Group wants to include mature minors and people with psychiatric illnesses or dementia

OTTAWA (CCN)



The Canadian Bar Association (CBA) approved resolutions Aug. 11 to urge government to expand access to euthanasia that would make it “wide open,” said Alex Schadenberg.

“You would have no limits if they were to accomplish their goal here,” the executive director of the Euthanasia Prevention Coalition said.

The CBA approved three resolutions Aug. 11 at its annual meeting here urging the government to amend the Criminal Code to allow additional access: to mature minors; to those with psychiatric illness; and dementia patients with advance requests.

The resolutions passed unanimously at the Council level.

“I’m pleased they are supporting the constitutional rights as outlined by the Supreme Court of Canada in Carter,” said Richard Grant, the chair of the CBA’s constitutional law and human rights section.

“We have urged the government to align its legislation with the Carter decision and resultant jurisprudence,” Grant said. “The minister is obliged under Bill 14 look at mature minors, psychiatric patients and advanced consent.”

The law requires the government to have committees in place by this December, and to report to both houses of Parliament by Dec. 2018, he said. “The government is aware it needs to look at these issues.”

Hugh Scher, legal counsel for the Euthanasia Prevention Coalition, questioned whether the CBA had expertise over the implications of expanding access to mature minors and those with psychiatric illness.

“It’s inappropriate for them to be wading into that debate, particularly absent any such expertise,” he said. “Where the bar association does have expertise is over adjudicative process, fairness, natural justice and legal safeguards to prevent against risks of abuse.”

Scher noted the Supreme Court of Canada also called for a regime of judicial oversight to protect against abuses. “The Supreme court left it open to Parliament to review and to strike the proper balance between respect for people with advanced illnesses seeking euthanasia or assisted suicide and the requirement of the government to protect vulnerable people and others from the risks of abuse of a legislated system.”

Parliament engaged in substantial consultations both before the bill was introduced and afterwards, Scher said. Based on these consultations, Parliament “determined it would be inappropriate, or at least premature” to allow access to these additional groups “at the outset.”

In a plenary address to the CBA Aug. 12, Justice Minister Jody Wilson-Raybould stressed the level of non-partisan consultation her government engaged in its “end-of-life” legislation to find the “right balance between protecting autonomy and protecting the vulnerable.”

The CBA resolutions reflect a push to make the euthanasia legislation mirror the criteria in the Carter decision. Grant said, however, he would not assume the government’s present euthanasia legislation is unconstitutional.

Chief Justice Beverley McLachlin, who addressed the CBA Council Aug. 11, told journalists she could not comment about any specific court cases, but she did speak on the issue of legislating from the bench.

“We are very conscious of the fact that our elected parliamentarians and legislators are the primary lawmakers,” she said, noting this is reflected in the court’s jurisprudence.

But in a constitutional democracy, “citizens have a right to come to the court and ask the court to weigh in on whether a particular provision is constitutional.”

If there is a constitutional defect, the court either gives Parliament or the legislature “time to reconsider the matter or come up with their own law or if the best option is to do something immediately the court will try to adopt a restrictive remedy.”

“I don’t view courts when they’re doing this job as legislating,” she said. “That’s a label some people put on it. I believe what we are doing is our constitutional task of determining whether a challenged law is consistent with the constitution.”

“And it’s the constitution that says to the extent it’s not consistent it’s not a valid law,” she said. “So it is not the judge saying that, it’s the constitution saying that. So I don’t call that legislating; I call that doing our judicial job.”

“Sure, it’s difficult sometimes, but we try to be very respectful of Parliament and the legislatures,” she said.