Medicine – Morality – Suicide
Updated: August 4, 2016
Published: April 29, 2016

Impassioned debate on how to implement PAD

Finding balance on assisted suicide is high-wire politics for PM Trudeau

Writing from Montreal

ILLUSTRATION: Illustrations: Thinkstock/iStock/wildpixel & Thinkstock/iStock

Editor’s Note: Bill C-14 became the law of the land across Canada on June 17, 2016 after the House of Commons passed the legislation by a vote of 190-108 and the Senate passed it by a vote of 44-28. Despite efforts by some senators and MPs to convince the Trudeau government to expand the criteria for patients eligible for physician-assisted death, the final legislation which was passed into law did not change on that point and is identical to the original version of Bill C-14 introduced by Justice Minister Jody Wilson-Raybould on April 14, 2016, as described in the story below.

The federal Liberal government’s legislation, known as Bill C-14 or Medical Assistance in Dying, has been criticized by both the right and the left on the political and social spectrums, ranging from medical and religious organizations to journalists, senators and backbenchers from Prime Minister Justin Trudeau’s own party.

The fact that the legislation has come under so much criticism for being either too restrictive or too permissive might lead an informed, impartial observer to conclude that Attorney General Jody Wilson-Raybould and Health Minister Jane Philpott have actually struck the right balance in formulating new legislation dealing with the sensitive issue of physician-assisted death (PAD).

As part of its original ruling on February 6, 2015 in Carter v. Canada, the nine-member Supreme Court of Canada, headed by Chief Justice Beverley McLachlin, ruled unanimously – which emphasizes the strength of the ruling – that Criminal Code (CC) sections 241(b) and 14, which prohibit assisted suicide and consent to the infliction of death, respectively, violated each of the rights to “life, liberty and security of the person” in Section 7 of The Charter of Rights and Freedoms, which is an integral part of the Canadian Constitution.

PHOTOs: Wikipedia – (L) ERICH SAIDE; (R) Gervásio Baptista, Agência Brasil & Thinkstock/iStock
PHOTOs: Wikipedia – (L) ERICH SAIDE; (R) Gervásio Baptista, Agência Brasil
Shortly after the Liberals won the October 2015 federal election, Attorney General Jody Wilson-Raybould (L) asked the Supreme Court of Canada, presided over by Chief Justice Beverley McLachlin (R), for a six-month extension for the federal government to pass a law on physician-assisted death.

The Supreme Court gave the federal government, led by then-prime minister Stephen Harper, one year to pass legislation to amend the CC to make PAD legal under certain circumstances. However, Harper made no attempt to introduce new legislation before his Conservative government was defeated in the October 19, 2015 federal election by Justin Trudeau’s Liberal party, leaving the new prime minister’s government a very short time frame to propose and pass a new law. Bill C-14, debated in Parliament in April, May and June 2016, was the legislation introduced by the Liberal government to amend the CC.

After the Liberal government’s election victory on October 19, 2015, newly-appointed Attorney General Wilson-Raybould asked the Supreme Court for a six-month extension, meaning the old law – ss 241(b) and 14 – would not become inoperable until August 6, 2016.

Instead of acceding to the government’s request for a six-month delay, the Supreme Court granted a four-month delay – until June 6, 2016. The rationale used in its January 15, 2016 ruling in favour of a four-month delay was that the Harper government had dissolved Parliament on August 2, 2015 in anticipation of the pending federal election, and that Parliament had officially resumed on December 3, 2015, after Trudeau’s election win – a period of four months of parliamentary inactivity.

Six-month delay denied

The math works, but the logic doesn’t. Even though Attorney General Wilson-Raybould dared only ask for a six-month delay (and did not get even that), one is left to wonder why Trudeau’s Liberal government should have any less time than the 12 months granted by the Supreme Court in February 2015 to Harper’s Conservative government.

PHOTOs: Wikipedia – (L) ERICH SAIDE; (R) Gervásio Baptista, Agência Brasil
Dr. Harvey Max Chochinov, a University of Manitoba professor of psychiatry and an expert on palliative care, was named in July 2015 by then-prime minister Stephen Harper to head a three-member external panel to make recommendations on options for a legislative response concerning the issue of physician-assisted death.

There are important questions which mainsteam journalists failed to ask and for which they subsequently neglected to research answers. For example, why did the Supreme Court set a completely unrealistic deadline extension until June 6, 2016 for the Trudeau government to pass a new law to amend ss. 241(b) and 14 of the Criminal Code? And how would patients seeking PAD be affected when new legislation could not be passed by Parliament before the June 6th, 2016 deadline set by the Supreme Court?

The fact that Harper did not move quickly to rethink ss 241(b) and 14 of the Criminal Code should not have been a reason to deprive the current Liberal government of adequate time to consider a new law on one of the most complex and defining ethical issues facing us in the 21st century.

It was only in July 2015 – five months after the Supreme Court’s February 2015 ruling – that Harper named a three-member external panel led by Dr. Harvey Max Chochinov, a University of Manitoba professor of psychiatry and an expert on palliative care, to make recommendations on options for a legislative response to Carter v. Canada.

