MacKay rules out using notwithstanding cause to avoid right-to-die bill

One of the three possible routes the federal government could take to respond to last week’s landmark Supreme Court of Canada ruling on doctor-assisted suicide appears to be off the table.

“Don’t count on it,” federal Justice Minister Peter MacKay told The Canadian Press on Tuesday when asked whether invoking the notwithstanding clause is under consideration as an option in the wake of the unanimous decision.

The court’s ruling Friday struck down the criminal ban on doctors assisting in the deaths of mentally competent but suffering and “irremediable” patients. It gave the government 12 months to draft a replacement law.

Without it, Canada will simply have no clear rules on doctor-assisted suicide on the books, much like there is no law prohibiting abortion.

But the government also has the right to use the notwithstanding clause, a section of the Charter of Rights and Freedoms allowing Parliament or a legislature to override certain judicial rulings.

No federal government has ever invoked the clause.

While the notwithstanding clause doesn’t appear to be an option, what the government will do and how it will arrive at that decision hasn’t been finalized, MacKay said, fresh from speaking before the Supreme Court as it welcomed its newest justice, Suzanne Cote.

“We’ll obviously take the time to examine the decision in detail, we’ll look at what Quebec is doing, we’ll look at private members’ bills that are currently before Parliament,” he said.

His department was preparing contingency plans well in advance of the ruling he said. Legislation is a possibility the government is considering, as is not legislating at all.

“The court obviously and respectfully did much of the introspective research and respectful deliberation that is incumbent upon our department and the government to now do as well,” MacKay said, standing in the same lawyers’ robes he wore to argue a case before the court many years ago.

There have been widespread calls for a non-partisan approach to deciding how the government should respond to the ruling, with many suggesting the government mirror what Quebec did when it spent nearly four years in consultation before putting forward its own bill.

MacKay said the Conservatives do intend to solicit a range of views, including from the medical profession and from those living with disabilities, but how they’ll seek that input also hasn’t been decided.

“(We will) take the time to consult, hear the many perspectives that are important in considering an issue of such consequence,” he said.

“This is a deeply, deeply emotional personal issue for many and has far-reaching consequences, to say the least.”