The Parameters of a Charter Compliant Response to Carter v. Canada (Attorney General), 2015 SCC 5

Abstract

The Supreme Court of Canada’s remedy in Carter was a declaration of invalidity: “Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. (paras. 127 and 147)”The Court suspended its declaration of invalidity in Carter, initially for twelve months, and ultimately for sixteen months, because it recognized the complexity of the issues to be resolved. What the SCC found unconstitutional, and needs to be replaced, is an absolute ban on physician-assisted death. This leaves significant room for Parliament to choose what safeguards are necessary to protect the vulnerable. As the Court said: “Complex regulatory regimes are better created by Parliament than by the courts.” (para. 125) As the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying said in its Final Report (November 30, 2015): “Although the Supreme Court did not outline the framework for such a system [of safeguards] in the Carter decision, it expressed confidence that such a system could be implemented in Canada.” (p. 15)The overlap of federal criminal law jurisdiction and provincial health jurisdiction raises the possibility of conflicting legislation. If the Criminal Code is stricter than provincial legislation, reliance on provincial legislation will not avail in a criminal prosecution. If the provincial legislation is stricter than the criminal law, the lack of criminal liability would not preclude professional discipline under provincial legislation, meaning the access contemplated under the criminal law would be thwarted. There is thus a high premium on harmonizing federal and provincial law.The Final Report of the External Panel on Options for a Legislative Response to Carter v. Canada (15 December 2015) set out the vastly divergent positions of a broad range of stakeholders; many choices have to be made. There is significant pressure to amend the Criminal Code by 6 June 2016, when the suspension of the declaration of invalidity will expire, in order that a system of safeguards under the criminal law be in place. However, nothing done as of 6 June 2016 is cast in stone. Adjustments based on reconsideration and/or experience will always be possible. Legislating in stages is also an option.In what follows I will explain why, in my assessment, it is consistent with Carter to (1) limit physician-assisted death to end-of-life conditions; (2) include a mechanism of prior review beyond doctors` assessments; (3) preclude reliance on advance directives; and (4) limit availability to those 18 and over.