Quebec junior Social Services Minister Veronique Hivon, right, listens to lawyer Jean-Pierre Ménard, left, commenting a report called "Dying within dignity" Tuesday, January 15, 2013 at the legislature in Quebec City. THE CANADIAN PRESS/Jacques Boissinot

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Quebec junior Social Services Minister Veronique Hivon listens to lawyer Jean-Pierre Ménard, left, commenting a report called “Dying within dignity”. THE CANADIAN PRESS/Jacques Boissinot

The killing of the sick, elderly and disabled for compassionate reasons, otherwise known as “euthanasia” or “assisted suicide”, is still illegal in Canada, prohibited by our criminal code. But all that will change before long if Quebec has its way.

Will 2013 be the year Canada embraces the Grim Reaper? Will killing people after birth formally become part of Canadian health care? That’s the plan if you live in Quebec, the province’s government announced in January.1

The minister tasked with the “dying with dignity” file, Véronique Hivon, said legislation will be introduced before this summer allowing for “medical aid in dying”. While the minister did not use the term “euthanasia” in her press conference, it is clear from the 400-page legal experts’ report she presented, and the recommendations of last year’s National Assembly report on “dying with dignity” which guided the experts, that both active euthanasia and physician-assisted suicide are in the pipeline.2

According to Ms Hivon, patient killing (to translate her euphemism) is part of a continuum of end of life care to which Quebecers are entitled. For those suffering from incurable illness, that continuum also includes palliative care, which should suffice in most cases. But, the experts’ report headed up by Montreal lawyer Jean-Pierre Ménard indicates, when palliative care does not alleviate physical or mental suffering, or is not readily available, or when the patient simply does not want it, then “medical aid in dying” should be another option.3 Such an option, they assert, is based on the values of human dignity and personal autonomy considered essential to good health care.

Who would qualify to be euthanized? The person must be a Quebec resident, of the age of majority, competent to make their own decisions, have a medical illness that is serious and incurable, be in a debilitated state with no likelihood of improvement, suffer constantly physically or mentally, and be unable to find relief in a way he or she deems acceptable. Death can only be induced or otherwise aided by a physician, who must also consult a second doctor. The patient’s request must normally be made 15 days before the act, but can be made up to five years beforehand through an advance directive, which allows the representative of a presently incompetent but previously competent patient, to submit the request.4

Human dignity redefined

So, in this planned scheme is patient killing only for the dying? Not at all. Despite its heavily used “end of life care” rhetoric, the Ménard Report makes clear euthanasia is not to be restricted to the terminally ill. Someone can be incurably ill, with for example multiple sclerosis, yet their condition may not be terminal. No problem. In Quebec “end of life” includes a condition you can choose for yourself.

Why would a health care system help people to choose death? Isn’t medicine about healing and saving lives rather than taking them? Not in Quebec, if the government has its way. The reason, they say, is that the old idea of the inherent dignity of every human life, rooted in religious faith, is now passé. Life only deserves to be maintained when it is “endowed with a certain dignity. When this dignity no longer exists, there is no justification to maintain it.”5

Gulp. “Isn’t that a pretty scary new concept?” we might well ask. Some people’s lives lack dignity and they deserve to be killed? Don’t worry, the report wants to assure us. You decide if your life has dignity; everyone must respect your choice.

All right, we may reflect, with this new scheme there’s no risk of nonvoluntary or involuntary euthanasia for those unable to decide for themselves — young children, the mentally handicapped, persons with brain injury or dementia, for example? At first perusal, the report seems to assure us that the proposal is only for those who make a free choice. We see repeated statements about wanting to protect “the vulnerable”.

But on closer examination we see the door to killing people without their consent is not firmly closed at all. After noting that the government plan does not pertain to incompetent adults or minors, the Ménard Report states:

“It will belong to civil society to push further in reflecting upon these persons and evaluate if there exist some situations where, with prior judicial authorization, it would be foreseeable to make medical aid in dying accessible to these persons. Such a decision will belong to the legislator according to what society wishes to accept. For the moment, the Committee takes no position in this regard.”6

Translation: Society is not ready yet to euthanize such people, but that could soon change.

