strong legal reasons to have clarification from the higher courts about this.”
The new legislation, Bill C-7, removes the reasonably foreseeable death restriction, but in doing so it opens a can of worms around the issue of mental illnesses. Before, you were potentially eligible for MAID if your natural death was reasonably foreseeable, whatever the underlying condition. In removing that restriction the government had to clarify its stance on mental illnesses, and so it put a specific provision into C-7 that excluded cases where mental illness is the sole underlying condition.
“Experts disagree on whether medical assistance in dying can ever be safely made available in such cases,” Lametti told the Commons justice committee last November in explaining the provision. “While those with mental illness can suffer unbearably, unpredictable illness trajectories mean there is always the possibility of improvement and recovery, and it can be especially difficult to tell whether a desire to die is a symptom of the illness, or a rational response to it.”
Downie and other experts have argued strenuously that this provision would inevitably be found unconstitutional.
In its brief to the Senate, the British Columbia Civil Liberties Association — which was the driving force in getting the MAID prohibition overturned in Carter — argued that there is plenty of legal precedent to indicate the government would lose such a case on Charter grounds.
As one example, it pointed to a 2016 Alberta Court of Appeal decision (Canada v. E. F.) where the three-judge panel ruled the Carter decision did indeed grant MAID eligibility to people suffering from mental illnesses. But the decision came before Bill C-14 was enacted, and it was not appealed to the Supreme Court.
“Carter set the `floor' and not the `ceiling' of what is constitutionally required to respect the rights of all Canadians. This means that while Parliament may extend the rights to physician assisted dying beyond what the Court required (for example, by permitting nurse practitioners to provide MAID), it cannot restrict those rights,” said the British Columbia Civil Liberties Association brief.
Even so, one of the people still arguing that excluding mental illnesses is constitutional is none other than Lametti — who, of course, can't really say otherwise given that he put C-7 before Parliament in the first place.
“It is my opinion … that the mental illness exclusion is constitutional because it serves a protective purpose and is narrowly crafted,” Lametti told the House of Commons on Tuesday, even as he accepted the Senate's amendment to drop it (albeit with a two-year delay.)
Lametti has also spent the past few months repeatedly explaining to MPs and senators why the government believed it had to exclude mental illnesses in Bill C-7 until the issue is studied further.
Conservative MPs pointed out this contradiction in their response to Lametti's announcement.
“What the government is now proposing by adopting the amendment proposed by the Senate … is that the people's House, the House of Commons, should adopt in a single day something that the government had up until now said was not its policy, something that is clearly very complex and requires further study,” said Conservative MP Garnett Genuis on Tuesday.
Lemmons said he believes the Canadian Council of Academies review of the scientific evidence — a review that he participated in — gave the government good reason to hold off on expanding MAID access to people with mental illnesses. (The review did not advocate any specific policy, instead just summarizing the state of knowledge.)
“These are extremely detailed reports, and the evidence around this is very complex,” Lemmons said. “It remains hugely controversial in the very few countries that allow this.”
He said he is unconvinced the Supreme Court would find this exclusion unconstitutional, and that Parliament — particularly its elected chamber — should do a full study of the issue and leave itself the option of deciding not to move forward.
Downie, who also participated in the Canadian Council of Academies report, argued that Parliament does still have this option, but the burden on changing the law is now shifted. Instead of it being on individuals who have to take the government to court, the government now has two years to decide if it doesn't want the exclusion.
“Parliament's not great at, on its own initiative, making reform in this kind of an area,” Downie said, citing abortion laws as another contentious area that Parliament doesn't go near unless the courts force it to. “They tend to have to get nudged. So you don't want to leave it at the discretion of Parliament to take it out after two years. You want to make it be that if they want it, they have to put it back in.”