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‘Elbowgate’ aside, chances of passing assisted dying bill before June deadline is low

[Prime Minister Justin Trudeau manhandled the Conservative whip and accidentally elbowed an NDP MP in the House Wednesday ahead of a vote on a motion limiting debate on Bill C-14. THE CANADIAN PRESS/Adrian Wyld]

Amid #Elbowgate and the uproar that followed, one thing was kept out of the discussion: that Bill C-14, the priority legislation on physician-assisted dying, is up against a tight deadline set by the Supreme Court.

In February 2015 the Canada’s top court ruled that existing law banning physician-assisted death (PAD) was unconstitutional and gave the federal government one year to pass new legislation allowing assisted dying. In January the court granted the federal government’s request to extend that time period by four months.

But now, just over two weeks away from that deadline extension, it looks like the Liberal government’s proposed assisted-dying legislation will not pass into law by June 6. The Opposition parties have pushed for more debate on the bill, and on Thursday the Liberals withdrew a motion to end that debate. The NDP has received considerable criticism for both their apparent stalling tactics on Wednesday and the comments of several of their MPs afterwards.

And Parliament is not in session next week, which means the bill will not progress forward until the last week of the month, which is when a vote is expected. So what happens if Bill C-14 does not make it past both the House and the Senate by June 6?

A decision delayed

If June 6 passes without Bill C-14 making it through the Senate, then the existing Criminal Code provisions related to PAD will be stricken down.

“It is, in effect, already gone,” says Beverly Baines, a professor in the law faculty at Queen’s University. When the Supreme Court agreed to defer its ruling to June 6 it also said that PAD was accessible in the interim if a court allowed it, which several courts have already done this year.

The Senate, where the bill is sent once it passes the House, has already indicated that it has problems with the legislation as proposed. A report tabled Tuesday by the Senate committee recommended that the PAD bill only apply to those with terminal illnesses and that advance requests for medical assistance in dying be allowed. So the bill is unlikely to get through the Senate quickly, Baines says.

If the Supreme Court deferment ends without the passage of federal legislation, then PAD exists in a legal vacuum of sorts. It will be legal in that all laws prohibiting it will no longer be in effect, but patients and physicians will be left without a federal guideline for what that means.

As for what doctors do in that situation, that could vary for every province and territory, Baines says.

“While legally they could go forward, they are bound by their own professional ethics. They’ll probably find their provincial professional board is telling them what to do,” Baines says. “I think they would be foolish not to adhere to that.”

Each of those boards could take a different approach to PAD, meaning that a doctor in Manitoba could be following different guidelines than one in Nunavut or Ontario. And any of the professional associations for physicians could also adopt the precaution of getting judicial approval, Baines says, even if it’s no longer required as per the Supreme Court’s ruling.

As well, the provinces and territories could bring in their own legislation around PAD in the absence of federal laws, as is already the case in Quebec. Other jurisdictions could bring in laws that put up roadblocks to accessing PAD, if they chose.

The example of abortion in Canada is one way to see the pattern of how this could play out, Baines says. In 1988 the Supreme Court struck down an existing law against abortion as unconstitutional. The federal government chose not to introduce new legislation and instead let the court decision stand; Canada still does not have a federal law on abortion.

Several provinces, however, put their own legislation in place that restricted access to abortion services, requiring that the procedure be performed in a hospital setting, for example, or not including it under provincial medicare funding. The result is that while abortion is legal across Canada, the reality of access varies by province and territory. We could see something similar happen with PAD, Baines says.

‘A delaying tactic’

But the government does have another option, Baines says: a reference question. The federal government could submit a reference question to the Supreme Court to ask if Bill C-14 is constitutional.

This could be particularly useful for the government given that there have been a lot of questions about the constitutionality of the bill as it currently exists, Baines says.

“It’s very curious that the government hasn’t said, well we could bring a reference ahead of time,” she says.

Criticism of Bill C-14 has come from within and outside the government. In a Tuesday ruling, the Alberta Court of Appeal said that the government is flouting the Supreme Court ruling by saying that PAD should only apply to those who are close to death. The court also mentioned that the government’s exclusion of those suffering from conditions that are solely psychiatric also goes against the landmark ruling.

“We are legislating for 36 million people in this country and we believe that the regime we put forward is the right balance, having regard for personal autonomy, having regard to ensuring, as much as we can, the protection of the vulnerable,” Justice Minister Jody Wilson-Raybould told reporters Thursday. “That this is the best first step. This is not the end of the conversation.”

If the government doesn’t bring a reference question to the Supreme Court, and the bill passes and becomes law, it then falls to others — patients, doctors, etc. — to raise that question through the courts after the fact. And indications are that Bill C-14 would be challenged in the courts if it becomes law, Baines says.

“Why not cut to the chase and ask the governor general to take the proposed bill to the Supreme Court of Canada?” Baines says. “It will be seen as a delaying tactic, but it isn’t really.”

If the bill has not passed the House and Senate by June 6 there is nothing to stop the government to continue to work towards its approval, Baines says. On June 6 the Supreme Court decision would apply, and then once Bill C-14 becomes law then it would apply.

But whether the federal government’s bill passes into law as it is, or is changed significantly before that, the likelihood that Bill C-14 gets through both the House and the Senate before June 6 seems low, Baines says.

“It might pass, and it might be necessary to cope with the interval,” Baines says. “And those who cope with it are the professionals and the patients.”