Confusion surrounding the legal standing of Quebec’s assisted dying legislation has prompted the Quebec College of Physicians to urge its members to be prudent before agreeing to euthanize a consenting patient until the Quebec Court of Appeal hears an appeal on a Superior Court decision that suspended key articles of the historic legislation.
“We are suggesting that doctors wait until the Quebec Court of Appeal examines the issue,” said Dr. Charles Bernard, the president and executive director of the body that regulates the province’s physicians. “We’re not saying that physicians shouldn’t do it but we are telling them to be prudent given the legal imbroglio around this issue.”
Quebec Court of Appeal Justice Robert Mainville scheduled a hearing on the merits of the appeal for December 18th, stating that the matter is urgent, particularly since the Superior Court decision will prevent people who meet the conditions of An Act Respecting End-of-Life Care (Act) from receiving euthanasia, potentially for months.
“Refusing leave to appeal in such an important constitutional matter that raises such fundamental questions would be to call into question the raison d’être of the Court of Appeal,” said Justice Mainville in a brief six-page ruling, before adding that the decision to grant leave to appeal “must not be interpreted as nullifying or confirming the lower court judgment.”
The Quebec government however has contentiously interpreted the appeal court decision as giving force to the province’s assisted dying legislation as of December 10th, the day it was scheduled to be in force. Quebec Justice Minister Stephanie Vallée this week sought to reassure the medical community by issuing directives to the province’s Director of penal and criminal prosecutions, ordering it to respect the wishes of people at the end of their lives who request a medically assisted death.
But some legal experts call into question whether Justice Mainville’s decision actually suspended the lower court ruling. Under Quebec’s Code of Civil Procedure, which shares a similar heritage to common law principles, provisional injunctions are not automatically suspended because “of the concern to protect the status quo in such a way that a decision on the merits is not compromised by a provisional decision,” said Stéphane Beaulac, a law professor at the Université de Montréal. Gérard Samet, a Montreal lawyer too believes that the appeal court ruling did not suspend the lower court decision. Samet notes that the Quebec Superior Court ruling was a declaratory judgment that is not enforceable. “When a judgment is not enforceable, and is only a binding opinion to the government, one cannot suspend its provisional execution because it is a decision that cannot be the object of a suspension,” explained Samet.
The appeal court decision also makes no explicit reference that suspends the lower court decision, pointed out both Beaulac and Samet. All of which could lead to the “very odd” situation of having a law that is in force for only eight days if the appeal court upholds the lower court ruling, added Beaulac.
In a historic vote, after nearly five years of heart-wrenching deliberations across the province by a cross-party committee of the National Assembly approved in June 2014 Bill 52, An Act Respecting End-of Life Care. Bill 52 conspicuously, and contentiously, avoids using the terms euthanasia or assisted suicide. By amending the Quebec Medical Act to allow doctors who have been given the consent of an end-of-life patient to administer a drug or substance to hasten or cause death, the Quebec government is asserting jurisdiction over euthanasia on the grounds that it is a medical act, and health falls under provincial jurisdiction.
But on December 1st, Quebec Superior Justice Michel Pinsonnault suspended key aspects of the Act. While the Quebec-based Coalition of Physicians for Social Justice and Lisa D’Amico, a disabled woman represented by Samet, sought an injunction from Quebec Superior Court to prevent Bill 52 from taking effect on December 10th, Justice Pinsonnault did not issue the injunction they sought. Rather Justice Pinsonnault ruled that the parts of the provincial law cannot take effect this month because some of the key articles in the new law contravene section 14 and 241(b) of Canada’s Criminal Code on medically assisted suicide. Article 14 states that “no person is entitled to consent to have death inflicted on him” and Section 241b) forbids anyone from counseling, aiding or abetting someone to commit suicide.
Justice Michel Pinsonnault held that the federal law must take precedence over provincial law until the necessary Criminal Code amendments are made. “The doctrine of federal preponderance applies in this case and continues to apply until the incompatibility with sections 14 and 241b) of the Criminal Code disappears,” Pinsonnault concluded in a 39-page ruling in D’Amico c. Québec (Procureure générale) 2015 QCCS 5556. The doctrine of federal paramountcy comes into effect only where there is an inconsistency, or true conflict, between validly enacted federal and provincial legislation.
“From a constitutional standpoint, the decision is very solid,” remarked Beaulac, a constitutional law expert. “Justice Pinsonnault’s interpretation of the doctrine of federal preponderance is not at all controversial.”
But Jean-Pierre Ménard, a Montreal medical malpractice lawyer who headed a panel of legal experts commissioned by the Quebec government to examine the legal feasibility of a comprehensive “dying with dignity” law, asserts that the Pinsonnault ruling is very disappointing, extremely limited in scope, and only served to delay the application of the provincial legislation. In light of the recent SCC decision in Alberta (Attorney General) v. Moloney, 2015 SCC 51, Ménard argues that Justice Pinsonnault should have adopted a “much more nuanced” approach to the doctrine of federal paramountcy, particularly since those Criminal Code provisions were struck down by the SCC in the landmark ruling Carter v. Canada (Attorney General) 2015 SCC 5 last February.
In an unanimous decision, the SCC ruled in Carter that those two Criminal Code provisions “unjustifiably” infringe s.7 of the Canadian Charter of Rights and Freedoms and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who clearly consents “to the termination of life,” and has a “grievous and irremediable” medical condition that causes enduring suffering that is intolerable to the individual. The SCC gave Parliament until February 6, 2016 to enact new laws. Ottawa, however, recently asked the SCC to give it another six months to make the changes while the Quebec government is asking the nation’s highest court for an exemption.
“Ottawa should have given more thought to the issue in order to prevent an unfortunate situation,” said Sébastien Grammond, a constitutional law expert and former dean of the civil law section at University of Ottawa. “Ottawa could have said that the Quebec legislation is a response to the Carter ruling and work with Quebec for a possible solution.” The federal government could have either asked the SCC to exempt Quebec from the Criminal Code provisions that deal with medically assisted suicide or it could have rapidly enacted a law that would provide exemptions to provinces that enact laws that allow for physician-assisted deaths, said Grammond. These exemptions would hold that such deaths would not be a criminal offense, added Grammond.
Beaulac too believes that a golden opportunity was missed by both parties, but particularly by the Quebec government, to endorse and foster cooperative federalism. He points out that Quebec was outraged when the federal government refused to hand over ownership of the provincial gun registry records. (In a split decision, the SCC ruled earlier this year against Quebec’s bid to take ownership of the gun registry data.) “It’s a missed and wasted opportunity, especially since we have a new federal government, to send a clear signal that there was a new era of collaboration between Ottawa and Quebec.”