The Trudeau government used its majority in the House of Commons on Tuesday to pass its controversial law on assisted suicide, possibly setting itself on a collision course with the Supreme Court. If the bill gets through the Senate – no sure thing – and becomes the law of the land, things could get messy.
Or maybe they won't. The government says it is in dialogue with the court, not just taking dictation. And the court's ruling arguably leaves room for Parliament to tailor a democratic solution to the judiciary's finding that the Charter of Rights' protections include, under certain circumstances, the right to an assisted death.
The question is, under what circumstances? Bill C-14 limits access to physician-assisted suicide and euthanasia to people suffering from terminal conditions, regardless of how much suffering they are going through, or how long that suffering will last.
However, the Supreme Court decision in 2015 that led to Bill C-14 suggested a less restrictive approach. It said the right to a state-sanctioned death should be granted to any "competent adult person who clearly consents to the termination of life; and has a grievous and irremediable medical condition ... that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition."
Bill C-14 says that a person's natural death must be "reasonably foreseeable," to access assisted suicide; the Supreme Court did not impose such a limit. Two provincial superior courts recently upheld the right to die for people not suffering from terminal illnesses; in both cases, the judges based their rulings on their reading of the Supreme Court.
But the Supreme Court's sense of the right to assisted suicide, and the limits on it, is deeper than the one sentence of its ruling quoted above. The court wanted a constitutional dialogue with Parliament; it didn't just rewrite the law itself, it asked Parliament to study, debate and legislate. It is far from certain how the court will respond to litigation, should this bill become law.
Did the government unnecessarily rush the legislation? Yes. But one aspect of the bill, its sense that the new right to an assisted death risks being abused to the detriment of the elderly, the disabled and the vulnerable, is not misplaced. The concerns are real.
And the constitutional questions are not cut and dried. Remember, 23 years ago the very same Supreme Court banned assisted suicide. Now it has set new standards to allow it in some cases. The court may be willing to flesh out its views in a manner supportive of the limits placed on the right by a democratic Parliament. Or it might do the opposite.
In any case, if Bill C-14 passes the Senate unchanged – far from a certainty – it will face legal challenges. The recent Ontario Superior Court judgment that supported the right to die of a person who wasn't suffering from a terminal disease involved a 90-year-old man. "I.J." was doubled over by spinal stenosis, his chin forced down onto his chest, feeling strangled, barely able to speak or swallow, unable to stand or sit comfortably. He suffered from constant, unbearable and untreatable pain.
Federal Justice Minister Jody Wilson-Raybould commented that she believes Bill C-14 would give "I.J." the right to die because of his advanced age. She may be right.
But what would happen to a person living with the same unbearable pain who happened to be, say, 45? Or 16?
The government argues that the requirement for the person's natural death to be reasonably foreseeable will prevent someone who has become newly disabled from making a rash decision. It's a fair point, and in that context Bill C-14 sets a reasonable limit.
The question is whether the courts will agree with the government, or whether they will see the limit as arbitrary, because not all people suffering intolerably will have the same right to an assisted death in the moment that they ask for it.
This is a risky gamble for the government to take. But on balance, we believe the limits it is trying to place on assisted suicide are reasonable and principled. Some constitutional experts think Bill C-14's limits could be acceptable to the Supreme Court. Others say that parts of the law will surely be shot down.
But before any of this winds up before the judges, it's over to the Senate. There's expected to be resistance in the Upper Chamber, because a number of senators have said they believe the bill is unconstitutional, and will not pass muster with the Supreme Court. The Trudeau government has publicly encouraged the Senate to act independently of the government, and on Bill C-14, it may be about to get its wish.
The good news is that there is no urgency for the bill to be law by June 6, despite the government's earlier attempts to argue otherwise. There is time to for Parliament to debate, to consider and to get it right.