Government Issues Lackluster Statement on Charter Impacts of Assisted Dying Bill

April 22, 2016

The government’s statement released today on the potential Charter impacts of Bill C-14 is insufficient on two important fronts. First, it did not adequately address concerns that the bill excludes many who require medical assistance in death and whose rights were at the forefront of the Supreme Court of Canada’s decision in Carter v. Canada. Second, while CCLA’s Charter First campaign calls for proactive steps of this kind to be taken whenever any law is proposed, let alone one of this magnitude, the statement issued today simply does not provide the sort of comprehensive and meaningful analysis that we believe parliamentarians and Canadians need to consider before bills become law.

The assisted dying issue is a controversial one and the government’s bill has been met with some well-deserved criticism. As CCLA and others have argued, the legislation risks continued breaches of Charter rights by restricting access to medically assisted dying to those for whom death is “reasonably foreseeable”, by excluding mature minors, and by not permitting individuals to provide advance consent or directives to cover circumstances when they may not be able to express their wishes themselves. There are other supposed “safeguards” in the bill that are also problematic. The Minister’s statement acknowledges the bill’s exclusions may affect the rights of individuals to life, liberty and security of the person, and may also affect equality rights. Unfortunately, the statement does not go very far in actually explaining why or how these impacts are justified. Simply put, the concerns about what the bill includes, and who it excludes, are not meaningfully addressed.

The decision to release a public statement on the bill’s potential Charter impacts is, in itself, however, a positive step, and we note the attempt at greater transparency in laying out the government’s rationale for the legislation, particularly in relation to Charter rights. That is because for too long members of the public and even members of Parliament have been left in the dark about the government’s justification for introducing laws that may violate constitutionally protected rights. While the Minister is required, pursuant to section 4.1 of the Department of Justice Act, to review every bill the government introduces for Charter compliance and report to Parliament when there is an inconsistency, no such reports have ever been issued on account of an extremely low standard of vetting. CCLA’s Charter First campaign seeks to change the way these obligations are understood, with a view to giving parliamentarians and Canadians more information about Charter impacts before bills are passed into law.

While, in principle, the decision to release the statement on Bill C-14 is welcome, the statement itself falls far short of providing a basis for expanded discussion and debate. As noted above, the rationale provided for potential violations are largely conclusory statements that the government’s approach “strikes an appropriate balance”. This is simply not enough. In a court of law, the government would have to demonstrate the objectives they are trying to achieve, how the bill is connected to those objectives, why alternative approaches (that may have a lesser impact on rights) fall short, and weigh the benefits of the infringing provisions with the harms that it might cause. The Minister’s statement does not give enough detail on any of these points to inform more meaningful debate in Parliament. A cynic might even suggest that the statement has been released to try to convince a court that might review the bill to defer to Parliament’s judgment (if the bill is passed) rather than engaging in meaningful scrutiny of the rights impact.

Unfortunately, the statement simply does not put Charter rights first, and a shift in policy and approach is necessary to do so effectively. We need an approach that ensures that statements on Charter implications are made available to members of Parliament and the public in relation to every bill. Further, we need legislation that mandates a process for releasing such statements and establishes a standard for their contents. CCLA continues to develop policy proposals to make this vision a reality and raise awareness of the Charter First campaign.