Medical assistance in dying legislation unconstitutional, court rules

  • November 18, 2019

The Quebec Superior Court recently handed down a decision calling the criteria set out in both the federal and Quebec legislation for access to medical assistance in dying unconstitutional.

The federal legislation requires “reasonably foreseeable death,” while the Quebec law mandates the patient be at “end of life.” As the CBA End of Life Working Group points out, the ruling in Truchon v Canada 2019 QCCS 3792 (available in French only) states that the “restrictive criteria are incompatible with the principles established by the Supreme Court of Canada in Carter v Canada, and that the federal legislation violates section 7 and 15 of the Canadian Charter of Rights and Freedoms, while Quebec’s legislation violates section 15 of the Charter.”

The CBA has stated its support for the Carter decision and demonstrated its commitment to clarifying the law. Before the federal legislation was passed, the CBA’s End-of-Life Working Group expressed its concern that “(t)he qualifications that an individual be ‘in an advanced state of irreversible decline in capability’ and ‘that their natural death has become reasonably foreseeable’ were not specified in the Carter decision.”

Since then, the CBA has passed resolutions dealing with the law, including one urging the government to amend the Criminal Code to permit advance requests for medical assistance in dying, and has offered its assistance to the Expert Panel established by the government to study next steps.

Following the decision in Truchon, the End-of-Life Working Group has written to both the deputy Justice Minister  of Canada and the Quebec deputy Justice Minister to express its support for the ruling, and to urge the two governments to work together, and with the other provinces and territories to develop pan-Canadian eligibility for medical assistance in dying that align with the criteria set out in Carter.

Neither government appealed the decision within the appeal period.

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