Their 200-plus page report was made public on January 18, 2016 by Attorney General Wilson-Raybould and Health Minister Philpott, but their mandate was changed by the Trudeau government from making legislative recommendations to simply reporting on the evidence they had found in consulting with 73 experts in five countries and in reviewing more than 300 document submissions from stakeholders.

In Canada, physician-assisted death is known as PAD and can entail either assisted suicide, in which the patient kills himself with his doctor’s help, or voluntary euthanasia, where the doctor takes the final act to kill the patient.

In Canada, the term “physician-assisted death” (PAD) could entail either assisted suicide in which the patient kills himself with his doctor’s help, or voluntary euthanasia by which the doctor takes the final act to kill the patient, usually by lethal injection, at the request and with the informed consent of a competent patient.

In its January 15, 2016 judgment granting a delay of four instead of six months, the Supreme Court seemed to indicate an impatience with the federal government’s request for additional time to consider new legislation, characterizing it as “regrettable”.  

The judgment read as follows:

We do not underestimate the agony of those who continue to be denied access to the help 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.

Common sense dictates that such momentous changes to the law governing assisted suicide should be based on the compass rather than the clock. Until this point, Canadians have never had access to legally assisted suicide. Instead they have relied on doctors and nurses to administer palliative care, which must include fully adequate pain management and, in rare cases, palliative sedation. Pro-euthanasia advocates argue this is euthanasia, but they are in error.

Immediately after Attorney-General Wilson-Raybould introduced Bill C-14 in the House of Commons on April 14, 2016, there were indications that even some Liberal-appointed senators and Liberal backbenchers in the House of Commons would not support the legislation.

PHOTO: Wikepidia/Wladyslaw
PHOTOs: Wikipedia – (L) ERICH SAIDE; (R) Gervásio Baptista, Agência Brasil
By imposing an unrealistic deadline for the federal government, headed by Prime Minister Justin Trudeau, to pass a law on doctor-assisted death, the Supreme Court of Canada (seen above) created unintended political and social consequences.

For example, on April 16, 2016, Yasmin Ratansi, Liberal MP for the Toronto-area riding of Don Valley East, conducted a joint town hall meeting with neighboring Liberal MP Rob Oliphant, who co-chaired a special joint parliamentary committee which recommended a more permissive approach to PAD than that subsequently contained in Bill C-14. The two MPs concluded that constituents who attended the town hall meeting wanted a more permissive approach than that proposed by the Trudeau government.

But Trudeau defended Bill C-14 as a “responsible first step” on his way to a caucus meeting on Parliament Hill on April 20, 2016. Adam Vaughan, parliamentary secretary to the prime minister, said in a Canadian Press interview the previous day that the government was open to making some changes to Bill C-14 based on a freewheeling parliamentary debate and the fact that Liberal backbenchers did not have to vote according to the party line.  

PHOTO: Wikepidia/Wladyslaw
Jacket: Design by David Drummond based on a sculpture created by Marcel Braitstein.

However, by imposing an unrealistic deadline on the Trudeau government, the Supreme Court created the unintended political and social consequences of not leaving enough time for the government to pass any version of Bill C-14 by June 6, 2016.

The question then became what were the legal ramifications for Canadians as regards physician-assisted suicide if the CC provisions – ss 241(b) and 14 – still in force at that time were not amended by June 6, 2016, and Bill C-14 did not pass into law by then? This was a serious issue which was not analyzed by the media despite contradictory statements in the spring of 2016 from key political players as to what was likely to occur.

For example, on April 14, 2016, government House leader Dominic LeBlanc, himself a lawyer, was quoted in the Toronto Star as saying that if Bill C-14 was not passed into law by the June 6, 2016 deadline set by the Supreme Court, there would be "a complete vacuum in terms of a Criminal Code framework around this particularly sensitive issue."

Joyal contradicts LeBlanc

However, the next day – April 15, 2016 – independent Liberal Senator Serge Joyal, a constitutional lawyer, contradicted LeBlanc saying there would be no void in the law even if Bill C-14 was not passed by the June 6 deadline because the Supreme Court in its February 6, 2015 ruling had laid out the parameters for medical assistance in dying which would apply in the absence of a new law.

‘…it is not the job or proper role of medicine and the law to relieve all suffering and that in trying to do so, physicians and law-makers are unjustifiably crossing boundaries that should be respected.’
– excerpt from ‘Bird on an Ethics Wire’ by Professor Margaret Somerville

I turned for answers to Professor Margaret Somerville, recognized by her peers as a respected legal scholar and founding director of the Centre for Medicine, Ethics and Law at McGill University. Somerville has spent over 35 years researching euthanasia and related end-of-life issues. In 2002, she published a 344-page book titled, Death Talk: The case against euthanasia and physician assisted suicide. It is now in its second edition.

