MAID in Canada? Debating the Constitutionality of Canada's New Medical Assistance in Dying Law.

• Author: McMorrow, Thomas

Introduction

1. MAID in Canada: Recent Legal Developments

2. The Supreme Court of Canada's Decision in Carter

3. The Charter Challenge to the New Law

4. Objections at the Legislative Stage

5. Deploying Dialogue Theory

6. Relating Dialogue to Role, Relationship, and Deference

7. Conflicting Ideas of Reasonable Limits on Charter Rights

   Conclusion

   Introduction

   In 2016, the Parliament of Canada amended the Criminal Code to permit health care professionals to provide assistance in ending a patient's life under certain circumstances. (1) Parliament enacted the legislation subsequent to the Supreme Court of Canada's 2015 decision in Carter v Canada (Attorney General), which held that the existing blanket ban on voluntary euthanasia and assisted suicide was constitutionally invalid. (2) Due to its establishment of more restrictive eligibility criteria than those the Court declared in Carter, the present law is undergoing a Charter challenge. (3) In this paper, I examine arguments over the constitutionality of this legislation, situating them in relation to a broader debate in Canada about the appropriate roles of the judiciary and the legislature in constitutional interpretation. I try to show the framing function of Canadian constitutional law at work, in hopes of shedding light on ways to deploy constitutional law theory to advance arguments about how the law should govern medical assistance in dying (MAID).

   The contentiousness and complexity of the "great euthanasia debate" (4) owe as much to the competing visions of "the good life" (5) as to the contrasting conceptions of "the good death" (6) it reflects. Moreover, it is not just a matter of what is the right way to live or the good way to die, but the role law can and should play in governing decisions about these matters. (7) Rather than simply a split along ethical or policy lines, I argue that the debate over the law's constitutionality revolves around three distinct but interrelated points of contention: first, differing views of the correct way to interpret the Court's decision in Carter, second, competing accounts of interpretive authority in Canadian constitutional theory, and third, clashing perspectives on the role that the criminal law should play in governing MAID. Thanks to the interwoven nature of these three levels of disagreement, it is difficult to trace a single dividing line between those affirming and those contesting the law's constitutionality.

   Constitutional debate performs the role of surrogate for disagreements over morality and politics. Constitutional law establishes reference points for elaborating the kinds of arguments that count when making the case for how state law should govern MAID. (8) For example, the Canadian Charter of Rights and Freedoms (9) entrenches individual rights, and sections 91 and 92 of the Constitution Act, 1867 (10) assign different areas of law-making power to Parliament and the provincial legislatures. (11) In this sense, Canadian constitutional law serves to frame, while allocating the authority to frame, MAID in legal terms. (12)

   Expressing fundamental social, political and ethical questions through the language (meaning the rules, doctrines, conventions, principles, concepts, logics and justifications) of Canadian constitutional law channels normative arguments like a gully channels water. This gully is not naturally occurring. Deliberate engineering and ongoing maintenance--in the form of constitutional conferences and amendment, for instance--have helped to give it its shape; however, its dimensions are not impervious to the nature, force and intensity of the flow it manages. (13) The boundaries are not physical, but discursive--what gains entry is the kind of normative argument that has been successfully translated into the language of constitutional law.

   Centring the debate over the legal regulation of MAID around the question of constitutionality makes it less of a free-for-all. One cannot just argue anything. Of course, there is a risk, then, that salient questions posed in straightforward ways end up being displaced. Usually they get reformulated in the language of the Charter and past precedents. The idea is that, especially when it comes to vexing questions, some set of parameters are necessary in order to have any meaningful, peaceable and provisionally conclusive debate. (14) Constitutional strictures--complex, iterative and subject to interpretation as they are--do afford some degree of flexibility. Indeed, their channeling function--that of offering a manageable alternative to immersion in a rhetorical deluge--depends on it.

   I trace the debate, accentuating particular cleavages, and situating them in relation to larger features of Canadian constitutional jurisprudence and scholarship. I do not make a prediction about how the Supreme Court of Canada will ultimately rule if it ends up hearing the Charter challenges launched against the present MAID law. I do try, however, to demonstrate the gully function at work--with it favouring the formulation of normative claims in some ways, but not others. I emphasize that we are speaking of an organic, as opposed to a mechanical, process--one complicated by an array of interacting factors, not least the purposive dimension to the exercise of judgment itself. The rhetorical devices that, for example, "dialogue" and even "rights" represent do not function automatically or univocally. My aim, therefore, is to shed light on how the framing function of Canadian constitutional law works, while identifying lessons in how those litigating this matter must necessarily endeavour to work the frame.

   I begin by reviewing the reasoning of the Supreme Court of Canada in Carter. Next, I undertake an exposition of the debate over the new MAID law's constitutionality. First, I explore arguments about which claim, that of consistency or that of inconsistency with the MAID statute, reflects the soundest interpretation of the decision in Carter. Second, I evaluate the significance of adopting "dialogue theory" to orient accounts of institutional authority in Canadian constitutional interpretation. These issues are separate from--but at the same time, interrelated with--the question: as a matter of Canadian public law and policy, which presents the preferable option--the access criteria enumerated by the Court or the federal legislation? I do not delve directly into this question but as will be seen, it is never possible to entirely avoid it either. On the one hand, to distinguish these sets of issues is to affirm that disagreement over the constitutionality of Canada's MAID legislation is not reducible to any one of them. On the other hand, their mutual imbrication shows the interplay of the universal and the particular in Charter rights adjudication. In the course of this discussion, my aim is to illustrate how the justificatory exercise of claiming what the law should or should not be interacts dynamically with the process of arguing what it is the constitution permits or indeed demands.

1. MAID in Canada: Recent Legal Developments

   In 2016, the Parliament of Canada amended the Criminal Code, making it lawful for physicians and nurse practitioners to comply with informed, voluntary requests for MAID from competent adults who suffer from "a grievous and irremediable medical condition". (15) The previous year, the Supreme Court of Canada had struck down the blanket prohibition on voluntary euthanasia and physician-assisted suicide. (16) Specifically, the Court unanimously held that the ban infringed section 7 of the Charter in a manner that could not be justified under section 1. (17) It declared the relevant Criminal Code (18) provisions "void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) 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". (19) Nevertheless, the Court suspended its declaration of invalidity from taking effect for twelve months. (20)

   During that period, Canada held a federal election. (21) The new Liberal government asked the Court to postpone the date when its declaration of invalidity would take effect. (22) The Court granted a three-month extension, but also allowed patients in Quebec to access MAID under the provincial statute on end of life care (which had entered into force two months before the Court's February decision) (23) and patients in the rest of Canada to access MAID by applying to the superior court of their jurisdiction to determine whether they qualified under the criteria set out in Carter. (24)

   In two cases during that period, the Attorney General of Canada challenged the judicial authorization of a MAID request on the basis that the remedy in Carter was restricted to patients with a terminal medical condition. In IJ v Canada (Attorney General) and Canada (Attorney General) v EF, both the Ontario Superior Court and the Alberta Court of Appeal, respectively, disagreed with this argument, allowing the applicants to proceed with their requests for MAID absent evidence that the medical condition causing them intolerable suffering was terminal. (25) The Alberta Court of Appeal based its reasons in EF on what it saw as the "fundamental premise of Carter itself", (26) as expressed in the opening paragraph of that judgment:

   It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously irremediably ill cannot seek a physician's assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel. (27) And yet, according to the law...