Human Rights: Equality Issues and Assisted Death Legislation.

• Author: McKay-Panos, Linda
• Position: Columns

In Carter v Canada (Attorney General), the Supreme Court of Canada (SCC) ruled that Criminal Code sections 241 and 14 deprived adults of their right to life, liberty and security of the person under s. 7 of the Charter. Sections 241 and 14 prohibited physician-assisted dying for competent adults who sought such assistance as a result of a grievous and irremediable medical condition that caused enduring and intolerable suffering. The SCC did not need to rule on whether the Criminal Code provisions violated Charter s. 15(1).

In response, the federal government passed an amendment to the Criminal Code through Bill C-14. There were some concerns about the legislation--particularly the requirement that the person must be suffering from an end-of-life condition. Several scholars argued this would result in a constitutional challenge. However, the federal government passed Bill C-14 without addressing these concerns.

Recent litigation in Quebec involves a constitutional challenge. In Truchon c. Procureur general du Canada, 2019 QCCS 3792 (Truchon), both the federal Criminal Code (s. 241.2(2)(d)) and Quebec's Act respecting end-of-life-care (s. 26(3)) were challenged for violating sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (Charter). (While the Canadian government has jurisdiction over the criminal aspects of assisted dying legislation, the provinces have jurisdiction over health-related aspects.)

At issue in Truchon was the meaning of death which has become "reasonably foreseeable".

Section 241.2(2)(d) of the Criminal Code reads:

Grievous and irremediable medical condition (2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria: ...(d) 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. Doctors had declared Jean Truchon and Nicole Gladu ineligible for medical assistance in dying. Truchon and Gladu challenged the constitutionality of the Criminal Code provisions and Quebec's legislation requiring that their natural death be reasonably foreseeable or that they be at the end of their lives.

Jean Truchon, age 51, was born with "cerebral spastic paralysis and tripartism". This meant that he was completely paralyzed except for his left arm. He led a relatively full life until 2012, when he permanently lost the...