Brian Bird: The provinces could pass on expanding assisted death—regardless of the federal government’s wishes

In February, Quebec excluded mental illness as a basis for eligibility for assisted death in that province
Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, left to right, David Lametti, Minister of Justice and Attorney General of Canada, and Patty Hajdu, Minister of Health, make an announcement regarding a Bill entitled "An Act to amend the Criminal Code (medical assistance in dying)" during a press conference at the National Press Theatre in Ottawa on Monday Feb. 24, 2020. Sean Kilpatrick/The Canadian Press.

Assisted death became legal across Canada in 2016. Seven years later, eligibility for assisted death has grown dramatically. What started as something only for adults nearing the end of their lives was next granted also to adults suffering intolerably from incurable conditions regardless of whether death is approaching. Assisted death is slated to be expanded to adults suffering solely from mental illness, and formal recommendations have been made to expand assisted death to children with “requisite decision-making capacity” and to allow Canadians to register in advance for assisted death in case they lose capacity later on.

Within the discourse on assisted death in Canada, little attention has been paid to what, as a matter of constitutional law, the provinces must do in relation to assisted death and what falls within their discretion. Must provinces actively contribute to certain expansions of assisted death by, for example, deeming these expansions medically necessary and funding them as health-care services?

This question has recently come into focus. In January, the premier of Alberta objected to the federal government’s plan to decriminalize assisted death in relation to persons suffering solely from mental illness. In February, Quebec introduced legislation that excludes mental illness (other than neurocognitive disorders) as a basis for eligibility for assisted death in that province, in keeping with a recommendation by a special committee appointed to study the issue.

Determining how much latitude the provinces have in relation to assisted death calls for a careful constitutional analysis. The Canadian Constitution grants the provinces primary jurisdiction over the delivery of health care, while Parliament may financially support the provinces in this endeavour. Parliament’s exclusive jurisdiction over criminal law is also relevant. While existing Supreme Court precedent says that the provision of physician-assisted death cannot be criminalized in certain circumstances, the Court has also held that there is no freestanding constitutional right to health care.

And here is the basic takeaway from this legal landscape: regardless of whether the Charter is said to require the decriminalization of assisted death, provinces are not necessarily obliged to integrate assisted death into their health-care systems. Provinces cannot criminalize assisted death, as criminal law is federal jurisdiction. But pursuant to their jurisdiction over the delivery of health care, provinces could have potentially declined to sponsor assisted death as health care and could potentially decline to sponsor other forms or features of assisted death that may be decriminalized in the future.

Where provinces proceed to integrate assisted death into their health-care systems, which has been the standard practice across Canada so far, they can also introduce extra safeguards and protocols that go beyond those created by federal legislation that decriminalizes this activity. Parliament can create a regulatory baseline but not a ceiling for how activities that are approved by the provinces as health care are delivered. And while Parliament can ban certain activities through criminal law, Parliament cannot compel provinces or any individual physician to provide them.

Provinces must respect Charter rights and freedoms when they take steps around health care in the form of legislation, regulation, or other action. On this point, it is important to clearly grasp what the Supreme Court said and did not say in Carter, the leading decision of the Court on assisted death. The Court in Carter invalidated, on Charter grounds, only the absolute prohibition on assisted suicide contained in the federal Criminal Code. Saying that it is unconstitutional for Parliament to criminalize physician-assisted death in certain circumstances does not equate to saying that Canadians have a positive right to access physician-assisted death on demand through publicly funded provincial health-care systems. The Court in Carter identified no such positive right.

For that matter, the Supreme Court has not even declared that the Charter requires decriminalization of assisted death in the areas of potential expansion currently under consideration. In Carter, the Court stated that “euthanasia for minors or persons with psychiatric disorders” fell outside the scope of that ruling. And no Canadian court has concluded that the Charter demands the decriminalization of assisted death for “mature minors”, infants with severe illnesses, or Canadians who wish to register for assisted death prior to losing decision-making capacity.

If, for argument’s sake, no physician in Canada were willing to provide assisted death, nothing in Carter would entitle individuals who want assisted death to oblige a particular doctor to perform euthanasia. The Court in Carter said that the ruling “simply renders the criminal prohibition invalid” and nothing in the ruling “would compel physicians to provide assistance in dying.”1The reality, of course, is that certain physicians in Canada are willing to provide assisted death. There are prudential reasons as to why provinces would, faced with this reality, choose to regulate the provision of assisted death instead of allowing it to be delivered without oversight. Thus far, provinces have indeed opted to regulate this activity by integrating assisted death into their health-care systems in line with the degree to which Parliament has decriminalized assisted death.

I take the view that provinces cannot force physicians to perform or be substantially involved in assisted death. The ruling in Carter does not compel physicians to participate in assisted death and the Court expressly noted that a “physician’s decision to participate in assisted dying is a matter of conscience”. Where provinces or other state actors oblige unwilling physicians to be complicit in assisted death or suffer some sort of professional penalty, this limits their freedom of conscience as guaranteed by the Charter. I believe there are strong reasons to suggest that such a limit on freedom of conscience lacks compelling justification and is unconstitutional. I disagree with the rulings of lower courts that have taken a different approach on this matter. In Carter, the Court said that the rights of physicians and patients must be “reconciled”. More work is needed on this front.

It is one thing for Parliament to decriminalize assisted death. It is another thing for provinces to regulate individuals and institutions that are willing to provide assisted death. It is yet another step to require individuals and institutions that are conscientiously unable to euthanize patients to engage in this activity or be ousted from the health-care system. It is problematic to view these distinct steps as dominoes that, constitutionally speaking, must inevitably fall one after the other.

To those who say it is only a matter of time before the Supreme Court rules that the Charter not only demands decriminalization of assisted death in various forms but guarantees a freestanding and broad right to assisted death, a growing body of evidence suggests that in Canada assisted death is being used in ways and for reasons that are not only beyond the scope of what the Court envisioned in Carter but are also deeply troubling from a bioethical and human rights perspective.

Whenever the Court considers assisted death again, the Court may have to grapple with this evidence and whether the Charter is violated when governments make it easier for persons facing adverse socioeconomic situations linked to their illnesses to die rather than to live. In this regard, the provinces that decline to promote certain forms of assisted death as health care—and instead focus their resources on life-affirming treatments and assistance—may be upholding the Charter rights of persons whose lives are otherwise endangered by the combined effect of easy access to assisted death and inadequate access to the supports they need to live.

Federalism is a nuanced subject, especially when the Charter is involved. When it comes to the provinces and assisted death, much more could be said about the constitutional dynamics at play. But the prevailing view on how the provinces should handle assisted death seems to be that they must robotically and robustly integrate into their health-care systems whatever Parliament decriminalizes in this area, even to the point of requiring all relevant health-care actors to participate in assisted death. 

The matter, it turns out, is far more complicated than that.

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