Is Quebec defying the law by moving ahead on MAID?

In early September, after the Quebec government announced that it would start granting advance requests for medical assistance in dying, journalists asked Patrick Michel, the province’s director of criminal and penal prosecutions, whether it was acting outside the law.

The provincial government had previously indicated that it would wait until the federal government amended the Criminal Code to protect healthcare professionals from criminal charges for ending the life of someone no longer able to give consent. Despite making multiple requests to that effect, the province said the feds have refused to budge.

So, does the decision to move ahead without those changes mean the province is defying the law?

“We’re a law enforcement agency, so we have to take it for granted that the provincial law is valid, and we’ll take that into account in our decisions,” Michel told The Canadian Press.

That answered a question — but not the question that was asked.

In announcing that it will permit advance requests for medical assistance in dying (MAID) starting Oct. 30, Premier François Legault’s government is moving broadly in line with public opinion.

A July 2023 Ipsos poll recorded 82 per cent support across Canada for allowing people to arrange MAID before their deteriorating condition renders them unable to grant consent.

The decision also appears to have some backing among medical and legal professionals. Quebec's College of Physicians voiced its support for the move on social media while criticizing the federal government.

"We deplore the fact that Ottawa has not yet amended the Criminal Code to authorize this well-established procedure, which has consensus in Quebec,” the college wrote.

The head of the Order of Quebec Nurses also applauded the province’s decision and called on the federal government to “quickly join the broad Quebec consensus.”

Shelley Birenbaum, chair of the Canadian Bar Association’s end-of-life working group and a Toronto-based specialist in health law, praised Quebec for being a “trailblazer” on MAID.

“We are pleased to see some progress in this area,” she says. “What troubles us is how long it is taking the federal government to address advance requests.”

She noted the federal government has been studying three issues for nearly a decade — advance requests, MAID for mature minors, and MAID for mental illness — and the pace of progress is too slow.

“The working group supports all these three areas, with appropriate safeguards.”

Frédéric Bérard, a constitutional law professor at the Université de Montréal, argues that public support for advance requests is entirely beside the point.

“As long as the Criminal Code is not amended, Quebec has no right in law to do this,” he says.

“The Supreme Court has clearly stated that the federal government and provincial governments have their own spheres of competence when it comes to MAID. The province administers the health system, but the federal government is responsible for criminal law.

“In other words, the province is acting outside the Constitution.”

Right now, the Criminal Code states that a healthcare worker delivering MAID must give the patient an opportunity to withdraw their request and ensure that they give their “express consent” right before administering the procedure.

Quebec proposes to get around that section of the legislation by asking Michel’s office not to prosecute health professionals who deliver MAID in line with provincial law.

Patrick Taillon, a law professor at Université Laval, doesn’t see an issue.

“Who lays the charges? It’s the Quebec state. And if the Quebec state says, through a directive … that when it respects our laws, we won’t ever lay charges, then there will be no problem,” he told the Canadian Press.

The Canadian Medical Protective Association (CMPA), a not-for-profit that provides legal defence, liability protection and risk-management education to Canadian doctors, isn’t so sure. In a statement, it said Quebec’s legislation has created “a challenging situation for MAID practitioners in Québec.”

The group points out that the provincial government’s changes to prosecutorial guidelines “state that it is not in the public interest to authorize” criminal charges against a MAID practitioner “if the analysis of the evidence … establishes that MAID was provided in compliance with the person’s free and informed wishes” and provincial law.

“CMPA is … working actively with stakeholders, including the Ministry of Health and the Collège des Médecins du Québec, to identify and reduce the risk to physicians at a criminal, civil and regulatory level,” the group said.

“As the discussions are ongoing, the CMPA is not yet able to fully quantify that risk.”

Berard says that risk is still very real.

“As premier, Legault does not have control over Crown prosecutors. They’re not part of his department of justice. They’re independent,” he says.

“The directive is unconstitutional. This is not a joke. You’re fooling around with the rule of law here. It’s the basis of democracy itself — without it, you don’t have democracy.”

Trudo Lemmens, holder of the Scholl Chair in Health Law and Policy at the University of Toronto, says that while he thinks Quebec medical professionals should feel safe from prosecution over advance requests, the Quebec government is crossing a red line.

The move undermines the coherence of criminal law in this country — coherence in an area of law where Charter rights are in conflict.

“The practical effect is to impose an impossible burden on doctors, nurses and loved ones,” he says.“I think the Quebec government is grossly underestimating the difficulty of determining the life-and-death wishes of someone who can’t communicate.”

When questioned about advance directives in early September, Michel said provincial prosecutors would continue to enforce the provincial law until the federal government intervenes. So far, it hasn’t.

“The federal government would have to challenge the legality of the law, then convince a judge to suspend the application of the law while the court ruled on the validity of the provincial law,” Michel said.

“Otherwise, the law is presumed valid until it is invalidated, or a court suspends its application.”

So, why hasn’t Ottawa stepped in? Berard points to politics.

“Look, there is a strong consensus in Quebec that the conversation about MAID is over. But that doesn’t matter. We live in a constitutional state,” he says.

“You want the candid answer? The Trudeau government is scared of a fight over a principle. Me, I don’t really care about the politics. I care about the rule of law.”