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Does Canada’s Government have the intestinal fortitude to take on Pauline Marois’ new Quebec?

By Don Hutchinson

Yesterday was a remarkable day in the world of Canadian societal principles and values.

While I was absorbed by appearing before the Supreme Court of Canada in the Bedford (prostitution) case, the court issued a media release noting it will hear the appeal in the Loyola High School v. Attorney General of Quebec case (which echoes the S.L. case we intervened in 2 years ago) dealing with Quebec’s mandatory ethics and religion course.

At the same time, Quebec premier Pauline Marois was busy announcing her support for the Quebec Soccer Federation’s bizarre ban on children playing “the beautiful game” if wearing religious headgear specifically designed for wearing while playing sports. The Quebec ban stands in contradiction to national and international soccer standards, as well as the most basic concepts of religious freedom and multicultural accommodation.*

Almost simultaneously with the soccer announcement and the Supreme Court media release, Government of Quebec representatives were busy in press conferences and interviews promoting yet another decision that is likely to make its way to the SCC – if the Government of Canada is willing to set aside political considerations about la belle province and stick to its constitutional guns on the issue of prohibiting euthanasia (murder) and assisted suicide (helping someone kill themselves).

The day before this media frenzy, the Government of Quebec introduced Bill 52, intending to legalize euthanasia under the euphemism “medical aid in dying.” Euthanasia is the act of ending another’s life, which is “homicide” under section 229 of Canada’s Criminal Code. The bill also implicitly authorizes physician assisted suicide which is prohibited under section 241 of Canada’s Criminal Code.

Bill 52 is somewhat innocuously titled, “An Act respecting end-of-life care.” The “end-of-life” part is accurate. I’m not so sure about the “care.”

The bill is couched in the language of compassion, appropriate end-of-life medical treatment and the rights and dignity of patients. Killing the patient is referred to in the definition of “end-of-life care” as “terminal palliative sedation,” i.e. physician administered lethal injection. Please note that this is distinct from the patient’s right to refuse treatment which has long been established in Canadian law. This bill intends to authorize the killing of one person (the patient) by another person (the doctor or a qualified nurse) under the guise of medical treatment.

The bill also directs that every health and social service institution designated under the proposed legislation, including religious institutions, must have a policy for “end-of-life care” that complies with the guidelines, regulations and legislation referenced in Bill 52 – including the administering and reporting of “terminal palliative sedation” and the provision of “medical aid in dying.” This “service” may also be offered in private health facilities or in the patient’s home by physicians and accredited nurses.

Here’s the patient’s right according to the legislation:

Before giving consent to terminal palliative sedation, a patient who wishes to receive such sedation or, where applicable, the individual authorized to consent to care on behalf of the patient, must among other things be informed of the prognosis, the irreversible and terminal nature of the sedation and the anticipated duration of the sedation.

Consent to terminal palliative sedation must be in writing and filed in the patient’s record.

Please note, the prognosis referred to is the outcome of the lethal injection. The written consent may be that of the patient or their legally designated care giver. The conditions for administering the final shot are the same medical supervision cocktail that has proven uncontrollable in every jurisdiction that has thought it had found the workable solution to the problem with this final solution proposal: over 18; incurable serious illness; irreversible decline in capability; constant physical or psychological pain – all governed by the administering physician being satisfied that the appropriate condition or conditions have been met. In short, doctors would be authorized to step outside the Criminal Code prohibition on murder in order to kill patients if the doctor agrees with the patient or the patient’s care giver that the patient’s life is not worth living.

At best this is a grievously misdirected compassion that suggests killing as the remedy to what is hard about dying, or worse still, the cure to what is hard about life.

Intentional killing is anathema to the Charter of Rights and Freedoms value of the sanctity of life and the related Charter value of human dignity – both described by the Supreme Court of Canada in the Rodriguez (assisted suicide) and Latimer (murder for compassionate reasons is still murder) decisions – and stands contrary to the societal condemnation expressed in the Criminal Code. There is no exception granted for intentional killing by request of one person to another as there is no legal recognition of the concept of consensual murder.

At worst, this is a political manoeuver intended to promote Quebec sovereignty by putting the federal government in the position of either allowing Quebec to legislate in violation of the Criminal Code or exercise a constitutional challenge to the Government of Quebec attempting to so do.

Under Canada’s constitution, the provinces have the authority to legislate in the area of health care. The constitution provides equal authority to the federal government to legislate in the area of criminal law. Because there is at times conflict between the federal and provincial constitutional powers, the Supreme Court of Canada has developed the constitutional interpretation doctrine of paramountcy. Under the paramountcy doctrine, inconsistency between federal and provincial legislation is reconciled by having the federal law prevail if it has been properly enacted.

As recently as 2010, the Parliament of Canada voted to maintain the prohibition on assisted suicide. The prohibition on murder has remained absolute since the Criminal  Code was first enacted in 1892. The Supreme Court of Canada has endorsed these prohibitions as the legitimate constitutional jurisdiction of the Government of Canada. So, simply stated, in this case the validly enacted prohibitions by means of the Criminal Code would have paramountcy over legislation dealing with health care.

Of course, application of the paramountcy doctrine is conditional on the federal government challenging the provincial legislation. That would pit Stephen Harper’s Conservative Government against Pauline Marois’ Parti Quebecois Government, nationalists against sovereignists, perhaps even perceived as Canada against Quebec. Some might consider federal government action to be political suicide, which begs the question as to the potential for a political decision being pitted against a constitutional decision. It is literally a matter of life and death.


*On June 15 the Quebec Soccer Federation announced a reversal of its decision and its intention to comply with FIFA guidelines.

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