In the latest attempt to legislate euthanasia, Quebec introduced Bill-52 on June 12. Canada has previously tried to address euthanasia at the federal level, but the issue is too heavy to get off the ground. The House of Commons decisively rejected Bill C-384 on April 21, 2010 - 59 votes in favour and 226 against (though almost every Bloc Quebecois member supported the Bill).
By framing euthanasia as a medical, not criminal, matter, Quebec brings the debate into provincial jurisdiction. This is a smart move, given that waiting for the federal government to pass a similar bill is an act of futility. Canada has proven itself to be entirely unable to regulate abortion, a similarly controversial act that intersects criminal and medical law (federal and provincial jurisdiction). Abortion, like euthanasia, is too divisive for the federal government. And so, Canada has inconsistent abortion policies because guidelines are set by individual hospitals. The lack of regulation also means lost opportunities for oversight and data collection.
Bill-52 sets the law for physicians and institutions across Quebec and demands high standards for care and oversight. End-of-life care in Canadian hospitals is changing with or without adapting regulations; Quebec’s transparency and oversight should be strongly encouraged.
On the other hand, by foisting the debate into the provincial arena, Quebec may run into some difficulty. Some have argued that Quebec's bill violates criminal law and is unconstitutional. It is suggested that physicians providing terminal sedation and medical aid in dying will be convicted of murder. Certain acts of euthanasia are clearly illegal – hastening death without consent (think of Tracy Latimer) is illegal. Bill-52, however, sets out a full staircase of steps to ensure that patients have provided genuine, unforced, unpersuaded, well-informed and lasting consent. While others insist it is clearly legal, it is at least open for debate.
The Criminal Code defines murder as knowingly causing, directly or indirectly, the death of a human being. Hastening death is murder. Yet, by that definition hospitals across the country get away with murder daily. Physicians administer doses of morphine, knowing the morphine will shorten life. Physicians remove life-support. Physicians knowingly and directly cause death. Yet physicians end their shifts and drive away from hospitals without being arrested on the way home.
In 1992, the Supreme Court found that the removal of life-support (deliberately ending the life of a patient) was not murder because the underlying illness killed the patient, not the physician. The next year, Sue Rodriguez pled for help committing suicide. A slim majority of the Court found that administering pain relief was legal (even if it hastened death) but that the intention of the physician determined the issue. If the physician administered the dose with the intention of easing pain (incidentally, killing the patient), the act was legal; however, if the physician administered the same dose to kill the patient (incidentally, ending the patient’s pain) then it was illegal. The exact same act could be legal or illegal depending on the intention of the physician, under the so-called “doctrine of double effect”. Since Ms. Rodriguez was petitioning for a physician to end her life intentionally, she was denied relief (though the physician that ultimately assisted with her suicide was never charged, let alone convicted).
Bill-52 regulates the acts of physicians intentionally ending life. The Bill therefore pushes the law one crucial step past the Supreme Court’s 1993 ruling. However, judges have been picking away at the Rodriguez decision for ten years now, and it is crumbling.
Most significantly, last year Justice Lynn Smith of the British Columbia Supreme Court (admittedly the decision is not binding in Quebec, and is being appealed) found that the “preponderance” of evidence from ethicists across the country showed that the intention of the physician does not alter the ethics of an action like administering a fatal dose of morphine. Justice Smith found that the ban on assisted suicide was unconstitutional and granted Gloria Taylor, a B.C. woman with ALS, the right to assisted suicide that Ms. Rodriguez was denied. If Justice Smith’s decision is upheld on appeal then it will create a strong precedent to extend the law. The wild card, should this issue reach the Supreme Court, is that Chief Justice Beverley McLachlin was one of four dissenting judges in the Rodriguez decision; she may well be in the majority this time around.
Whether Bill-52 sustains legal challenges is only part of the debate. It remains to be seen whether it will receive political support, support from physicians, disability activists and Quebec in general. However, it should not be counted out simply because it pushes the boundaries of the law. The law is flexible, it can take it.
Sarah Jones BSc, MBHL, JD, is a lawyer with a background in bioethics. She currently works in Hamilton.