In November 2015, McGill-Queen’s University Press published Bird on an Ethics Wire, Somerville’s analysis of a myriad of legal and ethical issues including abortion, reproductive technologies, as well as assisted suicide and euthanasia. Chapter 4 includes an exhaustive analysis of a judgment rendered in June 2012 by Justice Lynn Smith of British Columbia Supreme Court (in the matter of Carter et al. v. Attorney General of Canada et al.) who ruled that ss 241(b) and 14 of the Criminal Code – which, respectively, make it a criminal offence to help someone commit suicide and for someone to accept help in committing suicide – violated The Charter of Rights and Freedoms in the cases of Kay Carter, a woman suffering from degenerative spinal stenosis, and Gloria Taylor, a patient with amyotrophic lateral sclerosis (ALS), both of whom were seeking medical assistance to commit suicide.

Somerville writes that Justice Smith’s 355-page judgment (more than 137,000 words) “constituted the crossing of the line in the sand, thousands of years old, that established that we must not intentionally kill other innocent human beings (the only exception being where that is the only way to save human life, as in justified self-defence) or help them kill themselves.”

Somerville goes on to say in Bird on an Ethics Wire: “Justice Smith’s judgment gives a strong impression that she is far from neutral about physician-assisted suicide and euthanasia….the judgment seems to give undue weight to the evidence of witnesses in favour of legalizing physician-assisted suicide, while massively devaluing that of those who oppose it.”

PHOTO: University of New Brunswick
Justice Lynn Smith of B.C. Supreme Court ruled in 2012 in Carter v. Canada that prohibiting physician-assisted suicide is unconstitutional, a judgment that set legal precedent because it disagreed with a 1993 Supreme Court judgment that ruled the opposite in the case of ALS patient Sue Rodriguez, who was denied physician-assisted suicide at that time.

 Chapter 4 also parses the subsequent Supreme Court of Canada judgment in February 2015 which upheld Justice Smith’s conclusion that a prohibition on physician-assisted dying violates Section 7 of The Charter of Rights and Freedoms, which guarantees Canadians “the right to life, liberty and security of the person.” Somerville criticizes Justice Smith’s selection and interpretation of the expert witness evidence so as to favour the pro-euthanasia position and notes that the Supreme Court “refused to allow the admission of evidence that would have corrected this imbalance in Justice Smith’s assessment of the evidence.”

Somerville writes that Justice Smith used “a selective application of Canadian Charter of Rights and Freedoms jurisprudence” to rule that she was not bound by a 1993 Supreme Court judgment which, based on a ruling that ss 241(b) and 14 were constitutionally valid, denied a right to assisted suicide to Sue Rodriguez, a British Columbia woman suffering from ALS, the same condition which plagued Gloria Taylor, one of the appellants in the Carter case of 2012.   

A majority of the Court of Appeal of British Columbia overruled Justice Smith by holding that the Rodriguez Supreme Court precedent still applied. But in its February 6, 2015 judgment, the Supreme Court reinstated Justice Smith’s finding that she was not bound by the Rodriguez case based on Charter of Rights and Freedoms jurisprudence since 1993 and based on new facts which indicated that Canadians no longer saw a distinction between “passive and active euthanasia”, meaning they now agreed with allowing physician-assisted death.

Justice Smith sets precedent

Just the fact that a lower court judge – in this case Justice Smith of B.C. Supreme Court – could make a case in 2012 that she was not bound by the judgment  from the 1993 Supreme Court of Canada case involving Sue Rodriguez is a major judicial development. The fact that the Court of Appeal of British Columbia reversed Justice Smith’s finding at the time seemed to bring a return to traditional deference towards Supreme Court precedents.

But then on February 6, 2015, the Supreme Court of Canada threw legal precedent on its head, once again, by reinstating Justice Smith’s finding that she was not bound by the 1993 Supreme Court judgment. The basis of their decision was that trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. “Here, both conditions were met,” the Supreme Court ruled in relation to Justice Smith’s judgment.

In support of the second situation (2) (above), the February 2015 Supreme Court judgment noted that the legislative landscape on the issue of physician-assisted death had changed in the 22 years since the Rodriguez Supreme Court decision in 1993.

PHOTO: Wikipedia
A view of the audience chamber of the Supreme Court of Canada, where cases involving physician-assisted suicide were decided in 1993 and 2015, with very different results.

In 1993, no other Western democracy expressly permitted assistance in dying. By 2016, four national jurisdictions permitted some form of assisted dying and/or euthanasia: the Netherlands, Belgium, Luxembourg and Switzerland. The U.S. states of Oregon, Washington, Vermont, Montana and California, New Mexico allow physician-assisted suicide.

However, the 2015 Supreme Court ruling did not expressly strike down the 1993 Rodriguez ruling by the Supreme Court, meaning that to the extent that it is not inconsistent with Carter v. Canada, the 1993 Supreme Court ruling could still be cited by litigants in future lawsuits.

(Interestingly, the 1993 Supreme Court judgment which denied assisted suicide to Sue Rodriguez – based on the finding that CC ss. 241(b) and 14 were constitutionally valid – was a 5-4 split decision, with current Chief Justice Beverley McLachlin, then a puisne (associate) Supreme Court justice, dissenting with three of her colleagues in concluding that the assisted suicide prohibition violated Section 7 of The Charter of Rights and Freedoms.)

The complex legal and social ramifications of this legal maneuvering at the Supreme Court level is another reason to support the Trudeau government’s conservative approach to passing PAD legislation. It makes sense to enter this field of ethical and legal land mines with great caution and on an incremental basis to give all interested parties a chance to acclimatize themselves to a new reality in dealing with end-of-life options.

