Doctor-Assisted Death

Dying with Dignity: Health Issue or Criminal Law?

Written on Behalf of Affleck & Barrison LLP

A new provincial law that would allow terminally ill patients to end their lives with medical help was set to take effect in Quebec on December 10 of this year. But this past week, a Quebec Superior Court justice ruled that key issues in the Dying with Dignity legislation contradict provisions of the Criminal Code of Canada. Although the Supreme Court of Canada struck down the provisions in the Criminal Code which prohibit medically assisted suicide in earlier this year, they are technically still the law in Canada and will be until they are struck down in February 2016.

Justice Pinsonnault of Quebec’s Superior Court ruled that because the Criminal Code is a federal law, it takes precedence over provincial laws. Since the Criminal Code has not yet been changed, the Quebec law cannot take effect. Thus, a Quebec doctor who administered euthanasia under the province’s law would be committing a crime. Although Justice Pinsonnault called the conflict between the laws “flagrant” in his written decision, he did not strike down the Q legislation, but put it on hold until such time as it no longer conflicts with the Criminal Code. The government of Quebec, however, has said it will appeal the decision because the right to die is not a criminal issue but a health matter, over which the province of Quebec has jurisdiction.

The case was brought before the courts by the Coalition of Physicians for Social Justice who sought an injunction on the grounds that the legislation would give too much power to doctors. The Coalition instead urged the province to improve access to palliative care to ease the suffering of those with terminal conditions.

The Bill was adopted unanimously by Quebec in June 2014 after the province spent six years consulting citizens and experts to prepare its law. Other provinces have been consulting Quebec’s law as a model for their own health care reform. Federal Justice Minister Jody Wilson-Raybauld said the federal government will look to Quebec’s example as well.

To find out more about the euthanasia provisions in the Criminal Code, or if you have questions about a criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.


Is Canada Prepared for Physician-Assisted Death?

Written on Behalf of Affleck & Barrison LLP

In February of this year, the Supreme Court of Canada struck down the provisions in the Criminal Code prohibiting physician-assisted death in Carter v Canada (Attorney General), 2015 SCC 5. The historic decision was written by all nine Supreme Court Justices signifying the institutional and national importance of the decision. The Supreme Court held that the ban on physician-assisted death contravenes Canadians’ right to “life, liberty and security of the person” as outlined in section 7  of the Charter of Rights and Freedoms by forcing patients to endure intolerable suffering against their wishes and denying them autonomy over their bodies.

The Supreme Court was clear that the ruling only applies to competent adults who clearly consent to the termination of life and who have a grievous and irremediable condition that causes enduring, intolerable suffering. The Supreme Court gave the federal and provincial governments one year to draft appropriate legislation during which time the ban will continue to stand.  The Supreme Court also held that physicians who oppose the decision on ethical grounds cannot be compelled to assist in a patient’s death.

Since then, little has been done to consult with the public and to draft new legislation. According to a poll published in August, 2015,  77 per cent of Canadians support physician-assisted death for terminally ill patients. The Conservative government, however, is not in favour of the ruling, and waited until July to appoint a committee to consult Canadians, also stipulating that it could not consult during an election campaign.

Despite the having received significant media coverage in recent weeks, physician-assisted death has remained largely absent from the federal party leaders’ election platforms and the leaders have had little to say about the issue. In last week’s French-language debate, the question of doctor-assisted death was raised but the responses provided by the federal leaders were brief and somewhat vague. Regardless of which party wins the federal election on October 19, it seems unlikely, given the time constraints, that the February 6, 2016 deadline for implementing the legislative changes required by the Supreme Court’s ruling will be met. Although the ban on physician-assisted death will be lifted even if the government does not pass legislation, the potential for abuse demands that a comprehensive regime, which takes into the account the complexities of practical application, be implemented as soon as possible. Creating and implementing such a  regime will not be easy and should not be left to the last minute.

If you have any questions about this decision, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision in  Carter v Canada (Attorney General) click here.