Background
In the recent decision of Truchon c. Procureur général du Canada, 2019 QCCS 3792 (“Truchon”), the Superior Court of Quebec considered the constitutionality of Canada’s and Quebec’s requirements in accessing MAiD.
The plaintiffs in Truchon were each suffering from grave and incurable medical conditions causing tremendous suffering and a total loss of autonomy. However, they had each been refused MAiD under the Quebec legislation regarding end of life care as they were not “at the end of life”. They also did not meet the requirements of the federal Act to Amend the Criminal Code and to make related amendments to Other Acts (Medical Assistance in Dying) as the ends of their lives were not “reasonably foreseeable”.
The plaintiffs argued that the Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”) – the seminal case which legalized MAiD in Canada in certain situations – had not required that a person’s end of life be reasonably foreseeable in order for that person to qualify for MAiD. They further submitted that the legislated end of life requirement violates the right to equality under s. 15 of the federal Charter, as well as the right to life, liberty and security of the person under s. 7.
The defendant, the Attorney General of Canada, argued that the conclusions reached in Carter cannot be extrapolated to apply to the new federal legislation which was enacted after the decision. Further, the requirement of death being reasonably foreseeable allowed flexibility to doctors and nurses to take into account the total medical condition of the person wishing to utilize MAiD. The Attorney General of Quebec made similar submissions. Both Attorneys General maintained that the end of life prerequisites did not violate s. 7 or 15 of the Charter.
Access to MAiD
In order to access MAiD under the federal legislation, a person must:
(a) be eligible for health services funded by a government in Canada;
(b) be at least 18 years of age and capable of making decisions with respect to his or her health;
(c) have a “grievous and irremediable” medical condition, which requires that:
(i) the person has a serious and incurable illness, disease, or disability;
(ii) the person is in an advanced state of irreversible decline in capability;
(iii) the illness, disease or disability, or the state of decline, causes the person enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions the person considers acceptable; and
(iv) the person’s natural death is reasonably foreseeable;
(d) have made a voluntary request for MAiD, absent external pressure; and
(e) give informed consent to receive MAiD after having been informed of the means available to relieve their suffering, including palliative care.
Similarly, the requirements for accessing MAiD under the Quebec legislation are as follows:
(a) the person is an insured person within the meaning of Quebec’s Health Insurance Act;
(b) the person is of age and capable of consenting to care;
(c) the person is at the end of life;
(d) the person has a serious and incurable illness;
(e) the person’s medical situation is characterized by an advanced and irreversible decline in his or her abilities; and
(f) the person experiences constant physical or psychological suffering, which is unbearable and cannot be appeased under conditions that he or she considers tolerable.
Result in Truchon
Madam Justice Baudouin held in Truchon that the reasonably foreseeable natural death requirement of the federal provisions infringed the plaintiffs’ fundamental rights under ss. 7 and 15 of the Charter. The end of life requirement in the Quebec provisions similarly violated s. 15 of the Charter. The violations could not be justified under s. 1 of the Charter, and as such, the Court declared the impugned provisions unconstitutional and of no force and effect.
The Court allowed a six month suspension of its declaration of invalidity to afford the federal and Quebec legislatures time to amend the provisions. In the meantime, the plaintiffs were granted an exemption to be considered for MAiD even though they did not meet the current “reasonably foreseeable” and “end of life” requirements.
Summary of Analysis
The Court first considered the argument that the reasonably foreseeable death requirement in the federal legislation breaches s. 7 of the Charter, which guarantees the right to life, liberty and security of the person except in accordance with principles of fundamental justice. It held that the “reasonably foreseeable” requirement is in violation of s. 7. First, the provision was found to breach the right to liberty and security by prohibiting all non-dying persons from accessing MAiD, and often forcing people who would otherwise seek MAiD into either prolonging their lives of suffering or resorting to death by other degrading or violent means. Second, the provision was found not to be in accordance with the principles of fundamental justice since it is overbroad and disproportionate to its purpose of protecting vulnerable persons. Finally, the Court considered whether the federal provision could be saved by s. 1 of the Charter, which provides that rights contained in the Charter are subject to reasonable limits that can be demonstrably justified in a free and democratic society. On this point, the Court concluded that the federal provision more than minimally impairs the rights guaranteed by s. 7 and adversely affects suffering persons whose deaths are not reasonably foreseeable in a manner that outweighs the provision’s benefits to society. As such, the federal provision requiring that death be reasonably foreseeable was found to be in contravention of s. 7 and was not saved by s. 1.
The next issue was whether the reasonably foreseeable death requirement violates s. 15 of the Charter, which guarantees equality rights. The Court held that the provision creates a distinction between people based on physical impairment because it prevents persons who suffer from an illness that does not have the effect of making their death reasonably foreseeable from choosing to end their lives, while a person in a similar situation but whose death is closer in time can legally access MAiD. As with the s. 7 analysis, the Court found that the federal provision is not proportional to its objectives and does not minimally impair equality rights, and therefore the provision was found to violate s. 15 and was not saved by s. 1.
The Court then turned to the requirement under the Quebec legislation that a person who wishes to access MAiD must be “at the end of life”. For effectively the same reasons as the federal provision, this requirement was found to violate s. 15 of the Charter and was similarly not saved by s. 1.
The plaintiffs did not argue that the Quebec provision violated s. 7 of the Charter, and therefore the Court did not find it necessary to consider this point.
In light of the foregoing, the federal provision relating to the reasonable foreseeability of death, and the Quebec provision relating to end of life, were each declared inoperative and ineffective. As noted above, the Court suspended its declaration of inoperability for a period of six months from the date of judgment.
As of October 11, 2019, the limitation period for appeal expired without an appeal being brought by either party. As such, this decision is now binding, subject to the six month suspension.
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