Category: Canada

Although euthansia and assisted suicide are criminal offences in Canada, and criminal law is under the jurisdiction of the federal government, the government of Quebec has announced that it will legalize assisted suicide and euthanasia provided by health care workers.  [National Post] The commission that recommended this step also recommended that objecting physicians be forced to facilitate the procedures by referral.

It appears that the provincial government will claim that assisted suicide and euthanasia are forms of medical treatment.  Since health care is under provincial and not federal jurisdiction, the province will likely argue that the prohibition of these services within the context of health care trespasses on provincial jurisdiction.  This was one of the claims of the BC Civil Liberties Association in Carter v. Canada, which it won.

The third legal argument advanced by the BC Civil Liberties Association in Carter was that “treatment and management of the physical and emotional suffering of a grievously and irremediably ill patient” are matters that fall within the “exclusive jurisdiction” of the provinicial government, which is constitutionally mandated to manage health care. Since (according to the plaintiff physician) physician-assisted suicide and voluntary euthanasia are “important component[s] of the provision of health care to grievously and irremediably ill patients,”the lawsuit asked that sections of the Criminal Code (a federal statute) that prevent the provision of this “health care” should be struck down as an unconstitutional interference in provincial jurisdiction, “to the extent that [they] prohibit physician-assisted dying.” See Legalizing therapeutic homicide and assisted suicide:A tour of Carter v. Canada

However, the claim was not adjudicated in Carter because it was not actually argued during the trial.

The province also has the constitutional authority to enforce and administer criminal law, so that it could, in theory, instruct prosecutors not to pursue charges against health care workers  who provide the procedures in accordance with government guidelines.  It could do this pending the outcome of litigation, and even if the criminal prohibition stands. This is the approach taken in England with respect to  assisted suicide, though the English guidelines indicate that health care workers must not be involved.

Should the provincial government refuse to prosecute health care workers who provide the services, it would be possible for the federal government to order the federal police force, the Royal Canadian Mounted Police, to investigate allegations, and to appoint and pay lawyers to act as prosecutors.  However, this would be especially contentious in Quebec, since the current government is ideologically committed to the separation of Quebec from Canada and the establishment of the province as an independent nation state.  Nationalist elements in Quebec would see that kind of federal intervention as not only a constitutional violation of provincial jurisdiction, but as violation of sovereignty.

Thus, divisions among health care workers on this issue may involve complexities and nuances not encountered elsewhere, and those who resolutely refuse to provide or facilitate assisted suicide and euthanasia may find their circumstances unusually challenging.  Nonetheless,  prominent Quebec physicians have formed The Physicians’ Alliance for Total Refusal of Euthanasia.  The Alliance is directly challenging the medical regulatory authority:

The Quebec College of Physicians does not have the legal or the moral authority to change one of the basic pillars of medicine, or to amend the code of medical ethics, without first conducting an extensive study and consultation with members of the profession. The mere passing of a resolution by the board of directors does not make physician-inflicted death an acceptable form of care.