Conservative MP Mark Warawa.Adrian Wyld/The Canadian Press
Justice Department lawyers say the biggest challenge facing parliamentarians as they study ways to legalize doctor-assisted death will be separating aspects of the emotionally charged issue that fall under federal jurisdiction from those that are the purview of the provinces and territories.
A committee composed of 11 members of Parliament and five senators met for the first time on Monday to begin a time-sensitive study of ways to adjust Canada's Criminal Code to conform with a Supreme Court ruling that said the ban on physician-assisted dying is unconstitutional.
Joanne Klineberg, a lawyer in the criminal-law policy section of the Justice Department, was called as the committee's first witness. Ms. Klineberg outlined the laws that exist in other parts of the world and said none of the countries that have legalized physician-assisted death have a situation similar to Canada's where the federal government is responsible for writing criminal laws while the provinces make decisions about health care.
"I think a very big challenge will be deciding which are the aspects of the physician-assisted dying regime that are best dealt with at the federal criminal level and which are the elements that are best dealt with at the provincial level," Ms. Klineberg said.
The area with the highest possibility of overlap between the two jurisdictions is also shaping up to be the most controversial – creating the procedural safeguards to protect vulnerable Canadians from being pressed into early death or from choosing it when other options would have been preferable.
Parliament might agree that there should be regulations built into the criminal regime that would require physicians to assess patients' mental competency before helping them to die, or to require multiple conversations with the patients, or to obtain consent forms signed by multiple witnesses, Ms. Klineberg said.
But "those are the sorts of medical practices that are not terribly dissimilar from what physicians already do under applicable provincial regulations and laws and medical policies," she said. "So the provinces and territories may well also feel that those are matters that they are quite comfortable dealing with."
Jeanette Ettel, a lawyer with the human-rights section of the Justice Department, warned the committee members that "it's not unreasonable to conclude that, whatever Parliament comes up with will be subject to challenge."
Federal, provincial and territorial health ministers will meet in Vancouver on Wednesday. Terry Lake, British Columbia's Health Minister, has said the issue of physician-assisted death must be a top priority for their discussions.
In its ruling in February last year, the Supreme Court recognized that the sanctity of life includes the passage into death, and said the experience of other countries shows that the vulnerable can be protected. The court gave governments 12 months before the ruling took effect, to allow time for drafting the rules and procedures to allow physicians to help people to die.
Last week, it granted a four-month extension to account for the postponement of parliamentary business during last year's federal election. That means the Criminal Code ban on assisted death will remain in place until June. But the court also said Canadians could apply to judges for an assisted death while the politicians are deciding the next steps – a compromise that allows a Quebec law permitting doctors to aid patients in dying to remain in force.
The federal parliamentary committee must arrive at a legislative response to the Supreme Court by Feb. 26.
The previous Conservative government created a three-member expert panel last year to consult with Canadians on ways to respond to the Supreme Court ruling. That panel's report was made public on Monday.
It does not make recommendations, but instead outlines the divergent views that were expressed during its expansive five-month study.
While there are disagreements, there is also consensus, says the report, "including a recognition of the need for carefully considered safeguards, oversight, and a strengthened palliative care framework to be developed in parallel with one that provides access to physician-assisted dying" in accordance with the Supreme Court decision.