A Minor Issue? The Shortcomings of the Eligibility Requirements for Medically Assisted Death in Canada
| Author | Jessica Bond |
| Position | Completed her BA (Psychology) at the University of Victoria; she is currently completing the third year of her JD at the University of Victoria, Faculty of Law |
| Pages | 41-64 |
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ARTICLE
A MINOR ISSUE? THE SHORTCOMINGS
OF THE ELIGIBILITY REQUIREMENTS FOR
MEDICALLY ASSISTED DEATH IN CANADA
Jessica Bond *
CITED: (2018) 23 Appeal 41
INTRODUCTION..................................................42
I. CARTER AND CANADIANS’ RIGHTS TO LIFE, LIBERTY, AND
SECURITYOF THE PERSON .....................................43
A. Decision of the Supreme Court of British Columbia ....................44
B. Decision of the Supreme Court of Canada............................45
i. Application of Section 7 of the Charter ...........................46
a. Overbreadth .............................................48
ii. Application of Section 1 of the Charter ...........................48
iii. Demonstrating (or Not Demonstrating) Deference to Parliament .......49
II. PARLIAMENT’S RESPONSE TO CARTER V CANADA
ATTORNEYGENERAL ..........................................50
III. SECTION 241.21B OF THE CRIMINAL CODE IS
UNCONSTITUTIONAL AND UNRESPONSIVE TO THE
JURISPRUDENCE ON MATURE MINORS..........................52
A. Parliament’s Response to Carter Ignores Jurisprudence on Mature Minors’
BodilyAutonomy...............................................52
i. e “Mature Minor Rule” .....................................53
ii. e “Best Interests Standard”...................................54
B. Parliament Rejected Recommendations for a More Permissive
RegulatoryRegime..............................................57
C. Section 241.2(1)(b) of the Criminal Code Probably Infringes Mature
Minors’Rights to Life, Liberty, and Security of the Person................59
i. Application of Section 7 of the Charter ...........................60
a. Overbreadth .............................................61
ii. Application of Section 1 of the Charter ...........................62
iii. Deference Owed to Parliament .................................63
CONCLUSION ....................................................64
* Jess ica Bond completed her BA (Psycholo gy) at the University of Victori a; she is currently
completing the third year of her J D at the University of Victoria , Faculty of Law. She thanks the
Editorial Board of Appeal for their ad vice and assistance.
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INTRODUCTION
In Canada, it is illegal to assist a person under 18 years of age in ending their own li fe,1
meaning minors a re prohibited from receiving medical assis tance in dying (“MAI D”). is
prohibition is based on already acc epted (and applied) arguments related to the protection
of children, “who are part icularly vulnerable both by vi rtue of their age and their di sability,
disease or il lness”; and argu ments that children cannot ma ke MAID decisions becaus e of
their inexperience a nd immaturit y.2
However, while minors are prohibited from maki ng MAID decisions, thi s does not mean
they are also i mmune from the disabilities and dise ases that lead to intense, intolerable pain,
or that they are ag ainst obtaining M AID.
3
e Canadian Paed iatric Surveillance Prog ram
recently reported minors are already approaching doctors about MAID.4 ough these
conversations with minors about as sistance in dying are sti ll “relatively rare,”
5
the pos sibility
of such scenarios (and the prospect of paed iatric illness) requires a reconsideration of those
accepted argu ments; they also require a review of arg uments regarding bodily autonomy
and mature minors.6
Responding to the Supreme Court of C anada’s (“SCC”) decision in Carter v Canada
(Attorney General) (“Carter”),7 Parliament was required to bal ance Canadians’ interests
in protecting children, vulnerable because of their i nexperience and immaturity, and
their interests in respe cting mature minors’ right to request or refuse med ical treatment.
However, Parliament did not balance those i nterests in its minimally more permissive
MAID reg ulatory regime, becaus e that MAID regu latory regime restricts M AID to adults
“at least 18 years of age and capable of ma king decisions with respect to their healt h.”8
Again, the prospec t of paediatric disease and d isability is dishear tening—and the prospect
of children with a “persistent and r ational wish to end their own lives” is deeply d istressing.
