The right to medical assistance in dying (“MAID”) for mentally competent adults in an advanced state of irreversible decline in capability who are experiencing enduring and intolerable suffering but not facing an imminent or reasonably foreseeable death, was recently debated before the Superior Court of Quebec (the “Court”) in the matter of Jean Truchon et Nicole Gladu v. PGC et PGQ1. In a judgment rendered this past September 11, Justice Christine Baudouin declared that the criteria of a “natural death [that] has become reasonably foreseeable” (“RFND”) in the Criminal Code (also referred to herein as the “Federal Statute”) and of “[being] at the end of life” in the Act respecting end-of-life care2 (the “Provincial Statute”) are contrary to the federal Charter of Rights and Freedoms (the “Charter”) and that the two respective provisions are unconstitutional.
A Langlois lawyers team made up of Sean Griffin, Véronique Roy, Raphaelle Alimi-Lacroix and Laurence Angers-Routhier represented two intervenors in the case, Dying with Dignity Canada and the Association québécoise pour le droit de mourir dans la dignité, in support of the constitutional challenge by the two plaintiffs, Mr. Jean Truchon and Ms. Nicole Gladu.
The Carter decision and subsequent amendments to the Criminal Code
In 2015 the Supreme Court of Canada declared that the blanket prohibition in the Criminal Code on medical assistance in dying infringed the right to life, liberty and security of the person guaranteed by the Charter. The Supreme Court unanimously held that MAID should be available to adults with the capacity to consent who have a grievous and irremediable medical condition causing them intolerable suffering3.
In June 2016, in response to the Carter decision, the federal government adopted section 241.2 of the Criminal Code, specifying the criteria for a mentally competent adult to be eligible for MAID. Among the criteria is that the individual’s “natural death has become reasonably foreseeable”. In other words, MAID was henceforth available to adults with a grievous and irremediable medical condition causing them intolerable suffering if and only if their natural death had become reasonably foreseeable.
In Quebec, in 2014, following extensive work by a provincial commission on end-of-life care, the government adopted the Act respecting end-of-life care, which also contained a criterion whereby MAID was only available to a mentally competent adult “at the end of life” who met all the other criteria.
Patients’ rights groups and the medical community were quick to criticize the criteria of “reasonably foreseeable death” and “being at the end of life” as overly restrictive and contrary to both the Charter and the principles established by the Supreme Court in Carter.
This was the context in which the plaintiffs, two adults suffering from major irreversible handicaps and experiencing intolerable suffering that did not however impact their life expectancy, filed a court action in 2017 seeking a declaration that the restrictive federal and provincial criteria are unconstitutional. The plaintiffs maintained that the Federal Statute and the Provincial Statute violated their right to life, liberty and security of the person guaranteed by section 7 of the Charter, as well as their right to equality guaranteed by section 15.
Dying with Dignity Canada and the Association québécoise pour le droit de mourir dans la dignité intervened in the file in support of the plaintiffs’ position.
As mentioned above, following Carter, the federal government chose to narrowly circumscribe access to MAID. To be eligible, a person had to meet the criteria under section 241.2 (1) of the Criminal Code, i.e. (a) be eligible for health services funded by a government in Canada, (b) be at least 18 years of age, (c) have a grievous and irremediable medical condition, (d) have made a voluntary request for MAID, and (e) have given informed consent to receive MAID. In subsection (2) of section 241.2 the government expanded on the criterion of a grievous and irremediable medical condition by imposing the additional criterion of a RFND.
None of the parties to the action contested the fact that the two plaintiffs met all the MAID criteria except that of a RFND.
The Court’s decision
The Court first noted that Carter laid the foundation for the legalization of MAID and that it was bound by the Supreme Court’s jurisprudence outlining the evolution of the principles of self-determination, personal autonomy and dignity.
The Court went on to point out that the criteria under Carter are clear: there is no temporal link between the provision of MAID and the imminence of death4. Nothing in the Supreme Court’s reasoning in Carter suggests that there is an association between the terminal nature of a medical condition and the intolerability of the victim’s suffering. Consequently, the restriction that the federal government imposed with the RFND criterion is clearly incompatible with the parameters laid down in Carter. However, the incompatibility of the federal legislative regime with the Supreme Court’s decision does not ipso facto allow it to be concluded that the RFND criterion is unconstitutional5. The Court therefore proceeded to analyze the constitutionality of the contested legislation in light of the Charter.
