Supreme Court of Canada Grants Extension to Parliament and Legislatures

Since the Supreme Court of Canada’s landmark ruling in Carter v. Canada (Attorney General) (“Carter”) on February 6, 2015, physicians and other health professionals, the legal community, and particularly those directly affected by the prospect of physician-assisted death have been awaiting legislative and parliamentary response.

While the Supreme Court ruled that, in certain circumstances, physician-assisted death does not contravene sections 241(b) and 14 of the Criminal Code of Canada (the “Criminal Code”) , the ruling was suspended for one year to allow federal and provincial governments to enact legislation, and to allow regulatory bodies to develop policies that would provide clearer guidance on this very controversial issue. That is, physician-assisted death would continue to be a criminal offence until February 6, 2016, and it was up to Parliament, provincial legislatures, and regulatory bodies to respond with the guidelines and circumstances under which physicians could legally assist patients in dying.

Now, with the one year suspension due to be ending, the Supreme Court has granted a further four month extension following requests from the Attorney General of Canada and the provinces for more time to respond.
The extension has been faced with conflicting views. On one hand, legislation with respect to such a convoluted and multi-faceted issue should of course be enacted carefully and in consideration of all the interest groups involved. However, on the other hand, the inaction and indecisiveness over the past year hardly warrants an extension when considering the adults who clearly meet the criteria laid out in Carter, or specifically, those adults that are currently prepared to consent to the termination of their lives, and who are suffering from grievous and irremediable medical conditions that continue to cause  enduring suffering that is intolerable.

In an attempt to partially reconcile these opposing considerations, the Supreme Court provided two exemptions to the four month extension. First, the assisted dying law recently enacted in Quebec will remain in effect. That statute allowed a patient to die with the assistance of a doctor on January 15, 2016 in what is known to be the first physician-assisted death in Canada’s history. Secondly, patients outside of Quebec may apply to a superior court in their home province for relief in accordance with the Carter criteria.

To the aggravation of those seeking physician-assisted death, the yearlong suspension has had little effect on lawmakers as there have been few legislative or parliamentary steps taken during that time. Furthermore, while the Supreme Court established that the aforementioned Criminal Code sections do not apply to physician-assisted death in certain circumstances, this point of law can only now be relied on under the second exemption. Patients who have suffered during the past year, and the physicians who could have been called upon to assist these patients in ending their lives, will question why the Carter criteria could not have been relied on in such a manner from the outset of the decision.

While patients can now apply to the Courts for physician-assisted death, practically speaking, the lack of clarity surrounding its criteria will continue to put doctors in an uncomfortable situation until lawmakers are able to provide further guidelines. For example, doctors will be reluctant to assess what constitutes a “grievous and irremediable medical condition” without further guidance. Furthermore, outside of the most exceptional circumstances where the criteria are clearly met, Courts may be reluctant to allow physician-assisted death in order to avoid injecting meaning into the Supreme Court’s language before the Parliament and legislatures have an opportunity to do so.

The landscape of health law in Canada was expected to face groundbreaking changes over the past year. Yet, the extension indicates that very little has changed following the Carter decision and pressure on lawmakers is building. Many patients are not only left frustrated with the apparent ineffectiveness of the yearlong suspension, but they continue to have a very narrow legal avenue in seeking physician-assisted death. Physicians that may assist patients in dying continue to face risks in assessing when it is appropriate, while other medical professionals and family members remain uncertain as to their legal entitlements within this greater issue.

If lawmakers were not already facing a significant amount of pressure from those looking for clarity on the issue of physician-assisted death, they certainly are now in light of the ongoing inaction and delay, as well as what is presumably a final extension granted by the Supreme Court of Canada.

The message from families, patients, health professionals and the legal community is consistent: certainty on the law surrounding physician-assisted death is needed without any further delay.