As the Externa l Panel on Options for a Legislative Response to Carter v Canada ( “Extern al
Panel”) concluded: “[a]ccess for mature minors [to MA ID] was perhaps one of the most
emotionally charge d questions the Panel encountered in its investig ations of assisted
dy ing .”
9
e External Panel conti nued: “[n]o one who appeared before the Panel in Canad a
1 Criminal Code, RSC 1985, c C-46, ss 14, 241 – 241.3 [Criminal Code].
2 “Legislative Backgro und: Medical Assistance in Dyin g (Bill C-14, as Assented to on June 17, 2016)
Part 4 – Statement of Legislative I mpacts” (23 January 2017), online: Government of Canada
perma.cc/UNR2-UB2F> [Canada, “Legislative Background”]; AC v Manitoba (Child and Family
Services), 2009 SCC 30 at para 108 [AC].
3 Maija Kappler, “Canadian pediatricians ‘increasingly’ being asked about assisted death for
children,” Global News (26 October 2017) online:
death-canada-children/> archived at . Canada, Public Health
Agency of Canada & Canadian Pediatric Society, Canadian Paediatric Surveillance Program, 2016
Results (Ottawa: Canadian Paediatr ic Surveillance Program, 2017) at 34-35, online:
ca/uploads/publications/CPSP-2016-Results.pdf> archived at
[Canadian Paediatric Surveillance Program].
4 Canadian Paediatric Surveillance Program, supra note 3 at 35.
5 Ibid.
6 AC, supra note 2; Van Mol v Ashmore, 1999 BCCA 6 [Van Mol].
8 Criminal Code, supra note 1, s 241.2(1)(b).
9 Canada, Depar tment of Justice, Consultations on Physician-Assisted Dying–Summary of Results and
Key Findings, External Panel on Options fo r a Legislative Response to Carter v Ca nada, (Ottawa:
MediaMiser, 2015) at 55-56, online:
pad.pdf> archived at at 55 [External Panel].
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openly advocated children’s access.”10 is paper is also not advocating for children’s
access to MA ID.
But there have been constitutional ch allenges from mature mi nors seeking the rights
to make medical decisions for themselves and refu se the medical treat ments that might
save their lives; and it is possible a mat ure minor could challenge the constitutiona lity of
section 241.2(1)(b) of the Criminal Code. If a mature m inor were to argue that the MA ID
prohibition for persons under the age of 18 infringed their r ights to life, liberty, or security
of the person—and t hat the MAID prohibition was overbroad or disproportionate to t he
objective of the MAI D regulatory regime, it is probable that the courts would consider
section 241.2(1)(b) of the Criminal Code unconstitutional.
In Part I, the paper revie ws the SCC’s decision in Carter, including the SCC’s “section 7
analysis,” its approach to determin ing whether laws do or do not contravene Canadians’
rights to life, liber ty, and security of the person (and whether laws are or are not contra ry
to the principles of fundamenta l justice) under section 7 of the Canadian Cha rter of Rights
and Freedoms (“Charter”).11
In Part II and Part II I, the paper reviews Parlia ment’s response to the SCC’s decision in
Carter. e paper analyze s Canada’s MAID regu latory regime: t he paper argues that this
regulatory regime is incompatible with the rules, regulations, and laws related to mature
minors (and their rights to their autonomy and abilit y to make medical decisions)—a nd, after
applying the SCC’s “section 7 analy sis,” acknowledges it is inconsistent with the principles
of fundamental jus tice and mature minors’ rights to li fe, liberty, and security of the person.
I. CARTER AND CANADIANS’ RIGHTS TO LIFE, LIBERTY, AND
SECURITY OF THE PERSON
Before Carter, Canada’s MAID reg ulatory regime was stra ightforward: MA ID was wholly
illegal. e Criminal Code prohibited MAID through two provisions: sect ions 14 and
241(b). Section 14 of the Criminal Code read:
No person is entitled to consent to have death in icted on them, and such
consent does not aect the cri minal responsibility of any person who in icts
death on the person who gave consent.12
Section 241(b) of the Criminal Code made aiding or abe tting a person to commit suicide
an indictable oence pun ishable with imprisonment for a term of not more than 14 years.
13
And at the Supreme Court of British C olumbia,14 then the British Columbia Court of
Appeal,15 and nally the SCC, Gloria Taylor argued t hat this MA ID prohibition
contravened her rights under sect ion 7 of the Charter.
