Fact check: Without law on assisted dying, will there be a legal vacuum?
Jordan Press, The Canadian Press
Published Thursday, April 21, 2016 7:38AM EDT
OTTAWA -- "If colleagues ultimately decide to defeat this legislation, they also need to understand the legislative and legal consequences of having a complete vacuum in terms of a Criminal Code framework around this particularly sensitive issue." -- Liberal House leader Dominic Leblanc.
Parliament is in a race against the clock to pass legislation before June 6 when the legal ban on assisted dying is lifted.
Liberal House leader Dominic Leblanc warned of "having a complete vacuum" around assisted dying in the absence of a new law. Conservative critic Michael Cooper, in a recent interview with The Globe and Mail, used the same term -- "vacuum" -- when considering what would guide doctors, patients and courts in the absence of a new law.
So if MPs and senators don't pass a new law on assisted dying by June 6, will there be chaos?
Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This statement gets a ranking of "a lot of baloney" because it misses key facts.
The Supreme Court's ruling in Carter v. Canada on Feb. 6, 2015, struck down the ban on physician-assisted dying, but suspended the judgment for one year to give Parliament a chance to craft a new law if it wanted. The court gave parliamentarians an extension to June 6, given the fall election delayed development of a bill.
Until the ban is lifted, the court left guidelines for any Canadians who want to legally end their lives. The court said that any competent, consenting adult with a "grievous and irremediable" medical condition that caused enduring and intolerable suffering could have a doctor help end their lives without fear of criminal prosecution.
Those Canadians have to apply to the courts for special permission to end their lives. Lower courts laid out guidelines for handling such cases: Ontario's Superior Court, for instance, requires two doctors to sign off on a physician-assisted death, one of whom has to be a psychiatrist.
Nothing in the top court's ruling compels doctors to help a patient die, but it remains silent on whether such conscientious objectors would be forced to refer patients to another doctor. The Supreme Court in its ruling said Parliament is better suited than the courts to create "complex regulatory regimes."
Parliament has heard from numerous groups about the need for legislative guidance, including the Canadian Medical Association that worried of "a patchwork of differing and potentially conflicting approaches" across the country without a federal law.
This month, the government unveiled its assisted dying legislation, known as bill C-14, which sets a legislative framework for assisted dying and is looking at ways to make sure the legislation passes the House of Commons and Senate by June 6.
In the absence of federal legislation, the Supreme Court ruling will effectively become the law of the land when it comes to assisted dying, said Jocelyn Downie, a professor in the faculties of law and medicine at Dalhousie University in Halifax.
"What meets the Carter decision will no longer be a criminal offence. So if you have a grievous and irremediable condition causing enduring and intolerable suffering, it would not be illegal for a physician to provide you with medical assistance in dying," Downie said.
There will be a legislative vacuum, Downie said, but provinces could step in to legislate on assisted dying as Quebec has done.
Courts would judge situations outside the high court's ruling by the principles established in the Carter ruling and the practical guidance given by regulatory bodies like doctors' colleges, said Mary Jane Dykeman, a lawyer with DDO Health Law in Toronto.
That would lead to more legal benchmarks and precedents that could eventually lead to back to the Supreme Court for further guidance, said Carissima Mathen, an associate professor of law at the University of Ottawa.
"You would have legal principles being articulated in particular cases at the trial level. Those would then potentially be reviewed by an appellate court. When the appellate court makes a decision on the applicable legal principles, that applies -- if it's a provincial court of appeal -- throughout the entire province," Mathen said.
"Eventually, the sort of more elaborate analysis could reach the Supreme Court in just an appeal of a criminal case and the Supreme Court could give further guidance."
"You can call it baloney," Downie said of the politicians' statements.
The claim of a "complete vacuum" around a Criminal Code framework is a lot of baloney, because it leaves out that there will be a legal framework in place just like there is now. Regulatory bodies still want some guidance from Parliament, and may, in the absence of political guidance, create a patchwork of regulatory rules across the country, Downie said.
Dykeman said she believes Canadians expect a legislative response from Parliament given the importance of the issue.
"This is a sensitive topic and we need to get all of that sorted, so we'll wait to see what guidance comes or what rules will apply and then otherwise we're just going to have to do it very thoughtfully and with some common sense," Dykeman said.
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
No baloney -- the statement is completely accurate
A little baloney -- the statement is mostly accurate but more information is required
Some baloney -- the statement is partly accurate but important details are missing
A lot of baloney -- the statement is mostly inaccurate but contains elements of truth
Full of baloney -- the statement is completely inaccurate