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The federal government is being urged to pre-emptively ask the Supreme Court whether its new law on medically assisted dying complies with the charter of rights, rather than forcing seriously ill or dying individuals to launch their own costly, stressful, protracted court challenges.
The long-awaited legislation is to be introduced Thursday and various stakeholders predict it will inevitably be challenged, both by those who think it doesn't go far enough and those who think it goes too far.
Liberal MP Rob Oliphant, who co-chaired the special joint parliamentary committee on assisted dying, told The Canadian Press it would be "both smart and compassionate" to pre-empt those challenges by referring the new law to the Supreme Court.
"Any law presented on assisted dying could benefit from a referral to the Supreme Court," Oliphant said, noting it's a "complex subject and largely uncharted territory in Canada."
"By enacting the law immediately, we ensure the court's initial challenge to Parliament (to end the ban on assisted death) is met. By quickly referring it to the Supreme Court with specific questions, we ensure the law is broad enough to guarantee the rights of all Canadians – without them having to fight their way to the Supreme Court alone."
Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott, who are scheduled to introduce the new law Thursday morning, refused to comment Wednesday on the idea of referring it to the top court.
As The Canadian Press reported last week, the new legislation is expected to take a less permissive approach to medical assistance in dying than was recommended in February by Oliphant's committee.
It is not expected to allow people diagnosed with degenerative, competence-eroding conditions like dementia to make advance requests for medical help to die. Nor is it expected to extend the right to an assisted death to so-called mature minors It is also expected to tread warily around the right of people with mental illnesses to seek doctor-assisted death.
The legislation is a response to a Supreme Court ruling last year, which concluded that Canada's ban on assisted suicide violates the right to life, liberty and security of the person, as guaranteed in the charter.
The court gave the federal government until Feb. 6, 2016 – later extended to June 6 – to come up with a new law that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.
Interim Conservative leader Rona Ambrose, who was health minister in the previous government which did next to nothing to meet the initial deadline, said she's concerned there'll be little time for all MPs to debate the merits of the new bill and pass it in both houses of Parliament by June 6. Oliphant agreed the timing is "tricky."
Conservative Senate Leader Claude Carignan has said he expects the upper house will conduct a pre-study of the bill, allowing a Senate committee to examine it and hear from witnesses before it's passed by the House of Commons.
Shanaaz Gokool, head of Dying with Dignity Canada, said her group is "really concerned" that the government appears intent on introducing a relatively restrictive law that "discriminates against whole groups of people."
"If they want to exclude groups of people based on age as opposed to capacity, if they want to exclude groups of people because they have a particular kind of illness that will lead them to incompetency, then they're faced with a few options," she said.
"One is that there will be a sick or dying 16 or 17-year-old who's going to have to be dragged to court, with their families, to establish what may very well be their charter right or they're going to be dragging somebody who's got a diagnosis for dementia also to court to establish what may very well be their charter right."
It would be far preferable, Gokool said, to refer the law to the Supreme Court as soon as it's passed.
"It's an elegant solution here because it means you may not have to drag sick and dying people to court. It's a cost-effective option and it allows the government to have legislation that's in compliance with the charter."
What's more, she said taking further direction from the court would give the government "an opt-out" from criticism by those who want the most restrictive response possible to the Supreme Court's original ruling.
Independent Liberal Sen. Serge Joyal, an acknowledged constitutional authority and a member of Oliphant's committee, agreed a court reference would be "the most credible" option for the government. It would also be consistent with Prime Minister Justin Trudeau's vow to ensure all legislation introduced by his fledgling Liberal government respects the charter, he said.
To refuse, thereby compelling individuals to "exhaust all the steps" of court challenges and appeals up to the Supreme Court, would be "inhumane," Joyal said, particularly for individuals diagnosed with dementia who would almost certainly be incompetent by the time they'd jumped through all the legal hoops.
"You don't expect that the government will fight you to the end, to the extreme limit with all the might of the state before your right is recognized in such a circumstance," he said.