In Part I, this paper reviews the SCC’s “section 7 analysis” in Carter, as the approach
applied to Taylor’s argument that a complete prohibition on MAID for adults is
unconstitutional a lso applies to arguments th at a complete prohibition on MAID for
minors is unconstitutional.
10 Ibid at 55.
11 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter].
12 Criminal Code, supra note 1, s 14.
13 Ibid, s 241( b).
14 Carter v Canada (Attorney General), 2012 BCSC 886 [Carter BCSC ].
15 Carter v Canada (Attorney General), 2013 BCCA 435 [Carter BCCA] .
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A. Decision of the Supreme Court of British Columbia
In 2012, Taylor—joined by Lee Carter, Hollis Johnson, William Shoichet, a nd the
British Columbia Civil Liber ties Association (“BCCL A”)16—brought a n action against
the Attorney General of Ca nada for a declaration th at Canada’s MAID prohibition in
sections 14 and 241 of the Criminal Code was unconstitutional.17
Taylor had amyotrophic lateral sclerosis (“ALS”).
18
By the time she testied to t he Supreme
Court of British Columbia, she wa s experiencing muscular atrophy in her hands, w rists,
and feet.19 She said she requi red a wheelchair, but because her ALS made ne motor tasks
dicult, she was u nable to control one on her own.20 Taylor said she required assistanc e
from strangers for da ily personal task s; and she said that thi s assistance was a n “assault
on her privacy, dignity and self-es teem.”21 She stressed:
I, myself, will be great ly distressed by livin g in a state where I have no
function or funct ionality that requires others to at tend to all of my needs and
thereby eectively oblige my fa mily to bear witness to the na l steps of the
process of my dying with t he indignity a slow death from AL S will entail.22
Taylor wanted to avoid (what she anticipated as) a slow and painful deat h, and she wanted to
ensure that her death w as not undignied; as she told the tr ial judge: “I live in apprehension
that my death wil l be slow, dicult, unpleasant, pain ful, undignied and inconsistent
with the values a nd principles I have tried to live by.”23
Taylor told the Supreme Court of British Columbia that palli ative care and suicide were not
necessarily ac ceptable alternatives to MAI D.24 She said palliative care could not prevent the
slow and painfu l death she feared—and su icide left her with a “cruel choice between ki lling
herself while she was st ill physically capa ble to do so or giving up the ability to exercise
any control of the manner and ti ming of her death.”25 e plaintis also arg ued, because
the Criminal Code’s sections 14 and 241 subjected them to this choice, it had the eec t
16 Carter and Johnson we re the daughter and son-in-law, respe ctively, of Kay Carter (who, at
age 89, attained MAID in Switz erland after a diagnosis of spinal s tenosis); Carter and Johnson
assisted Kay Carter to arra nge that MAID, though their planning assist ance and actions were
illegal in Canada and open ed them to prosecution (Carter BCSC , supra note 14 at paras 57-71).
Shoichet, a physician prac ticing in Canada, was “willing to assist a p atient who requested
such end-of-life ca re where he was satised that it constitu ted appropriate medical care in
the circumstances” (Ibid at para 76). The BCCLA “has had a longstandin g interest in matters of
patients’ rights and heal th policy, and has conducted advoca cy and education with respec t to
end-of-life choices, including assisted suicide and volu ntary euthanasia” (Ibid at para 45). This
paper concentrates on the test imony of Taylor, as it is possible to most eectively and e ciently
compare the experience s of that plainti to the experiences of th e weighted hypothetical of
“Adolescent” introduced in Par t III.
17 The original cl aim brought forth by the plaintis w as that sections 14, 21, 22, 222 and 241 of the
Criminal Code were unconstitutional (Carter BCSC, supra note 14 at para 100). However, the SCC
determined that sec tions 241(b) and 14 were the most relevant prov isions for the purpose of the
constitutional challenge (Carter SCC, supra note 7 at p ara 20).
18 ALS is alternatively kn own as motor-neuron disease; those diagnos ed with ALS live through
gradual paralysis and gra dual muscular deterioration, and th ey “lose the ability to walk, talk ,
eat,swallow, and eventually breathe ” (Amyotrophic Lateral Sclerosis Soci ety of Canada, “What
isALS?” online: /perma.
cc/6NYG-AH78>).
