Québec’s Right-to-Die Legislation: A Dilemma for the Conservatives?

Quebec’s National Assembly passed legislation today that would enable competent adults in the throes of intolerable suffering caused by a terminal illness to request aid in dying from their physicians, and that would allow physicians to accede to that wish under a fairly strenuous set of conditions. It also requires of all health-care institutions that they provide themselves with a palliative care plan. Rather than viewing physician-assisted death as an isolated question, the law places it at the end of a continuum of end-of-life medical care.

In my view, this is a very good law. It is the result of a 4 ½ year non-partisan process of consultation and deliberation that heard from specialists, ordinary citizens, and organized groups. This process gave rise to countless modifications to the original draft bill, designed not only to allay the fears of those not ready to take the step of decriminalizing physician-assisted death, but also genuinely to incorporate some of their concerns into the body of the law. The question whether or not to decriminalize the practice is a difficult one. I sat on an Expert Panel of the Royal Society of Canada that studied the question for over two years, and I can attest to just how complex the ethical, medical and sociological issues involved are. The willingness of all parties in the National Assembly to proceed slowly and carefully bears witness to the awareness on the part of all concerned of these complexities.

Many readers of this blog will be aware of some of these issues. Should the autonomy of individual patients be the dominant consideration in deciding whether or not to decriminalize physician-assisted dying? Should we be concerned about slippery slopes, and if so, what institutional bulwarks can we put in place in order to make them less slippery? Is there any real difference, at the end of the day, between physician-assisted dying and terminal sedation? And so on.

What has received less attention are the constitutional implications of the steps just taken by Quebec’s National Assembly. Physician-assisted dying is illegal in Canada in virtue of the Criminal code, which is a federal competency. By opening a legal door to physician-assisted dying, is Quebec overstepping its constitutional prerogatives?

The drafters of this legislation were certainly aware of this problem. After having written a very good report outlining the ethical issues involved in the decision as to whether or not to take the step of decriminalizing and regulating the practice of physician-assisted dying, the non-partisan commission of the National Assembly to which the legislation was entrusted commissioned a second, purely legal report, the main function of which was to determine the amount of constitutional wiggle room that Quebec might have on this issue.

That report claimed that there were two ways that the province could go to get around the prima facie unconstitutionality of the proposed legislation. The first, more modest route, has to do with the prerogative that provinces possess to instruct their prosecutors. Though the determination of what is criminal rests with the federal government, provincial governments can on the basis of their determination of local priorities decide to emphasize or to downplay different aspects of the federal criminal code. What the Ménard report proposed was that prosecutors be instructed not to pursue physicians who have helped their patients to die, on the condition that certain very strenuous conditions be satisfied. These conditions are precisely the ones laid out in the legislation, having to do with the cognitive competence of the person making the request, the gravity of her medical condition, and so on.

Another route is however suggested by the manner in which physician-assisted dying is couched in the legislation. By presenting it as the final point in a continuum of end-of-life medical care, the claim that is being implicitly made by Quebec legislators is that physician-assisted dying is, like palliative care, a medical, rather than a criminal question. And as a medical issue, it properly falls within a provincial jurisdiction. There is a precedent here: when the Quebec government asked the Supreme Court of Canada for a reference on whether or not the federal law on assisted reproduction overstepped federal jurisdiction by in effect criminalizing practices that should be considered as falling within the sphere of provincial health policy, an admittedly bitterly divided Court agreed with Quebec’s Attorney General, at least with respect to certain key articles of that law.

So the interesting question here is: how will the Harper government react to this move on the National Assembly’s part? It could invoke federal paramountcy, and claim that where validly enacted provincial and federal law conflict, the latter prevails. Or it could ask the Supreme Court for a reference on the matter. Or it could simply do nothing.

The political context is obviously relevant. We are about a year away from a federal election. At time of writing, Harper’s conservatives are about as popular as head lice in Quebec. The legislation that has just been passed by the National Assembly enjoys wide popularity in the province, with some polls pegging support above 70%. Mounting an attack on the law, and in so doing, on the National Assembly itself, would pretty much seal the Conservatives’ fate in Quebec.

There is the option of doing nothing. After all, the law contains a clause that limits any implications it may have outside of Quebec. Cognizant of the fact that the passage of the law may lead to “euthanasia tourism” from the rest of Canada, Quebec legislators wisely limited the scope of the law to Quebec citizens insured under RAMQ.

