On the same day physician-assisted dying became decriminalized in Canada, constitutional experts gathered at a Senate hearing to slam Bill C-14, the federal government’s proposed assisted dying legislation.
Peter Hogg, Canada’s leading constitutional expert and the man who literally wrote the book on constitutional law in the country, appeared as a witness before the Senate’s legal and constitutional affairs committee to express his concerns with the bill.
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“In my opinion, the bill is not consistent with the constitutional parameters set out in the Carter reasons,” Hogg said in his testimony, adding that if the bill is passed through the Senate as it currently is “the class of entitled persons would no longer include people whose suffering is not an end-of-life condition.” He mentioned that Kay Carter herself would not have satisfied the new conditions of the bill — a fact echoed by the Carter family in a press conference held on June 6.
As it is currently drafted, Bill C-14 limits access to assisted dying to those whose “natural death is reasonably foreseeable,” meaning patients with excruciatingly painful illnesses like ALS will be barred from access because their death is not imminent.
“It is incredible to me that the court in Carter, when it called for legislation by Parliament ‘consistent with the constitutional parameters set out in these reasons,’ was envisaging legislation that would narrow the class of entitled persons,” Hogg said.
He suggested that “offending provisions” be expunged from the bill to make it constitutional. The two offending provisions, he said, are the contentious “reasonably foreseeable” clause and the requirement that patients be in an “advanced state of irreversible decline.”
Hogg told the Senate committee that Bill C-14 will be challenged if it passes with these provisions still in place — and it will inevitably lose. “What judge would not strike down the end-of-life provisions?” he asked.
Other experts who dragged the Liberal government’s proposed assisted dying bill at the Senate hearing were Josh Paterson, the executive director of the B.C. Civil Liberties Association, Amir Attaran, a professor at the University of Ottawa, and Trista Carey, the lawyer for a 58-year-old woman named E.F. whose exemption for an assisted death was unsuccessfully appealed by the federal government.
“Bill C-14 is unconstitutional by the bucketful. I have no doubts about that,” Attaran said.
Carey, who recently told The Canadian Press that the federal justice minister failed to tell the full story about E.F. in her push to pass Bill C-14, said the bill “falls significantly short” of the parameters outlined in the Carter ruling. Until legislation is formally passed, Carey said she will continue to follow Carter.
Paterson, whose association was one of the plaintiffs in the Carter case, said, “Bill C-14 will not pass a Section 1 test because it continues the blanket prohibition on assisted dying for a class of patients who have already won the right.” He later added that “Bill C-14 would trap people in agonizing pain.”
Despite threats from the federal government of a “legal void,” Paterson is adamant that such a void does not exist since provincial regulators have introduced guidelines for assisted dying that will work alongside the strict criteria outlined by the Supreme Court.
“It is June 6 and the sky has not fallen. There is no Wild West,” he said.
(Photo credit: Marc Lostracci/Flickr/Wikipedia)