Success with MAID

In September 2019, the court ruled in Truchon that the criteria of “reasonably foreseeable death” contained in the federal MAID legislation, as well as “end of life” in the Quebec legislation, was unconstitutional. The Quebec Superior Court said the federal legislation violated sections 7 and 15 of the Charter, while the provincial legislation violated section 15.

The court initially gave both levels of government six months to amend their respective legislation - this grace period has since been extended to December 2020.

The CBA’s End of Life Working Group has long advocated for the MAID legislative framework to be consistent with the principles established by the Supreme Court in Carter. The restriction around “reasonably foreseeable death” was incompatible with that framework.

In October 2019, the CBA and CBA Quebec Branch joined forces to pursue a common position. The CBA End of Life Working Group wrote to the federal Justice Department while CBA-Quebec wrote to Quebec’s Deputy Justice Minister to express support for the Quebec Superior Court decision and to urge the federal and provincial governments to work together.

Neither the federal nor provincial government appealed the Quebec Superior Court decision. And the December 2019 mandate letter tasks Justice Minister David Lametti to “(L)ead an immediate and inclusive process, supported by the Minister of Health, to work with provinces and territories to respond to the recent court ruling regarding the medical assistance in dying framework.”

In January, the CBA working group participated in a ministerial roundtable to determine the legislative response to Truchon. In its Feb. 11, 2020 submission to government, the working group said, “We support the Quebec Superior Court’s decision and highlight its interpretation of Carter – that the essence of Carter is not proximity of death, but the prevention of intolerable suffering, as well as dignity and the autonomy of the person, for those who are capable to clearly consent to the termination of their life.”

Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), would remove the requirement for a person’s natural death to be “reasonably foreseeable” in order for them to be eligible for medical assistance in dying.

While this is a big win for eligibility, the matter isn’t completely settled because Bill C-7 introduces new procedural safeguards based on whether a person’s natural death is reasonably foreseeable.  In its submission after the bill was tabled, the working group noted, “The criterion of ‘reasonably foreseeable death’ has caused significant uncertainty and difficulty in practice and Bill C-7 does not give any guidance on how to apply it. We recommend that guidance be given to avoid confusion on which safeguards apply and ensure appropriate access to MAID.”