OTTAWA – A change to the government’s assisted death bill proposed by the Senate could present the risk of a constitutional challenge from groups representing vulnerable Canadians, Justice Minister Jody Wilson-Raybould said Friday.
In an interview with The Canadian Press, Wilson-Raybould said the amendment which removes language pertaining to the reasonable foreseeability of death would broaden the assisted death regime to the point where safeguards for vulnerable people are lost.
“The more that we go to one extreme, there are risks on the other side,” Wilson-Raybould said.
“There would probably be many differing opinions in terms of a … charter challenge with respect to vulnerable people, but there is a risk.”
Under Section 7 of the Charter of Rights and Freedoms —covering life, liberty and security of the person — there is a balance between personal autonomy and the value of human life, Wilson-Raybould added.
“That’s … the balance we considered very thoughtfully when drafting this legislation,” she said.
Proceeding with the Senate’s suggestion would also amount to a significantly broader regime, she said, noting she and Health Minister Jane Philpott have heard feedback on the need to step very carefully on this thorny issue.
At the end of May, a number of groups in the disability community issued a joint statement urging the passage of the bill
“As Canadians, we speak with deep conviction about the need for robust safeguards to protect vulnerable persons,” it said.
Wilson-Raybould said she and Philpott have been mindful of ensuring “even if there are voices that aren’t speaking as loudly as other voices, that those voices are heard.”
Civil liberties groups have stressed the government is opening itself to a constitutional challenge through its requirement that death be reasonably foreseeable before a patient can get help to die.
The Supreme Court ruled a person who has a grievous and irremediable illness that causes intolerable suffering has the right to choose physician assistance in dying, according to the B.C. Civil Liberties Association, suggesting there is no requirement that the illness must be terminal.
The government has also been subject to criticism from some legal scholars, including constitutional expert Peter Hogg, who suggest the bill is not inconsistent with the top court’s ruling.
Other members of the legal community, however, such as University of Toronto law professor Trudo Lemmens, support the bill as it stands.
Lemmens agrees if Parliament adopted the more open regime the Senate proposes, there could be a charter challenge for failure to protect the vulnerable.
He said the Senate may have overstepped its bounds in cutting a central pillar of the legislation passed by the Commons.
“I would say … the government has taken the right approach to try to balance access versus the need for protection which reflects also a charter right,” Lemmens said.
For a significant amount of time the government considered going further in the bill by injecting a time frame or prognosis from a medical practitioner, Wilson-Raybould said Friday.
“Decisions around timelines are somewhat arbitrary, because the factual circumstances around an individual patient’s case are different,” she said, adding the reasonable foreseeability factor is left in the hands of practitioners who know their patients best.
On Friday, the Senate passed another amendment to the proposed bill that would bar a beneficiary of a person seeking the procedure from helping in the process.
The change, proposed by Conservative Sen. Don Plett, passed by a vote of 49 to 20 with two abstentions.
The amendment would make it an offence for people to help another person self-administer a substance prescribed as part of medical assistance in dying if they know or believe they would materially benefit from the death.
It would also prevent a beneficiary from signing a request for a doctor-assisted death on behalf a patient who is unable to do so.
During discussions on Friday, independent Sen. Nick Sibbeston, a residential school survivor, said he strongly opposes legislation.
Earlier, in the Commons, Winnipeg Liberal MP Robert-Falcon Ouellette voted against the legislation due to his concerns about indigenous suicide.
Wilson-Raybould, a former regional chief for the Assembly of First Nations, said she would like to say assisted death and Canada’s indigenous suicide crisis are two separate conversations, but she can see the connection that has been drawn.
Medical assistance in dying needs to have a very carefully crafted regime around it to ensure patients can access it but Canada also needs to ensure it isn’t the only option, she noted.
“We have to make sure there are other services and that we provide to uphold that value of life.”