Lawyer argued in the Carter case on behalf of the Conservative government of the day
OTTAWA (CCN)
The Supreme Court of Canada’s Carter decision created a “positive right” to physician-assisted death, said constitutional lawyer Peter Hogg.
Hogg, who argued in the Carter case, on behalf of the previous Conservative government, against euthanasia and assisted suicide, made the comment in a scrum after appearing as an expert witness Jan. 25 before the joint Parliamentary Committee on Physician-Assisted Dying.
Carter created the right to physician-assisted dying “subject to the creation of safeguards,” Hogg said.
Asked if the Supreme Court in its Morgentaler decision also created a right to abortion, he was not so sure. “I think that’s probably right in that you couldn’t now legislate against abortions,” he said. “I’d have to think about that some more.”
“What the circumstances are in both abortion and physician-assisted death can be established by parliament as long as the restrictions are in accordance with the Charter,” he said.
Margaret Somerville, a bioethicist and the founding director of McGill University’s Centre of Medicine, Ethics, and Law, said she disagrees with Hogg.
“Hogg is saying that the Supreme Court of Canada has created a primary right to [physician-assisted dying] and abortion that is exercisable as long as you fulfill the necessary conditions,” Somerville said in an email.
“I believe the court has given an exception to the prohibition of physician-assisted death under criminal code provisions if you fulfill the conditions. The difference is major.”
“The former is a basic presumption that yes, you may have physician-assisted death provided you fulfill these conditions; the latter no, you may not have physician-assisted death, but an exception will be granted if you fulfill these conditions,” she said.
“The former is much more damaging to the right to life value, although both damage it, and rejects the long-established legal maxim of a presumption in favour of life,” she said. The first view “creates a right to physician-assisted death on certain conditions.”
“The latter does not create a right to physician-assisted death but allows an exception to criminal liability for murder or assisted suicide on certain conditions,” Somerville said.
“Hogg is a very eminent constitutional lawyer so this is worrying,” said Somerville.
“Morgentaler creates a right not to be prevented from having an abortion, as the law stands at present, simply as a matter of personal choice, but not a right to abortion; the latter would mean there is a duty to provide an abortion and I don’t believe that exists,” she said.
“Likewise, there’s no right to physician-assisted death either, just a right not to be prevented from having access to it in certain circumstances.”
“It sounds to me that Hogg has interpreted Carter as establishing a positive right to physician-assisted death,” Somerville said. “That is a possible interpretation.
“And it fits with Morgentaler in one respect, namely that the SCC held in Morgentaler that the conditions placed on getting an abortion were too restrictive for the law to comply with the Charter in that women in remote areas or where there was no therapeutic abortion committee couldn’t get access and this meant their Section 7 Charter right to security of the person was unconstitutionally breached.”
“Perhaps Hogg was thinking of a similar approach to physician-assisted death,” she said. “But up to the present Morgentaler has not been interpreted as creating a positive right to abortion, which would mean someone else has a duty to provide it.”
Hogg’s view signals the growing shift from a traditional, common-law understanding of human rights as inherent in human dignity and to be protected by the state. Human rights are declared or recognized by the state, not created by the state or the courts, versus the idea the state or the courts create and confer these rights on citizens.
“Another distinction is between ‘negative content rights,’ rights against something, such as rights not to be prevented from having access to physician-assisted death or abortion, and ‘positive content rights’ which create a duty for action on the part of government or others: physicians, in the case of both physician-assisted death and abortion,” Somerville said.
Rights such as freedom of expression and freedom of religion are usually regarded as “negative rights.”
“Positive content rights are more rarely recognized than negative content ones,” Somerville said.
During the committee hearing, however, physician-assisted death was repeatedly spoken of as a right with seemingly positive content, particularly in concerns some members expressed about access to physician-assisted death in parts of the country where people have little access to family physicians.
Hogg told the committee the previous government had argued against physician-assisted death because it believed it was “impossible to design effective safeguards to prevent error or abuse.”
The Supreme Court, however, accepted the evidence put forward by the Carter trial judge that “effective safeguards could be designed,” Hogg said. The reason why the decision was postponed first for 12 months and more recently for an additional four months, has to do with the design of adequate safeguards.
Hogg urged the panel to recommend adding safeguards to the criminal code because there is no guarantee all provinces and territories will enact statutes. “You have to design a law effective across the country” even if some provinces or territories decide to do nothing.
While he noted the jurisdictional differences over the criminal code and health care, “agonizing over the exact boundaries is not really necessary,” Hogg said. The federal government can also make a determination of equivalence in recognizing a provincial or territorial safeguard regime.
If parliament does not enact a law, people will be denied the right to physician-assisted death which the Supreme Court of Canada says they have, he told the committee.
Hogg warned against creating what he called substantive safeguards, such as limiting physician-assisted death to those who are terminally ill. Since Carter did not limit physician-assisted death to the terminally ill, such a safeguard would not survive a court challenge.
He also said widening the provision to include children 16 or under would also not survive, since the court restricted physician-assisted death to competent adults. There would be some leeway, however, between choosing between the age of 18 or 21, he said.
Physician-assisted death, according to the Supreme Court, includes both voluntary euthanasia, where a physician administers the lethal drug with the person’s informed consent, and assisted suicide, where the patient administers the lethal drug prescribed by the physician, he said.
He recommended procedural safeguards, such as requiring a second doctor be consulted to assess competence; a waiting period and perhaps having the request in writing.
