Parliament has the power to draw the lines it chooses when it comes to the legislation on physician-assisted death, but it must make a strong case for the limits it places on Charter rights.

Joceyln Downie argues that Bill C-14 on medical assistance in dying “must be amended to become Carter and Charter compliant.” There is not enough room here to unpack and weigh each potential justification for reaching such a conclusion. It is nonetheless worthwhile to recognize why a failure to use the Supreme Court of Canada’s parameters in Carter does not automatically invalidate the Bill.

Although the Court may be the ultimate authority on matters of constitutional interpretation, Parliament—and therefore parliamentarians—must also interpret and apply the Constitution. When it comes to legislating on the matter of medical assistance in dying, Parliament has the benefit of a recent, unanimous decision by the Supreme Court to inform its interpretation. Some argue that because the Bill is narrower than the parameters in Carter, it must therefore be unconstitutional. But this is not necessarily true.

Section 1 of the Charter provides that its rights and freedoms are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The question, then, is whether Bill C-14’s restrictions on the rights affirmed in Carter are “reasonable limits” that “can be demonstrably justified in a free and democratic society.”

Of course, the Court held that banning physician-assisted suicide altogether did not qualify as “reasonable limits.” It concluded that the blanket prohibition was not “necessary in order to substantially meet the government’s objective,” and therefore, it was disproportionate.

Just as the choice about how to characterize the impugned law’s objective was crucial in Carter, so too will it be central in any measure of Bill C-14’s constitutionality. What is the government’s objective in limiting the class of persons to those whose “natural deaths” are “reasonably foreseeable”?

The government would appear to be trying to authorize medical assistance in dying only in circumstances where the patient is already close to death. The Supreme Court did not draw the line at having a terminal condition, but that does not necessarily mean Parliament can’t. What needs to be shown is that restrictions constitute “reasonable limits”—not what the Court may view as “optimal” ones.

The Court in Carter noted: “It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.” Importantly, the Court stressed that “complex regulatory regimes are better created by Parliament than by the courts.” Moreover, why would the Court be willing to twice extend Parliament’s deadline to tailor a new law, if Carter imposed a legislative straitjacket?

All this implies the Court may be more deferential than critics of Bill C-14 would like it to be, should its constitutionality be challenged. Given the wording in the decision itself, and the fact that legislatures necessarily do have some margin of manoeuvre to make law, Parliament is not shackled to the conditions laid out in Carter. At the same time, all members of Parliament have a duty to respect the Canadian constitution. And so what the government needs to do is show that Bill C-14 places “reasonable limits” on the section 7 rights affirmed in Carter in a manner that is “demonstrably justified in a free and democratic society.”

Clearly the conditions prescribed in the Bill do not match the parameters set out in Carter. Its Charter compliance does not necessarily hinge on this. Indeed, its constitutionality turns on the government making a persuasive case for why its proposed legislation does in fact place reasonable limits on the “right to life, liberty and security of the person.” Leveraging majority advantage is not the same thing as forthright constitutional argument.

The government needs to show that Bill C-14 does not run roughshod over what the Supreme Court has demarcated as the relevant Charter terrain. Sworn members of Parliament cannot really exercise their moral compass in the upcoming “conscience vote” on the Bill without grappling with the lay of the constitutional land first. What is reasonable and why, in light of the Court’s interpretation of section 7 of the Charter, must therefore be central to Parliament’s debate.

 


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