Criticisms of panel studying assisted suicide unfounded.

This article was published by Advocate Daily.

Canadian government consultation on legislative options for Assisted Dying begins.

Hugh Scher

Concerns of bias in a panel appointed to lead efforts in dealing with the Supreme Court of Canada’s historic lifting of the prohibition against assisted suicide are unfounded, given that the fundamental issue of whether the practice should be decriminalized has already been decided, says Toronto health and human rights lawyer Hugh Scher.

The panel, appointed by the Harper government, will be led by Dr. Harvey Max Chochinov, an international leader in palliative care and the study of dignity at the end of life. His expertise and qualifications are unparalleled anywhere in the world, says Scher.

Dr. Harvey Chochinov

His fellow panellists are disability rights expert Catherine Frazee, professor emeritus at Ryerson University and former Chief Commissioner of the Ontario Human Rights Commission, and Benoit Pelletier, an expert in constitutional law at the University of Ottawa and former Quebec cabinet minister, reports the National Post.

Both Chochinov and Frazee were expert witnesses called by the Canadian government to give evidence and reports in the Carter assisted suicide case that eventually made its way to the Supreme Court. A review of the decisions by all levels of court in the Carter case praise the expertise and evidence led by these two witnesses, which was virtually unchallenged at trial.

Catherine Frazee

The panel will conduct online consultations with Canadians and key stakeholders on possible options to the high court’s ruling and report back to the government by late fall, likely after the October federal election, says the report.

The group will focus on which forms of assisted dying should be permitted — assisted suicide, where a doctor prescribes a lethal dose of a drug the patient takes herself; voluntary euthanasia, or death by lethal injection — eligibility criteria and safeguards to protect a doctor’s “freedom of conscience” not to participate against his or her moral or religious objections, reports the Post. Whether assisted suicide is health care or medical treatment, or whether it should be separated from medical treatment, is a serious issue that will need to be canvassed by the panel in light of feedback from the public and expert stakeholders.

Benoit Pelletier

Scher, a well-known voice in the end-of-life care debate, has acted as counsel to The Euthanasia Prevention Coalition in several high-profile cases including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.

“The formation of the panel is a responsible and sensible approach in terms of giving the government the opportunity to hear from Canadians, stakeholders and experts from all sides as to the various difficulties and challenges that are sure to be encountered through any system that seeks to decriminalize assisted suicide and impose a level of safeguards to enforce the ruling of the Supreme Court of Canada,” Scher tells AdvocateDaily.com. 

“In that vein, I would say that this panel displays a level of expertise that is of the highest quality in the country. Dr. Harvey Chochinov is known the world over as one of the leaders in palliative care and the study of dignity at the end of life and he’s generally regarded as one of the world’s leading experts on that fundamental topic. Catherine Frazee is a leader in the disability rights movement and has been for years. Her depth of knowledge and understanding of these issues spans decades.”

Constitutional considerations, says Scher, will be extremely important as the panel begins its work.

“Given the medical, human rights and constitutional background that each of these panel members collaboratively bring to the table, I believe that they are extraordinary choices to facilitate a discussion and dialogue with Canadians on all sides of this issue relative to the considerations that should go into the application of the Supreme Court’s ruling in the formation of a law that seeks to give effect to that ruling,” he says. 

“One must remember that the issue of the decriminalization of assisted suicide has been determined by the Supreme Court, so these panel members are not being called upon to advocate for one position or another on the issue. The issue has been determined. What’s at issue now is how to give effect to and implement this ruling in a way that accords with both the terms of the ruling and the concerns of stakeholders on all sides.”

Scher calls any attempts to impugn the panelists’ credibility “significantly misplaced.”

They should be seen as advisors, not decision-makers, he says.

“Their role is to facilitate the receipt of cross-country feedback and discussion relative to what should be implemented in order to give effect to the Supreme Court ruling, including with respect to such matters as ensuring the voluntariness, consent and capacity of people seeking an assisted suicide,” says Scher. 

“The panel will also take into consideration the need to protect against the risks of abuse, particularly for vulnerable communities and members of society including, most notably, people with disabilities and seniors. They will have to ensure that the mechanisms put into place to give effect to Supreme Court ruling are in keeping with the utmost considerations of dignity, equality and respect for the individual, the common good and the public interest.”

While it’s unclear at this time which government may ultimately be receiving the panel’s recommendations, “any government of any political stripe would benefit from the advice and recommendations of a panel of this level of expertise and prominence with their depth of knowledge, insight and facilitation skills,” says Scher.

“They are there as a facilitating messenger in order to advise. They are not there to make any particular decisions, especially on the fundamental issue of decriminalization of assisted suicide, which the Supreme Court itself has already determined.”

In February, the Supreme Court struck down the Criminal Code prohibitions that ban physician-assisted suicide in certain express circumstances and gave Parliament one year to legislate new rules to give effect to the ruling.