Supreme Court gives feds an extra 4 months on physician-assisted death


The Supreme Court has granted part of the federal government’s request for extra time in crafting assisted dying legislation, giving them an extra four months instead of the six they had requested.

Quebec, whose assisted-dying law came into effect last month and which has begun helping residents end their lives, is exempt from the four-month extension.

Justice Minister Jody Wilson-Raybould welcomed the ruling in a statement Friday evening.

“The Government of Canada respects the court’s judgment and remains committed to developing a thoughtful, compassionate, and well-informed response to the Supreme Court’s ruling,” she wrote.

“This extension will provide the time to work closely with Minister Philpott and officials at Health Canada, and in consultation with the provinces and territories, to move quickly, with care and diligence, to develop an approach that protects the most vulnerable among us while respecting the inherent dignity of all Canadians.”

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The ruling is a blow for advocates of assisted dying, who argued the delay just means more time spent in unbearable suffering.

READ MORE: ‘This is real people suffering’

The ruling has said that people who want to die right now can apply for a special exemption — but they have to go to court.

“Those who wish to seek assistance from a physician [in dying] … may apply to the superior court of their jurisdiction for relief during the extended period of suspension,” the ruling reads.

“Requiring judicial authorization during that interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.”

That “really doesn’t alleviate any concerns” for people affected by the decision, said University of Waterloo political science professor Emmett Macfarlane.

“Applying for anything through a court is an onerous activity, especially when you’re suffering from a debilitating or deadly disease,” he said.

“It can be expensive. And just because you’re saying, ‘Well you can apply to court’ doesn’t mean courts are obligated to provide you with the relief you’re seeking.”

Macfarlane argued the ruling makes no logical sense: If the issue of assisted suicide were as complex as the feds argued, and in as urgent need of comprehensive national legislation, why make a special allowance for Quebec?

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“The entire idea of giving Parliament … an extension was the belief that criminal law is needed here. Quebec proves that we don’t need a criminal law,” he said.

“What we have here is really a denial or at least delay of access to rights for people who may be in suffering. And for no good reason.”

Giving governments extra time before Supreme Court rulings take effect should be an “extraordinary measure,” Macfarlane said. He thinks the extension granted Friday doesn’t seem to take that into account.

It’s also unlikely the federal government will be able to develop a comprehensive national assisted-dying protocol from scratch, with buy-in from all the provinces, between now and June 6, he said.

“There’s nothing tied to logic here. … It really is an atrocious decision.”

The Council of Canadians with Disabilities welcomed the decision.

“It’s great that they are giving more time,” said the council’s James Hicks.

Hicks said he’s hopeful this will give the government time to put safeguards in place for people with disabilities.

“There were come comments made about this really not being a big deal. Yes. We’re killing people here. We’re putting people to death. This is a big deal.”

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The federal government had argued it was “naive” to think the prohibition on assisted dying could expire within a legal vacuum. Ottawa said it needed to draft laws regarding who is eligible for assisted death and who can assist with that death, among other things.

“The difficulty in this case is that the issues are so enormous and so complex … it is a new Parliament, they have to grapple with the issues,” Crown lawyer Michael Frater argued earlier this week.

READ MORE: Government pleads for more time to craft assisted-dying law

But during his submissions in court, lawyer Joe Arvay argued the court’s initial ruling was clear enough to allow physicians to help suffering people die without additional legislation.

“There’s no uncertainty,” he said, adding that fears of a “wild west” of euthanasia practitioners are ill-founded.

“There’s not going to be a rush to the doctor’s office on Feb. 6,” he said.

“Most people don’t want to die.”

But, he argued, the issue is much more urgent for people enduring intolerable suffering and want to die now.

“Either they are, during this period of an extension, going to suffer horribly or they’re going to die prematurely.”

READ MORE: Is Canada ready for physician-assisted death?

The groundbreaking unanimous ruling last year found that competent adults in the throes of grievous, irremediable suffering have the right to a doctor’s assistance in helping them die.

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Crucially, the ruling included both physical and mental pain, which has led to many questions around how to ensure the desire to die isn’t itself a product of mental illness. (Right now, provinces have their own ways of determining a patient’s capacity to consent to treatment; some have argued this same model could apply to assisted death requests.)

The Supreme Court suspended last February’s ruling for a year to give the federal government time to craft a new law.

But Ottawa was slow off the mark: The then-governing Conservatives waited several months before creating a panel to consult Canadians on assisted dying; that committee’s work was than put on hold during the longest federal election in more than a century.

The Liberals slammed what they called federal inaction when they were in opposition, only to find themselves asking for more time once they formed government last November. They established a special Commons-Senate subcommittee to study the issue last month.

Ontario, which supported the feds’ request for extra time as an intervener, has said it would prepare assisted dying policies of its own by the February deadline if it has to.

Health Minister Jane Philpott declined to comment Friday afternoon.

Multiple provincial colleges of physicians and surgeons have issued guidelines for their members regarding how to approach assisted death.

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