Creation of provincial, territorial panel on assisted suicide premature

The following article was published by on August 18 by Advocate Daily. 

Hugh Scher

The formation of an advisory group representing Canada's provinces and territories on physician-assisted suicide is premature given that a federal panel appointed to lead efforts in addressing the Supreme Court of Canada’s lifting of the prohibition against it has yet to report its findings, says Toronto health and human rights lawyer Hugh Scher.

“We are still awaiting the results of the federal panel and the federal government’s actions in response to the Supreme Court’s decision in Carter,” says Scher, referring to Carter v. Canada (Attorney General), 2015 SCC 5. “Until we understand what the scope and nature of the federal government response is, it is difficult for the provincial governments to concretely look into issues that may be relevant for them to consider.”

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. The federal government then established an external panel to inform its legislative response to the high court’s decision.

Read: Provincial government appoints pro-euthanasia panel to devise euthanasia laws.

Now, Ontario’s provincial government has announced it will lead an advisory group representing the country’s provinces and territories to complement the work of the federal panel.

“As provinces and territories have the primary responsibility to provide health care, including regulating physicians and health-care facilities, they will consider whether regulatory or other changes are needed over the coming months in response to the Supreme Court's decision,” says a government news release. “The advisory group will provide advice on the development of policies, practices and safeguards for provinces and territories to consider when physician-assisted dying is legal within their respective jurisdictions.”

But Scher, a well-known voice in the end-of-life care debate, says the issue of assisted suicide has historically fallen to the government at the federal – not provincial – level.

“It has fallen under the federal government’s jurisdiction under criminal law, and it continues to remain the case that the federal government maintains jurisdiction over assisted suicide, which continues to be a criminal offence,” says Scher, who 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 Carter decision said there ought to be an exception carved out of the general prohibition against assisted suicide based on tailored exemptions spelled out by the Supreme Court, but nevertheless the federal government continues to maintain jurisdiction over the regulation of assisted suicide,” he says. 

“The notion that euthanasia and assisted suicide are somehow considered health care, falling under the provincial government’s jurisdiction is problematic and likely unconstitutional, notes Scher.

While provincial governments may eventually want to implement plans to adhere to the federal regime, Scher says it is premature for such considerations.

The composition of the advisory group is also concerning, particularly given its mandate, as many have a “clear and express record of advocacy of assisted suicide and euthanasia,” says Scher.

The group is to be co-chaired by Dr. Jennifer Gibson, director of the University of Toronto Joint Centre for Bioethics, and Maureen Taylor, medical journalist and wife of the late Donald Low, says the news release.

“It seems that the panel is a stacked deck,” says Scher, who notes he’d like to see representation from provincial medical associations, for example. “I’m particularly concerned that the panel not wade into constitutionally uncertain territory in light of the ongoing federal jurisdiction over assisted suicide. 

“It seems to me the appointment of the provincial committee is in large measure an intentional reaction to the formation of the federal government panel put in place, in an effort by the right to die community, aided by the governments, to effectively negate or otherwise offset any recommendations that may come out of the federal government’s panel on the issue,” says Scher.

Read: Provincial government appoints pro-euthanasia panel to devise euthanasia laws.