Canadian Bar Association (CBA) resolution should not wade into Rasouli territory

Hugh Scher

Hugh Scher

This article was published by Advocate Daily on February 20.

By Hugh Scher

A resolution on end-of-life decision-making to be considered by the Canadian Bar Association (CBA) is poised to help lawyers, but a Supreme Court ruling addressing doctors’ roles in these choices should be kept in mind during the debate, says Toronto human rights and constitutional lawyer Hugh Scher.

The CBA is set to consider the resolution, titled Clarifying Law About End of Life Decision-Making, at its mid-winter meeting Feb. 21 and 22 in Ottawa.

As counsel to the Euthanasia Prevention Coalition, which has intervened in several high-profile end-of-life cases, including Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 and Carter v. Canada (Attorney General), 2015 SCC 5, Scher is no stranger to the controversial conversation around end-of-life decision-making or assisted suicide.

“We think this is an appropriate, helpful and positive contribution, but care must be taken to ensure it doesn’t extend into other unclear domains such as euthanasia and assisted suicide or unilateral authority of doctors, which has already been dealt with by the highest court,” says Scher.

In Rasouli, the Supreme Court dismissed an appeal that would have permitted doctors to end life support for a disabled man without the consent of his family or a substitute decision maker.

The decision said under Ontario's Health Care Consent Act, a plan of treatment includes the withholding and withdrawal of treatment and cannot be unilaterally withdrawn by doctors without consent.