Another visit to Canada…

Under s 241 of the Canadian Criminal Code, “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years”. Therefore, a doctor who intentionally administers a fatal dose to a patient currently faces a possible 14 years in gaol.

In April 2010 the Canadian House of Commons rejected by 59 votes to 226 Private Member’s Bill C-384, An Act to amend the Criminal Code (right to die with dignity), which would have reformed the criminal law on assisted dying by declaring (with appropriate safeguards) that “a medical practitioner does not commit homicide within the meaning of [the Criminal Code] by reason only that he or she aids a person to die with dignity”.

The National Assembly of Quebec, however, is trying a different approach. Bill-52, An Act respecting end-of-life care (available here), which was introduced into the National Assembly on 12 June 2013, is the outcome of a consultation conducted by a cross-party parliamentary committee that consulted physicians, lawyers and the general public over a 3½-year period. Under its proposals, a terminally-ill patient suffering extensive physical or psychological pain could ask to be given life-ending drugs. The patient’s request would be overseen by a board of physicians and health-care workers, who would determine whether or not the patient had the mental capacity to make that decision.

The Bill:

• affirms the right of everyone to end-of-life care appropriate to his or her needs;
• sets out special rules applicable to institutions, palliative-care hospices and private health facilities:
• specifies the functions and powers of health and social services agencies and of the Minister of Health and Social Services;
• establishes specific requirements for terminal palliative sedation and medical aid in dying;
• prescribes the criteria that must be met for a person to obtain medical aid in dying and the requirements to be complied with before a physician may administer it;
• establishes the “Commission sur les soins de fin de vie” to examine all matters relating to end-of-life care and to oversee the application of specific requirements relating to medical aid in dying; and
• establishes an advance medical directives regime and specifies the conditions that must be met in order for such directives to have binding force.

S 44 states that the Act “… does not limit the right of health professionals to refuse, in accordance with their code of ethics, to provide or take part in providing end-of-life care for reasons of conscience”, while a patient who requests euthanasia will have ample opportunity for second thoughts.

In Canada, criminal law is a federal matter under the Criminal Code; medical law, however, comes under provincial jurisdiction. The Montreal Gazette reported a spokesman for Réjean Hébert, Quebec’s Minister of Health and Social Services, as declaring that the Bill, which enjoys support from all four of the province’s political parties, dealt with end-of-life care, not with a criminal law issue:

“Health is a provincial jurisdiction. The rest of Canada has to have its own debate on end-of-life care. We’ve been having this conversation across Quebec for about four years now. Our laws reflect what the vast majority of what Quebecers want”.

Wanda Morris, of Right to Die Canada, describes the decision to present the matter as a health issue rather than as a criminal law issue as

“… a fascinating choice. I think it’s also a smart political move – it poses jurisdictional challenges between Quebec and the Conservative Government, who aren’t terribly popular in this province anyway”.

Some opponents of Bill-52 argue that it is simply unconstitutional; and it so happens that the question of constitutionality arose quite separately in the British Columbia Supreme Court in Carter v Canada (Attorney General) 2012 BCSC 886 (CanLII). Of the plaintiffs in that case, Ms Gloria Taylor has a fatal neurodegenerative disease and wants to be able to have a physician-assisted death if and when continued life becomes unbearable, Lee Carter and her husband, Hollis Johnson, had helped Ms Carter’s mother Kathleen to arrange an assisted death in Switzerland and Dr William Shoichet, a family physician in British Columbia, is willing to participate in physician-assisted dying if it ceases to be prohibited.

In a long and extremely detailed judgment Lynn Smith J held that the ban breached s 7 (Life, liberty and security of person) and s 15 (Equality before and under law and equal protection and benefit of law) of the Constitution Act 1982 and made declaratory orders in that sense (para 1393), the effect of which was to be suspended for one year. An appeal to the Supreme Court of Canada is currently pending.