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Leading constitutional expert says assisted dying law unconstitutional

Price Carter, son of Lee Carter (in photo in foreground) pauses for a moment during a news conference at British Columbia Civil Liberties in Vancouver, B.C., Monday, June, 6, 2016. Price and his sister Kay Carter were speaking on the Supreme Court of Canada's death with dignity ruling.
Image Credit: THE CANADIAN PRESS/Jonathan Hayward
June 06, 2016 - 10:27 AM

OTTAWA - Canada's foremost constitutional authority predicts the federal government's proposed new law on medically assisted dying will be struck down by the courts as unconstitutional.

Peter Hogg — who literally wrote the book on constitutional law in Canada, a text frequently cited by the Supreme Court — says Bill C-14 is inconsistent with the top court's landmark ruling known as the Carter decision last year, which struck down the ban on assisted dying as a violation of the charter right to life, liberty and security of the person.

The court suspended its ruling for a year, later extended by four months, to give the federal government time to respond with a new law.

That deadline passed last night, with C-14 still under examination by independent-minded senators, many of whom have expressed strong objections that the bill would allow assisted death only for suffering Canadians who are already near death.

As of today, medically assisted dying is now legal in Canada, governed by the eligibility criteria set out in Carter and guidelines issued by medical regulators in every province. However, the government is urging the Senate to pass C-14 as quickly as possible, arguing the legislation is urgently needed to ensure strict safeguards to protect the vulnerable.

Hogg is among the witnesses scheduled to appear today before the Senate's legal and constitutional affairs committee to discuss the bill.

In speaking notes prepared for the committee and obtained by The Canadian Press, Hogg notes that the Supreme Court specifically said Parliament could respond to its ruling "should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons."

"In my opinion, the bill is not consistent with the constitutional parameters set out in the Carter reasons," he says.

The Supreme Court directed that medical assistance in dying should be available to clearly consenting, competent adults with "grievous and irremediable" medical conditions that are causing enduring suffering that they find intolerable.

C-14 takes a more restrictive approach, allowing assisted dying only for consenting adults "in an advanced stage of irreversible decline" from a serious and "incurable" disease, illness or disability and for whom natural death is "reasonably foreseeable."

If C-14 is enacted in its current form, Hogg says, "the class of entitled persons would no longer include people whose suffering is not an end-of-life condition."

"It is incredible to me that the court in Carter, when it called for legislation by Parliament 'consistent with the constitutional parameters set out in these reasons,' was envisaging legislation that would narrow the class of entitled persons."

While the top court wanted Parliament to enact procedural safeguards to avoid the risk of error or abuse, Hogg says, "for the legislation to narrow the class by taking away a right that had just been deliberately granted by the Supreme Court" is not what it had in mind.

If the bill is enacted with the near-death provisions still intact, Hogg says "it can be safely predicted that a member of the newly excluded class" — someone who meets the Carter criteria but is not close to death — will challenge the constitutionality of the new law.

And he suggests the result of such a challenge is inevitable: "What judge would not strike down the end-of-life provisions?"

Indeed, the federal government's narrow interpretation of Carter has already been slapped down in two separate court rulings since January. That's when the Supreme Court, as a stop-gap measure until the June 6 deadline, agreed to allow Canadians who met the Carter criteria to apply for judicial approval for an assisted death.

In two of those cases, Hogg notes that a unanimous panel of three Alberta Court of Appeal justices and an Ontario Superior Court judge rejected the federal government's contention that Carter can be interpreted to apply only to those who are close to death.

"In both cases, a careful analysis of the Carter reasons yielded the conclusion that no end-of-life requirements were express or implied. In both cases, permission was granted for a physician-assisted death."

NDP MP Murray Rankin said he expects Hogg's opinion to be a game-changer.

"Everything has changed," Rankin, the NDP justice critic, said Monday outside the House of Commons.

Rankin, whose party has long advocated for the abolition of the Senate, also said it does not matter to him that Hogg is giving his opinion to senators instead of MPs.

"I'm concerned that the government does the right thing now," Rankin said. "It has no excuse but to fix this."

— With files from Joanna Smith

News from © The Canadian Press, 2016
The Canadian Press

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