How does Canada's Charter of Rights and Freedoms protect the choices we make when it comes to death? What does Section 7 of the Charter entail? And, what does this Charter section have to do with assisted dying? Those were a few of the questions examined by UAlberta Law Assistant Professor Ubaka Ogbogu during his February 15 lecture "No Duty to Live: Section 7 of the Charter and How We Choose to Die", the latest installment of the Centre for Constitutional Studies' Downtown Charter Series.
The "people's version," of Section 7, as Ogbogu referred to it, is that the government can take away your life, liberty, or personal security as long as it does not violate the concept of 'fundamental justice.'
What is fundamental justice? The noon-hour audience of more than 60, comprised of health care professionals, lawyers, students, retired individuals, and members of the downtown business core broke into laughter as they discovered that the term has no precise definition, and that Ogbogu says he is often uncertain about its meaning despite being a law professor.
Ogbogu explained the essential elements of fundamental justice, including that it should strike the right balance between personal and societal interests, that it is generally accepted by reasonable people, and that it must be something we can identify and apply.
How does Section 7 relate to assisted dying? Until recently, seeking medical assistance with dying was a criminal offence. Anyone who helped a person to commit suicide, which included euthanasia (a doctor giving an injection to a patient) and assisted death (a doctor giving a patient the means to inflict death themselves) could face up to 14 years of jail time. The rationale behind the previous legislation was to protect vulnerable persons from needlessly ending their lives.
Many challenged this legislation and the issue before the courts was this: if the law seeks to protect life, how can that law be a violation of the right to life, liberty, and personal security? In the landmark case of Carter v Canada (2015 SCC 5), the Supreme Court of Canada struck down the prohibition on physician-assisted dying because it found the prohibition offended the principles of fundamental justice in section 7 of the Charter. The Court decided the law was too broad because it took away the right of some people to choose to end their lives with the assistance of a physician.
As a result of the Carter decision, the Parliament of Canada had to draft new legislation that would allow physician-assisted death, and it consulted with Canadians for more than one year. The new conditions regarding physician-assisted death are strict: the patient must be a competent adult who can consent to termination of life; he or she must have a grievous and irremediable medical condition causing enduring, intolerable suffering, which cannot be alleviated by any acceptable treatment; and cannot commit suicide without help. Further, the patient has to wait 10 days between giving consent and receiving help to die.
Ogbogu pointed out the flaws in the new regime and noted there are areas for improvement, but ultimately, he views the enactment as a good start because "starting out small" helps to reduce social controversy around the law. Many are also hopeful that the new legislation will avoid further and immediate court challenges to the new law, in addition to signalling the need for reform and meaningful support for palliative care - something that might alleviate the need for some patients' decisions to choose to die.
The government has promised to host a parliamentary review five years from the law's enactment - making the issue one that will not be going anywhere anytime soon.
Ogbogu left the audience with much to think about, and with a solid foundation in the 'principles of fundamental justice' as those relate to section 7 of the Charter.
The next installment of the Downtown Charter Series is on March 22, 2017. Assistant Professor Cameron Jefferies will be presenting on Section 7 and environmental rights. His talk begins at noon at Enterprise Square (10230 Jasper Avenue) in Room 2-926.