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Canada In absence of federal law, assisted dying enters era of uncertainty

Minister of Justice Jody Wilson-Raybould and Health Minister Jane Philpott, right, talk to reporters outside the House of Commons on Tuesday May 31, 2016 in Ottawa.

FRED CHARTRAND/THE CANADIAN PRESS

The legalization of assisted death enters a new era Tuesday, marked by conflicting approaches by provinces and uncertainty for patients and doctors that could take days or even months to resolve.

The Supreme Court gave governments and regulatory bodies until June 6 to create frameworks for assisted dying, saying after that it would no longer be a crime punishable by 14 years in prison for physicians to help mentally competent adults who are suffering intolerably from a "grievous and irremediable" condition to end their lives.

With the deadline passed and no federal law in place, assisted death is now a matter to be decided between patients and doctors, and governed by provincial regulatory bodies, rather than the Criminal Code. But associations of doctors and doctors' insurers are warning that the rules are still vague, and physicians could still be prosecuted.

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Ellen Wiebe, a Vancouver doctor who performed Canada's first court-authorized assisted death this winter, said she will perform her first assisted death of the new era Tuesday, and a second one later this week.

"I'm so happy that Canada now has legal assisted death and we can help our patients end their suffering," she told The Globe.

But the Ontario government is so concerned that some physicians will be blindsided by criminal charges, it suggests patients and the medical community apply to the Ontario Superior Court for authorization for an assisted death – under a process that was supposed to have ended by June 6.

And Manitoba is going further: "Currently, Manitoba is following the direction from the Supreme Court of Canada that persons need to obtain a court order," Amy McGuinness, press secretary for Health Minister Kelvin Goertzen, said in an e-mail. (Over the past four months, courts have authorized more than a dozen assisted deaths, under a process set out by the Supreme Court.)

The federal Liberal government had hoped its proposed law, Bill C-14, limiting assisted dying to those who are already dying, would have been in effect by Monday. But C-14 is now making its way through the Senate.

"We're open to amendments," Justice Minister Jody Wilson-Raybould said. "We have put forward a piece of legislation to the Senate that we believe strikes the right balance in terms of what we need to do for all Canadians – balance between personal autonomy and ensuring that we protect the vulnerable."

Health Minister Jane Philpott said she hopes to see the law in place "at the very soonest possible date."

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"We know that despite the excellent work of regulatory bodies across the country who have put guidelines in place, that those guidelines, while helpful, are not sufficient in providing adequate and consistent safeguards across the country. … So we hope that we will be able to work with our colleagues in the Senate and see that law passed very soon."

The bill received support Monday from a former legal adviser to the Conservative Party, Gerald Chipeur of Calgary.

"Bill C-14 is constitutional in its current form," he told a Senate committee scrutinizing the bill. "That doesn't mean that you can't improve it. That is a social policy question for Parliament. And Parliament at the end of the day in this dialogue with the courts always has the final say."

But a senior constitutional expert, Peter Hogg, told the committee he found the government's approach "incredible" in narrowing the right to assisted death set out by the top court in February, 2015. That came in a constitutional challenge brought by 89-year-old Kay Carter, who suffered from spinal stenosis but was not dying. She obtained an assisted death in Switzerland while her case was before the courts.

"Carter herself would not have satisfied the new conditions in the bill," Mr. Hogg, a former law dean at Osgoode Hall law school, told the committee. It was Mr. Hogg who coached the first Supreme Court judge to appear before a public hearing in 2006, and his constitutional textbook is frequently cited by the Supreme Court. "Parliament can't turn around and suddenly exclude from the right a group of people that have just been granted the right by the Supreme Court."

Senators will go over the bill clause-by-clause Tuesday, and many say they will propose amendments when the legislation goes back to the Senate for a third reading, expected on Wednesday. Senate Liberal Leader James Cowan plans to propose amendments to remove the reference that a patient's natural death be "reasonably foreseeable," and to align with the Supreme Court ruling in the Carter case. He also supports advance directives for debilitating diseases.

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"This needs to be fixed," Mr. Cowan said in an interview. "We don't want to pass an unconstitutional bill."

Others, such as Conservative Senator Don Plett, want to add new safeguards. "There are more differing opinions on this legislation in the Senate than anything I've ever seen before."

While the Senate has often been seen as a rubber stamp for legislation passed by the House of Commons, it could substantially delay the process of putting a national set of rules in place if it seeks major amendments to the assisted-dying law.

"We've gotten so used to having a compliant Senate, we don't have a process for dealing with disagreements," Mr. Hogg told reporters.

British Columbia has taken a leading role in trying to reassure patients and physicians that the rules are clear and the service is available. Medical guidelines have been upgraded to "standards" that have the force of law. And each health district needs to have an assisted dying co-ordinator. Some provinces told The Globe that their regulatory guidelines apply.

"Through the Nova Scotia Health Authority, who have established policies and protocols for medical assistance in dying, our health system is prepared to offer this service," Health and Wellness Minister Leo Glavine said in an e-mail.

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Saskatchewan Health Minister Dustin Duncan said doctors will have to follow provincial guidelines that say "it will not be illegal for a physician to assist a patient to die if: 1) The patient consents; 2) The patient has a grievous medical condition; 3) The condition is not remediable using treatments that the patient is willing to accept; and, 4) The patient's suffering is intolerable to the patient."

The Canadian Medical Association and the Canadian Medical Protective Association, which insures doctors, are warning physicians that they could face prosecution in some cases. "The Carter decision uses the terms 'grievous and irremediable,' which really aren't very helpful from a clinical standpoint," Jeff Blackmer, a CMA spokesman, said.

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