DWDC CEO Shanaaz Gokool: Government’s response to assisted dying court challenge should worry human rights advocates

On the day she was appointed to federal cabinet, Vancouver MP Jody Wilson-Raybould received a mandate letter from Prime Minister Justin Trudeau outlining how she would channel the Liberals’ “sunny ways” into her new role as Minister of Justice and Attorney General of Canada. One of her central duties, the prime minister wrote, is “to ensure that the rights of Canadians are protected [and] that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms.”

In this respect, Wilson-Raybould and indeed the broader Trudeau administration have already violated their vow to uphold Canadians’ constitutional rights. Bill C-14, the government’s recently passed right-to-die legislation, denies entire groups of desperately ill Canadians their Charter-based right to physician-assisted dying, discriminating against them on the basis of their diagnoses. Numerous legal luminaries, including leading constitutional scholars Peter Hogg and Amir Attaran, have pointed out the Charter conflicts embedded in Bill C-14. Attaran, in a deputation to members of the Senate, went so far as to call Bill C-14 “unconstitutional by the bucket-full.”

In an attempt to mollify some critics of the new law, Wilson-Raybould called Bill C-14 “a significant first step.” However, the government’s response to Lamb v. Canada, the first court challenge to be launched against Bill C-14, suggests the Liberals are unwilling to take any additional steps toward bringing this country’s assisted dying rules in line with the Supreme Court’s 2015 ruling in Carter v. Canada and the Charter. In fact, in their first filing in the Lamb case, which was filed in Vancouver this summer, federal lawyers rejected much of the evidence that led to the Supreme Court’s unanimous decision to strike down this country’s absolute prohibition on assisted dying. In effect, the government appears to be using Lamb as an opportunity to “re-try Carter” and ultimately plaster over the legal precedent that established assisted dying as a right for grievously ill Canadians. The Liberals’ gambit should set off alarm bells not only for right-to-die advocates, but also for supporters of any human right that has been derived from the Charter.

The Supreme Court's Carter ruling, Bill C-14 and the Charter

The right at risk is a new one for Canadians. On February 6, 2015, the Supreme Court announced its unanimous decision to strike down the Criminal Code prohibition on physician-assisted dying, arguing that the ban inflicted unwanted, excruciating pain and suffering upon severely ill Canadians who wanted to end their lives, and as a result, violated their Charter right to life, liberty and security of the person. The Carter v. Canada ruling, which would come into force 16 months later, established assisted dying as a right for competent adult Canadians who are suffering intolerably as the result of a grievous and irremediable medical condition and who clearly consent to the termination of life.

But this spring, the newly elected Liberals tabled, and successfully passed, an assisted dying law with eligibility criteria that fails to meet the minimum standard set out in the Supreme Court’s ruling. By allowing access to only those grievously ill individuals whose deaths are “reasonably foreseeable,” Bill C-14 denies rightful access to entire groups of Canadians who would be eligible under the criteria set out in Carter. As a result, the new law takes the option of assisted dying off the table for thousands of Canadians with degenerative chronic illnesses who could suffer intolerably for years or even decades.

As if on cue, a constitutional challenge against Bill C-14’s eligibility criteria launched less than two weeks after the law was passed. In their initial court filing, Julia Lamb, a 25-year-old B.C. resident with spinal muscular atrophy, a progressive illness that causes the wasting away of her muscles, and human rights law group the B.C. Civil Liberties Association argue that Bill C-14 discriminates against suffering Canadians based upon the nature of their diagnoses. This is a flagrant violation of Section 15 of the Charter, which guarantees “equal treatment before and under the law.” The new law, the plaintiffs also charge, forces chronically ill individuals who wish to die to endure unwanted pain and agony against their will, much as the total ban on assisted dying did.

That the Liberal government is planning to defend their new law does not come as a shock. In their response to the plaintiffs’ initial notice of claim, federal lawyers argued that Bill C-14 complies with the Charter of Rights and Freedoms. But they go much further. The government does not accept that key trial-level findings that led the Supreme Court to strike down the ban on physician-assisted dying “remain true today.” This is an outrageous assertion, and it insinuates that nine justices on the Supreme Court may have made a mistake in recognizing Canadians’ right to die.

Setting a grim precedent

Why the government is adopting this approach is anybody’s guess, but it makes one thing eminently clear: government brass don’t believe that Canadians should have a right to assisted dying — at least not one that is broader in scope than Bill C-14 — and want to, in effect, re-litigate Carter to get the result they desire.

This audacious approach has consequences far beyond the issue of assisted dying. If government leaders are ultimately successful in putting the proverbial genie back in the bottle, who’s to say future governments couldn’t do the same with other rights that have been granted as the result of successful Charter challenges? Though not a lawyer, I don’t expect this particular ploy to work, but even attempting it sets a grim precedent for our democracy.

It also signals that the Liberals’ formerly sunny ways have taken a dark turn. Once idealistic standard-bearers for expanding rights and freedoms, they appear to be pursuing a cynical path that could embolden future governments to take rights away. This must not be allowed to pass.

Shanaaz Gokool is the CEO of Dying With Dignity Canada.

(Header photo credit: Government of Canada/YouTube)

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