In her 2015 book, Somerville delineates the shortfalls and inconsistencies in both Justice Smith’s B.C. Supreme Court ruling of 2012 and the Supreme Court of Canada 2015 judgment which upheld it. With tact and respect, she questions Justice Smith’s 2012 judgment when it draws an equivalence between suicide and assisted suicide, in questioning rhetorically why assisted suicide should not be legal, considering it is legal to commit or attempt to commit suicide.

PHOTO: Margaret Somerville
With tact and respect, Professor Margaret Somerville (above) questions Justice Lynn Smith in drawing a legal equivalence between suicide and assisted suicide in her 2012 B.C. Supreme Court judgment in Carter v. Canada.

(In 1972, the Government of Canada repealed the Criminal Code provision prohibiting suicide and attempted suicide. However, what remained were Section 241(b) of the Criminal Code, which provides that everyone who aids or abets a person in committing suicide commits an indictable offence and is liable to imprisonment for up to 14 years, and Section 14, which states that no person may consent to death being inflicted on them.)

Somerville answers Justice Smith’s rhetorical question with an explanation as to why Parliament took suicide and attempted suicide out of the Criminal Code in 1972, saying it was hoped at the time that if people with suicidal tendencies could not be charged with a crime, they and their families would be more likely to come forward and seek medical help. “Decriminalizing suicide and attempted suicide is intended to protect life,” Somerville writes. “Decriminalizing assisted suicide does the opposite.”

Given the legal complexities of this issue, it could be understood why many Canadians might have had a difficult time putting into context exactly what the different options for new PAD legislation meant from both moral and practical points of view. To make matters even more confusing, Canadian mainstream media did not do a thorough job of explaining the implications of the various PAD options.

For example, Toronto Star journalist Chantal Hébert made a fleeting, oblique reference in her column of November 28, 2015 as to what might happen if the federal government did not pass Bill C-14 by the June 6, 2016 deadline set by the Supreme Court.

Hébert’s hypothesis was that provinces and territories across Canada would pass legislation, similar to that passed by Quebec province in June 2014 (and which came into force on December 10, 2015) to extend physician-assisted death under the guise of healthcare, which is a provincial jurisdiction.

The Canadian Charter of Rights and Freedoms has been a key document in court battles over whether physician-assisted death should be allowed in Canada.

But that was never likely to happen because of the complexity of drafting provincial legislation which would protect medical personnel in each province from prosecution under the Criminal Code, given the vague conditions for PAD, as per the 2015 Supreme Court decision in Carter v. Canada.

In June 2014, after lengthy province-wide consultation by a Quebec National Assembly committee and the tabling of its report, the Quebec government passed its own PAD law – legislation introduced in the National Assembly as Bill 52 – claiming that it had power to do so under its constitutional provincial jurisdiction over healthcare services. This law includes the stipulation that patients seeking euthanasia must have a “terminal” condition.

Now that the federal government passed its own PAD law as of June 17, 2016, it could become clearer via any subsequent court challenges whether there are incompatibilities between the new federal law and Quebec's PAD law, which came into force on December 10, 2015.

On December 10, 2015, Quebec’s PAD law came into force, but it was not enough to assuage the fear of doctors in that province that they might be prosecuted for murder under the Criminal Code if they participated in PAD. To reassure them, the Quebec justice minister announced that all Crown prosecutors in the province had been instructed not to lay any criminal charges for physicians providing “medical aid in dying” (euthanasia) to their patients under the new provincial law.

The major differences between the federal law, Bill C-14, and the Quebec law, Bill 52, on assisted dying are as follows:

  • Bill C-14 allows for both voluntary euthanasia and assisted suicide, whereas Bill 52 permits only voluntary euthanasia.
  • There are also different criteria for eligibility. Under Bill C-14, a patient seeking PAD must be subject to unbearable suffering caused by a medical condition, whereas this is not a strict requirement under Bill 52.
  • Under Bill 52, a patient must be "at the end of life" in order to be eligible for voluntary euthanasia. However, Bill C-14 specifies that voluntary euthanasia or assisted suicide can be provided to someone whose natural death is "reasonably foreseeable", meaning death is not necessarily imminent.

It remains to be seen what the compatibility will be between Quebec’s PAD law and the new federal PAD law which came into force on June 17, 2016, but Professor Somerville told that to the extent that there was an incompatibility, the federal law would prevail.

It is unclear what effect the Quebec justice minister's non-prosecution directive to Crown prosecutors would have in the event that the federal PAD law ultimately proved to have a legal footprint that was different than Quebec's PAD law, bearing in mind that the Supreme Court in its February 2015 Carter v. Canada decision said that "health is an area of concurrent jurisdiction" between the federal government and the provinces.

"This suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government…," the Supreme Court ruled.  "We are not satisfied on the record before us that the provincial power over health excludes the power of the federal Parliament to legislate on physician-assisted dying."

