Leading constitutional expert says assisted dying law unconstitutional

The Trudeau government doubled down Monday in defence of its proposed new law on medically assisted dying even after Canada's foremost constitutional authority predicted it would be struck down by the courts as unconstitutional.

OTTAWA — The Trudeau government doubled down Monday in defence of its proposed new law on medically assisted dying even after Canada’s foremost constitutional authority predicted it would be struck down by the courts as unconstitutional.

Peter Hogg — who literally wrote the book on constitutional law in Canada, a text frequently cited by the Supreme Court –said Bill C-14 is inconsistent with last year’s landmark Carter decision, which struck down the ban on assisted dying as a violation of the charter right to life, liberty and security of the person.

The court suspended its ruling for a year — and later extended the deadline by four months — to give the federal government time to respond with a new law.

That deadline arrived Monday, with C-14 still under examination by independent-minded senators, many of whom have expressed strong objections that the bill would allow assisted death only for suffering Canadians who are already near death.

In the absence of a new law, medically assisted dying will be governed by the eligibility criteria set out in Carter and guidelines issued by medical regulators in every province. However, the government is urging the Senate to pass C-14 as quickly as possible, arguing the legislation is urgently needed to ensure strict safeguards to protect the vulnerable.

Hogg’s intervention at the Senate’s legal and constitutional affairs committee was labelled a “game changer” by NDP justice critic Murray Rankin, who urged the Senate to amend the bill to remove the near-death requirement and replace it with the top court’s eligibility requirements — an “obvious fix,” in Hogg’s judgment.

But the government continued to insist the bill strikes the right balance.

“This is a big step in the history of our country,” Prime Minister Justin Trudeau told the House of Commons.

“Making sure that we do that in a responsible and thoughtful way that both upholds Canadians’ rights and freedoms while defending the most vulnerable is exactly what we have done with this piece of legislation.”

Hogg told the committee that the Supreme Court said Parliament could respond to its ruling “should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”

That very specific wording “gives no room for narrowing the class of entitled people” in legislation, he said.

The Supreme Court directed that medical assistance in dying should be available to clearly consenting, competent adults with “grievous and irremediable” medical conditions that are causing enduring suffering that they find intolerable.

C-14 takes a more restrictive approach, allowing assisted dying only for consenting adults “in an advanced stage of irreversible decline” from a serious and “incurable” disease, illness or disability and for whom natural death is “reasonably foreseeable.”

Under it, said Hogg, medical assistance in dying would no longer be available for people who meet the court’s criteria but are not close to death. While the top court wanted Parliament to enact procedural safeguards to avoid the risk of error or abuse, Hogg said it would not countenance legislation that would “exclude a whole category of people who have won the right (to assisted dying) through three stages of litigation up to the Supreme Court of Canada.”

Hogg said “it can be safely predicted” that someone denied an assisted death because they’re not near death would challenge the new law’s constitutionality, should it pass in its current form. And he suggested the result of such a challenge is inevitable: “What judge would not strike down the end-of-life provisions?”

However, two other lawyers invited to testify at the same time — Gerald Chipeur and Tom McMorrow — argued that the Supreme Court also said it would accord “a high degree of deference” to any legislation Parliament enacts on assisted dying. They maintained that Parliament is not bound to use precisely the same eligibility criteria set out in Carter.

“You’re not in handcuffs. You’re not in shackles. Your decision is important,” Chipeur told the committee.

Chipeur, former counsel for the Conservative party, represented the Christian Legal Fellowship in arguing against assisted dying in the Carter case. McMorrow teaches public law and philosophy of law at the University of Ontario Institute of Technology.

By contrast, Rankin said Hogg is the “god of constitutional law,” someone who has been cited 1,627 times in case law, more than 200 times by the Supreme Court itself.

The federal government’s narrow interpretation of Carter has already been slapped down in two separate court rulings since January. That’s when the Supreme Court, as a stop-gap measure until Monday’s deadline, agreed to allow Canadians who met the Carter criteria to apply for judicial approval for an assisted death.

In two of those cases, Hogg noted that a unanimous panel of three Alberta Court of Appeal justices and an Ontario Superior Court judge rejected the federal government’s contention that Carter can be interpreted to apply only to those who are close to death.

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