Quebec's attempt to oust federal govt over assisted suicide troubling

This article was published by Advocate Daily on December 10, 2015

Hugh Scher

A national approach to the regulation of assisted suicide is the only way to avoid an inconsistent patchwork quilt of assisted suicide laws across the country, which could leave Canadians at risk, says Toronto health, human rights and constitutional lawyer Hugh Scher.

The Quebec Court of Appeal has said it will hear arguments from all sides later this month on a provincial law allowing euthanasia following a recent Quebec Superior Court decision — D'Amico c. Procureure generale du Quebec — suspending key aspects of the legislation.

The Quebec euthanasia law is now in a state of flux until the Dec. 18 appeal hearing.

News of the appeal came just days after Justice Michel Pinsonnault ruled that key pieces of the Quebec law, which were adopted in June 2014, clash with existing federal criminal laws against homicide. In permitting the appeal to proceed next week, the Court of Appeal was clear it was making no ruling on the appropriateness of the order of the Superior Court to suspend its operation.

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. Ottawa has since asked for an extension, which would bump the response time from one year to 18 months.

Scher represents the Euthanasia Prevention Coalition, which acted as an intervener at all levels in Carter and is also an intervener before the Quebec Court of Appeal in D'Amico.

“Quebec's attempt through its euthanasia law to oust the federal government’s jurisdiction — which has been clearly and historically recognized by the Supreme Court of Canada to regulate the area of euthanasia and assisted suicide — is a troubling abuse of Canadian constitutionalism,” says Scher, a well-known voice in the end-of-life care debate.

Scher has acted as counsel to the Euthanasia Prevention Coalition in several 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 Supreme Court of Canada has ruled that an exception should be carved out of criminal law with respect to assisted suicide for people experiencing incurable conditions and intolerable suffering who choose assisted suicide," says Scher. 

“It has indicated that the federal government should seek to implement a series of carefully tailored safeguards in order to protect against the serious risk of abuse to all Canadians in the event that assisted suicide or euthanasia are left unchecked.” 

Scher says, “Quebec now seeks through its euthanasia law to occupy the entire sphere of regulation related to assisted suicide and euthanasia and through its actions, attempts to exclude the federal government from occupying and regulating the jurisdiction over euthanasia and assisted suicide, which the Supreme Court acknowledged was appropriate, as Parliament has done for more than 150 years.”

The fact that the federal government is seeking to take appropriate time to review and respond comprehensively to the Supreme Court decision, says Scher, “does not give the Province of Quebec or any other province licence to exclude the jurisdiction of the federal government merely because of the fact that the province acted first.”

Scher will be asking the Supreme Court of Canada and the Quebec Court of Appeal to recognize and allow Parliament to exercise its proper jurisdiction over this subject matter, particularly with regard to the need for before-the-fact adjudicative oversight to assess and identify vulnerability and ensure compliance with federally-established safeguards.