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The three ways Harper’s government could respond to the Supreme Court’s assisted suicide ruling

Lianne Laurence Lianne Laurence Follow Lianne

OTTAWA, February 17, 2015 (LifeSiteNews.com) -- Whatever the Harper Conservatives do—or don’t do—about the Supreme Court ruling on doctor-assisted suicide is sure to be done with their eyes on the October federal election, say political observers.

The timing of the ruling’s release “is clearly a political move on the part of the Supreme Court,” says Barry Cooper, political science professor at the University of Calgary. “Beverly McLachlin did this fully aware there was an election coming.”

The chief justice no doubt “has a Cheshire cat grin on her face” after punting the ball out of her court into Stephen Harper’s, agrees John von Heyking, political science professor at the University of Lethbridge, adding there is “no love lost” between the Supreme Court and the federal Tories.

The court’s unanimous February 6 decision struck down the law prohibiting doctor-assisted suicide, ruling it infringed the Charter right to security of the person. The court gave the government twelve months to draft new legislation, with the current law in force meanwhile.

Electoral politics aside, the Conservatives can respond three ways to the ruling, Cooper told LifeSiteNews: They can invoke Section 33 of the Charter, known as the “notwithstanding clause.” They can pass new legislation governing physician-assisted suicide. Or, they can do nothing – in which case the existing law would be struck down after a year, and there would be nothing to replace it.

Invoking Section 33 would leave the present law on the books “notwithstanding” the court’s ruling that it breeches the Charter. Unless repealed, the notwithstanding clause is effective for five years, at which point Parliament could invoke it for another five years.

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Using this clause is the pro-life movement’s preferred first line of defense against the ruling. It will be “almost impossible” for the government to draft a proper law before the election, says Alex Schadenberg, executive director of the Euthanasia Prevention Coalition (EPC).

EPC, along with Campaign Life Coalition (CLC), Canada’s national pro-life political lobbying group, has asked Conservatives to invoke Section 33. LifeSiteNews has launched an online petition requesting the same, which had nearly 20,000 signatures at press time, and Conservative MP Maurice Vellacott, Saskatoon-Wanuskewin, also called for use of the notwithstanding clause.

The Conservatives, however, show no sign of taking this unprecedented step, with Justice Minister Peter MacKay dismissing the idea. He told the Canadian Press on Tuesday, "I wouldn't count on that." In a press conference Wednesday, he described using the clause as a “nuclear bomb.” "The federal government has never done that and I would suggest to you that it's very unlikely in this case,” he said.

Stockwell Day’s recent scathing criticism of the ruling may put pressure on the Conservatives to deal with it, observes von Heyking. A former Conservative cabinet minister and past leader of the Canadian Alliance, Day is a “big player” whose public denunciation of the “activist” court is a call for “political engagement.” Day’s comments could be seen as a  “shot across the bow at Stephen Harper,” von Heykring says, adding that the prime minister has “got to figure something out. He can’t run away.”

If Harper doesn’t run away but instead drafts legislation before the election, that leaves the question of what law would best protect vulnerable people. MacKay has said the government is consulting stakeholders about how to respond, but also says one of the options they are “looking at” is Conservative MP Steven Fletcher’s private members bill allowing physician-assisted suicide.

Fletcher, a quadriplegic, “has very different views on this issue than other members of the caucus — because of his personal experience — which I respect and I've spoken to him about,” says MacKay.

According to Dwight Newman, professor of law at the University of Saskatchewan, the “likeliest and probably best possibility in the circumstances” is to draft a “narrow statutory exemption to the prohibition on assisted suicide.”

In an email to LifeSiteNews, Newman noted that the court’s ruling “is actually ambiguous on whether it’s authorizing assisted suicide – providing means – or also assisted death – doctors actually killing patients directly.  The government may have a chance to get hold of that issue by crafting the right legislation.”

EPC’s Alex Schadenberg agrees.  Because the wording of the Supreme Court decision is so ambiguous, the government “could put in laws that are tight, very tight.” But “what is the law going to look like?” he asked. Moreover, experience has shown that in other jurisdictions, such as the Netherlands, tight safeguards have been loosened over time.

“The government needs time,” Schadenberg emphasized, and he reiterated that the EPC wants the notwithstanding clause invoked.

But with the election looming in only six months, and polling suggesting the Conservatives are unlikely to win another majority if they form government at all, there is excruciatingly little time. If the Conservatives do nothing, they will still be forced to face the issue on the campaign trail.

“I don’t see how they can avoid it,” says Schadenberg, adding that the Supreme Court ruling is “devastating. You’re talking about people going through the most difficult time of their lives, and now we’re going to throw euthanasia into the mix.” 

Moreover, the issue being unresolved pre-election won’t prevent a new government invoking the notwithstanding clause post-election, points out Newman. Section 33 “can be used to protect a new piece of legislation in which the notwithstanding clause is invoked. That legislation would then be protected from the courts for five years (subject to later renewal).”

If there is no law by election time, Newman notes, “those favoring the use of the notwithstanding clause may want to watch what the candidates in their ridings think about the issue.”

Further complicating matters is the overlap of federal and provincial jurisdictions. According to Cooper, the Supreme Court “considers this to be a health issue,” adding, “only a lawyer has the subtlety of logic to think killing people is a health issue.”

If there is no federal ban on doctor-assisted suicide, provinces “will probably have to pass legislation to deal with how doctors deal with their responsibilities – they will have to engage with the ‘health aspect’ of assisted death,” writes Newman.

And provinces “can’t use the notwithstanding clause to enact criminal legislation, which the court would probably take any provincial ban on assisted suicide to be” because that is outside provincial jurisdiction.

There also remains the possibility that the Conservatives will ask for an extension to the twelve months, but Cooper thinks that unlikely given the “animosity” between the federal government and the Supreme Court. Newman also points out that “from the court’s perspective, there is an ongoing rights violation, so they would be reluctant to lengthen the time… unless there were a really compelling reason put why more time was needed.”

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