Supreme Court of Canada will hear euthanasia arguments Jan. 11

Quebec justice system overrules an injunction against the law
By Deborah Gyapong
OTTAWA (CCN)

The battle to bring euthanasia to Canada heated up Dec. 22, when the Quebec Court of Appeal said the province could go ahead with its so-called “medical aid in dying” law.

The Quebec Court of Appeal overruled an injunction against the law obtained by Montreal Physician Dr. Paul Saba and a disabled woman Lisa D’Amico on Dec. 1.

“We going back to court,” said Dr. Saba. “We’re going to keep fighting this.”

“The solution to this is not euthanasia,” he said. “Doctors are not God. We don’t know when people are going to die.” Saba, who is president of the Coalition of Physicians for Social Justice, said Quebec should provide good palliative care rather than opt for lethal injections.

The focus will now shift to the Supreme Court of Canada (SCC) which will hear arguments Jan. 11 on the federal government’s request for six month extension on the Carter decision on assisted suicide, which comes into effect Feb. 6. The SCC will also consider whether Quebec can receive an exemption from the extension and proceed with its so-called “medical aid in dying” euthanasia law, which it implemented Dec. 10. The federal government does not oppose Quebec’s request for an exemption and has even cited Quebec’s “leadership” on assisted dying and the regulatory framework it has devised.

The federal Attorney General has requested the additional six months for Parliament to craft legislation in response to Carter, which struck down as unconstitutional Criminal Code provisions against assisted suicide.

Euthanasia Prevention Coalition (EPC) executive director Alex Schadenberg said the “politics is very interesting.” He noted the federal government intervened on the side of Dr. Saba in late November, but have now changed their position in favor of allowing an exemption.

EPC legal counsel Hugh Scher said the Jan. 11 hearing will not settle the jurisdictional question between Quebec and the federal government over federal powers over the Criminal Code, and provincial powers over health care.

The jurisdictional issue will be addressed only if Dr Saba is given leave to appeal to the SCC, he said.

Scher noted the Quebec Court of Appeal did not rule on the jurisdictional question, only that the law could go ahead. “At this stage they are not making any suggestion as to its constitutionality,” he said. “That is the purpose of the action brought by Dr. Saba to challenge that very notion.”

The EPC intervened in Dr. Saba’s action. “It’s our view the intentional killing of patients by doctors is not health care and falls outside the jurisdiction of the Quebec legislature,” Scher said.

The EPC also opposes the SCC granting Quebec an exemption.

“If Quebec is exempt from the extension and there’s a Quebec case going to the Supreme Court challenging the law, we have a very interesting situation,” said EPC executive director Alex Schadenberg. “Granting them an extension would say the law is acceptable.”

Schadenberg stressed the Carter decision struck down laws against assisted suicide, but not euthanasia. “Euthanasia can only be legalized by an exemption to the Criminal Code,” he said. “The Supreme Court did not legalize wide-open euthanasia.”

“EPC is committed to having the boundaries of the law relative to homicide and assisted suicide determined by Parliament and not by Provincial Legislatures as we submit that this is fundamentally a matter properly reserved for Parliament, a point repeatedly made by this court,” says an affidavit submitted by Dr. Will Johnston on behalf of a joint-submission by EPC and EPC-British Columbia (EPC-BC) to the SCC.

If Quebec is granted an exemption, that would mean “federally there is a homicide law in place, yet in Quebec, they would be doing euthanasia, which is lethal injection, which is homicide,” said Schadenberg. “The Quebec law should be null and void until the federal law is in place.”

Quebec Superior Court Judge Michel Pinsonnault, who had granted the injunction, took a similar position, ruling “medical aid in dying” was in fact a euphemism for euthanasia, which is still illegal under the Criminal Code until the Carter decision comes into effect or Parliament crafts a new law.

Quebec has argued medical aid in dying is health care and under provincial jurisdiction. Quebec has instructed its prosecutors not to prosecute any charges under the Criminal Code of doctors who give lethal injections under the so-called medical aid in dying law.

EPC had intervened in the Dec. 18 hearing. Schadenberg said he was not surprised by the Quebec Court of Appeal ruling.

Schadenberg and other euthanasia opponents have also expressed concern the federal External Panel on Options for a Legislative Response to Carter v Canada report has not been released publicly, allowing the “radical” provincial-territorial panel released Dec. 14 to frame the debate.

The non-partisan federal panel, struck by the Harper government last summer, made its final report to cabinet on Dec. 15. The Provincial-Territorial Advisory Group on Physician-Assisted Dying published its pro-euthanasia recommendations the day before, including euthanasia for children who are deemed to have the capacity to consent.

“By releasing the provincial report before the federal report, the public debate is shaped by the radical nature of the provincial report,” said the Association for Reformed Political Action (ARPA) Canada in a Dec. 17 news release.

“It does appear the provincial-territorial report, essentially put together by the Ontario government and made up of a majority of pro-euthanasia leaders is going to control the debate,” said Schadenberg.

Ian McLeod, a spokesman for Justice Minister Jody Wilson-Raybould, said the report was delivered in English and needs to be translated into French before it will be released to the public. He said the report would be “available in the next few weeks.”

The federal panel was composed of three non-partisan experts in their respective fields. Chairman Dr. Harvey Chochinov is a psychiatrist and palliative care expert; Ryerson University professor emerita Catherine Frazee is an expert in the rights of disabled people; and University of Ottawa law professor BenoŒt Pelletier brought legal expertise.

Though the federal panel was supposed to report in mid-November, the new Liberal government extended the deadline a month and changed its mandate. Minister Raybould and Health Minister Jane Philpott announced the panel would “focus on the results of the consultations, rather than on the development of legislative options.”

The panel’s final report is expected to include consultations with “66 experts through 51 meetings in five countries, and 95 representatives from 48 Canadian organizations,” according to the federal government. It also “received over 300 document submissions from stakeholders and over 11,000 responses to its online consultation.”

ARPA legal counsel Andre Schutten said the federal panel’s recommendations “should trump those of the provincial panel.”

“The Supreme Court was very clear: even if legalized, euthanasia and assisted suicide remain a criminal law matter, not simply a matter of health care,” Schutten said. “The provinces do not get to determine whether a practice will be decriminalized or to what extent. The provincial report simply does not have that level of authority.”Z