That raises a hypothetical question based on the reality that Crown prosecutors are mandated with enforcing the Criminal Code, federal law that as of June 17, 2016 regulated PAD across Canada. However, the same Crown prosecutors take their prosecutorial direction from provincial Attorneys-General. Question: In the event of a conflict between provincial and federal PAD laws, and given the doctrine of paramountcy of federal law over provincial law, could a province such as Quebec continue to honour its pledge not to prosecute doctors who follow provincial PAD law which might violate federal law on assisted suicide?

In her November 28, 2015 column, Toronto Star journalist Chantal Hébert discounted the idea that Crown prosecutors would ever charge doctors anywhere in Canada who helped patients commit suicide, opining that a legal void for medically assisted suicide would occur if ss 241(b) and 14 lapsed and no new law replaced it.

PHOTO: Wikipedia/Ron Sangha Productions
Toronto Star columnist Chantal Hébert (above) was wrong when she said that if Bill C-14 was not passed by the June 6, 2016 deadline set by the Supreme Court, there would be a legal void similar to that which occurred when Canada’s abortion law was struck down by the Supreme Court in 1988.

She compared it with the legal void which occurred after 1988, when the Supreme Court of Canada, in Regina v. Morgentaler, used the Charter of Rights and Freedoms to strike down a section of the Criminal Code which limited abortions to cases where a committee of doctors signed statements indicating it was necessary for the physical or mental health and well-being of the mother. 

The Supreme Court was split on that decision, ruling 5-4 in favour of striking down the Criminal Code section which it said was contrary to Section 7 of The Charter of Rights and Freedoms.

Despite several attempts by Parliament, no new Criminal Code abortion statute was subsequently passed after 1988 by any federal government and politicians tried to avoid the issue because it was seen as a political hot potato. So since 1988, any woman in Canada has been able to have an abortion – provided she can find a hospital or clinic with doctors willing to perform such a procedure – without committing a Criminal Code offence.

However, Professor Somerville says the current Supreme Court judgment dealing with assisted suicide and euthanasia is not analogous to the 1988 Supreme Court decision on abortion.

The 2015 Supreme Court case dealing with physician-assisted death is not analogous to the 1988 Supreme Court judgment which struck down the then-existing Criminal Code statute dealing with abortion because the 2015 judgment has not created the same kind of legal void that the 1988 judgment did.

“In Morgentaler, the Supreme Court did not set down any conditions for a legal abortion,” she said. In fact, it struck down the existing Criminal Code section which actually did set conditions under which an abortion would be legal. However, in upholding the B.C. Supreme Court ruling in favour of the assisted suicide requests by Kay Carter and Gloria Taylor, the Supreme Court of Canada did set conditions – though they are vague – for what would constitute legal medically-assisted suicide, Somerville said.

The wording of the Supreme Court judgment is as follows:

We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Somerville agreed with Senator Serge Joyal that the current Supreme Court judgment created a framework for physician-assisted suicide even before the federal government's new PAD legislation came into force on June 17, 2016. “I think Joyal is nearer to the correct answer than (House leader Dominic) LeBlanc,” who, as cited above, was quoted in the Toronto Star on April 14, 2015 that there would be a legal vacuum on assisted suicide if Bill C-14 did not pass into law.

“First, the Criminal Code clause s. 241(b) [and s. 14] has not been struck down – if it had been, that would mean anyone could happily go on a killing spree,” Somerville said. “An exemption to it has been allowed in certain circumstances in certain conditions which the Supreme Court said were for Parliament to decide within the parameters set out in Carter.”

Government House leader Dominic LeBlanc (L) said in April 2016 there would be a legal vacuum if Bill C-14 did not pass into law by the Supreme Court deadline of June 6, 2016. But Senator Serge Joyal (R), a constitutional lawyer disagreed, saying the February 2015 Supreme Court judgment in Carter v. Canada created the framework to make physician-assisted suicide legal.

In an April 28, 2016 email interview with, Professor Carissima Mathen, a University of Ottawa constitutional law expert, agreed with Professor Somerville’s position that the Supreme Court judgment in Carter v. Canada is not analogous to the Morgentaler decision of 1988 because in Carter, the Supreme Court did not strike down the entire law, as it did in the Morgentaler case 27 years earlier.

In Carter, “the Court issued a declaration of partial invalidity,” Professor Mathen said by ruling that CC ss 241(b) and 14 were invalid only “insofar as they prohibit ” and “to the extent that” they deny “physician-assisted death” to a “competent adult person” who 1) “…clearly consents to the termination of life; and 2) has “a grievous and irremediable medical condition…that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The implication of Professor Mathen’s analysis was that CC ss 241 and 14 still stood even after the June 6, 2016 deadline, in terms of prohibiting non-physicians from helping assist patients with suicides. Section 52 of the Constitution gives courts the power to rule that a particular law is not valid if it violates the Charter. But if only part of the law violates the Charter, then courts can rule that only that part is invalid.

What this means is that the 2015 Supreme Court judgment, for all intents and purposes, amended ss. 241((b) and 14 of the Criminal Code and it became the de facto law of the land until the federal government's PAD law took effect on June 17, 2016.

