Legislative Background: Medical Assistance in Dying (Bill C-14) - Addendum
Bill C-14, legislation on medical assistance in dying, received royal assent on June 17, 2016. For more information, visit canada.ca/health
Bill C-14's requirement that natural death has become reasonably foreseeable (s. 241.2(2)(d))
In Carter,Footnote 1 the Court held that the total criminal prohibition on assisted dying unjustifiably infringed the s. 7 Charter right to life, liberty and security of the person. Although Carter was the impetus for Bill C-14 and sets out the constitutional principles that have informed the development of the legislation, the question is not whether the Bill "complies with Carter" but rather, whether it complies with the Charter.
The Supreme Court has recognized that the relationship between courts and Parliament is one of dialogue. The Court explained this relationship in R. v. Mills:
[I]t does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.Footnote 2
The Court went on to explain the "dialogue" in terms of the important role that Parliament plays in representing the interests of vulnerable groups:
Courts do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups...If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament's attempt to respond to such voices.Footnote 3
The constitutionality of Bill C-14 will not be determined by a simple comparison of the Bill to the Carter decision. Rather, it will involve an assessment of the provisions of the Bill in light of its new and distinct purposes, as compared to the purposes of the total prohibition, and the legislative record.
Bill C-14, through the definition of "grievous and irremediable medical condition" in s. 241.2(2), restricts medical assistance in dying to individuals whose "natural death has become reasonably foreseeable." This element of the Bill, and its compliance with the Charter, has been the subject of considerable debate. While some constitutional experts have taken the position that the restriction is constitutional, others have expressed the opposite view based on the fact that the words in s. 241.2(2)(d) do not appear in the Carter decision. The Government's position is that Bill C-14 is fully consistent with the Charter. The following explanation of the Government's position is provided with a view to further informing the public and Parliamentary debate. It should be read against the backdrop of the Legislative Background paper.
Analysis under s. 7 and s. 1 of the Charter involves measuring the impacts of legislation or government action against the legislative objectives. Unlike the provisions at issue in Carter, which imposed a blanket prohibition on all assistance in dying, Bill C-14 creates a complex regulatory regime that permits medically assisted dying for individuals whose factual circumstances are similar to those of Ms. Taylor and Ms. Carter while continuing the prohibition in situations where the risks are the greatest.
The purposes of Bill C-14 differ in important respects from those of the previous legislation. The absolute prohibition was determined to have only one purpose – the protection of the vulnerable who might be induced in moments of weakness to end their lives. Although this remains an important purpose of the proposed legislation, Bill C-14 pursues a number of additional objectives. The Bill aims to recognize the significant and continuing public health issue of suicide, which affects individuals, families and communities, to guard against death being seen as a solution to all forms of suffering, and to counter negative perceptions about the quality of life of persons who are elderly, ill or disabled. The Government's position is that the restriction of medical assistance in dying furthers these important objectives and does not infringe s. 7 of the Charter.
In light of recent developments in the jurisprudence on s. 7, which have significantly expanded the role of s. 1 in s. 7 cases, it is possible that the constitutionality of Bill C-14 would be resolved under s. 1. In Carter, the Court recognized that in cases like this, "where the competing interests are themselves protected under the Charter, a restriction on s. 7 rights may in the end be found to be proportionate to its objective."Footnote 4 It also suggested that a complex regulatory response in this area would be given a high degree of deference.Footnote 5
Rationale for the approach in Bill C-14
In considering how best to respond to the Carter ruling, the Government has taken into account the range of legislative regimes for assisted dying around the world, which are small in number and which fall into two basic categories. The first category, which represents the majority of the regimes, restricts medical assistance in dying to individuals whose natural death is approaching. Although this requirement is described in different ways, most of these regimes limit eligibility to terminally ill patients who have less than 6 months to live.Footnote 6 The second category is based more broadly on providing relief from unbearable suffering, without regard to whether the person is on a path towards death. Only three jurisdictions in the world have enacted this latter type of regime – the Netherlands, Belgium and Luxembourg (Benelux).
