Trudeau and the Charter: How the Federal Government Has Fallen Short on Physician-Assisted Dying

Canadian Prime Minister Justin Trudeau speaks at the Canada 2020 and the Center for American Progress luncheon gathering in W
Canadian Prime Minister Justin Trudeau speaks at the Canada 2020 and the Center for American Progress luncheon gathering in Washington, Friday, March 11, 2016. (AP Photo/Manuel Balce Ceneta)

Shortly after winning a majority government late last year, Prime Minister Justin Trudeau opined about new-found hope, optimism and the advent of so-called sunny ways. A bold refugee plan, the upholding of Canada's middle class, key infrastructure investments and building and maintaining reconciliation with Aboriginal Canadians were just a few of the younger Trudeau's promises. To the question of why gender balance was so important when choosing cabinet, Trudeau's shrug and "because it's 2015" quickly went viral and indeed worked to support the progressive attitude the young leader was trying to sell to Canadians.

Trudeau made a habit, during the campaign and indeed after taking office, to make clear that Charter issues were not to be toiled with. Under his leadership we were to believe that a new vision on the Charter and on "Canadian" would come from the top. During a Federal Election debate, in perhaps his most powerful and convincing moment of the campaign, Trudeau steadfastly declared that "a Canadian is a Canadian is a Canadian".

More than a year after the Supreme Court of Canada overturned a criminal prohibition on physician-assisted suicide and months after the federal government successfully secured an extension on producing new legislation covering the controversial medical service, we are beginning to get a glimpse of what exactly sunny ways look like under the Trudeau Liberals.

On Thursday, the Ministers of Justice and Health, Jody Wilson-Raybould and Jane Philpott, held a press conference on newly-proposed legislation related to aid in dying. The legislation appears to employ a narrow interpretation of the Carter decision, extending strict access to competent adults coming to the end of life. As for cases of mature minors, those suffering solely from mental illness and those requesting advanced directives related to physician-assisted death, the Justice Minister stated that review processes for these cases would continue and did not rule in or out possible changes to the law down the road. The Minsters collectively held firm throughout the question period that this was the best way forward for Canada.

And this is where issues arise related to the Charter and the Supreme Court's ruling. The Federal Minister of Justice reaffirmed her view that the proposed legislation was in line with the Supreme Court's decision in Carter and indeed the Charter of Rights and Freedoms. Additionally, in her retort to one question, the Justice Minister seemed to suggest that the Supreme Court's decision did not extend beyond terminal cases of disease. But these feelings and assertions don't adhere to the facts as they pertain to the Supreme Court's decision or indeed to the exact Charter from which the decision was born.

In Carter, the Supreme Court clearly stated the following in outlining its decision:

We conclude that the prohibition on physician assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Indeed, the Court's decision in no way ruled out the possibility of non-terminal cases of illness, disease or disability from meeting the necessary requirements for access to aid in dying. After a lengthy federal case and after the exhaustive Report of the Special Joint Committee on Physician-Assisted Dying, the door to access for mature minors and the mentally ill was left wide open and still a Liberal Majority government posits that more time is needed to debate and review evidence. In the mean time, the best that could be offered, given the emotional nature of the discussion and time requirements to pass legislation, was a relatively restrictive take on the implementation.

But to competent adult patients suffering with incurable diseases such as treatment-resistant depression and ALS, the new legislation provides far less than the sunny ways the Prime Minister promised. Indeed this legislation appears to reflect new national polling on the controversial issues related to physician aid in dying more than it does our Charter of Rights and Freedoms.

Admittedly, the new liberal government has made strides that we would likely not have witnessed under a Conservative version of this law. But as to whether or not the legislation really holds true to the spirit of the Supreme Court's decision, there exists no compelling argument against the assertion that the Trudeau Liberals have fallen short. If there is a silver lining to be found in this legislation by those suffering from non-terminal but intolerable and incurable disease, it may rest in the fact that the government hasn't shut the door to legislative alterations down the road-we can only hope the Charter becomes the force by which that door is blown wide open.