Now's the time

  • February 19, 2015

In the 33-year life of the Charter of Rights and Freedom the federal government has never invoked the notwithstanding clause to override a court ruling. But Canada has never faced a decision quite like the Feb. 6 edict by the Supreme Court that will usher in assisted suicide and euthanasia.

Perhaps more that any other public policy challenge Parliament has faced, the unanimous ruling to bring state-sponsored killing to Canada requires thorough study and, dare we say, soul searching that can only be achieved through the notwithstanding clause. The Supreme Court made history on Feb. 6. Now it’s Parliament’s turn.

Yet it seems that option has been dismissed already by Justice Minister Peter MacKay. “Don’t count on it,” he told Canadian Press when asked about the notwithstanding clause.

MacKay’s response suggests he may try to draft — and have Parliament pass — legislation on a complex legal, moral and ethical issue in an election year, or perhaps not legislate it at all and wash government hands of the matter, as happened when abortion laws were struck down in 1988. Both options are bad.

The court has given governments just one year to figure out how to transform a nation that historically has respected the sanctity of life into a society that will allow the homicide of adults who are experiencing what the judges muddily termed “intolerable” physical or psychological suffering. The ruling suggests a person need not be terminally ill or even physically ill to have someone help them die, or for those incapable of killing themselves, have a third party do it for them.

Invoking the notwithstanding clause sets aside the court ruling for five years. Parliament can extend the stay every five years, or, as the court prefers, implement assisted dying. Public opinion currently favours assisted suicide in cases where someone is terminally ill and in unrelenting pain. That view is regrettable but it may mean that, sadly, some form of assisted death is inevitable. However, it is foolhardy to attempt to hastily draft and pass life-and-death legislation in a year when federal politicians will be distracted by an election and therefore more concerned with public opinion than public policy.

The notwithstanding clause gives the government time to get this right. It would let a new Parliament consult broadly and hear the views of Canadians — including many who may support the principle of assisted suicide in extreme situations — who were stunned by the breadth of a court decision that would inflict on Canada a ghastly European model that offers suicide and euthanasia for people, sometimes children, who may not even be at death’s door.

It’s unrealistic to expect an expiring Parliament to figure this out. The prudent approach is to call a timeout and invoke the notwithstanding clause.

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