Professor Somerville suggested in April 2016 that such a de facto amendment could have been avoided if the government had invoked Section 33, known as the Notwithstanding Clause, of The Charter of Rights and Freedoms. By so doing, the February 6, 2015 Supreme Court judgment would have been suspended pending passage of the new PAD legislation on June 17, 2016. Section 33 has only been used twice in the history of Canada – once by Quebec and once by Saskatchewan – but never by the federal government.

PHOTO: Archives Canada/Robert Cooper
Prime Minister Pierre Elliott Trudeau and Queen Elizabeth II in April 1982 signing the historic patriation documents which gave Canada control over its own Constitution, including an enshrined Charter of Rights and Freedoms, which has a Notwithstanding Clause that in theory could have be used to suspend the February 2015 Supreme Court judgment on PAD.

Given that Prime Minister Justine Trudeau’s father – Pierre Trudeau – reluctantly agreed when he was prime minister in 1981 to include the Notwithstanding Clause as the only way to get all the provinces (other than Quebec) to pass The Charter of Rights and Freedoms as part of the Constitution, most observers believed that would never happen – and it didn't. Toronto Star reporter Chantal Hébert wrote in her November 28, 2015 column that “the sun will rise in the west the day a Liberal federal government circumvents a charter-based Supreme Court ruling” by invoking the Notwithstanding Clause.

The reality was that even if ss 241(b) and 14 as amended by the Supreme Court judgment of Carter v. Canada was the de facto law of the land until the Trudeau government was able to pass its new PAD legislation on June 17, 2016, everyone knew that it would only be a temporary situation. The House of Commons and the Senate were obliged to continue to debate and negotiate a compromise agreement which eventually allowed Bill C-14 to be passed into law on June 17, 2016, replacing the Supreme Court judgment.

PAD law was only option

Any solution other than a new PAD law passed by Parliament would have been a national disgrace and an international embarrassment to Canada’s reputation as a state committed to progressive human rights values.

But in the meantime, when the February 6, 2015 Supreme Court judgment became the de facto law of the land between June 6 and 17, 2016, it opened the possibility of broader access to physician assisted death (PAD) in that 11-day period than the circumstances envisioned under the version of Bill C-14 introduced by Attorney General Raybould-Wilson on April 14, 2016.

Under Bill C-14, PAD is allowed only for consenting adults at least 18 years of age who are in “an advanced stage of irreversible decline” from a serious and incurable disease, illness or disability and for whom a “natural death has become reasonably foreseeable.”

Unlike Bill C-14, the Supreme Court ruling of February 6, 2015 does not mention that the sick person seeking PAD must be in “an advanced stage of irreversible decline” nor does it say a natural death must be “reasonably foreseeable.” Instead the Supreme Court judgment stipulates that PAD should be available to “competent adult persons” with “a grievous and irremediable medical condition (including an illness, disease and disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

PHOTO: University of New Brunswick
Dr. Jeff Blackmer, vice-president of medical professionalism at the Canadian Medical Association, says that the ‘foreseeable death’ provision in Bill C-14 will prevent people with painful but temporary conditions from making rash decisions to seek PAD.

A background paper released by the federal government with Bill C-14 explains that the section of the bill dealing with “natural death” being “reasonably foreseeable” should be interpreted to mean “a real possibility of the patient’s death within a period of time that is not too remote.”

Dr. Jeff Blackmer, vice-president of medical professionalism at the Canadian Medical Association, said in an interview published on April 15, 2016 in The Globe and Mail that based on the government’s background paper the term “reasonably foreseeable” pertaining to death does not mean patients must be on the verge of death.

“It (Bill C-14) doesn’t say that dying has to be imminent,” Dr. Blackmer said. “It doesn’t say the patient has to have a condition that’s terminal in nature. But what it does is it rules out things like episodic conditions,” he said, citing as examples shingles or diabetic neuropathy, a painful condition that occurs when the nerves of diabetic patients die.

Dr. Blackmer said in The Globe and Mail interview that the “foreseeable death” provision in Bill C-14 might actually prevent people with painful but temporary conditions from making rash decisions to seek PAD.

Journalist Chantal Hébert said in her Toronto Star column of April 16, 2016 that she thought that Bill C-14 just “barely” meets the threshold of the Supreme Court ruling.

However, in her April 28, 2016 email to, University of Ottawa Professor Carissima Mathen indicated that she thought there was “a good argument” to be made that Bill C-14 violates Section 7 of The Charter of Rights and Freedoms, which states:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principle of fundamental justice.”

PHOTO: University of Ottawa
University of Ottawa law professor Carissima Mathen says ‘there is a good argument’ that Bill C-14 violates Section 7 of The Charter of Rights and Freedoms, which would make it unconstitutional.

“I have not completed a full analysis of Bill C-14,” Professor Mathen wrote, “but I think there is a good argument that the proposed definition of ‘grievous and irremediable’ is not consistent with Section 7 of the Charter and would not be saved as a reasonable limit under Section 1,” which states:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 241.2 (2) of Bill C-14 contains the definition of a "grievous and irremediable medical condition", which Professor Mathen thinks might not be consistent with Section 7 of The Charter of Rights and Freedoms. Section 241.2 (2) states:

2) A person has a grievous and irremediable medical condition if

  1. they have a serious and incurable illness, disease or disability;
  2. they are in an advanced state of irreversible decline in capability;
  3. that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
  4. their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

(Attorney General Wilson-Raybould has said she believes that Bill C-14 falls within the parameters of The Charter of Rights and Freedoms.)

