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Last rights

National revisits the debate surrounding assisted-suicide laws.

kite flying in the air

One way or the other, Canada may soon find itself as one of the sole jurisdictions in the world that allows doctors to assist their patients in dying. For how long is another matter.

The Quebec Government is scrambling to pass right-to-die legislation through the National Assembly in advance of an all-but-certain election call, in what is expected to be a near-unanimous vote on giving doctors the power to administer fatal dosages of medication for terminally-ill patients.

But dying on the order paper isn’t the only threat to the bill. Some lawyers are expecting the courts to quickly strike down the law, if passed, as an over-reach of the powers of the province.

The law is cleverly written, insofar as it tries to sidestep federal powers over criminal law.

Indeed, section 241 of the Criminal Code leaves little wiggle room. "Every one who: (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years," it reads.

Lawmakers are trying to get around that by omitting the word 'suicide' altogether. The bill frames the question as a health issue — the exclusive domain of the provinces — by referring to "medical aid in dying”.

"Except as otherwise provided by law, a person of full age who is capable of consenting to care may, at any time, refuse to receive, or withdraw consent to, a life-sustaining treatment or procedure; the refusal or withdrawal may be expressed by any means," reads the Quebec bill.

That's not going to fly, says Gerald D. Chipeur, a partner with Miller Thomson, in Calgary. He's a prominent opponent of right-to-die legislation, and he's convinced that the courts won't let Quebec slink around the very clear provisions in the Criminal Code.

"The Quebec legislation is an attempt to regulate the criminal act of homicide under the guise of healthcare legislation," says Chipeur. "Therefore the court will almost certainly strike it down as outside the jurisdiction of the province."

Chipeur says the top court has been perfectly clear: doctors cannot actively facilitate the death of their patients.

"In my view, we are making this whole debate very complicated by trying to trivialize it," he says.

Rodriguez v. British Columbia set the standard for that clarity, he says. The Supreme Court, in a 5-4 decision, found that the provisions violated neither s. 7, nor s. 12 of the Canadian Charter of Rights and Freedoms, which protects an individual's freedom from cruel and unusual punishment.

But that was in 1993. The current top bench has already proven that it's willing to reconsider its past decisions — notably, in late 2013, the Court reversed its stated position from its 1990 Prostitution Reference, when it struck down all of Canada's sex work laws in Bedford v. Canada.

The BC Civil Liberties Association, which brought forward Carter v. Canada, is counting on just that. The case originally made headlines in 2012 when the BC Supreme Court found s. 241 of the Criminal Code unconstitutional.

Elayne Shapray, who suffers from multiple sclerosis and is one of the nine challengers to the provision, spoke after the BC Supreme Court handed down its ruling: "My hope is that the Court will allow people in my situation who endure intolerable suffering from a variety of conditions to choose a peaceful, dignified death surrounded by loved ones and many friends. As the law now stands, I will be obliged to end my life without the assistance of a physician, and will have to act alone, while I still can,” Shapray said.

The BC Court of Appeal, however, reversed that in a split decision.

"The court of appeal said, without any doubt, that the analysis in Rodriguez is binding," Chipeur points out. He served as counsel for the interveners in the case who supported the prohibition.

Reading the tea leaves at the Supreme Court is never an easy task. In January it agreed to hear the case later this year, though it refused a motion to fast-track the appeal.

"The court must come to the conclusion that something has changed," Chipeur says. "And, in fact, something has changed."  Thanks to new and better painkiller medication, dying is now easier and less painful. "Medicine has outpaced the legal debate," he says.

That may go a long way in convincing the judges that the current prohibitions do not violate s. 12.

And, Chipeur points out, any patient who really wants to end their life, already can — they just need to refuse food and water, a decision doctor must respect, and can facilitate. It's in transferring the authority to a doctor, he says, that's dangerous.

Yet Canadians are widely supportive of legalizing doctor-assisted suicide. A Forum Research poll from 2013 provided to National shows nearly 65 per cent of the country is in favour of it.

That, says Margaret Somerville, a professor of law at McGill University, and director for the Centre for Medicine, Ethics and Law, comes from a misunderstanding of the current law.

"There's huge confusion in the public," she says.

Somerville and Chipeur, both noted opponents to legal doctor-assisted suicide, argue that Canadians are unaware that terminally-ill patients can currently die, if they so choose, but the doctor cannot actively help them — if so, they could be charged with murder.

And if the Supreme Court decides to refer the question back to Parliament, Somerville isn't sure it will make much of a difference.

"Parliament has voted on it relatively recently, and it was a pretty substantive defeat," she says.

The last time Parliament considered the issue was in 2010, when Bloc Québécois MP Francine Lalonde finally brought his long fought-for private member's bill to the floor. It was roundly defeated, 228 to 59.

Conservative Steven Fletcher, the country's first quadriplegic Member of Parliament, abstained for the vote. He rose on a point-of-order to explain his position.

"I believe, when all is said and done, the individual is ultimately responsible. I want to make this decision for myself, and if I cannot, I want my family to make the decision. I believe most Canadians, or many Canadians, feel the same. As William Henley said in his poem Invictus, 'I am the master of my fate: I am the captain of my soul.'"

Whether it's the National Assembly or the Supreme Court of Canada, the country is being thrust into that discussion again.

Somerville sums it up: "Is it ethically acceptable and should it be legally acceptable? That's all the debate is about."