Quebec Court of Appeal Overturns Ruling on Bill 52

In D’Amico et Saba c Procureure général du Québec, the Court of Appeal of Quebec overturned the Superior Court’s finding that Quebec’s law is inoperative under the doctrine of paramountcy. The Court of Appeal reasoned that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, but the federal assisted suicide law violates the Charter.  

CLF was granted intervener status in this constitutional challenge to Quebec's euthanasia legislation (Bill 52 - An Act Respecting End-of-Life Care). CLF raised the concerns of faith-based health care institutions and medical professionals about participating in euthanasia or assisted suicide. CLF also spoke to the issue of paramountcy, in support of similar arguments advanced by the parties challenging Quebec’s law (a physician and a woman with a disability) and (initially) by the Attorney General of Canada.

On December 1, 2015, the Superior Court of Quebec declared that portions of the Act purporting to authorize “medical aid in dying” were inoperative because they flagrantly contradict Criminal Codeprohibitions that remain in force. This is known as the doctrine of paramountcy.

The Attorney General of Quebec appealed. The appeal was heard by the Quebec Court of Appeal on December 18. Bob Reynolds, President of the Board of CLF, acted as counsel on the intervention. At the Court of Appeal hearing, Canada reversed its position on paramountcy and supported Quebec’s appeal.

At the Court of Appeal hearing, CLF defended the Superior Court’s judgement on both substantive and procedural grounds. CLF argued that the doctrine of paramountcy must apply in this case to resolve the obvious conflict between portions of Quebec’s law purporting to require “medical aid in dying” to be provided to qualifying persons and Criminal Code provisions which prohibit the same, and that such an outcome was in keeping with the public interest.

The Quebec Court of Appeal overturned the Superior Court’s finding that Quebec’s law is inoperative. The Court of Appeal stated that the court below was wrong on paramountcy. Its reasoning was that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, which is indeed true. But the Court of Appeal reasoned further that the federal law, though it remains in force until at least February 6, 2016 (and possibly longer if the extension requested by the federal government is granted, see intervention in Carter below), is not really “valid”, since it was declared invalid in Carter.

In the view of CLF’s in-house legal team, Derek Ross and John Sikkema, this decision is a problematic one, as they explain:

"In our respectful view, this decision confuses the issue of validity. The reason paramountcy is said to apply only where two valid laws are in place is because it takes two operative laws to have a conflict of laws. Often, in federalism disputes, it will be argued that one or both of the federal and provincial laws in question are ultra vires the enacting body. If one of the laws is ultra vires, it is no longer a law because there was no authority to enact it. There is then only one law, meaning there can be no conflict of laws.

The Quebec Court of Appeal takes the term “validity” as it appears in paramountcy jurisprudence and applies it to Criminal Code provisions that have been declared partially invalid under the Charter of Rights and Freedoms. However, the declaration of invalidity in Carter was suspended for a year. The criminal law provisions currently remain in force. The conflict with Quebec’s law is therefore real and obvious. The reason paramountcy does not apply in cases where one law is invalid is because it isn’t needed—the finding of invalidity or ultra vires eliminates any conflict. A declaration of ultra vires, unlike a declaration that a law violates the Charter, is never suspended but takes effect immediately, meaning the apparent conflict disappears immediately. That is plainly not the case here.

The Quebec Court of Appeal also says (at para. 37) that Quebec’s law fills the legal vacuum left byCarter. The ruling implies that the provinces can fill gaps in the criminal law resulting from a Charterruling, even while criminal law provisions still remain in force. It implies that physicians in Quebec can ignore the criminal prohibitions on assisted suicide and euthanasia because Quebec has legislated on the matter. In essence, it turns the doctrine of paramountcy on its head by making Quebec’s law paramount over federal laws that remain in force."

The Quebec Court of Appeal ruling can be found here (in French).

It is not yet known whether the parties will appeal. CLF will keep its members informed of any further developments.