All About Estates

Medical Assistance in Dying (MAiD) – An Update

Today marks a court-imposed deadline regarding legislative amendments to our laws on medical assistance in dying (“MAiD”). This topic, although heavy, has been important to me, particularly over the past year. As recently as the US election, someone close to me was scheduled for MAiD. As her date was approaching, the election results had not yet been determined. Everyone thought she was joking about cancelling or postponing her date to see the outcome of the election, but she was not. She did not want to pass before knowing whether Mr. Trump would continue as president. As a result, she postponed her date. In addition to her experience, I have had clients who requested MAiD and my grandma also went through with the procedure during the first lockdown back in March.

This blog will review the history of MAiD in Canada, from criminalization through to decriminalization, ending with an update on Bill C-7, the legislation to which today’s deadline relates.

MAiD – Judicial and Legislative History

Rodriguez  – Rodriguez v. BC AG (“Rodriguez”),[1] is a 1993 Supreme Court of Canada (“SCC”) decision, wherein the SCC held that the prohibition on MAiD was not unconstitutional. At issue was the constitutionality of s. 241(b) of the Criminal Code of Canada, which section provided: “Every one who… (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years”. Justice Sopinka, writing for the majority, found that there was no violation of s. 7 of the Charter. While s. 7 rights were engaged, as s. 241(b) “deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which [engages] impinges on the security of her person”, s. 241(b) did not violate any principles of fundamental justice, specifically as the major concern was protection of vulnerable persons.

CarterOver 20 years after Rodriguez, MAiD was legalized in the wake of the SCC decision, Carter v. Canada (“Carter”).[2] At issue again was s. 241(b) of the Criminal Code. The SCC held that s. 241(b) violated s. 7 and was not saved by s. 1 of the Charter. The SCC stated that a person who is “grievously and irremediably ill” has two options: “…she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.” The Court found that s. 241(b), and related sections, were overbroad as the goal was to protect vulnerable persons and the rights of people who were not vulnerable were being denied.

Bill C-14 – Almost 1.5 years after Carter, in June 2016, Parliament passed Bill C-14, allowing eligible Canadians to request MAiD. Bill C-14 amended the Criminal Code to, amongst other things, establish the requirements that must be met to be eligible for MAiD. The eligibility criteria are set out under s. 241.2 of the Criminal Code and include having a “grievous and irremediable medical condition”. Pursuant to s. 241.2(2) of the Criminal Code, to have a “grievous and irremediable medical condition” means, inter alia, that your natural death has become reasonably foreseeable. It is this last requirement that recently was held to be unconstitutional and which Bill C-7 addresses.

TruchonTruchon v. AG (“Truchon”),[3] is a Superior Court of Quebec decision, that considered the “reasonable foreseeability of natural death” requirement for accessing MAiD. Truchon lead to Bill C-7. The Court stated that if the SCC in Carter wanted to impose a connection between MAiD and being at the end of your life, “it would certainly have stated it explicitly”. The “cruel choice” noted by the SCC in Carter is not linked to terminal nature of illness.[4] Regarding rights to liberty and security, the Court stated that with the legislative requirements, people are “prevented from exercising this highly private decision-making autonomy that reflects their value and dignity as human beings”.[5] People do not control their physical integrity because the state forces them to endure prolonged pain or resort to death by other (often violent) means. The Court found s. 241.2 not to be in accordance with the principles of fundamental justice as the section is overbroad and disproportionate to its purpose of protecting vulnerable persons. Thus, the “reasonable foreseeability of natural death” eligibility criterion was found to be unconstitutional and the Court suspended the declaration of invalidity to allow the federal government to enact legislation to amend the Criminal Code. Such suspension was extended to today, February 26, 2021.

Bill C-7

Bill C-7 – Bill C-7 was introduced in response to Truchon. The Senate approved a version of Bill C-7 last week (February 17, 2021), however, amendments are ongoing. The Bill, amongst other things, likely will broaden eligibility for MAiD by repealing the federal criterion that natural death be reasonably foreseeable.

*This post is based on a presentation I gave today to Osgoode JD students, which presentation our articling student, Yvonne Mazurak, greatly assisted with.

[1] [1993] 3 SCR 519.

[2] 2015 SCC 5.

[3] 2019 QCCS 3792.

[4] Ibid at para 496.

[5] Ibid at para 553.

About Tamar Silverbrook
Tamar Silverbrook is an associate in the Trusts, Wills, Estates and Charities group at Fasken. Tamar’s practice is focused on domestic and international trusts, as well as wills and estate planning. Tamar works closely with clients and/or clients’ advisors to draft the appropriate documents to facilitate estate and business succession plans that fulfill clients’ unique objectives. This includes providing advice on probate planning, disability planning, charitable gifting, asset protection strategies, cross-border estates and tax issues, personal privacy, family law matters and the interpretation of trusts’ provisions and the corresponding scope of authority provided to trustees. Tamar also advises trustees in administrating a range of complex trust matters.

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