Sun. Mar 3rd, 2024

There is no consensus on the opportunity to harmonize Quebec law and the Criminal Code.

Analysis | AMM: how long will we have to wait?

Open in full screen mode

Why has the debate on Quebec's jurisdiction over medical assistance in dying not been resolved took place earlier, at the time of the adoption of the law?

  • Hugo Lavallée (Consult the profile)Hugo Lavallée< /li>

Speech synthesis, based on artificial intelligence, makes it possible to generate spoken text from a written text.

Those who suffer from degenerative diseases and who wish to formulate advance medical directives will once again have to be patient. As early as 2021, a transpartisan parliamentary commission came out in favor of this enlargement. In 2022, a first bill aimed at expanding medical assistance in dying was put on hold for election time. Then, last spring, the government planned a delay of up to two years, the time to put everything in place.

Knowing that we may have to wait for the federal government to pass a bill to move forward is not very reassuring. Gathered for a press briefing on Wednesday, Ministers Sonia Bélanger, Simon Jolin-Barrette and Jean-François Roberge pressed Ottawa to agree to an amendment to the Criminal Code to explicitly allow advance consent.

However, there was no question of obtaining the consent of the federal government during the study of the bill expanding medical assistance in dying last spring.

The An Act to amend the Act respecting end-of-life care and other legislative provisionswas adopted on June 7, 2023. One of its objectives is to allow people suffering from a serious and incurable illness leading to incapacity to consent to care to make an advance request for medical assistance in dying so that they can benefit from this assistance once they become incapacitated. The example given most frequently is that of a person suffering from Alzheimer's disease, who wishes to make their instructions known in advance so that they are respected even when they are no longer able to express them. .

In the context, we can also wonder why Quebec adopted a bill if it was not certain of having the latitude to do so. In other words, why did the debate on Quebec's jurisdiction not take place earlier, when the law was adopted?

Since we began to debate it, the question of medical assistance in dying has always been treated in a transpartisan manner by the political groups represented in the National Assembly.

LoadingDrug insurance: “We are tired of the stupidity,” says an NDP source

ELSE ON INFO: Drug insurance: “We’re tired of the stupidity,” says an NPD source

At open microphones as well as closed microphones, MPs are however surprised by the government's most recent outing. Until now, the question of harmonization with federal law had not been presented as a potential obstacle to the implementation of the wishes of parliamentarians.

If the federal government decided not to move forward, are we saying that the Quebec law that we have just adopted on end-of-life care would become somehow inoperative or obsolete? “It’s a step back 15-20 years that I simply don’t understand,” lamented Parti Québécois MP Joël Arseneau. He is concerned about the precedent that such a request could create.

That the question was not resolved in the spring, during the study of the bill, is all the more surprising since the Quebec Bar itself had recommended the adoption of an amendment to the Criminal Code, during its appearance in committee.

We gave you two examples in the brief. A supervised injection site for strong drugs in Vancouver. And also, in British Columbia, we decided to decriminalize the personal possession of illicit drugs […]. So, we said to ourselves, but since in Quebec we are ready, we could ask that the Criminal Code allow this exemption in Quebec, testified Me Sylvie Champagne, in reference to advance consent.

During a debate on the concept of neuromotor disability, speakers insisted that Quebec harmonize its law with federal legislation. This was particularly the case of the Federation of Specialist Physicians of Quebec. Still others proposed aligning themselves, not with federal law – subject to change –, but more directly with the decision rendered by the Supreme Court in the Carter decision. It was this decision which, in 2015, invalidated the article of the Criminal Code prohibiting assisted suicide.

However, several testimonies went in the opposite direction. The author of the first bill adopted on the issue, former MP Véronique Hivon, warned the government against the temptation of wanting to harmonize its laws with those of the federal government.

I want to say it again, I think that it is a trap that Quebec would set itself by being in a pure logic of harmonization. We would never have moved in 2009. The Criminal Code was not open to medical assistance in dying and there, we would not move on the advance request, which, I think, would be a serious error because it is anchored in a solid social consensus.

The president of the Commission on End-of-Life Care, Dr. Michel Bureau, also made comments similar.

At a press conference on Wednesday, the Minister responsible for Seniors Sonia Bélanger explained that the context had changed significantly since Quebec adopted the first law on the subject in 2014.

The Criminal Code was, for all practical purposes, silent on medical assistance in dying. It was subsequently, once Quebec adopted its law, that the Criminal Code was amended. And so now, it is clearly stated, in the Canadian Criminal Code, that people must be fit until the end to make the decision.

For the professor at the Faculty of Law of Laval University, Patrick Taillon, the legal context which prevailed at the time made the decision not to wait for the consent of the federal government even more risky.

Not only had we adopted a law that was in contradiction with the Criminal Code, but we also had case law from the Supreme Court, at the time, which said that the Canadian Charter prohibited medical assistance in dying. […] There was audacity on the part of the Quebec legislator who had developed an argument to defend his right to act, his jurisdiction over health, he declared in an interview with Radio-Canada.

According to him, in the current state of affairs, it is rather the federal government which should be concerned about overstepping its areas of jurisdiction.

In an ideal world, all levels of government would be on the same page, which would avoid conflicts over jurisdictional issues. Should the fact that the Canadian government is not ready, for the moment, to move forward with advance medical directives encourage Quebec to postpone its decision?

The risk is obviously, for Quebecers, to lose autonomy and predictability. As proof, during the study of the bill in the National Assembly last spring, the roles were reversed: it was then expected that Ottawa would expand access to medical aid to die, in particular by making people suffering from a mental health disorder eligible — something Quebec MPs were reluctant to do. This perspective now appears much more uncertain.

Pending a response from the federal government, the debate continues on Quebec's jurisdiction. This is certainly likely to interest constitutionalists, but it will also have the effect of keeping those who want to ensure that their last wishes are respected. It could also undermine the exceptional cross-party collaboration that has so far characterized the discussion around end-of-life care.

  • Hugo Lavallée (View profile)Hugo LavalléeFollow

By admin

Related Post