Challenging the Quebec End-of-Life Legislation and Medically-Assisted Dying in Truchon

• Author: Patricia Hughes
• Date: September 17, 2019

In Truchon c. Attorney General of Canada, 2019 QCCS 3792 (CanLII), a decision of the Quebec Superior Court, The Honourable Christine Baudouin, JCS held that the end of life requirement under section 26 of Quebec’s End-of-Life Care Act and the “reasonable foreseeability of natural death” requirement under the Criminal Code‘s medically-assisted death requirement are both unconstitutional as contravening section 15 of the Canadian Charter of Rights and Freedoms (and that the federal provision contravenes section 7; she did not consider whether the Quebec provision contavened section 7). The facts underpinning the challenges were the same. Nevertheless, should the provisions be analysed the same way and lead to the same result?

The plaintiffs in the case both lived with deteriorating physical conditions that led to much suffering, and otherwise satisfied the requirements for medically-assisted death under both legislative regimes, but they did not meet the end of life/reasonable foreseeability of death requirement.

Jean Truchon, who is 51, has had cerebral spastic paralysis with tripartism since birth, paralyzed except for his left arm, but until 2012 he had been able to live an active life, using a wheel chair, including attending university and living alone in residence. After he received his degree, he lived in an apartment with homecare. He was able to participate in a range of activities. In 2012, “he was diagnosed with severe spinal stenosis (narrowing of the spinal canal of the spine) and myelomalacia (necrosis of the spinal cord)” and in 2012, he lost the use of his left arm. He experiences considerable pain and “also feels great psychic suffering, since he is in a state of total dependence for all the activities of daily life that he has managed to tame. He can not live alone in an apartment anymore. He says he died in 2012.” His life is limited and structured according to the care he receives at a health and social services institution. He considers starving himself to death. (Justice Baudouin describes Mr. Truchon’s life in paragraphs 17 to 34 and summarizes the medical testimony in pararagraphs 38 to 48.)

Nicole Gladu, 73, contracted polio at aged 4, and was not expected to walk again. However, with physiotherapy and three spinal transplants, she was able to recover some movement and lived a fulfilling life, including as a Radio-Canada journalist, “parliamentary correspondent for Montréal-Matin, press secretary for the United Nations in New York and director of communications at the Québec delegation in New York. She also completed a master’s degree at ÉNAP [National School of Public Administration] in 1994”. She travelled and generally led an active life, but when she was 47, “she was diagnosed with post-polio degenerative muscular degenerative syndrome, a degenerative neurological disease characterized by generalized fatigue, progressive or sudden muscle weakness and muscle aches that reduce mobility. This incurable condition stems from over-compensation of the body in polio survivors.” Her condition worsens and is painful. She also has pulmonary disease, with a prognosis of two to three years, but fears complete dependence and being restricted to bed before then. (Justice Baudouin describes Ms Gladu’s circumstances in paragraphs 51 to 64, summarizing the medical testimony in paragraphs 66 to 69.)

Both Ms Gladu and Mr. Truchon have the capacity to consent to a medically-assisted death and their conditions are “grievous and irremediable”, causing them “enduring suffering” that they find “intolerable” (the wording in Carter, in which the Supreme Court of Canada held that the prohibition against assisted suicide was unconstitutional, para. 127).

Quebec enacted its end of life legislation on June 5, 2014; it came into force on December 10, 2015. Rather than being a response to the Supreme Court’s decision in Carter, it had been under consideration for about six years and was carefully written to fall within provincial jurisdiction over health. As Justice Baudouin said, “The Quebec law is not a response from the provincial legislator to a judicial decision, but rather a social response to the initiative of the Quebec medical community who wanted a paradigm shift towards a holistic approach to the issue of appropriate care at the end of the year. life.” (para. 120, Translation [all quotations from the decision are the translation as it appears in CanLII])

Under the End-of-Life Care Act, in addition to being of age (“full” age, but also 14 or over) and having the capacity to consent, an individual must be “at the end of life”, “suffer from a serious and incurable illness” that is characterized by “an advanced state of irreversible decline in capability” and “experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable” (article 26, English version).

The Act defines “end-of-life care” as “palliative care provided to end-of-life patients and medical aid in dying” and “medical aid in dying” as “care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death” (article 3(6), English version).

Article 3 of the Act defines “palliative care” as “the total and active care delivered by an interdisciplinary team to patients suffering from a disease with reserved prognosis, in order to relieve their suffering, without delaying or hastening death, maintain the best quality of life possible and provide them and their close relations the support they need” and “continuous palliative sedation” as “care that is offered as part of palliative care and consists in administering medications or substances to an end-of-life patient to relieve their suffering by rendering them unconscious without interruption until death ensues”. By implication, palliative care is care near the end of life, with the expectation that death will ensue shortly.

The Supreme Court of Canada held that the prohibition against medically-assisted suicide was unconstitutional in its February 5, 2015 decision in Carter, finding that it was a contravention of section 7 of the Charter (it did not address section 15), leaving it to Parliament to decide whether to act; if Parliament acted, however, it was to craft legislation in accordance with the requirements or scheme set out by the Supreme Court at paragraph 127:

The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Court neither imposed a temporal limitation on when assisted death could occur nor explicitly stated that it could occur at any time.

In response, the federal Parliament enacted amendments to the Criminal Code to permit medically-assisted dying on June 17, 2016 (the Medical Assistance in Dying Act). (However, the physician-assisted dying had been legal as of June 6, 2016, the date on which the Supreme Court’s deadline for amending the Criminal Code expired.)

Parliament’s approach was to permit medically assisted dying, while at the same time creating restrictions — preconditions on eligibility — that would ensure to the extent possible that it was not abused or, put another way, that vulnerable people would be protected, in particular by ensuring that an individual would...