The 2019 federal election just got more complicated, as the issue of medical assistance in dying (MAiD) has been thrust back into the news and onto the desks of government. In a landmark decision released on September 11, Quebec Superior Court Justice Christine Baudouin struck down part of the Criminal Code legislation regulating MAiD as contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The decision also struck down part of the Quebec MAiD legislation.

At the centre of the case are two Montrealers, Jean Truchon and Nicole Gladu. Together they argued that the federal MAiD legislation violated their rights to life, liberty, security of the person and equality. They are both struggling with medical conditions that cause intolerable physical and psychological suffering. Yet the nature of their diseases makes the likely timing and specific complications leading to their deaths difficult to predict. The Criminal Code requirement that death must be “reasonably foreseeable” forestalled their access to MAiD and left them with the options of continued suffering, trying to make their natural deaths become reasonably foreseeable by stopping eating and drinking, or ending their lives by suicide.

In 2015, the Supreme Court concluded in the Carter case that a criminal ban on MAiD violated the Charter by denying competent adults facing intolerable suffering the choice to die with medical assistance. In Carter, a unanimous Court required only that an individual be suffering from a “grievous and irremediable condition” that caused “enduring and intolerable suffering” that could not be relieved by means acceptable to the person. As is appropriate, the Court left it up to Parliament to craft detailed legislation that responded to the decision.

The government responded with Bill C-14, which continued to criminalize MAiD unless certain restrictive criteria were met (including that a person’s “natural death” must have become “reasonably foreseeable”). Bill C-14 was immediately called unconstitutional by the plaintiffs and lawyers who had prevailed in Carter and by numerous constitutional law experts. It was lamented as hopelessly vague by those tasked with regulating the conduct of physicians. Notably, the Senate sought to amend Bill C-14 before its passage to remove the criteria (including “reasonably foreseeable”) that senators saw as narrower than Carter and in breach of the Charter, only to have their efforts rebuffed by the government.

Canada’s commitment to a compassionate MAiD law now hangs in the balance. In the first three years that MAiD was available, almost 7,000 individuals availed themselves of the option. However, stories continued to surface of people who met all of the criteria for MAiD except for the requirement that their death was “reasonably foreseeable.” Frustrated patients, physicians, nurse practitioners and advocates argued that the suffering of capable adults and not death’s imminence or predictability should be the focus of a compassionate law. Baudouin agreed.

The judge suspended the implementation of her decision for six months to give the government time to respond (though Jean Truchon and Nicole Gladu were given immediate exemptions from the law). The Attorney General of Canada now faces a critical choice: a) appeal the decision and ask the Quebec Court of Appeal (and ultimately the Supreme Court of Canada) to rule on the constitutionality of the “reasonably foreseeable death” criterion; b) accept the decision and amend the legislation to immediately remove the unconstitutional requirement of reasonable foreseeability; or c) choose not to appeal and simply let the provision cease to be in effect in six months’ time.

There is no small irony in the fact that the current Attorney General, David Lametti, voted against the “reasonably foreseeable” provision of Bill C-14 when he was a backbench Liberal MP. He explained his vote to his constituents as follows: “As a professor of law in Canada for 20 years and a member of two Canadian Bars, I also worry about passing legislation that is at serious risk of being found to be unconstitutional. On these grounds, I was not able to give it my vote in good conscience.”

Clearly, when drafting its legislation, the government wanted to ensure that no one is coerced into MAiD and that vulnerable people will not rush to the conclusion that MAiD is their best option. However, it overstepped. It imposed a restriction on access to MAiD limiting the rights of competent adults experiencing enduring and intolerable suffering, but the government could not demonstrate the restriction was needed to protect “vulnerable persons…from being induced, in moments of weakness, to end their lives.”

As this election campaign proceeds, the Attorney General of Canada and all federal parties and candidates will need to be prepared to answer the following question: What will you do about MAiD in Canada? Do you support appealing Baudouin’s decision, or are you prepared to amend the legislation to respect Charter rights and to allow capable adults experiencing enduring and intolerable suffering to end that suffering at a time of their choosing?

We would argue that the decision should not be appealed. Baudouin provided a rigorous analysis of the empirical evidence about MAiD, both in Canada and in other permissive jurisdictions. She provided a persuasive analysis of the legal arguments about the constitutionality of the federal MAiD legislation. Her 770-paragraph decision is a damning indictment of the unnecessary cruelty of the “reasonably foreseeable” criterion.  Her decision is also consistent with the Supreme Court of Canada’s decision in Carter, the expert opinions of many constitutional law scholars, and the majority of the members of the Canadian Senate. To go through an appeal to the Quebec Court of Appeal and then to the Supreme Court of Canada is an indefensible use of human and financial resources and an unconscionable multi-year extension of the suffering of those who would qualify for MAiD but for the “reasonably foreseeable” criterion.

Further, we would argue that Parliament should not simply wait the six months for Baudouin’s declaration of invalidity to take effect. This is for two reasons. First, Baudouin’s decision would only have effect in Quebec. After six months, individuals could access MAiD in Quebec without their natural death being reasonably foreseeable but people in the rest of Canada could not access MAiD. Second, it would be intolerably cruel to force Quebecers whose Charter rights are being breached and who are experiencing intolerable suffering to wait for the inevitable removal of the “reasonably foreseeable” requirement.

Therefore, as soon as the House of Commons returns to work, the Attorney General should introduce the following amendment to the Criminal Code: “Section 241.2(2)(d) is repealed.” It really is as simple as that to make the Criminal Code consistent with the Charter and to realize the promise of Carter and now Truchon and Gladu.

Photo: Shutterstock/By OHishiapply

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Jocelyn Downie
Jocelyn Downie is a professor emeritus in the Faculties of Law and Medicine at Dalhousie University, member of the Dalhousie University Health Justice Institute, and adjunct professor at the Australian Centre for Health Law Research at Queensland University of Technology.
Daphne Gilbert
Daphne Gilbert is a professor at the University of Ottawa Faculty of Law, where she teaches criminal and constitutional law. She is vice chair of the board of Dying with Dignity Canada, president of Women Help Women, and vice chair of Fòs Feminista Canada. Her research focuses primarily on medical assistance in dying and reproductive health and justice.

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