In the same April 16, 2016 column, Hébert went on to criticize Bill C-14 because it does not offer PAD to “mature minors” and because it does not allow those with a diagnosis of dementia to make pre-arrangements for PAD in advance of the disease ravaging their cognitive abilities.

Clarifying the facts

But those recommendations cited by Hébert were not part of the Supreme Court decision of February 6, 2015. In fact, they were two of the recommendations of a special joint parliamentary committee, which included Senator Joyal and which pushed unsuccessfully for the new federal legislation to be much more permissive than either the Supreme Court judgment or Bill C-14.

The 70-page parliamentary committee report, made public on February 25, 2016 and titled Medical Assistance in Dying: A Patient-Centred Approach, made 21 recommendations. The committee, made up of 11 MPs and five Senators from both the Liberal, Conservative and New Democratic parties, also recommended that doctor-assisted suicide be extended to people with psychiatric conditions; not just to patients suffering from physical illnesses.

It should be noted that neither Justice Smith of the B.C. Supreme Court in her original 2012 Carter judgment nor the Supreme Court of Canada in its February 2015 ruling upholding Justice Smith’s judgment addressed the issue of “mature minors” because no evidence was presented to the courts on that topic.

PHOTO: Wikipedia/Michelle Valberg
Liberal MP Rob Oliphant, who co-chaired a special joint parliamentary committee which recommended a more permissive approach to PAD than that contained in Bill C-14.

A CBC report by journalist Kathleen Harris, first posted on February 25, 2016, added confusion on the point of “mature minors” by saying the parliamentary committee “referred to the Supreme Court’s statement that minors have a right ‘to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.’”

In reading that CBC  report, one would assume it was referring to the Supreme Court’s February 6, 2015 Carter judgment about PAD. In fact, the statement quoted by the parliamentary committee about mature minors came from a 2009 Supreme Court judgment known as A.C. v. Manitoba that found that children under the age of 16 may give an informed refusal of medical treatment necessary to save their lives – that is make life-and-death decisions about their medical treatment, in this case a blood transfusion for a 15-year-old Jehovah’s Witness girl – if the court is persuaded that the necessary level of maturity exists.

So it would seem that much of the confusion and angst surrounding the two-month parliamentary debate about physician-assisted suicide was due to incomplete or misleading reporting and lack of contextual analysis. It also appears that certain political and media figures had a pre-determined agenda to throw the PAD gates wide open immediately rather than to proceed cautiously as recommended by Attorney General Jody Wilson-Raybould and Health Minister Jane Philpott, who have indicated that the Trudeau government is open to future discussions about extending the parameters of PAD.

PHOTO: Gazet Van Antwerpen
Marc and Eddy Verbessem, 45-year-old identical Belgium twins who were deaf, chose euthanasia by lethal injection in December 2012 after being diagnosed with a genetically-caused form of glaucoma which would have eventually led to blindness for them.

One of the concerns of opponents of assisted suicide is that once the gates are opened, it could prove to be a slippery slope leading to abusive practices that put  vulnerable people at risk of being euthanized.

In Carter v. Canada, the Supreme Court heard from Professor Etienne Montero, a professor in bioethics and an expert on the practice of euthanasia in Belgium who filed an affidavit which said that even with safeguards in place, compliance issues arise and the criteria expand for granting assisted suicide.

“Once euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions,” he wrote, citing examples of euthanasia for minors or persons with psychiatric disorders or minor medical conditions.

Marc and Eddy, deaf identical Belgian twins, put on new shoes and suits before lying down side-by-side on gurneys, where doctors gave each of them a lethal injection.

In her book, Bird on an Ethics Wire, Professor Somerville describes “a chilling example” of what she calls the “slippery slope” which led to the December 2012 euthanasia of Marc and Eddy Verbessem, 45-year-old identical Belgian twins who were deaf.

The bachelor twins, who lived together in their own home and could communicate with each other using sign language understood only by them and their close family, were diagnosed with a genetically-caused form of glaucoma, according to a story published by the U.K.-based Daily Mail newspaper on January 15, 2013. When told by their doctor that they would go blind, they panicked at the thought of not being able to see each other and communicate with sign language, fearing they would be forced into an institution and would lose their independence.

It took the pair almost two years to find a medical institution to carry out the procedure after being turned down by their local hospital in Putte, a village 25 miles northeast of the Belgian capital of Brussels.

The pair, who both worked as cobblers, dressed in new shoes and suits and lay down side by side on gurneys at Brussels University Hospital in Jette, a Brussels-area municipality, where medical personnel gave each man a lethal injection in mid-December 2012.

As reported in the Daily Mail: “Marc and Eddy waved again at us,” said their older brother, Dirk, who together with his parents, Mary and Remy, were by the side of the twins as they took their last breaths. “Up in the sky,” they (the twins) said. “Up in the sky,” we replied. “And then it was over.”