The Court found that the RFND criterion violates the plaintiffs’ right to life, liberty and security of the person, in a manner incompatible with the principles of fundamental justice.
The RFND criterion bars eligibility to MAID for all mentally competent adults who meet all the other eligibility criteria. Such individuals will thus be induced to end their lives in an often violent or degrading manner, or else eventually find themselves in a situation where they are facing death with a total loss of dignity. The RFND criterion effectively compels persons such as the plaintiffs to live with intolerable suffering due to a grievous and irremediable medical condition or to put an end to their lives in appalling and degrading conditions. By compelling them to do so, their right to life is thereby violated.
Their right to liberty and security of the person is also infringed by the fact that they are prevented from making a fundamental choice that respects their dignity, values and integrity. Because of the RFND criterion, the plaintiffs are deprived of their decision-making autonomy and consequently forced to endure intolerable and irremediable suffering6.
After reviewing the principles of fundamental justice, the Court concluded that the RFND criterion was excessive in scope and disproportionate to the purpose of the legislation, which is to protect vulnerable adults from the incentive to take their life at a time of weakness. The Court took the view that the restriction imposed by the RFND criterion has a disproportionately harsh effect on the plaintiffs.
The Court therefore concluded that the RFND criterion could not be saved by section 1 of the Charter, as it is not minimally impairing or proportional. The other eligibility criteria for MAID and the safeguard measures provided for in the applicable legislation are sufficient to achieve the statutes’ legislative purpose and protect persons deemed vulnerable.
The Court also concluded that the RFND criterion violated the plaintiffs’ right to equality guaranteed by section 15 of the Charter. For the criterion effectively gives rise to differential treatment on two levels: (1) a distinction based on the nature of one’s disability, and (2) a distinction based on the physical ability to take one’s life7.
On the first level, the RFND criterion effectively gives the right to MAID to those suffering from a grievous and irremediable medical condition and whose natural death is reasonably foreseeable, but denies that right to those suffering from a grievous and irremediable medical condition whose death is not imminent8.
On the second level, the differential treatment is based on the physical ability to take one’s life. For those who are physically incapable of taking their own life, like Mr. Truchon, the prohibition on MAID forces upon them a cruel choice: continue to endure intolerable suffering, suffer even more by stopping eating and drinking fluids, for example, or commit suicide9. The Court concluded that the RFND criterion imposes on them a [TRANSLATION] “legislative scheme under which suffering is supplanted by a temporal connection with death”10 and characterizes the link the legislature has established between the RFND criterion and the purported inherent vulnerability of persons with a handicap as paternalistic11. The Court rejected the automatic equating of the vulnerability of a person with his or her handicap. For the plaintiffs are fully capable of making fundamental decisions for themselves, but are nonetheless deprived of their rights, as the legislature a priori deems them vulnerable when it comes to making decisions concerning their condition. In the Court’s view, the RFND criterion effectively reinforces a stereotype regarding the capacity to consent on the part of the handicapped.
Based on the same analysis it used for section 7, the Court found that the infringement of the plaintiffs’ right to equality is not justified by section 1 of the Charter.
Finally, the Court analyzed the “end of life” criterion under the Quebec Statute and applied its reasoning regarding the federal criterion to it, mutatis mutandis.
The Court’s conclusions
The Court ultimately found in favour of the plaintiffs and the intervenors Dying with Dignity Canada and the Association québécoise pour le droit de mourir dans la dignité. It accordingly declared that the federal and provincial criteria at issue were unconstitutional. It suspended the application of the declaration of unconstitutionality for six months to allow the provincial and federal legislatures to amend their respective statutes, and granted a constitutional exemption to the plaintiffs, notwithstanding any appeal of its decision, to allow them access to MAID at the time of their choosing.
The Court’s decision gave back to the plaintiffs the right that had been recognized as theirs in the Carter decision in 2015. In a judgment respecting the constitutional principles laid down by the Supreme Court, Justice Christine Baudouin confirmed not only that the RFND criterion is nowhere to be found in the Supreme Court’s reasons for judgment in Carter, but that it violates rights protected by the Charter. It is too early to know how the Quebec and federal governments will react to this historic decision. In the event they do not appeal the Court’s judgment, they will have to amend the unconstitutional provisions before mid-April 2020.