Based on the range of views on the relative risks and benefits of the two types of regimes, the Government has concluded that a Benelux-style model would frustrate its objectives. While some have recommended a Benelux-style model for Canada,Footnote 7 many others, including medical professionals and those who speak for vulnerable groups, have urged the Government to adopt an end-of-life model.Footnote 8 For example, although individuals with disabilities have diverse views on the issue, most disability rights organizations have argued that the Benelux model risks reinforcing prevalent stereotypes that equate physical dependence and disability with loss of dignity and personhood.Footnote 9 They have argued that such a regime would pose real risks to individuals with disabilities. Many experts have also argued that when medical assistance in dying is available on the basis of suffering alone, eligibility and risks become much more difficult to screen for and to contain.Footnote 10 They have pointed to the wide range of circumstances that can cause suffering and that can render individuals vulnerable – social isolation, poverty, grief, discrimination, fears about the future and about being burden on others, etc. Because of the subtle and hard-to-detect ways in which vulnerability can compromise autonomy, these experts have argued that permitting medical assistance in dying as a response to suffering in life would pose unacceptable risks that could not be adequately addressed through any system of safeguards. Experts from Benelux jurisdictions have pointed to recent developments in those jurisdictions, including increasing rates of euthanasia, the expansion of eligibility and increases in suicide rates, and have argued that permitting medically assisted dying outside the end-of-life context leads to the normalization of suicide.Footnote 11 Finally, many medical professionals have expressed support for an end-of-life model as more consistent with their professional roles and obligations.Footnote 12
The issue of medical assistance in dying is complex, not only because it involves balancing the competing interests of different groups within Canadian society, but also because it involves complicated questions of social science that elude scientific proof, including predictions about human behaviour.Footnote 13 It is natural in this context that there would be a diversity of views on how to interpret the available international data and on the most appropriate regime for Canada. In developing Bill C-14, the Ministers have met with many individuals, groups and organizations from a diversity of backgrounds, and have received correspondence from thousands of Canadians who have expressed widely varying views on the subject. The approach taken in Bill C-14 reflects the Government's assessment, based on the available evidence including international experience and informed opinion, that a broad eligibility model such as that in the Benelux countries would frustrate the Government's objectives, including in relation to the protection and promotion of the rights of vulnerable groups.Footnote 14 It equally reflects the Government's assessment that, in view of the nature and seriousness of the risks, a prudent approach is warranted. This means adopting an approach that is closer to existing end-of-life models than to the Benelux approach – a model that restricts eligibility to individuals who are declining toward death, allowing them to choose a peaceful death as opposed to a prolonged, painful or difficult one. At the same time, the flexible "reasonably foreseeable death" standard, and the absence of a specific "time remaining before death" requirement, make Bill C-14 broader than existing end-of-life regimes. This represents the best and most responsible model for Canada unless and until robust and reliable data, gathered in the Canadian context, can offer sufficient assurance that expansion beyond this approach would not put vulnerable Canadians at risk. The Government has committed, however, to gather such data and to study other situations in which medical assistance in dying might be sought.
Carter was a case about whether the total criminal prohibition on assistance in dying was consistent with the Charter. It was not a case about the relative merits, risks and benefits of one type of legislative regime as opposed to another. In concluding that the total prohibition was contrary to the Charter, the Court recognized that the issue of physician-assisted dying is a complex one that requires balancing competing interests of great importance – the s. 7 rights of people who have made a fully autonomous decision to seek assistance in dying and the rights and interests of other vulnerable individuals "who might be at risk in a permissive regime".Footnote 15 The Court acknowledged that it was Parliament's role to craft a regime and acknowledged the difficulty of Parliament's task, suggesting that Parliament's response would be given a high degree of deference.Footnote 16 The Government's position is that the Supreme Court did not intend, in declaring the total prohibition invalid, to constitutionalize any particular legislative model – let alone the broadest possible model, which exists in only three jurisdictions in the world.Footnote 17 Bill C-14 responds to Carter by creating a regime for medical assistance in dying that respects the autonomy of individuals seeking such assistance to the greatest degree possible without undermining the Government's objectives related to the protection of the vulnerable and other important societal values, such as the importance of affirming the equal value and dignity of every person's life, regardless of their age, state of health or disability.
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