Serge Joyal urges provinces to test constitutionality of assisted dying law

Senator wants to test whether it’s constitutional to exclude Canadians suffering intolerably from non-terminal medical conditions

(Sean Kilpatrick/CP)

(Sean Kilpatrick/CP)

OTTAWA — If the federal government won’t seek court advice on the constitutionality of its restrictive new law on assisted dying, Serge Joyal is hoping a provincial government will.

The independent Liberal senator hasn’t given up on finding a way to quickly test whether it’s constitutional to exclude Canadians suffering intolerably from non-terminal medical conditions from the right to seek medical assistance to end their lives.

He tried unsuccessfully to persuade fellow senators Friday to pass an amendment that would have compelled the federal government to ask the Supreme Court whether the law violates the charter of rights and the top court’s own landmark ruling on the issue by allowing only those near death to qualify for medical aid in dying.

But Joyal, an acknowledged constitutional authority in his own right, says he’s now contemplating urging one of the provinces to initiate a court reference to its provincial court of appeal.

He says that would spare suffering individuals the “cruel burden” of launching their own costly court challenges to the law.

Moreover, Joyal says it would also likely produce a speedy answer since the courts are already seized with the issue.

“The court mind is already very fresh on this so it’s not an issue whereby we’d have to wait years and years,” he said in an interview.

That’s particularly true in Alberta, Joyal said, where a panel of three appeal court judges last month shot down the reasoning behind the new law, rejecting the federal argument that last year’s landmark Supreme Court ruling, which struck down the ban on assisted dying, could be interpreted as applying only to terminally ill individuals.

“While it is a provincial reference, be it Alberta, Quebec, Ontario or any other province, they would be helpful for the whole of Canada.”

When Bill C-14 was first introduced, Joyal threatened to launch his own court challenge if the bill passed without scrapping the near-death proviso.

He’s done it before. Back in 1976, when he was a Liberal MP, Joyal went to court to challenge his own government’s directive that English was the only language that could be used by air traffic controllers. He won.

In this instance, Joyal said he’s concluded a challenge by someone not personally impacted by the new assisted dying law would probably take years to wend its way through the courts.

“If we want to expedite a judgment … it is always better for the court to have in front of it a citizen that is directly effected by the legislation, especially if we are talking about the right to life and the right to death.”

Should a non-terminally ill individual go to court to demand the right to an assisted death, Joyal said he’d certainly apply to be an intervener in the case, as he was during the reference to the Supreme Court on the Harper government’s Senate reform plans.

Still, he said the fastest route — and least stressful for suffering Canadians — would be a provincial court reference.

“The preferred route, as I say, is certainly to have a reference from a province since the federal government seems to be stubborn” in refusing to refer the law to the Supreme Court.

Joyal, like other constitutional experts, believes the new assisted dying law, enacted Friday after the Senate bowed to the will of the elected government, does not comply with the charter of rights or with the Supreme Court’s Carter decision.

In Carter, the court directed that assisted dying should be available to consenting adults with grievous and irremediable medical conditions causing enduring suffering that is intolerable to them.

The new law is more restrictive. It allows assisted dying only for consenting adults “in an advanced stage of irreversible decline” from a serious and “incurable” disease, illness or disability and for whom natural death is “reasonably foreseeable.”

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