Doing nothing may not play particularly well however with the governing party’s socially conservative base. Peter Mackay’s stunningly reactionary legislative response to the Bedford decision, which declared articles of the Criminal code surrounding prostitution unconstitutional (and about which I will be writing in the next few days) suggests that the Conservatives are in a “consolidate the base” mood these days. They may decide that opposing Quebec’s new law on the basis if a quasi-religious sanctity-of-life line of argument might play well for the base, especially if it is accompanied by some good, old-fashioned Québec-bashing.

Looming in the background of course is the fact that the Supreme Court of Canada will in the next few months be rendering its judgment in the Carter case. The Supreme Court affirmed the constitutionality of the Criminal code provisions prohibiting physician-assisted dying in the landmark Rodriguez case in 1992. In that judgment, the majority opinion (in a 5-4 decision) had been that the rights of those severely ill competent adults who, like Sue Rodriguez, ask for medical aid in dying, can legitimately be limited given the importance for the government of protecting the most vulnerable people in Canada who might find themselves at risk were the practice of physician-assisted dying to be decriminalized.

In a recent judgment, Justice Lynne Smith of the British Columbia Supreme Court identified grounds upon which to reopen the question of the constitutionality of the criminal prohibition against physician-assisted dying, claiming, in effect, that while the Supreme Court had at the time of the Rodriguez been correct in stating that a blanket prohibition on physician-assisted dying would be rationally connected to the goal of protecting the most vulnerable people in Canadian society, such a prohibition is overbroad (you don’t need to deny everyone the right to physician-assisted suicide in order to protect society’s most vulnerable persons) and grossly disproportionate in its effects. The BC Court of Appeal disagreed, in a 2-1 judgment, but the case is headed up to the Supreme Court of Canada. If I were a betting man, I would wager a good sum that the Court will affirm Judge Smith’s judgment, and in effect reverse Rodriguez.

The prospect of a Supreme Court Judgment complicates matters for the Harper government. If you’re Harper, do you insist on the enforcement of Canadian criminal law in Quebec in advance of the Supreme Court decision, with all of the attendant political and constitutional fallout that that might involve? Or do you wait for the Court’s decision, and then draft legislation in response to the Court’s striking down of the existing provisions of the Criminal code that opens the door to physician-assisted suicide in as limited a range of cases as possible? In that case, you might end up drafting legislation that for all the world looks quite a lot like the legislation that has just been passed by the National Assembly.

Clearly, there is no easy play for the Conservatives here, either constitutionally or politically.




Québec’s Right-to-Die Legislation: A Dilemma for the Conservatives? — 8 Comments

  1. I am in general agreement with your post, with the desirability of end-of-life legislation, and with access to dying with dignity. I also have tremendous respect for the work and individuals who contributed to the legislation.

    However, I do not agree with your constitutional analysis.

    Unless the SCC strikes down the applicable Criminal Code provision in Carter, the Bill is vulnerable to the constitutional law doctrine of federal paramountcy. This is an issue not solved by prosecutorial discretion or other clever uses of provincial jurisdiction over the administration of justice, as the avoidance of prosecution amounts to tacit recognition of the provincial law’s unconstitutionality. And even if prosecution is avoided, nothing prevents the federal government from asserting federal paramountcy on the basis of an incompatibility of purposes between the impugned statutes. Constitutionality on the basis of the division of powers does not depend on whether a given province refuses to adhere to valid and applicable federal law. But again, this is only IF the SCC upholds the. Criminal Code provisions in Carter. Like you, I do not believe this will be the case.

    Finally, even when the Court strikes down the Codal provisions, nothing prevents the government from enacting a legislative response like it did with Bedford, which can itself anchor a fresh argument for paramountcy. I would be shocked if a favourable outcome in Carter were not accompanied by a delayed declaration of invalidity. But all of this detracts from.the inescapable conclusion: Canada needs a regime — or several provincial regimes — to permit access to dying with dignity.

  2. So to be clear: the Quebec law may be validly enacted using the healthcare head of power even though its subject matter has a double aspect and could also be used to make criminal law (as is the case).

    Then the issue becomes paramountcy because, in essence, the provincial law says “you may do something” and the federal law says “you cannot do it” – so there is a conflict, but only if the criminal code provisions continue to stay operative.

