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Euthanasia legislation must comply with the Charter to protect the vulnerable: Senator Unger
April 14, 2016
OPINION
image Betty Unger
Betty Unger
C - (Alberta)

With the Supreme Court of Canada’s June 6 deadline looming, Parliament will soon begin debating its legislative response to the court’s decision on physician-assisted dying. And although personal views on this issue vary widely, all parliamentarians will be responsible for ensuring the new legislation complies with the Charter of Rights by conforming to the parameters laid out in the court’s decision.

In Carter v. Canada, the court ruled that the current laws “infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person” and that, “(t)o the extent that the impugned laws deny the s.7 rights of people like Ms. Taylor they are void … (i)t is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”

This guidance is critical. If parliamentarians draft a response legalizing physician-assisted death for people who are not “like Ms. Taylor,” they will be outside the constitutional parameters set by the court. If the law is too broad (in which it makes physician-assisted dying accessible to people the ruling did not envision), or if it is too narrow (where it restricts access to physician-assisted dying more than what the ruling envisioned), it will violated Canadians’ Charter rights to life, liberty and security of the person.

The correct balance must be struck.

In order to achieve this balance, the criteria established by the Supreme Court must be reflected in the new legislation. The court said:

The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

It is significant that the court did not strike down s. 241(b) and s. 14. Rather, it declared the sections of the Criminal Code that prohibit assisting suicide to be invalid only when specific criteria are met. While there is much debate over the interpretation of these criteria, it is clear that they were established to limit access to physician-assisted dying in order to “balance competing values of great importance.”

The court went on to warn parliamentarians, noting that vulnerable people must be protected through a “carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” The court also wrote that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.”

All of these factors must be taken into consideration to ensure that the amended law neither violates the Charter of Rights nor endangers vulnerable persons.

Personally, I am opposed to allowing physicians to administer euthanasia or provide assistance in committing suicide under any circumstances. Nevertheless, regardless of personal beliefs, parliamentarians are compelled to ensure that the new legislation respects the clear parameters established by the Supreme Court, including stringent safeguards and the protection of conscience rights.

We have been tasked with a grave responsibility and we cannot afford to get it wrong.