Does Natural Death Have to be Reasonably Foreseeable for One to Qualify for Medical Assistance in Dying?

By Paul Tonita

Introduction

I have been following the evolution of medical assistance in dying in Canada since before the Supreme Court of Canada released its reasons for judgment in R v Carter, 2015 SCC 5, widely referred to simply as the Carter decision. Following the Carter decision, the federal government amended the Criminal Code in 2016 to permit medical assistance in dying (“MAID”) in certain circumstances. These amendments were praised by some and criticized by others from the moment they were enacted. Some argue that they go too far and put certain vulnerable individuals at risk while others argue that they are too restrictive.

The recent case of Truchon c Procureur général du Canada, 2019 QCCS 3792, is the latest challenge to the MAID laws in Canada. The Court struck down the requirement that natural death be “reasonably foreseeable” on the basis that it violates both sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) and cannot be saved under s. 1. The Court in Truchon also considered breaches to the Charter under a provincial law in Quebec relating to MAID. Though that part of the Truchon decision is important to those residing in Quebec, I will limit this article to the impacts on the federal law.

Through the 770-paragraph decision, Madam Justice Baudouin includes a great deal of history regarding MAID in Canada, sets out the evidence of the numerous experts and others who testified at trial, considers data from several jurisdictions and explains in detail her analysis and decision.

I am greatly simplifying matters in this article and this should not be considered an exhaustive summary of the Court’s decision.

Facts, Argument and Analysis

There are two applicants in this case. Mr. Truchon and Ms. Gladu. I will not go through the details of their medical conditions, but it is important to note that they both have very serious conditions that impact every part of their lives. Mr. Truchon was 51 years old at the time of the trial and was born with a condition that left his entire body, other than his left arm, paralyzed. In 2012, his condition worsened, and he lost the use of his left arm, becoming completely paralyzed. Notwithstanding his condition, until 2012 he lived a full and independent life. Some examples include that he obtained an undergraduate degree, was involved in wheelchair ball hockey, played chess regularly and swam. However, since 2012, when his condition worsened, he has been in constant pain and can no longer live alone.

Ms. Gladu was 73 years old at the time of trial. She is partially paralyzed and has severe scoliosis. She completed an undergraduate and master’s degree, was a journalist for Radio-Canada, a press secretary at the United Nations and director of communications for the Quebec delegation at the UN. However, her condition also worsened over the years and she now lives in constant pain which is not alleviated by medication.

Importantly, both Mr. Truchon and Ms. Gladu meet all the requirements for MAID other than their deaths being reasonably foreseeable.

As mentioned above, the Truchon decision goes through a great deal of the history and evolution of MAID in Canada. While I find this fascinating, I will not go through it, to keep this article a reasonable length. The current law includes several conditions that must be met before one can qualify for MAID. I will not set them out here, but they are found in sections 241.1 to 241.4 of the Criminal Code. The one at issue in Truchon is s. 241.2(2)(d) which says that in order to qualify for MAID, “their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”

Both the federal government’s evidence presented regarding the evolution of MAID and its arguments at trial, demonstrate its view that the restrictions and conditions set out in the law in order to quality for MAID are included to protect vulnerable people.

However, the applicants presented evidence to rebut the federal government’s contention that the requirement that death be reasonably foreseeable does protect vulnerable people. One of the applicant’s experts, a specialist in family medicine and palliative care, was critical of the concept of “reasonably foreseeable” death. He explained that physicians do not know what is meant by that term, that it is impossible to interpret and has no medical or clinical significance.

The Court did not accept the argument that the requirement that death be “reasonably foreseeable” was necessary to protect vulnerable populations. In the Court’s view, such a requirement would prohibit MAID for an entire group of handicapped people because of their handicap.

The federal government also provided evidence from experts that the reasonably foreseeable death requirement minimizes the risk of suicide. However, Madam Justice Baudouin accepted the applicant’s evidence which included testimony from experts and documentary evidence from the American Association of Suicidology. She noted that none of the federal government’s experts had any knowledge of the practice of MAID in Canada since its legalization in 2016. None of them had been involved with a request for MAID; nor had any of them conducted research on the topic or even considered the available statistics and accordingly their analyses were too theoretical.

