Thursday, December 3, 2015

Superior Court calls the Government of Québec to Order

This article was published by Living with Dignity on December 3, 2015.

In a decision rendered on December 1st, the Superior Court of Quebec calls to order the Quebec government that attempted to have "medical aid in dying" recognized as a medical care while in practice, as highlighted by the Court, it is indeed euthanasia of human beings.

Consequently, it declares inoperative all the articles of the Act respecting end-of-life care (the "Act") related to "medical aid in dying" that were to come into force on December 10 until the effective date of the Declaration of invalidity of Articles 14 and 241b) of the Criminal Code issued by the Supreme Court of Canada in the Carter decision.

As the Superior Court said, "the fact of qualifying assisted suicide and euthanasia of a human being with another name, a euphemism, namely medical aid in dying, could not have the effect of automatically exempting from the application of a federal law a gesture or an act specifically prohibited by Articles 14 and 241 b) of the Criminal Code and to confer immediately to Quebec jurisdiction over medical aid in dying under the pretext that it was therefore health care that would be part of the continuum of other health care administered to a patient. " (at para. 122). The Court recalls that in Carter, "the Supreme Court did not rule that assisted suicide was in some cases medical care..." (at para. 129).

Furthermore, the Court continues: "... to add the word medical to the term aid in dying cannot have by itself the effect of sheltering provincial legislative provisions that are incompatible with federal legislation in criminal matters, a jurisdiction conferred exclusively to the federal Parliament by the Constitution. "(at para. 139). And the Court states that from the patient's perspective, he or she may not request medical aid in dying without infringing Article 14 of the Criminal Code and, from the point of view of the physician administering medical aid in dying, he may be guilty of a criminal offense and the simple refusal by the physician to provide medical aid in dyingis insufficient since he or she has the obligation to transfer the request to ensure its realization (at paras. 146, 147, 152).

And the Court finally added some very scathing words about the position taken by the Government of Quebec: "To deny this glaring inconsistency is to deny the obvious" (at para. 167). The Court recalls that Quebec participated in the hearing of theCarter case, and that the Supreme Court did not accept Quebec's position to the effect that "the provincial power over health excludes the power of the federal Parliament to legislate on physician-assisted dying". (at para.170 quoting para. 53 of the Carter decision)

This is also the first court decision that corrects this manipulation of language that was purposely committed by the Quebec government in order to evade its euthanasia program contained in the Act from the context of criminal law that must apply everywhere across Canada.

Thus, the Court agrees with Dr. Paul Saba and the Coalition of Physicians for Social Justice, Living with Dignity, the Physicians’ Alliance against Euthanasia, the Euthanasia Prevention Coalition and the vast majority of palliative care doctors who have always stated publicly that "medical aid in dying" was a euphemism to legalize euthanasia.

With this clarification by the Quebec Superior Court, one cannot hide behind the obligation to provide "medical care" in order to force Quebec physicians to participate, directly or indirectly, in the euthanasia of human beings, as provided by those provisions of the Act dealing with “medical aid in dying” which were to come into force on December 10.

The Attorney General of Canada has also demonstrated her "concern that the provisions of Article 31 of the Act [of Quebec] which requires physicians who refuse a request for medical aid in dying to participate, despite their objection, in the process of finding another physician willing and consenting to perform the act".

In the coming months, the Canadian government will have to proceed with prudence and serenity to rewrite its law to take into account the conditions for the exceptions mentioned in theCarter decision, while maintaining its responsibility for protection against homicide, for the prevention of suicide and to maintain the quality of medicine in Canada.

Rather than seeking to impose their views as the Quebec government tried to do, the provinces must respect the Canadian legal framework and meet the criteria for protection of the population that will be codified in a spirit of cooperation and harmony.
Living with Dignity and the Physicians’ Alliance against Euthanasia will continue to promote the protection of human life, the quality and availability of good medical care for all and the recognition of the dignity of all citizens of our country until their natural death.

Note: all quotations of the decision of the Quebec Superior Court are an unofficial translation of the original decision rendered in French.

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