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Canada Quebec seeks court clarification on assisted dying law to broaden its access

“The professional orders told us that phrase, that part of the law creates problems because you can’t define what is a reasonably foreseeable death,” said Quebec Minister of Health Gaetan Barrette.

MATHIEU BELANGER/Reuters

The Quebec government says it will look at ways to broaden access to medically assisted death and wants to ask the courts to clarify a controversial restriction in Canada's assisted-dying legislation that disqualifies patients who are not near death.

Quebec Health Minister Gaétan Barrette said his government made that decision after professional organizations representing doctors, nurses, pharmacists, social workers and lawyers all expressed concerns about the requirement that a natural death must be "reasonably foreseeable" for a patient to qualify for physician-assisted dying.

Adopted by Parliament last year, Bill C-14, the Liberal government's amendments to the Criminal Code, is already the object of a constitutional challenge from the British Columbia Civil Liberties Association and a woman from Chilliwack, B.C., Julia Lamb, who has spinal muscular atrophy.

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Their civil claim says the "reasonably foreseeable" rule is too restrictive and will inflict great pain on people with serious medical problems that are not immediately fatal.

Similarly, there is unanimity in Quebec that the requirement for "reasonably foreseeable" death is problematic, Dr. Barrette told reporters on Friday.

"The professional orders told us that phrase, that part of the law creates problems because you can't define what is a reasonably foreseeable death," the minister said. "In their opinion, it is unworkable, inapplicable, too fuzzy."

He mentioned the headline-making cases of two Quebeckers, Jean Brault and Jocelyne Lizotte, who struggled to obtain doctor-assisted dying because they were suffering but not facing imminent death.

Mr. Brault, a Sherbrooke man partly paralyzed by a brain illness, was deemed ineligible because his condition was not terminal. He went on a hunger strike for 53 days until his health was so damaged he qualified for death-assistance in April, 2016.

Ms. Lizotte was an Alzheimer's patient in Montreal who was turned down for doctor-assisted death. She was found dead last month in her room in a long-term-care facility.

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Her husband, François Cadotte, was charged with second-degree murder. "I cracked … I gave in to her demand for help in dying. I am waiting for the police," he had written on his Facebook page.

"The common denominator in all this is suffering," Dr. Barrette said. "We are debating about suffering. We are debating the circumstantial moment of eligibility."

Quebec officials did not specify what judicial approach they would take.

As a province, Quebec could make a reference to its court of appeal, but would find it tricky without a concrete case, said Hugo Cyr, dean of the political science and law school of Université du Québec à Montréal. "The court may offer principles to guide future decisions but it would be hard-pressed to specify precise conditions to determine when death would be 'reasonably foreseeable' when Parliament failed to do so."

Isabelle Marier St-Onge, spokeswoman for Quebec Justice Minister Stéphanie Vallée, said the minister still has to analyze her government's options. "There are plenty of legal avenues we can take."

Dr. Barrette said his government will also name a panel of experts to look at possible ways to broaden eligibility to assisted dying, including advance directives that people give before they become incompetent and are no longer able to seek medical-assisted death.

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"As a physician, I know very well that dementia, Alzheimer's disease, is a progressive disease. ... So where do people really want to cut the line? I don't have the answer to that."

Federal Justice Minister Jody Wilson-Raybould has said she believes her government's assisted-dying law complies with the Constitution.

Asked about Dr. Barrette's announcement, federal Justice Department spokesman Ian McLeod said: "We continue to work with the provinces and territories to support end-of-life care co-ordination across Canada."

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