The evidence accepted by the Court demonstrates that suicide and MAID should properly be considered two different realities. People who request MAID are not generally suicidal. One of the sources of confusion is that MAID is sometimes referred to as assisted suicide. The American Association of Suicidology set out 15 differences between suicide and MAID and the Court pointed out 6 of them including that people with a terminal illness do not necessarily want to die, in fact they typically want desperately to live but cannot do so as the disease will take its course. In contrast, suicide typically stems of seemingly unrelenting psychological pain and despair and the person cannot enjoy life or see that things may change in the future.

Over the past number of years, the discussion on this topic often included reference to “assisted suicide” or to “physician assisted suicide”. While those terms seem to have fallen out of favour among the legal and medical communities following adoption of the amendments to the Criminal Code in 2016, it will likely to take longer for the general public to fully appreciate the distinction between MAID and suicide.

Constitutional Results

The Court held that the requirement that death must be reasonably foreseeable in order to be eligible for MAID contravenes s. 7 of the Charter, which guarantees the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. This requirement violates the right to life as it has the effect of forcing certain people to take their lives prematurely because they are worried that they will be incapable of doing so once their suffering becomes too agonizing. Though that would be enough to end the analysis, the Court also held that the reasonably foreseeable death requirement also contravenes the rights to liberty and security of the person. These contraventions are not in accordance with the principles of fundamental justice and accordingly run contrary to s. 7 of the Charter. These breaches of the Charter cannot be justified under the saving provision set out in s. 1 of the Charter as the requirement of a reasonably foreseeable death is an excessive response that is disproportionate to the purpose of the law. Definite similarities to the analysis in the Carter decision emerge in the reasoning under s. 7 in Truchon.

The Court held that the reasonably foreseeable death requirement is also contrary to s. 15 of the Charter which guarantees the right to equality. Interestingly, while the trial judge in Carter considered s. 15, the Supreme Court of Canada disposed of the decision based on s. 7 and did not consider s. 15. The federal government argued in Truchon that there is no inequality with the reasonably foreseeable requirement in part because those whose death is not reasonably foreseeable can choose to stop eating and drinking. This argument struck me as being completely outrageous. As I read on a few more paragraphs, I was happy to see that the Court was not impressed with that argument either. Madam Justice Baudouin stated that such an argument is contrary to common sense and would force people like Mr. Truchon and Ms. Gladu to choose between suffering, suffering more or committing suicide. In my view, that could not have been the federal government’s intention. The Court held that the breach of s. 15 could not be justified under s. 1 either.

What’s Next?

Madam Justice Baudouin declared that the requirement that death be reasonably foreseeable is unconstitutional and therefore inoperable. However, she has provided the federal government with a 6-month period to amend the law. During this period, while the current law on MAID remains valid, Mr. Truchon and Ms. Gladu may apply for MAID and are exempt from the requirement that death be “reasonably foreseeable”. If the federal government does not act within the 6-month period, the requirement that death be reasonably foreseeable will be simply removed as a requirement from applications for MAID as of March 11, 2020.

This decision may very well be appealed. Interestingly, this falls during a federal election, as did the impacts of the Carter decision. Accordingly, once sworn in, the new government will need to act quickly.

For those of you who are interested, the full reasons for judgment are available here. Madam Justice Baudouin did mention at the end of her reasons for judgment that given the possible implications of her decision across Canada, an English version of the reasons for judgment will be produced. At the time of writing this article, only the original French version was available.


Paul Tonita is a solicitor practicing in the areas of business law, real estate, estate planning and estate administration.  His business experience includes assisting clients right from the beginning by discussing the different business structures, incorporating, buying and selling businesses, assisting with lending or financing needs, drafting and advising on contracts, and providing general advice to business owners.

His real estate practice involves assisting both residential and commercial clients with purchases, sales, financing and leasing.

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

For more information please contact Paul Tonita at 250-869-1126 (direct line) or email him at tonita@pushormitchell.com.