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Politics Ontario court ruling challenges federal assisted-dying bill

Minister of Health Jane Philpott responds to a question during Question Period in the House of Commons, Monday, May 30, 2016 in Ottawa.

Adrian Wyld/The Canadian Press

A new court ruling on assisted death is raising questions about whether the Liberal government's proposed law is constitutional, as the House of Commons prepares to vote Tuesday on a historic bill to legalize the practice.

Assisted death is the first big legislative test for the Trudeau government and Justice Minister Jody Wilson-Raybould. Prime Minister Justin Trudeau said his government would be different from that of its Conservative predecessor in respecting the Supreme Court of Canada and the Charter of Rights and Freedoms.

When the Supreme Court declared last year that severely ill Canadians have a right to an assisted death, it did not restrict that right to the terminally ill or very elderly, as the Liberal government is doing in its proposed legislation. The top court said the right belongs to mentally competent adults who are suffering intolerably from an irremediable illness.

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An Ontario court, while not ruling directly on the bill, echoed a decision by the Alberta Court of Appeal earlier this month, when it said that the Supreme Court's minimum standard for the right to an assisted death is the loss of quality of life, not whether natural death is "reasonably foreseeable," as stated in the Liberal bill.

The basis for an assisted death, under the Supreme Court's ruling, "is the threat the medical condition poses to a person's life and its interference with the quality of that person's life," Ontario Superior Court Justice Paul Perell said in a decision last week that has just come to light. "There is no requirement … that a medical condition be terminal or life-threatening."

In an interview, Ms. Wilson-Raybould said she believes the patient in the Ontario case would have qualified under the Liberals' Bill C-14, because he is 90 years old and suffering from spinal stenosis, the same degenerative condition that prompted last year's Supreme Court ruling.

"Taking into account all of the circumstances, I would qualify him under C-14," the minister said.

She said the government included a reference to a patient's death being reasonably foreseeable in order to give the medical community more flexibility. "That could be six months, that could be two years," she said.

Ms. Wilson-Raybould said the legislation offers Canadians autonomy in how they end their lives, while at the same time protecting the vulnerable.

"Somebody that is recently disabled, for example – should that person have access to medical assistance in dying? The decision that we made, based on all of the evidence and the perspectives and the feedback, was this is the right decision now," she said.

"This legislation is entirely justifiable and it is the responsible approach."

The bill passed the report stage in Parliament on Monday night, with four Liberal MPs voting against it. It is expected for a final vote in the Commons on Tuesday night.

If the Commons passes the bill, the Senate will need to debate and approve it by June 6 to meet a Supreme Court deadline – and it is far from certain it will do so. A Senate committee that studied the issue pushed for more safeguards, as well as opening up the practice to allow for advance requests. Many senators have also said they want the bill to remove the "reasonably foreseeable" reference.

But the passing of the deadline means only that, as with abortion, there will be no criminal law on assisted death. The matter will be between patients and their doctors, and regulated by provincial medical bodies, which have all drafted a framework for how the process should work. On Monday, Health Minister Jane Philpott for the first time acknowledged the government is seeking to pass the law "as soon as possible," seeming to accept it won't happen by June 6.

Ms. Wilson-Raybould said without a law, there will be uncertainty in the medical community, and it's possible doctors will refuse to provide the procedure.

The bill sets out who qualifies (mentally competent adults whose natural death is reasonably foreseeable, and whose suffering is enduring and intolerable), who doesn't (those with mental illness, children and those who want to be able to give an advance directive in cases of dementia) and how to go about it (two independent witnesses must attest to the voluntariness and two doctors or nurse-practitioners must evaluate and approve of the request).

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The vote comes amid growing concerns the governing Liberals are rushing legislation that is unclear and perhaps unconstitutional.

On Monday, NDP MP Murray Rankin urged the Liberals to change the language in the bill to reflect the Supreme Court's decision, and if it passes into law, to refer it back to the court – something Ms. Wilson-Raybould has already said the government considered and chose not to do.

"The Liberals, with respect, have bungled this entire process," Mr. Rankin told reporters.

Former Liberal prime minister Paul Martin and former Liberal leader Bob Rae said last week that Parliament does not need to meet the June 6 deadline, and should instead try to draft the best possible law. And an umbrella group for provincial medical regulatory bodies says the requirement that natural death be "reasonably foreseeable" is far too vague for physicians.

The debate around assisted death is not one the government initiated. Long before the Liberals came to power last fall, a legal challenge resulted in the Supreme Court creating a right to assisted death. The court gave the government a year to draft rules before the right came into effect, but the Conservatives did little. The Liberals received a four-month extension, ending June 6. During that four-month period, the Supreme Court allowed individuals to apply to superior court judges for authorization for an assisted death.

Jamie Cameron, a constitutional specialist at York University's Osgoode Hall Law School in Toronto, said despite the court rulings on assisted death, the Supreme Court may yet find that the new law's restrictions are permissible.

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"That will depend on argument and evidence, as well as on the degree to which Parliament should be afforded a measure of deference on this issue," she said in an e-mail. "There it is worth remembering that the SCC and Chief Justice [Beverley McLachlin] have endorsed the principle of mutual respect between institutions, or letting Parliament do its work."

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