Quebec, weary of waiting for Ottawa to update the country’s Criminal Code, has given the green light to authorize certain early requests for medically assistance in dying.
As of October 30, people suffering from a serious and incurable illness leading to an inability to consent to care, such as Alzheimer’s, will be able to submit an advance request for a medically assisted death before their condition leaves them unable to grant consent. This is the last provision to come into force in a bill adopted a year ago by the Quebec government that extends assisted dying (MAID).
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The Quebec College of Physicians supports the provincial government’s move as does the Order of Quebec Nurses. “This is a step forward that we welcome: people who are suffering and fear that their cognitive illness will impair their future judgment will have the right, if they so wish, to a gentle and dignified end of life,” said Mauril Gaudreault, the president of the College. The medical organization, added Gaudreault, obtained “guarantees” from Quebec Justice Minister Simon Jolin-Barrette that will allow doctors to legally provide advance requests for MAID. But there is tricky legal terrain that lies ahead. Last February, Quebec called on the federal government to amend the Criminal Code to ensure that health professionals who administer MAID as part of an advance application do not face criminal charges. But after its request fell on deaf ears, the province decided to forge ahead anyways. In its stead, Quebec has asked the Director of Criminal and Penal Prosecutions to not file charges against doctors and nurses who perform the procedure. The provincial Crown prosecutor’s office has issued a directive that stipulates that it would “not be in the public interest” to authorize criminal prosecutions for deaths occurring in a context of MAID so long as the care is provided in compliance with the Quebec Act respecting end-of-life care. But prosecutors can intervene when a police investigation has taken place or a complaint has been made that someone’s wishes were not respected in accordance with the law, for example, if someone was alleged to have been coerced. “We’re a law enforcement agency, so we have to take it for granted that the provincial law is valid, and we’ll take that into account in our decisions,” DCPP director Patrick Michel said recently. “The federal government would have to challenge the legality of the law, then convince a judge to suspend the application of the law while the court ruled on the validity of the provincial law. Otherwise, the law is presumed valid until it is invalidated, or a court suspends its application.” Université Laval constitutional law professor Patrick Taillon believes that Quebec can move ahead with Ottawa. “Who’s laying the charges? It’s the Quebec government. And if the Quebec state says, through a directive, when it respects our laws, we never lay charges, well there won’t be a problem,” says Taillon. Other legal uncertainties lay ahead. Under the new Quebec MAID law, a person wishing to obtain medical aid in dying must be capable of giving consent to care. The person must also suffer from a serious disease and have a medical “situation” characterized by an advanced and irreversible decline in capacity or have a serious physical impairment resulting in significant and persistent disability. However, a mental disorder other than a neuro-cognitive disorder cannot be an illness for which a person may make a request. That is problematic, according to the Quebec Bar. “We believe that the qualification of neuro-motor adds an additional condition that is not provided for in the Criminal Code,” said bâtonnière Catherine Claveau in testimony before the Quebec National Assembly last year. According to the Quebec Bar, section 241.2 of the Criminal Code sets out the criteria for eligibility for MAID, and only a serious and incurable handicap is sufficient to meet the condition of being affected by a serious and irremediable health problem. The legal society also believes that the distinction between a neuro-motor handicap and other handicaps, such as “intellectual handicap,” is likely to give rise to legal challenges based on the Canadian Charter, which guarantees the right to equality without distinction, exclusion or preference based on disability. The requirement under Quebec’s new law that a person must be suffering from advanced and irreversible decline in capabilities is also problematic, says the Quebec Bar. That criteria will also likely be the subject of a legal challenge, maintains the Quebec Bar, as it is shaky from a constitutional point of view and is not part of the guidelines set out by the Supreme Court of Canada in Carter. The federal government in the meantime stated this summer that advance requests are a form of MAID that “remains challenging,” and “significant work, including further consultation and study would be needed … particularly given provinces and territories would be implicated in any implementation.” 
The use of medical aid in dying increased by 17 per cent in Quebec in 2023, with 5,691 obtaining MAID, representing 7.3 per cent of all deaths in the province, according to the Commission on End-of-Life Care. The majority were aged 70 and over (75 per cent), had cancer (60 per cent), had a survival prognosis of 1 year or less (84 per cent) and presented both persistent, unbearable and unbearable physical and mental suffering (96 per cent). They received MAID in hospitals (55 per cent), at home (28 per cent), in long-care home (9 per cent) or in palliative care homes (6 per cent).
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