WITHOUT A LAW ON ASSISTING DYING—NOW WHAT?

Section 241 (b) of the Criminal Code provides:

Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

As of midnight Monday that provision in the Criminal law is no longer in effect.

Parliament had until Monday to craft a law allowing physician assisted death in limited and specified circumstances; Parliament missed that deadline.

There is considerable debate concerning what might happen now that there is no replacement legislation. The Government believes that a legal vacuum or void exists. Others believe the “Carter Parameters” will govern. The disagreement among experts and confusion confirms that Parliament must get a new law passed.

What is clear is that currently there are no general Criminal Code prohibitions regarding assisted suicide—-it is unlikely that in the absence of any law, a physician could be prosecuted for assisting in another’s death (under any circumstances). The Supreme Court has invalidated section 241(b)

But it is unclear whether criminal liability would attach to a lay person or naturopath who assisted another to take his or her life. The Supreme Court attempted to limit the unconstitutionality to enable physician assisted death under specified circumstances. But section 241 (b) does not apply only to physicians; it sanctions any one who assists in a suicide. I suspect the old law still applies to everyone, who is not a medical professional; but again there is uncertainty. The mechanics of striking down a law based on the subclasses of “Every One” are awkward. This gray area will be especially difficult regarding providers of alternative medicine.

Some experts believe that only if a patient meets the so called “Carter Test”, would it be legal for a physician to assist. The mechanics of how this would work are also unclear. Until Monday, the Superior Courts in each province have been entertaining on a case by case basis, constitutional exemptions to section 241 (b). But after June 6, Section 241 no longer exists. How do you exempt someone from non-existing provisions?

The ability to apply for a constitutional exemption was not part of the original 12 month stay of the decision; it only became part of the fourth month extension. Accordingly, now that the stay has expired, the section 241(b) prohibition has ended and so too it would appear the right, or for that matter the need, to apply for an exemption.

Respectfully, the Supreme Court itself has muddied the waters. In the “Carter” decision, the Court originally stated this was not a proper case for constitutional exemptions, preferring to invalidate sections 241 (b) and 14 of the Criminal Code. Now that the clock has run out on passing replacement legislation, there will indeed be a legal vacuum.

The Court further muddied the waters by Paragraph 127 of the Judgement. It appears the Court invalidated the sections only for: competent adults, clearly consenting, having a grievous and irremediable condition, causing intolerable suffering. And then this: “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician assisted dying may be sought”.

That sounds more like an exemption for the specific litigants than a general declaration of constitutional invalidity. But what is clear is that the Court was only considering the specific facts of Gloria Taylor. As such, there are no “Carter Parameters or Test”; Kay Carter’s children joined the legal fight on behalf of Ms. Taylor but the Court’s decision is fact specific to Ms. Taylor. The Court said specifically that it was improper for it to “usurp Parliament’s role in drafting a constitutional law”. The Supreme Court found that the existing law violated Ms. Taylor’s constitutional rights; it was deliberately not providing “Parameters” to guide different factual situations.

The Supreme Court also conceded that: “Complex regulatory regimes are better created by Parliament than by the courts”. (125) The Carter Test or Carter Parameters are legal fictions.

The unfortunate result of time expiring is that there are currently no general prohibitions against assisted suicide but also no regulations regarding assisted death protecting physicians or any other medical practitioners. Although the result might be assisted suicide on demand, I suspect the result will be just the opposite—that physicians will be less likely, not more, to participate given the absence of a regulatory framework.

The respective provincial Colleges that govern physicians, to their credit, have been busy developing guidelines and regulations to assist and guide their respective members. This of course will lead to a patchwork of non conforming and inconsistent standards, specific to each province.

Worse, nurses and pharmacists, who would be able to participate and assist physicians under Bill C-14 do not enjoy comparable guidance from their respective governing bodies.
Bill C-14 is an imperfect attempt to fill a legislative void. It would essentially reinstate section 241(b) of the Code but then exempt certain medical professionals provided that the patient meets certain legislated criteria.

Some experts believe C-14 is constitutionally suspect; that may be so. But at least it only exempts specified medical professionals from assisting in a suicide. And it provides a critical mechanism to safeguard vulnerable patients.

All of that is at risk now that we have no general law against assisted suicide. The government should not have allowed the clock to run out. If Parliament could not make the June 6 deadline, it should have attempted to get a further extension from the Supreme Court or even temporarily repass the law invoking the Notwithstanding Clause of the Constitution, until it could get a compliant law passed.

Anything to pre-empt the legal void we now find ourselves in.

Certainly there will be legal minds more learned than mine that will disagree with my analysis. That debate creates uncertainty and confusion, which underscores the need for an immediate legislative solution plavix generic. We need a law!

Comments are closed.