If it were being honest, the government of Prime Minister Stephen Harper would have simply said, "We don't want to deal with legislation on assisted death until after the election," or, better yet, taken a firm position and been willing to debate and defend it during the coming federal election campaign.
Instead, it opted for cowardly dithering, appointing a panel "to consult with Canadians on options to respond to the Supreme Court of Canada's decision" and giving the panel a late-fall deadline – conveniently after the Oct. 19 vote – to report back on legislative options.
Worse yet, the government stacked the panel with opponents of assisted death, showing contempt not only for the landmark ruling, but for the process of law-making more generally.
On Feb. 6, the Supreme Court struck down two sections of the Criminal Code, Sections 14 and 241(b), as unconstitutional, essentially removing the barriers to assisted death for competent adults. The court also gave the federal government 12 months to come up with new legislation – or not.
The Conservative government did not like the decision. But that is no excuse for inaction. It should have got down to work the day after the ruling, not waited five months to appoint a committee of dubious value.
Regardless of the ruling party's views, Parliament has an obligation to draft legislation that is constitutional or to state clearly that there will be no law. (The third option is to invoke the notwithstanding clause and reinstate the law, which the government has ruled out.)
In this instance, the Supreme Court ruled that competent adults who are grievously and irremediably ill have a right to die, and a right to ask for assistance in ending their lives.
It is the duty of elected members of Parliament to make that right a reality. It is the job of legislators to legislate.
The principle that Canadians have a right to die is clear. But several technical issues need to be addressed to give life to the court's ruling, such as:
*Who exactly is eligible? How do you define "intolerable and permanent suffering?"
*Who decides? Are the rules of consent different from any other medical procedure?
*Can physicians refuse? How do you respect their freedom of conscience?
*What administrative procedures need to be in place? Does more than one doctor need to agree? Is there a cooling-off period? Can a person self-administer a lethal dose of drugs, or does it have to be a physician?
*Do the rules need to be the same in every jurisdiction or will there be variations between provinces and territories?
Not all of these issues need to be spelled out in federal legislation. Most are probably best dealt with by an independent body, as proposed in the private member's bills tabled by Conservative MP Steven Fletcher. Provincial governments and medical regulatory bodies have a role to play as well.
Just as importantly, to improve end-of-life care there needs to be a commitment and investment in palliative care – but that is a complement, not a substitute, for right-to-die legislation.
A panel of experts could be helpful in making recommendations. But the threesome chosen by the government features Harvey Max Chochinov, the Canada research chair in palliative care at the University of Manitoba; and Catherine Frazee, former co-director of the Ryerson-RBC Institute for Disability Studies Research and Education, both of whom are opponents of assisted death; and Benoît Pelletier, a constitutional law professor at the University of Ottawa and proponent of asymmetrical federalism (meaning he's not a big believer in federal legislation).
The three are top-flight academics but they come to the table with clear biases – or a perception of bias – that strips the exercise of any real credibility. There is little doubt the government wants them to recommend the most restrictive rules imaginable.
This is an issue that cries out for rules that are consensual and compassionate, not restrictive and partisan. The nitty-gritty of right-to-die legislation should be determined by an all-party committee of elected representatives.
Let's not forget the most important admonition of the Supreme Court, that denying the choice of a hastened death to those who are suffering "intolerably and permanently" amounts to cruel and unusual punishment. Delaying a correction to this injustice is doubly and unnecessarily cruel.
André Picard