SCC Grants Extension and Exemptions in Carter

  • January 15, 2016
  • Kimberly Srivastava

The Supreme Court of Canada has granted a 4 month extension to the Federal Government to allow it more time to draft legislation regarding physician assisted suicide. The Attorney General of Canada had requested a 6 month extension however, the majority concluded that 4 months was appropriate given the four month break that took place when Parliament was dissolved in early August in anticipation of the election and did not resume until early December.

During this 4 month extension, the Court has granted individuals meeting the criteria as articulated in the judgment, the right to apply an individual exemption. This allows individuals seeking to obtain physician assistance in dying to apply to a Superior Court of Justice to be granted relief from the 4 month extension. The Dissent disagreed that this should be allowed citing the Carter judgment as having denied access to individual exemptions during the initial 12 month period of suspension. In the initial judgment, the Court stated that individual exemptions “would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts” (Carter judgment, at para 125).

The Court also granted Quebec an exemption from the suspension extension. The Court recognized that Quebec has enacted the Act respecting the right to end-of-life care. While the majority declined to rule on the validity of the Quebec act, it noted that the Attorney General did not oppose the exemption for Quebec (at para 4).

Interestingly, while the initial judgment was unanimous, this decision split the bench 5 to 4. The Dissent agreed that the 4 month extension should be granted but thought the individual exemptions and the exemption for Quebec should not be granted.

Bakerlaw is concerned that four months is not enough time to draft adequate safeguards to protect vulnerable persons making end of life decisions. It is further concerned that the Quebec Act does not provide these protections and that without adequate time to ensure safeguards are put into place, other jurisdictions will be tempted to follow the Quebec approach.

To read the decision to extend, click here (link).

To read the Carter judgment, click here (link).

To read bakerlaw’s submissions on behalf of its clients and learn how it differs from the Court’s decision, visit our earlier blog post here (link).

Related: , , , , ,