Supreme Court gives assisted-dying law a four-month extension

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The Supreme Court of Canada says people seeking a doctor's help to end their lives can apply to a judge for permission during a four-month period in which the Criminal Code ban on assisted death will remain in place.

The court's compromise solution to an extraordinary legal and moral problem will also allow Quebec's new law, which took effect last month and allows doctors to aid patients in dying, to remain in force.

The court split 5-4, with all judges saying they would grant the government a four-month delay, but only the majority judges were willing to allow Canadians to apply to judges for an assisted death in the interim, and also let Quebec's law continue in effect.

The majority included all three judges from Quebec, the only province with a law setting out a framework for medically assisted dying.

The ruling thrusts the issue back on the federal government and the provinces. Ottawa has asked a parliamentary committee to report by Feb. 26. Next week, the issue will be discussed at a meeting of the country's health ministers in Vancouver.

Ottawa had asked for six more months, but the court said four was in keeping with the four-month break Parliament took for the election, from August until the Liberals began to rule in December.

"An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now pending Parliament's response," the Supreme Court majority said, in a ruling under shared authorship of the five, rather than signed by one and joined by the others.

The two non-Quebec judges were Justice Rosalie Abella and Justice Andromache Karakatsanis. They also said that since they were granting Quebec the right it sought to keep its law in place, it was only fair and equal to allow other Canadians access to an assisted death at the same time.

The federal government did not oppose Quebec's right to continue its program of assisted dying during this period. According to Le Soleil, a Quebec City patient has died with the assistance of a doctor under the new law.

B.C. Health Minister Terry Lake said he is hoping federal and provincial health ministers can agree on a common approach to physician-assisted death next week.

"We need to have those discussions," he said in an interview. "All of us have done some work on it, but now we've got four months that we have to deal with it."

Eugene Meehan, a lawyer at Supreme Advocacy who specializes in the Supreme Court, said in an interview that the court's decision was bold.

"The easiest route here would be for the Supreme Court of Canada to do nothing," he said. "The court has responded in a practical way to practical realities."

The court had unanimously struck down the ban on assisted dying, which carried a maximum penalty of 14 years in prison, last Feb. 6, saying the sanctity of life includes the passage into death, and the experience of other countries shows that the vulnerable can be protected. But it gave governments 12 months before the ruling took effect, to give them time to draft the rules and procedures for the new era.

The Liberal government's request for an extension put the court in the tricky position of having to extend a law it has already ruled so cruel that some patients face a choice of killing themselves while they still have quality of life, or waiting until they are suffering unbearably. The court heard arguments on Monday and, with its prompt ruling, sent an indirect message to legislators that complex issues can be dealt with rapidly.

It was the first time the court has allowed people to apply to a judge to let them break an existing law during a period in which it has suspended one of its rulings.

The minority, also under shared authorship, included Chief Justice Beverley McLachlin, the only judge on the court remaining from the 1993 case of ALS patient Sue Rodriguez, in which the court narrowly rejected creating a right to an assisted death. In that case, she said the ban should be struck down. But in the current case over the requested extension, she and the other three judges said the court should not interfere in what ultimately belongs to legislators to address.

"We do not underestimate the agony of those who continue to be denied access to the help that they need to end their suffering. … However, neither do we underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct. The complexity results not only from the profound moral and ethical dimensions of the question, but also from the overlapping federal and provincial legislative competence in relation to it."

In a separate ruling released Friday involving RCMP officers' right to form a union, the court faced a similar issue in being asked for a six-month extension, and granted four months instead.

With a report from Elizabeth Church