Euthanasia is legal under Belgian law if those deciding can make their wishes clear and are suffering unbearable pain according to a doctor’s judgment. “Neither twin was suffering extreme physical pain or was terminally ill,” the Daily Mail reported.

PHOTO: Postmedia News
Saskatchewan farmer Robert Latimer, who turned 63 in March 2016, served 10 years in prison for what he said had been the ‘compassionate’ killing of his disabled daughter, Tracy, on October 24, 1993, one month short of her 13th birthday.

In their Carter v. Canada judgment, the Supreme Court played down the concerns of Belgian Professor Etienne Montero about a “slippery slope” evolving once assisted suicide and euthanasia are enshrined in law. Instead, the Supreme Court of Canada sided with Justice Lynn Smith of B.C. Supreme Court in noting that “the permissive regime in Belgium is the product of a very different medico-legal culture” than that of Canada and “offer little insight into how a Canadian regime might operate” as it relates to PAD.

In the days leading up to the Trudeau government's passage of its new PAD law, I wondered about the Supreme Court’s lack of concern about too expansive an interpretation of PAD as I came across an old, familiar name in a news item. It seems that Saskatchewan wheat farmer Robert Latimer, who turned 63 in March 2016, was finally eligible for a passport to leave Canada on vacation in 2016 after serving 10 years for killing his disabled daughter, Tracy, on October 24, 1993, one month short of her 13th birthday.

For readers who don’t know or don’t remember the details of that story, Latimer told authorities in the fall of 1993 that he connected a hose from his Chevy pickup’s exhaust pipe into the cab where he had placed Tracy while his wife, Laura, was at church. Tracy died of carbon monoxide poisoning.

Latimer said he had killed Tracy out of love in order to end her suffering from cerebral palsy caused by brain damage due to a lack of oxygen at birth.

Doctors testified at his subsequent murder trial that both Latimer and his wife, Laura, had given excellent care to Tracy, who couldn’t walk or talk and who suffered violent seizures. The court noted that Tracy was in constant pain. At the time of her death, she was a 40-pound quadriplegic who functioned with the mental capacity of a four-month-old baby.

At Latimer’s murder trial, the Crown introduced evidence from caregivers that Tracy greeted visits by her family with smiles and that she responded positively to music and horses at the circus, making the point that despite Tracy’s “considerable pain” and “severe disability”, her life still had “value and quality.”

Latimer was convicted of second-degree murder in the fall of 1994 in the Saskatchewan Court of Queen’s Bench and sentenced to life in prison, but the Supreme Court of Canada ordered a new trial because of questionable tactics by the Crown and RCMP in questioning potential jurors at the first trial.

PHOTO: Wikipedia
Having seen his father Pierre Elliott Trudeau deal with Parkinson’s disease and prostate cancer, Prime Minister Justin Trudeau is well aware of the pain that many people suffer due to disease near the end of their lives.

At his second trial in October-November 1997, Latimer was again convicted of second-degree murder, but the jurors recommended a prison sentence of only one year because they felt that Latimer had been motivated to take his daughter’s life because of concern for her suffering.

Even though the Criminal Code of Canada calls for a mandatory life sentence for murder with no chance of parole for 10 years, the trial judge, Ted Noble of Court of Queen’s Bench, sided with the jurors and ruled that life imprisonment in Latimer’s case would constitute cruel and unusual punishment. Instead, he sentenced Latimer to one year in prison and one year of house arrest on his farm near Wilkie, Saskatchewan.

But the Canadian judiciary’s hands are tied by mandatory minimum sentencing guidelines imposed by federal law, so in November 1998, the Saskatchewan Court of Appeal overturned Nobel’s ruling and instead imposed the mandatory minimum sentence of 25 years with no chance of parole before 10 years.

On January 18, 2001, the Supreme Court of Canada upheld his conviction and life sentence even though the Court agreed it had been a crime of compassion. Latimer began serving his sentence on January 18, 2001 and was released on full parole, with some conditions, in 2010.

On April 3, 2009, Professor Arthur Schafer, Director of the Centre for Professional and Applied Ethics at the University of Manitoba, wrote in The Globe and Mail that Latimer was the only person in Canadian history to spend even a single day in prison for a mercy killing.

“That's partly because prosecutors often exercise their discretion to charge the accused with an offence other than murder,” Schafer wrote. “Conviction on a lesser charge, such as manslaughter or ‘administering a noxious substance’, allows the court flexibility to make the punishment fit the criminal as well as the crime.”

Given the sympathetic and lenient judicial attitudes expressed towards Robert Latimer for “a crime of compassion” committed almost a quarter century ago, is it really a stretch to believe that in the PAD environment dawning on Canada in 2016 that questionable mercy killings could become more prevalent and criminal prosecutions for them more rare?

Prime Minister Justin Trudeau – having had personal experience dealing with his father’s struggle with Parkinson’s disease and prostate cancer in the final stages of the former prime minister’s life before he died on September 28, 2000 – quite rightly appears to be sensitive to the danger of treading too quickly on the slippery slope involving end-of-life issues.

© Warren Perley. All Rights Reserved. Publication by 2012-2024.
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