Stand alone law needed on doctor assisted death, warns legal scholar

OTTAWA—Parliament needs to craft a stand-alone law on doctor-assisted death, a prominent Canadian constitutional scholar warned a Commons-Senate committee on Monday.

In a testimony to senators and MPs, Peter Hogg stressed the need to develop safeguards at the federal level that can be applied even where provinces have not pursued a legislative path.

“There is no guarantee that all provinces will enact statutes, so you have to design a law that can be effective throughout the country, even on the assumption that there is no provincial law or no territorial law in part of the country,” Hogg said.

“So you have to produce a self-sufficient act that could be operated even if the province in question did nothing. In a way, agonizing over the exact boundaries between provincial and federal power, I think … is not really necessary.”

There may be consequences if a federal law cannot be widely applied, Hogg said.

“If Parliament does not enact a law that could be operated in a province where there is no law, the people of that province will be denied the right to physician-assisted dying which the Supreme Court has said they have.”

Over the next month, the joint committee is expected to hear from a number of experts and stakeholders as it prepares legislative suggestions by Feb. 26 as the government grapples with how to respond to the Supreme Court of Canada’s landmark ruling.

Last February, the top court recognized the right of consenting adults enduring intolerable physical or mental suffering to end their lives with a doctor’s help. The court suspended its decision for a year to allow Parliament and provincial legislatures to respond, should they choose, by bringing in legislation consistent with the constitutional parameters laid out in the ruling.

Earlier this month, the court granted the federal government four additional months to produce a new law, but also allowed an exemption for anyone who wants to ask a judge to end their life sooner.

Parliament could also allow provinces and territories to use their own safeguards, if equivalent to the federal law, in place of federal standards, Hogg said.

“The advantage of doing that is that it would avoid overlapping legislation, and if you don’t do something like that, issues of conflict between the federal and provincial law will be quite complicated,” he said.

“That would be a bad situation and I think it can be resolved but any so called equivalence provision.

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On Monday, the committee also heard from two Health department officials, including assistant deputy minister Abby Hoffman.

She said while there has been a general desire for consistency among the federal, provincial and territorial governments, collaboration has been impaired by a lack of clarity on the scope of the federal legislative backdrop.

“It is very difficult for that group of individuals, well qualified as they are, to discuss the implications for the actual implementation and delivering of physician-assisted dying without actually knowing what the legally sanctioned regime will be,” Hoffman said.