MAID in Canada?: Debating the Constitutionality of Canada’s New Medical Assistance in Dying Law
52 Pages Posted: 31 Jan 2019
Date Written: 2018
Different conceptions of “the good life”, as well as the “the good death”, animate the longstanding and contentious debate surrounding euthanasia and assisted suicide. In Carter v Canada (Attorney General), the Supreme Court of Canada struck down Canada’s blanket prohibition on medical aid in dying (MAID), but suspended its declaration of invalidity. Parliament responded by amending the Criminal Code to permit MAID in some circumstances. However, Parliament’s amendment is arguably more restrictive than the vision set out in Carter, and has already been the subject of a constitutional challenge.
In this context, this article examines Carter, the legislative response to Carter, and the debates surrounding the new MAID law, including the challenge to the new law in Lamb v Canada (Attorney General). The author aims to advance understanding of the ways in which interpretations and theories of Canadian constitutional law relate to arguments over the role law can, or should, play in governing MAID. The author distinguishes three major points of disagreement arising from the debate surrounding the new MAID law’s constitutionality: the interpretation of the Court’s decision in Carter; competing accounts of interpretative authority in constitutional theory; and the role that criminal law should play in governing medical assistance in dying. Examining their relationship, the author seeks to identify broader lessons that can be used when framing debates in Canadian constitutional interpretation. Specifically, the author argues that the debate over Carter raises questions not just about how the normative filter function of Canadian constitutional law operates, but also the question of who gets to operate it. While Carter may showcase the agency of the courts, equally at issue in the debate over the constitutionality of the new MAID legislation is the role and authority of Parliament.
Keywords: constitutional law, medical assistance in dying, dialogue, euthanasia, assisted suicide
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