Mind the Gap: Regulating End-of-Life Care in a Federation

Tomorrow, the Supreme Court of Canada hears a challenge to the federal criminal law prohibition on assisted suicide: Carter v. Canada. This law was upheld narrowly in 1993 (Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519), but the Court is being asked to take a fresh look in light of changed circumstances. For the most part, attention has focused on the human rights dimension: do restrictions on end-of-life care infringe the life, liberty and security of the person protected by s. 7 of the Charter in a way inconsistent with fundamental principles of justice (such as arbitrariness, gross disproportionality and overbreadth)? Quebec has raised an interesting federalism issue and argues — with some nuances — that the federal government cannot prohibit assisted suicide at all.

Quebec’s argument is based on the doctrine of interjurisdictional immunity. Over the years, the Court has occasionally recognized that some areas of federal regulation are immune from interference by provincial governments. In its more recent iterations, the doctrine is said to block the application of provincial legislation that “impairs” the “core” of a federal power. Heretofore, the doctrine has only benefited the federal government: the Court has never blocked federal law from applying in a provincial area of regulation. Nonetheless, logic suggests that the doctrine ought in principle be capable of applying in the other direction.

In this case, the province has the competence to regulate matters of health care. Quebec argues that end-of-life care falls in the “core” of health care and is impaired by the criminal law prohibition. Indeed, Quebec has passed a law providing for assisted suicide in certain conditions, though it is likely to have little impact as long as the federal prohibition remains in the Criminal Code.

Quebec faces two serious difficulties. First, a similar argument was rejected by the Court in Canada (Attorney General) v. PHS Community Services Society, [2011] 3 SCR 134 in the context of the Insite safe injection site operated in Vancouver:

[68]                          [T]he claimants in this case have failed to identify a delineated “core” of an exclusively provincial power.  The provincial health power is broad and extensive.  It extends to thousands of activities and to a host of different venues.  Such a vast core would sit ill with the restrained application of the doctrine called for by the jurisprudence. To complicate the matter, Parliament has power to legislate with respect to federal matters, notably criminal law, that touch on health…The federal role in the domain of health makes it impossible to precisely define what falls in or out of the proposed provincial “core”.  Overlapping federal jurisdiction and the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread.

[69]                          [A]pplication of interjurisdictional immunity to a protected core of the provincial health power has the potential to create legal vacuums.  Excluding the federal criminal law power from a protected provincial core power would mean that Parliament could not legislate on controversial medical procedures, such as human cloning or euthanasia.  The provinces might choose not to legislate in these areas, and indeed might not have the power to do so.  The result might be a legislative vacuum, inimical to the very concept of the division of powers.

Quebec’s main response is to attempt to delineate end-of-life care more carefully than the parties in Insite delineated the provision of safe injection facilities. After all, the logic of interjurisdictional immunity is that every provincial power has a core; end-of-life care may well fall within it.

More radically, Quebec recognizes the risk of creating a ‘legal vacuum’: the other provinces have not regulated end-of-life care and if the criminal law prohibition were held to not apply by virtue of interjurisdictional immunity, there would be no statutory safeguards in place. Accordingly, Quebec argues that interjurisdictional immunity should apply only where a provincial scheme of regulation is in place. Plainly, this departs from jurisprudential orthodoxy: if something is in the “core”, it does not matter whether it is regulated or not. But recently the Court has seemed uncomfortable with orthodoxy in the area of federalism, so may well take up Quebec’s invitation.

For my part, I would put the point slightly differently: how can a federal law “impair” the “core” of a provincial power if there is no regulatory scheme in place? There is arguably no “core” and there is certainly nothing to “impair”. The careful delineation the Court cried out for in Insite is something like this: end-of-life care regulated by a comprehensive provincial scheme.

It is worth pointing out that, if the Court does take up the interjurisdictional immunity option offered by Quebec, it can avoid several thorny questions, including whether it can legitimately call into question its 1993 decision. Innovation in the area of interjurisdictional immunity would be less dramatic but may be the more palatable option.

This content has been updated on October 14, 2014 at 08:39.