Tories whisk life-and-death issue right out of sight
The timing could scarcely have been worse. Late on a midsummer Friday afternoon, three months before an election, Justice Minister Peter MacKay announced the launch of consultations on physicianassisted suicide.
Not only was his three-paragraph news release a gesture of contempt for Parliament, which adjourned last month. It was a pointed rebuff to the Supreme Court, which had asked legislators last February to develop a law setting out the terms and conditions under which individuals could seek medical help to die. But most of all, it was an injustice to the people of Canada. This is an issue that divides families and friends, torments doctors, haunts ethicists, and taps into the deepest beliefs and most profound fears of citizens. It needs to be discussed calmly, civilly, with respect for differing points of view. It requires time and patience.
How likely is that against the backdrop of an all-out political battle with attack ads blaring over the airwaves and pollsters providing breathless updates of who is up and down? What chance does the panel have of carving out a quiet space for thoughtful deliberation? What hope do witnesses have of participating in a meaningful process?
Predictably, last week’s announcement was greeted with suspicion. The British Columbia Civil Liberties Association, which was instrumental in getting this issue before the Supreme Court, questioned the impartiality of the appointees. “Two of the three people on this panel were federal witnesses opposed to physician-assisted dying during the Carter v. Canada (Supreme Court) case,” said Josh Paterson, the group’s executive director. “There is an appearance of bias.”
The Council of Canadians with Disabilities and the Canadian Association for Community Living reiterated their concern that legalizing medically assisted suicide would “further entrench stigma and social exclusion of people with disabilities and those with long-term health conditions.”
It is conceivable that the Conservative government will be gone after Oct. 19. No matter which party wins, a new justice minister will plot Canada’s course on medically assisted suicide
Understandable as these misgiving are, it is not helpful to re-fight past battles. Nor is it fair to cast aspersions on the panellists. All three are highly estimable individuals. Each brings specialized knowledge, experience and professional integrity to the task. Dr. Harvey Chochinov has been a leader in end-of-life care for 25 years. Catherine Frazee, former head of the Human Rights Commission, is a role model for Canadians with disabilities. Benoit Pelletier served as a federal lawyer and Quebec cabinet minister before becoming a professor of law. They recognize their job is to listen to Canadians, not promulgate their own views.
Despite its unfortunate start and its truncated mandate — the panel’s report is due in six months — it has an opportunity to provide useful guidance for Canada’s next government. MacKay will be gone by the time it reports. (He announced his intention to leave politics in May.) It is conceivable that the Conservative government to which he belongs will also be gone after Oct. 19. No matter which party wins, a new justice minister will plot Canada’s course on medically assisted suicide.
He or she could give the panel the time it needs to prepare a balanced set of recommendations. That would require a deadline extension from the Supreme Court, which has given Parliament until Feb. 6, 2016, to enact a new law. Normally, the court does not look favourably on such requests, but in light of the political circumstances and the importance of doing the job properly, it might acquiesce.
Alternatively, the new minister could assemble a roundtable of medical professionals, lawyers, ethicists, religious leaders and knowledgeable citizens with and without disabilities to flesh out the principles in the Supreme Court’s landmark decision allowing physician-assisted suicide. The nine justices stipulated that procedure could be used only by competent adults who clearly consent to the termination of life and have a grievous and irremediable medical condition that causes enduring suffering that is intolerable. They indicated that physicians should not be compelled to provide assistance to the dying, but left legislators to reconcile the constitutional rights of patients and doctors. The framework is sound but it cannot be implemented without clear rules, explicit limits, reliable safeguards and a welldefined oversight process.
If time is too short to draft a made-in-Ottawa law, the minister could ask Parliament to consider legislation enacted by another jurisdiction. Quebec’s year-old Act Respecting End of Life Care would be the obvious candidate. But there are other models: Oregon, Vermont, New Mexico, six European countries, Japan and Colombia.
Should there be no possibility of consensus, he or she could ask the prime minister to invoke the notwithstanding clause. This rarely used provision of the Constitution allows a government to override the Charter of Rights for five years. It would effectively nullify the Supreme Court’s ruling. But that would be “the legal equivalent of a nuclear bomb,” to quote MacKay. No Parliament has ever authorized it.
In the short term, Prime Minister Stephen Harper has achieved what he wanted. He has whisked a morally troubling, politically inconvenient issue off the election agenda.
In the near future, Canada will need courageous leadership to find a fair balance between the rights of those seeking relief from unbearable suffering and the fears of those clinging tenaciously to life.