Very reassuring, Monsieur Ménard. It is not hard to imagine, if the plan goes through and the notion of a life not worth living takes hold, the question logically will be asked: Why should non-competent people who have, say, dementia, be deprived of the access to a quick exit that competent people enjoy? Should not other people, feeling sorry for them, make that decision for them?

An opening that is only “little”

And how firm are the boundaries for voluntary euthanasia? The report is at pains to elaborate its guidelines at length, emphasizing the care doctors must take in administering “medical aid in dying”. At the minister’s press conference Mr. Ménard termed the required patient conditions “very strict,”7 and called the proposal “an opening” to euthanasia that is only “little, little, little” (ibid, p. 13).8 But when a journalist asked if the new framework would allow for someone like David Audesse, a Quebec man whose arms and legs had been amputated, and who apparently ended his life in 2011 through assisted suicide, Mr. Ménard replied, No, and went on:  “Unfortunately, in that case, it would be necessary to see what society wishes in conditions like that.”9 Sounds like the line against euthanasia on demand wouldn’t hold for long.

And really, once you subscribe to the radical notion of individual autonomy on display both in the Special Commission’s report and the Ménard Report, how do you not end up, eventually, with euthanasia on demand? When you endorse the view that “the first duty of the physician is not to save life at any price but rather to respect the free choice of his patient”,10 how can you refuse anyone who asks for a medicalized death simply because he or she considers their life not worth living?

But of course Quebec does not want to be seen an opening the floodgate to euthanasia on demand or the killing of the vulnerable. It much prefers to be seen as offering a compassionate option for hard and exceptional cases of human suffering. Longtime Canadian pro-lifers will recall that was precisely the strategy in the late 60s for legalizing abortion – “it will only be for a few hard cases.” So that law was liberalized. We now have abortion on demand. Can we expect anything different with euthanasia?

And does anyone think that once euthanasia is legalized and institutionalized in Quebec, it will be restricted to Quebec? Prominent media pundit Chantal Hébert doesn’t think so. Just as Quebec paved the way for all Canada on legalizing abortion and same-sex marriage, she writes, so too it is about to do the same on euthanasia.11 I fear she will be proved right (Hébert, by the way, cheers Quebec on). Once you start murdering sick and disabled people anywhere with legal impunity, it will tend to go everywhere.

But killing is still a crime in Canada

But a thoughtful observer might ask, how exactly can Quebec legalize any euthanasia? Isn’t all euthanasia prohibited as murder in the criminal code of Canada? Doesn’t the code apply to Quebec and every province? And didn’t parliament not long ago resoundingly defeat a bill to legalize euthanasia? And didn’t the Supreme Court of Canada, in its decision on the Sue Rodriguez case, uphold the code’s ban on assisted suicide? The answer to the last four questions is yes.

So how can Quebec ignore all that? In many ways, the Ménard Report is one long lawyerly attempt to show how.

Within Canada’s constitutional framework, the report argues, Quebec has the authority to allow “medical aid in dying” for two reasons. First of all, euthanasia will be part of the Province’s health care system, over which the Province has extensive jurisdiction; the latter being undeniably true. Secondly, the attorney-general of Quebec has almost exclusive jurisdiction in enforcing the criminal code in that province; again, undeniably true. He or she has discretion over when and if to prosecute an apparent criminal offence. Therefore, the report declares, the attorney-general can issue guidelines to Crown prosecutors directing that “medical aid in dying,” as carefully defined in the proposed legislation, will not be prosecuted. Doctors who act within the province’s new law will not be charged with a criminal offence.

As I explained in a previous article, Quebec is imitating what I called “the Dutch strategy.12 In Holland, years before euthanasia was formally decriminalized, it was simply not prosecuted under such-and-such guidelines the government devised. The authorities turned a blind eye to what was ostensibly still a crime.

Can Quebec do likewise? Does it have the discretionary authority to dictate that certain acts of murder — according to the criminal code — will no longer be treated as crimes? Or would that be an abuse of provincial power?

In my opinion, Quebec is rolling the dice, seeing what they can get away with. They are daring the federal government to try to stop them. The feds cannot, I think, just order Quebec to scuttle its plan. But they could challenge the province in court. If they did, I think they’d have a powerful case that Quebec’s law would encroach on federal authority to define what constitutes a crime.

