Quebec’s National Assembly passed legislation today that would enable competent adults in the throes of intolerable suffering caused by a terminal illness to request aid in dying from their physicians, and that would allow physicians to accede to that wish under a fairly strenuous set of conditions. It also requires of all health-care institutions that they provide themselves with a palliative care plan. Rather than viewing physician-assisted death as an isolated question, the law places it at the end of a continuum of end-of-life medical care.
In my view, this is a very good law. It is the result of a 4 ½ year non-partisan process of consultation and deliberation that heard from specialists, ordinary citizens, and organized groups. This process gave rise to countless modifications to the original draft bill, designed not only to allay the fears of those not ready to take the step of decriminalizing physician-assisted death, but also genuinely to incorporate some of their concerns into the body of the law. The question whether or not to decriminalize the practice is a difficult one. I sat on an Expert Panel of the Royal Society of Canada that studied the question for over two years, and I can attest to just how complex the ethical, medical and sociological issues involved are. The willingness of all parties in the National Assembly to proceed slowly and carefully bears witness to the awareness on the part of all concerned of these complexities.
Many readers of this blog will be aware of some of these issues. Should the autonomy of individual patients be the dominant consideration in deciding whether or not to decriminalize physician-assisted dying? Should we be concerned about slippery slopes, and if so, what institutional bulwarks can we put in place in order to make them less slippery? Is there any real difference, at the end of the day, between physician-assisted dying and terminal sedation? And so on.
What has received less attention are the constitutional implications of the steps just taken by Quebec’s National Assembly. Physician-assisted dying is illegal in Canada in virtue of the Criminal code, which is a federal competency. By opening a legal door to physician-assisted dying, is Quebec overstepping its constitutional prerogatives?
The drafters of this legislation were certainly aware of this problem. After having written a very good report outlining the ethical issues involved in the decision as to whether or not to take the step of decriminalizing and regulating the practice of physician-assisted dying, the non-partisan commission of the National Assembly to which the legislation was entrusted commissioned a second, purely legal report, the main function of which was to determine the amount of constitutional wiggle room that Quebec might have on this issue.
That report claimed that there were two ways that the province could go to get around the prima facie unconstitutionality of the proposed legislation. The first, more modest route, has to do with the prerogative that provinces possess to instruct their prosecutors. Though the determination of what is criminal rests with the federal government, provincial governments can on the basis of their determination of local priorities decide to emphasize or to downplay different aspects of the federal criminal code. What the Ménard report proposed was that prosecutors be instructed not to pursue physicians who have helped their patients to die, on the condition that certain very strenuous conditions be satisfied. These conditions are precisely the ones laid out in the legislation, having to do with the cognitive competence of the person making the request, the gravity of her medical condition, and so on.
Another route is however suggested by the manner in which physician-assisted dying is couched in the legislation. By presenting it as the final point in a continuum of end-of-life medical care, the claim that is being implicitly made by Quebec legislators is that physician-assisted dying is, like palliative care, a medical, rather than a criminal question. And as a medical issue, it properly falls within a provincial jurisdiction. There is a precedent here: when the Quebec government asked the Supreme Court of Canada for a reference on whether or not the federal law on assisted reproduction overstepped federal jurisdiction by in effect criminalizing practices that should be considered as falling within the sphere of provincial health policy, an admittedly bitterly divided Court agreed with Quebec’s Attorney General, at least with respect to certain key articles of that law.
So the interesting question here is: how will the Harper government react to this move on the National Assembly’s part? It could invoke federal paramountcy, and claim that where validly enacted provincial and federal law conflict, the latter prevails. Or it could ask the Supreme Court for a reference on the matter. Or it could simply do nothing.
The political context is obviously relevant. We are about a year away from a federal election. At time of writing, Harper’s conservatives are about as popular as head lice in Quebec. The legislation that has just been passed by the National Assembly enjoys wide popularity in the province, with some polls pegging support above 70%. Mounting an attack on the law, and in so doing, on the National Assembly itself, would pretty much seal the Conservatives’ fate in Quebec.
There is the option of doing nothing. After all, the law contains a clause that limits any implications it may have outside of Quebec. Cognizant of the fact that the passage of the law may lead to “euthanasia tourism” from the rest of Canada, Quebec legislators wisely limited the scope of the law to Quebec citizens insured under RAMQ.
Doing nothing may not play particularly well however with the governing party’s socially conservative base. Peter Mackay’s stunningly reactionary legislative response to the Bedford decision, which declared articles of the Criminal code surrounding prostitution unconstitutional (and about which I will be writing in the next few days) suggests that the Conservatives are in a “consolidate the base” mood these days. They may decide that opposing Quebec’s new law on the basis if a quasi-religious sanctity-of-life line of argument might play well for the base, especially if it is accompanied by some good, old-fashioned Québec-bashing.
Looming in the background of course is the fact that the Supreme Court of Canada will in the next few months be rendering its judgment in the Carter case. The Supreme Court affirmed the constitutionality of the Criminal code provisions prohibiting physician-assisted dying in the landmark Rodriguez case in 1992. In that judgment, the majority opinion (in a 5-4 decision) had been that the rights of those severely ill competent adults who, like Sue Rodriguez, ask for medical aid in dying, can legitimately be limited given the importance for the government of protecting the most vulnerable people in Canada who might find themselves at risk were the practice of physician-assisted dying to be decriminalized.
In a recent judgment, Justice Lynne Smith of the British Columbia Supreme Court identified grounds upon which to reopen the question of the constitutionality of the criminal prohibition against physician-assisted dying, claiming, in effect, that while the Supreme Court had at the time of the Rodriguez been correct in stating that a blanket prohibition on physician-assisted dying would be rationally connected to the goal of protecting the most vulnerable people in Canadian society, such a prohibition is overbroad (you don’t need to deny everyone the right to physician-assisted suicide in order to protect society’s most vulnerable persons) and grossly disproportionate in its effects. The BC Court of Appeal disagreed, in a 2-1 judgment, but the case is headed up to the Supreme Court of Canada. If I were a betting man, I would wager a good sum that the Court will affirm Judge Smith’s judgment, and in effect reverse Rodriguez.
The prospect of a Supreme Court Judgment complicates matters for the Harper government. If you’re Harper, do you insist on the enforcement of Canadian criminal law in Quebec in advance of the Supreme Court decision, with all of the attendant political and constitutional fallout that that might involve? Or do you wait for the Court’s decision, and then draft legislation in response to the Court’s striking down of the existing provisions of the Criminal code that opens the door to physician-assisted suicide in as limited a range of cases as possible? In that case, you might end up drafting legislation that for all the world looks quite a lot like the legislation that has just been passed by the National Assembly.
Clearly, there is no easy play for the Conservatives here, either constitutionally or politically.