Thursday, December 3, 2015

Quebec’s assisted dying law in conflict with Criminal Code: judge

This article was published by Advocate Daily on December 3, 2015
Hugh Scher

A Quebec Superior Court justice has rightly found that a provincial law allowing medically assisted suicide in certain circumstances contradicts provisions in Canada's Criminal Code and therefore cannot take effect as planned, says Toronto health, human rights and constitutional lawyer Hugh Scher.

Justice Michel Pinsonnault ruled that key pieces of the Quebec law, which was adopted in June 2014 and set to come into force Dec. 10, conflict with existing federal criminal laws against homicide, reports the National Post.

The judge noted that last February’s Supreme Court of Canada decision carving out exceptions to the Criminal Code prohibitions that ban physician-assisted suicide — Carter v. Canada (Attorney General), 2015 SCC 5 — gave Parliament one year to legislate new rules to give effect to the ruling.

The deadline for Parliament to respond to the ruling was Feb. 6, 2016, but a six-month extension has been requested.

Pinsonnault found that as long as those provisions are in place, a Quebec physician administering euthanasia under the provincial law would be committing a crime, says the Post.

The judge ordered the suspension of the articles of the Quebec law concerning euthanasia until the Criminal Code is changed, the report continues.

“In essence, the ruling states that the present situation around palliative care in Canada renders informed decision-making impossible in Quebec,” says Scher, who has argued against the Quebec law while representing the Euthanasia Prevention Coalition. 
“Our position is that this law is clearly in conflict with existing federal laws and that health care and medical treatment do not include the intentional killing of patients by doctors. This is a matter that falls under federal criminal law — it is not a provincial issue.”
Pinsonnault’s ruling came in response to a request by two individuals — the head of the Quebec Coalition of Physicians for Social Justice and a woman living with life-threatening disabilities — for an injunction to contest the provincial law.

The judge did not grant the injunction, reports the Post, but instead ruled that the provincial law must be in line with federal laws, which take precedence, and since those have not yet been changed to reflect the Supreme Court ruling on assisted-suicide, the Quebec law cannot take effect.

“The notion that a provincial government should be able to trample on what has historically been federal jurisdiction and in effect unilaterally declare that the intentional killing of patients by doctors is health care is extremely problematic,” says Scher, a well-known voice in the end-of-life care debate.
Scher has acted as counsel to the Euthanasia Prevention Coalition in a myriad of high-profile cases including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.
“The federal government has been called to action by the Supreme Court of Canada in order to regulate these matters and impose a level of national standards and safeguards aimed at preventing abuse and risk to vulnerable Canadians that would inevitably ensue in the event of legalization,” says Scher. “As such, Quebec’s attempt to take over the entire area of jurisdiction under the health-care rubric is problematic and contrary to Canadian constitutional principles.”
It is imperative, says Scher, that the provincial legislation be put on hold until the federal government has an opportunity to respond to the Supreme Court decision in Carter.

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