But would Ottawa sue Quebec? The latter may be gambling on the Harper government’s lacking the stomach for an unpopular fight with Quebec which could engender sympathy among Quebecers for their separatist PQ government and trigger an anti-Conservative backlash in the next federal election.

Redefining killing as “medical aid in dying”

On the other hand, the Ménard Report suggests the Quebec government is fully prepared to do battle in court,13 and often reads like an advance pleading of its case. The main thrust of its argument is bold and devious: various criminal code provisions long understood as banning euthanasia and assisted suicide should no longer be understood as banning all such acts. Acts of “medical aid in dying” as Quebec proposes to allow should not be considered as violations of the code at all! In other words, we don’t have to necessarily amend the code, just reinterpret it to suit our purposes.

The report asserts that the traditional interpretation of the criminal code, as reflected notably in the Supreme Court’s Rodriguez 1994 decision against assisted suicide, is based on an outmoded, religiously-inspired notion of the sanctity of human life. Such an interpretation has now been superseded by a litany of recent jurisprudence on end-of-life matters in both Canada and abroad.

From this new, enlightened legal thinking, which the report lays out quite exhaustively, two crucial values are said to have emerged that must qualify our understanding of what comprises a crime: the dignity of life (as subjectively determined) and “decision-making autonomy” or “the right to personal self-determination”.14 These two values are “constitutional”, embedded in the Canadian Charter of Rights which takes precedence over, and colors every interpretation of, the criminal code. The code’s list of offences regarding end of life issues therefore need to be reinterpreted in a new light.

What would all that mean in practice, if the courts were to endorse Quebec’s position? Every legally competent person has a human right to decide the time and manner of death, and to use the means necessary to preserve human dignity. If a doctor aids such a person to die, he or she commits no crime. Legally, no homicide, murder or even assisted suicide takes place, as referred to in the code. Such acts, which the code may continue to prohibit, will now be understood as referring only to violations of autonomy and dignity, e.g. the unwanted killing of a competent person, or the unauthorized killing of a non-competent person.

Is Quebec’s audaciously revisionist approach to criminal law ingenious? Or a devious means to advance patient killing while calling it something else? Consider what the report states at its outset:

“To deal with the end of life while using the terms ‘take life, kill, suicide’ etc. does not correspond to a real situation. ..It is excessive and inappropriate to use these terms…To die with dignity does not mean to choose between life and death.”15

Does such a quote give us a glimpse into the near future — not only for Quebec but eventually the rest of Canada? A future where postnatal violence is legally sanctioned but verbally engineered into social propriety?

At our sports games and public events these days, as we sing O Canada and its stirring refrain, “We stand on guard for thee,” how many of will realize what is at stake?

Peter Ryan has worked full-time for the pro-life cause in Canada for 35 years. The executive director of New Brunswick Right to Life, he holds an advanced degree in ethics with a dissertation on euthanasia.

 

Endnotes

1 Transcription du point de presse de Mme Véronique Hivon, ministre deleguée aux Services sociaux et à la protection de la jeunesse [Press Conference],   http://www.assnat.qc.ca/fr/conferences-points-presse 15 janvier 2013.

2 Jean-Pierre Ménard, Michelle Giroux, Jean-Claude Hébert, Mettre en oeuvre les recommendations de la Commission Spéciale de l’Assemblée Nationale sur la question de mourir dans la dignité, [Ménard Report] http://assnat.qc.ca/rapport_comite_juristes_experts.pdf  Janvier 2013.

3 Ménard Report, pp. 232-235.

4 Ibid., pp. 350-389.

5 Ménard Report, Executive Summary, http://www.msss.gouv.qc.ca/resume_du_rapport.pdf,  p. 6.

6  Ménard Report, p. 356, emphasis added.

7 Press Conference, p. 14.

8 Ibid., p. 13.

9 Ibid., p. 10, emphasis added.

10 Ménard Report, p. 350.

11 Chantal Hébert, “Quebec gives life to idea of doctor-assisted death,” TheRecord.com 18 Jan. 2013.

12 P. Ryan, “Heaven Help Quebec,” LifeCanada Journal March-April 2012.

13 Ménard Report, see especially p. 300.

14 Ibid., see for example p. 289.

15 Ibid., p. 15.