Justice Minister David Lametti doesn't rule out referring MAID bill to Supreme Court

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OTTAWA — Justice Minister David Lametti isn't ruling out the possibility of asking the Supreme Court to advise on the constitutionality of a bill to expand access to assisted dying.

Testifying to the Senate's legal and constitutional affairs committee Monday, Lametti said a reference to the top court, rather than waiting for a specific case to make its way there through lower courts, is always a possibility.

But he made it clear he's not convinced of its value.

"It always remains an option but I've never been convinced that it's our best option," he told the committee.

Lametti's office later added in an email statement: "For greater emphasis, we have no plans to ask for a constitutional reference on medical assistance in dying."

But while the government may have no plans to refer Bill C-7 to the top court, it may be forced by the Senate to reconsider the matter.

Senators seem determined to propose amendments. And the idea of an amendment that calls for immediate referral to the Supreme Court appears to have support both among senators who think the bill doesn't go far enough to ease the rules on assisted dying and those who think it goes too far.

Some senators who believe the bill is too restrictive have argued that it would be more humane to refer it to the Supreme Court directly, rather than force intolerably suffering people to spend time, money and effort challenging the legislation in lower courts.

Other senators, who believe the bill discriminates against people with disabilities, have argued that the top court needs to weigh in before the law is changed to expand eligibility for assisted dying to people who are not already near the natural end of their lives.

The committee heard Monday from legal experts on both sides of the equation who agreed the bill should be referred to the Supreme Court.

The bill is intended to bring the law into compliance with a 2019 Quebec Superior Court ruling, which the federal government chose not to appeal. It struck down a provision that allows assisted dying only for those whose natural death is "reasonably foreseeable."

Lametti acknowledged that Bill C-7 could well be challenged as a violation of the Charter of Rights and Freedoms. But he said his goal is to reduce individuals' suffering as quickly as possible and argued that passing C-7 is the fastest way to do that.

He noted that references to the top court take time. It took 14 months for the Supreme Court to render its advice on Senate reform in 2014.

"I think this is a more expeditious way forward to alleviate the suffering of people more quickly," Lametti said.

"Yes, there will be potential challenges but we think … we've really narrowed both the scope and the time frame for those constitutional challenges."

Bill C-7 would scrap the reasonably foreseeable death requirement to qualify for an assisted death. But it sets up two eligibility tracks, relaxing some rules for those who are near death and imposing stricter conditions for those who are not.

It explicitly prohibits assisted dying for anyone suffering solely from mental illness — an exclusion that many legal experts have said violates the charter guarantee of equal treatment under the law, regardless of physical or mental disability.

The committee is holding three daylong hearings on the bill this week before sending it back to the Senate as a whole. Lametti urged senators to deal with it expeditiously, leaving sufficient time for cabinet to consider proposed amendments and, if necessary, put them to a vote in the House of Commons and send the bill back to the Senate — all before the court-imposed deadline of Feb. 26.

The committee heard from a number of witnesses Monday who echoed the concerns of disability rights groups that the bill sends a message that life with a disability is not worth living. Among them was Gerard Quinn, the United Nations special rapporteur for the rights of persons with disabilities.

He acknowledged that the government must try to balance the autonomy rights of people with disabilities who want to choose an assisted death with the reality of the "ecosystem" in which they live, often in poverty and without the health and social supports necessary to make a real choice.

"I think the idea of some sort of reference to your Supreme Court to really think through the balancing between these two rights is actually where it's at and I'm not sure that that's been done well thus far," Quinn said.

Dalhousie University law professor Wayne MacKay agreed that "this concern needs more thought and judicial input."

MacKay and former senator Serge Joyal, a constitutional law expert, both argued that the top court should also weigh in on the proposed exclusion of people suffering solely from mental illnesses — an exclusion they both believe is unconstitutional.

Sen. Brent Cotter, who sits in the Independent Senators Group, said "the debates and concerns we're hearing now cry out for an authoritative answer" from the Supreme Court.

Some senators have raised the idea of a sunset clause on the mental illness exclusion, giving the government a year to come up with appropriate safeguards to allow those suffering solely from mental conditions to access assisted dying.

Joyal said such a clause must be clear that people with mental illnesses would still be able to seek a court-ordered assisted death while the government is developing its guidelines.

This report by The Canadian Press was first published Feb, 1, 2021.

Joan Bryden, The Canadian Press