Medical Assistance in Dying: Finding a Balance

The debate continues

Medical Assistance in Dying: Finding a Balance

As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms it seems appropriate to contemplate one of the most significant Charter challenges in recent history. It is particularly apropos as the enactment of Bill C-14, SC 2016, c 3 (An Act to amend the Criminal Code and to make related amendments to other Acts [medical assistance in dying] [“MAiD”]), approaches its first anniversary.

The conclusion in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”), without question, touches every Canadian. Bill C-14 created an exception to homicide and assisted suicide to allow for MAiD in some circumstances. The debate continues, now shifting to who should have access to MAiD, but the centre of the debate remains the balance between individual autonomy and protecting the vulnerable.

Further consideration of whether MAiD will be available for advanced directives, for patients only suffering from mental disorder, and for mature minors is underway but in the meantime the first court challenge was filed in British Columbia only ten days after the Bill was passed. In Lamb v Attorney General of Canada (“Lamb”), the plaintiff challenges the constitutionality of three out of the four criteria Bill C-14 establishes for a grievous and irremediable medical condition. The Bill qualifies “grievous and irremediable medical condition” with terms like “incurable,” “advanced state of irreversible decline” and “the patient’s natural death has become reasonably foreseeable.” The claim in Lamb alleges these criteria infringe the ss. 7 and 15 of the Charter of Rights and Freedoms in a manner that is not saved by s. 1.

The Attorney General’s response to the claim in Lamb centres around the objectives of Bill C-14, which include protecting vulnerable individuals from being induced to end their lives in moments of weakness and recognizing the public health issue of suicide. The Attorney General pleads the declaration of unconstitutionality in Carter was only with respect to the absolute prohibition of assisted death. The Attorney General says the limits imposed by the eligibility criteria are connected to and not grossly disproportionate to the objectives of Bill C-14 and that any violation of ss. 7 or 15 is saved under s. 1.

In Quebec, the Health Minister recently announced the government would be looking at ways to broaden access to MAiD. Quebec will ask the courts to clarify the “natural death has become reasonably foreseeable” criterion, as a result of complaints from professionals that the language is too vague. This is not surprising given that even before the passing of the legislation, there was much debate in the public and in the Senate about what that criterion would mean in practice.

One might conclude that the issues that have arisen since the enactment of Bill C-14 were “reasonably foreseeable” when the government chose to deviate from the language used in Carter. Any clarification from the courts on the criteria required to qualify for MAiD would be welcome to all who consider Bill C-14. Further, the resolution of the Lamb action will be intriguing to watch as the weighing of values continues.