May 9, 2014

Welcoming speech at the symposium of the Québec Society of Comparative Law

Corps

President,

Dean,

Distinguished speakers and participants,

Welcome and thank you for dedicating your time today to a fundamental and complex issue for which the contribution of comparative law is relatively recent but ever so crucial.

We are witnessing a social phenomenon that has grown consistently in the past few decades in Québec and the rest of Canada, and that is, the cry by various stakeholders for the right to die with dignity, and its corollary, their questioning of the validity of current positive law governing this issue.

The need for regulating the right to die with dignity is pressing given the risk that clandestine practices entail and the ensuing insecurity. It is precisely because of this insecurity that professionals, attorneys and physicians in particular, and here I am quoting Jacques Chevallier from in his 2008 work entitled L’État post-moderne,  “are demanding a legislative framework for setting the boundaries for legitimate practices.”

The fact that this matter has yet to be resolved has fostered and maintained effective practices, and the result has been that the legal framework lags far behind what is happening in the real world, because society has changed. For example, the sentences handed down by Canadian courts in cases of euthanasia and assisted suicide for some 20 years now have often been minimum sentences and at times, merely token gestures.

The theme of our symposium is even more relevant given the Premier of Québec’s recently announced intention to re-introduce Bill 52, the Act respecting end-of-life care, shortly after opening of the next legislative session. Its possible passage will provide the opportunity to begin preparing for its enforcement, and this is where legal expertise is absolutely necessary.

All of us are aware of the sensitivity of this issue which involves rational arguments and personal values and private beliefs alike.

We can—and must—ask ourselves about the proper contribution of the law because the new legislative framework in force will be vitally important. For those concerned, it will mean getting—or not getting—the medical treatment they require and want to receive. This is no trivial matter. Here the action of the law occurs upstream from medical care, and this makes the legislative aspect even more pivotal. This is the core issue we will be thinking and talking about this afternoon.

This raises the following legal questions that I would like to share with you:

  1. Since we are dealing with a person’s right to die with dignity, a new positive right to be introduced by Québec legislators, how could a third party legitimately oppose—for whatever reason—respect of the person of full age’s right which he or she freely consented to?
  2. Again, since we are dealing with respect of a person’s right to die with dignity and the strict criteria that would govern this right, how far is the legislator required to go in making it possible to restrict enforcement of the Act, given that this right is not an obligation for anyone and, furthermore, is subject to the capacity of the person to give his or her free and informed consent? In other words, what would enable opponents to legitimately prevent someone from exercising this right?
  3. On a question of such importance and—let’s be honest—one on which there will never be unanimity, should law-makers seek social consensus before putting pen to paper? If they don’t, won’t they be putting the power to act—or not to act—in the hands of physicians and in the realm of conjecture?

These are a few questions that I believe will benefit from being examined through the lens of comparative law.

And now I will give the floor to our speakers, who will address these issues head on from various theoretical and applied angles of the law, whether legislative, human rights, criminal or common law. We will also be hearing from two experts who will describe the situation in Belgium and France and how it is evolving.