In an extraordinary hearing on Monday, judges on the Supreme Court of Canada said there may be ways to permit a doctor-assisted death for grievously suffering individuals beginning next month, while also allowing the federal government the extra time it is requesting before the Criminal Code ban on assisted dying is lifted.
One such compromise solution would be to let individuals who are suffering unbearably apply to a judge for approval, thus clearing the way for a doctor to help end that life without fear of being criminally charged.
The federal government is asking the court to do something it has rarely done before – grant an extra six months on top of the 12 months already allowed before its ruling takes effect.
That request puts the Supreme Court in a corner. Having declared last year that Canadians have the constitutional right to escape unendurable suffering, the court is being asked to make them endure it a little longer. Somewhat in the manner of abortion, for which there is no criminal law, the matter could simply be left to doctors, patients and medical regulatory bodies. However, the federal Liberal government says it intends to legislate. Among the provinces, only Quebec has a law setting out how medical aid in dying works.
"We're talking about the line between killing and not killing, and Parliament has difficult choices," federal lawyer Robert Frater told the court. The government says it needs the extra time to develop a framework with the provinces for a system in which grievously suffering people can apply for a doctor-assisted death.
Justice Rosalie Abella asked Mr. Frater whether individuals could go to a judge for approval during an extension in which the right to an assisted death would not yet be in effect. Mr. Frater said no, adding that the court's ruling last year contemplated a carefully designed and monitored scheme, not one overseen by judges. Justice Abella then asked what harm would be caused by allowing the right to take effect immediately. Mr. Frater said it was unclear whether doctors would participate; Justice Abella replied that the court has already ruled they are not required to do so.
When asked about Quebec's law, Mr. Frater said the federal government does not object to it being in effect during the six-month extension.
Then Justice Michael Moldaver asked if Parliament could simply assume that the Quebec law, which took effect last month, would be in force in the rest of Canada during an extension. Mr. Frater told Justice Moldaver the legislative process must be allowed to take its course federally.
"It's a new Parliament," he said, taking aim at a criticism that hung over the hearing, that Ottawa has dragged its feet. "And the democratic process is slow." The ruling was released on Feb. 6, 2015, and the Conservative government did not draft new legislation before the election that brought the Liberals to power in October. The Trudeau government has created a parliamentary committee with instructions to report by Feb. 26.
Lawyer Joseph Arvay, speaking against an extension, told the court that no harm would be caused by letting the right to an assisted death take effect next month. (Mr. Arvay represented the British Columbia Civil Liberties Association and Lee Carter, the woman who brought the initial court challenge. Her 89-year-old mother, Kathleen, had the degenerative disease spinal stenosis, and went to Switzerland for an assisted death in 2010.) Justice Moldaver replied bluntly that harmlessness could not be taken for granted: Parliament "might want to put in measures that ensure as far as possible that we are not killing people who really ought not to be killed."
Underlying that exchange was the question of the court's role in Canada, and how deferential judges should be to Parliament. When the Supreme Court unanimously declared that the right exists – saying that the sanctity of life includes the passage into death – it overturned its own 1993 ruling in a case brought by a woman dying of ALS, and rejected the federal government's position that vulnerable people would be at risk of being forced into an unwanted death. But legal scholars say the court still managed to defer to Parliament's lawmaking authority by allowing a year to craft the rules.
Justice Russell Brown, an outspoken conservative who was prime minister Stephen Harper's final appointment to the court in July, asked Mr. Frater if the government really needs the court to declare an extension: "Can't the [Justice] Minister ask Parliament for a suspension by way of override?" (The Constitution has an override provision that lets a government opt out of a particular ruling.) Mr. Frater replied that the government has said it would respect the court's ruling, but he added that it was certainly possible.
The court reserved its decision.
Malliha Wilson, a lawyer representing the Ontario government, which supported the request for an extension, said key issues are unresolved, such as whether a "mature minor" can qualify, and whether a request for an assisted death should be respected even if it is given 20 years ahead of a diagnosis, and the person is no longer able to consent.