Lawyers say law has become less restrictive, but their clients hope it continues to evolve
The law on medical assistance in death is slowly evolving. This year, after a Quebec Superior Court found the current law unconstitutional, the federal government introduced new legislation: An Act to amend the Criminal Code (medical assistance in dying). But there is still a gap between what clients are asking for in their end-of-life arrangements and what the law according to the new amendments will allow, say estates lawyers.
Canada has moved in “baby steps” toward medical assistance in death, says Matt Trotta, a Calgary-based tax, trusts and estates lawyer at Field Law.
“We're getting there slowly. We're moving more toward what other countries have been doing for a while. . . . I think we're on the right track,” he says. “And I think it's a positive change.”
Section 241(b) of the Criminal Code makes it an indictable offence to “counsel,” “abet” or “aid” a person in dying by suicide. Section 14 of the Code makes it a crime for a person to “agree to have death inflicted on them.” Up until 2016, these provisions forbade medical assistance in death.
But the year before, in Carter v. Canada, the Supreme Court of Canada found these restrictions were contrary to s. 7 of the Charter, which provides for the right to life, liberty and security of the person. The justices decided that denying a competent adult who “clearly consents to the termination of life” and suffers from a “grievous and irremediable medical condition” the right to decide their fate affronted their liberty by interfering with their “bodily integrity.” Security of the person was compromised through forcing terminally ill patients to undergo intolerable suffering, they said. The court also reasoned that the laws deprived some people of life by forcing them to take their own, prematurely, before their conditions worsened to the point that they’d be incapable of doing so.
The SCC decision was counter to its previous ruling from 1993 — Rodriguez v. British Columbia — which, the court in Carter said, upheld a “blanket prohibition” on medically assisted death. The change was due to a shift in the “legal conception” of s. 7 — including the advance of the law relating to the principles of overbreadth and gross disproportionality — as well as a new “matrix of legislative and social facts,” said the SCC in the Carter decision.
Carter forced the feds to act. In 2016, the Liberal government passed amendments to s. 241, adding an exemption for medical professionals providing medical assistance in death. Since then, several Charter challenges have emerged contending aspects of the legislation and deeming it still too restrictive. On Feb. 24, the federal government announced the introduction of a bill amending the law on medical assistance in death. The feds say their proposed amendments stem directly from the September 2019 Quebec Superior Court decision Truchon c. Procureur général du Canada.
In Truchon, the plaintiffs — Jean Truchon and Nicole Gladu — had been denied medical assistance in death because they fell short of both the federal requirement of having a “reasonably foreseeable death” and the requirement under Quebec’s legislation that they be at the “end of life.” They argued that Carter did not require a person be facing imminent death to qualify and such a requirement was counter to their s. 15 right to equality and s. 7 rights. Justice Christine Baudouin agreed, declaring the 2016 Criminal Code amendments of no force an effect. Truchon and Gladu were given an exemption to the reasonably foreseeable and end-of-life requirements.
In response to Truchon, among the proposed changes announced in February is the removal of the requirement that a person be facing a “reasonably foreseeable” death to be eligible, as well as the inclusion of a waiver of final consent for those near death and at risk of losing capacity for consent.
“The situation that unfortunately I've seen a couple times is where you have a client that is seeking medical assistance in dying, they go through their assessment, they go through their waiting period and then, by the time it comes down to giving their final consent, they're already too far gone to do that final consent,” says Trotta.
He says the new legislation has provided some clarification to medical practitioners.
“This new bill does have a waiver of final consent and a test on how that works. And I think that's a really important addition because it's a big concern for a lot of people who get diagnosed with Alzheimer's or some sort of neurological degenerative issue. . . . How long do I have to be able to make these decisions? And what happens if I'm too late?”
But for those who want to plan for the unknown, who may have a family history of a degenerative illness but no personal diagnosis, the proposed changes still lack the provision of advance directives, says Trotta.
“I think I will have some clients that will be a bit disappointed that it didn't go far enough and they didn't really want to tackle some of the some of the bigger issues that others countries handle such as advanced decision-making,” he says.
Trotta says advanced directives will be the “next battlefront” in the fight for fewer restrictions in medical assistance in death, noting that it’s permitted in other countries.
Torkin Manes LLP partner Risa Awerbuck says that, although not yet legally binding, she will put provisions in powers of attorney for personal care that indicate that, if the client is diagnosed with an intolerable illness in the future, they want medical assistance in death. She says she includes this in case the legislation changes in the future, but at the moment it has no legal effect.
“Based on how the legislation is drafted, you can't do anything unless you've been diagnosed,” says Awerbuck, whose practice focuses on estate planning, including the preparation of wills, powers of attorney and trusts and estate administration.
Bruce Hallsor, managing partner at Crease Harman LLP in Vancouver, says many of his clients are concerned with their ability to prevent an end-of-life scenario in which they languish in an institution, suffering for a long period of time with no quality of life and no hope for recovery.
“They want to be able to have control over that,” he says. “Obviously, as lawyers, we're always cognizant of people with disabilities, especially mental disabilities and how much capacity they have to make those choices. I think most estate lawyers will have encountered situations where grandma's got a lot of money, and the next generation wants the money more than they want grandma.”
Estates lawyers always need to be vigilant against undue influence, says Trotta. The new legislation brings in the concept of an “independent witness” — which can be the person’s health-care or personal worker, he says.
“There's always a risk and whether you're looking at something like medical assistance in dying or you're looking at estate planning generally, there's a lot of things that can happen behind the scenes that people don’t see. And it's very difficult and it's always something that we have to be vigilant about,” Trotta says.
Journey through the courts
1993 Rodriguez v. British Columbia: SCC dismisses application s. 242(b) of Criminal Code — banning assisted suicide — is invalid on Charter grounds. Medical assistance in dying remains illegal
2015 Carter v. Canada: SCC rules s. 242(b) is contrary to s. 7 of Charter, protecting right to life, liberty and security of the person
2016 Parliament of Canada passes federal legislation allowing eligible Canadian adults to request medical assistance in dying
2019 Truchon v. Procureur général du Canada: Quebec Superior Court rules requirement of a candidate for medical assistance in death be facing a “reasonably foreseeable death” was unconstitutional and of no force and effect
2020 (February) Federal government proposes An Act to amend the Criminal Code (medical assistance in dying), to make Canada’s medical assistance in death laws Charter-compliant.
Medical assistance in death is becoming more frequent
Dec. 2015-Dec. 2016: 970
Jan. 1-June 30, 2017: 1,179 (46% increase from first six months legislation was in effect)
July 1-Dec. 31, 2017: 1,525 (26% increase over first six months of 2017)
Jan. 1-Oct. 31, 2018: 2,614
- From enactment of medical assistance in death legislation in 2016 and the last interim report — released in April, 2019 — 6,749 Canadians ended their lives with medical assistance
Most common underlying medical conditions: #1: Cancer. #2: Neuro-degenerative illness. #3 Circulatory/respiratory illness.