  3. That is essentially, subject to two caveats:

    1) operational conflict (one says yes the other says no is not a condition sine qua non of paramountcy. The doctrine may be invoked even where provincial legislation that has a double aspect frustrates the purpose of the federal law. The feds will probably argue this.

    2) The Canadian Constitution does not provide for a discreet “health care” head of power (see the Insite case for authority). Federal and provincial competence over health care, while mostly provincial by virtue of.the power over the management of.hospitals) is exercised through various heads of legislative lower depending on the specific topic at issue.

  4. LD: agree on all points. I was merely describing the thinking in the Ménard commission report, not saying it would necessarily fly.
    One interesting question: what would the legislative response analogous to the post-Bedford one be in this case? In other words, how could the PCs draft legislation that would facially respond to the SCC’s (probably) striking down of the relevant CC provisions while completely violating the SCC’s decision in spirit? Harder to imagine what that might look like here, as opposed to the prostitution case. The next few days/weeks will tell us more.

  5. LD: I would also be interested in hearing you on how reference on Assisted Reproduction applies here.

  6. Thank you for your response!

    Addressing the first question: What would the legislative response analogous to the post-Bedford one be in the case of a hypothetical striking down of the CC provisions in Carter?

    In my view, a good faith response by the government could comply with the spirit of the decision and avoid unconstitutionality. Allow me to explain. One of the main problems with the current CC provisions re: assisted suicide is that, as in Bedford, the absolute prohibition draws no distinctions between those vulnerable and susceptible to exploitation, and those individuals who legitimately exercise their prerogative to want to end their lives when they still have the capacity to make a rational and informed decision about it. In section 7 Charter terms, this translates into an argument of overbreadth, again like Bedford. It can be said that overbreadth is one of those constitutional defects that is the least problematic to remedy, again, assuming the government proceeds in good faith. Overbreadth recognizes the validity of the legislative objective — here, the protection of the vulnerable – but simply says that the government has went too far in the pursuit of that objective. So in the Carter/assisted suicide example, a legislative response would essentially be confined to preventing the abuse of vulnerable individuals, such as for example, criminalizing family members who for malicious reasons would seek to end the life of a sick relative unable to articulate their own end-of-life wishes. Another could be to only criminalize end of life assistance where the practitioner did not observe the provincial guidelines for assisted suicide (ex: facilitating euthanasia on a person who is not terminally ill). Admittedly, these are hypothetical examples, but you get where I am going. The key is, as in Bedford, that the protection of vulnerable individuals need not come at the expense of completely abridging the freedom of rational, capable, informed, individuals able to best determine their life choices.

  7. As for Assisted Human Reproduction Act Reference, please give me a few days and I will return with an analysis.

  8. It is surprising that the legislators have not drawn the conclusion, from the Sue Rodriguez case, that a 5 vs 4 split of the SCC over a «social reform», imposed a reconsidering of the concerned laws.
    Especially considering that for more than 30 years, several informed voices have suggested amendments in lieu of an inacceptable “status quo”.
    The Working Paper no. 28 of the Law Reform Comm’n (1982)contains this passage (my translation): «The public has much difficulty accepting that an authentic, essentially altruistic murder by compassion(PAD)be -given the sentence- considered as a revengeful murder. Doubtlessly. a judicial arrangement of this perception would really gather public acceptance».
    In 1996, the President of the Tribunal des droits de la personne, Justice Michèle Rivet wrote (my translation) : «The Law which would set trict safeguards for assisted suicide and euthanasia, for terminally ill persons who would request PAD, aptly, freely and repeatedly, would satisfy the basic principle of human dignity and respect the right to personal autonomy, while at once respecting the true sanctity of life. Let the Legislators select the modalities» (Journées strasbourgeoises).
    Like Quebec, Canada deserves a 4-year serious debate rather than an unconsidered reaction.
    Glanville Williams should be read anew: «The absolute interdiction of PAD ivolves the impossible assertion that every life, no matter what its quality or circumstances, is worth living and obligatory to be lived».
    The last words from Samek:«What could be nore undignified than having to fight long drawn out battles against the powers of the State, in order to be allowed to die with dignity ?»…«I can’t think of nothing less likely that that a society honest and courageous enough to recognize the need for euthanasia would turn the world into a paraAdise for killers»
    Time has come for Jean Jacques Rousseau’s true Common Sense, which benefits everyone.