19 Carter BCSC, su pra note 14 at para 49.
20 Ibid at para 50.
21 Ibid.
22 Ibid at para 52.
23 Ibid at para 54.
24 Ibid at para 55.
25 Carter SCC, sup ra note 7 at para 13.
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of “forcing some individual s to take their own lives prematurely, for fear that t hey would
be incapable of doing so when they reached the point where suering was intolerable.”26
ese choices, Taylor concluded, infringed her rig hts under section 7 of the Charter.27
Section 7 of the Charter states that “[e]veryone has the rig ht to life, liberty and sec urity
of the person and the right not to be deprived thereof exc ept in accordance with the
principles of fu ndamental just ice.”28 Taylor argued sections 14 and 241(b) of the Criminal
Code constituted a “state interference with the right of grievously and irremedia bly ill
individuals to a protected sphere of autonomy over decisions of fundamental personal
importance.”
29
Additionally, she argued th is interference by the state was not in accorda nce
with the principles of funda mental justice since the MA ID prohibition was overbroad and
disproportionate to the objectives of t he prohibition (the protection of the vulnerable).30
e Supreme Court of British Columbia als o addressed arguments under sec tion 1 of the
Charter, and concluded that the “ benets of the impugned laws are not worth the costs
of the rights limitat ion they create.”31
e Supreme Court of British Columbia concluded that t he Criminal Code provisions
prohibiting physician-assisted dy ing infringed section 7 (and section 15) of the Charter,
making them of no force and eect.32 ough those decl arations were suspended for six
months, Taylor was granted a constitutional e xemption to permit physician assistance to
die (under certain conditions).33
B. Decision of the Supreme Court of Canada
e British Columbia Court of Appea l reversed the Supreme Court of British Columbia’s
conclusion, so the case was appe aled to the SCC.34
e SCC held the voided sections of the Criminal Code violated Taylor’s rights to life,
liberty, and security of t he person by subjecting competent adults to premature death ( by
forcing them to take thei r own lives while still physica lly capable out of fear they would be
26 Ibid at para 57. This “cruel choice” was also addressed by anoth er woman: “One woman noted
that the conventional methods of sui cide, such as carbon monoxide asphy xiation, slitting of
the wrists or overdosing on s treet drugs, would require that she en d her life ‘while I am still able
bodied and capable of t aking my life, well ahead of when I act ually need to leave this life” (Ibid at
par a 15).
27 Ibid at para 40.
28 Charter, supra note 11, s 7.
29 Carter BCSC, supra note 14 at para 1295.
30 Ibid at para 25.
31 Ibid at para 1285. Though these secti on 1 (of the Charter) arguments were ac tually addressed as
a justication to the MAID pro hibition’s section 15 (of the Charter) infringement, the Supreme
Court of British Columbia con cluded it would reach “the identica l conclusion” if instead, those
arguments were addresse d as a justication to the section 7 in fringement (Ibid at para 1385;
Charter, supra note 11, ss 1, 15). The plaintis also argued that this “section 1 analy sis” was not
required, referencing Canada (Attorney General) v PHS Commu nity Services Society, 2011 SCC
44, after a determin ation that the MAID prohibition infrin ged section 7. Though a section 1
justication of a sec tion 7 infringement “may not be impossibl e,” the Supreme Court of British
Columbia declined to reasses s section 1 in the context of “a depriv ation of life, liberty, or securit y
of the person” (Carter BC SC, supra note 14 at paras 1379-1383).
32 Carter BCSC, su pra note 14 at para 1393.
33 Ibid at p ara 1414 .
34 The B ritish Columbia Court of Appeal conclu ded “neither the change in legislatio n and social
facts nor the new leg al issues relied on by the trial judge per mitted a departure from Ro driguez v
British Columbia (Attorney General), 1993 3 SCR 519” (Carter SCC, supra note 7 at para 34).
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unable to do so when pain and su ering became intolerable),35 reducing their autonomy
over their bodies, and in stilling a fear of prolonged pain and sue ring.36
i. Application of Section 7 of the Char ter
e rights set out in section 7 of the Cha rter are not absolute. Rather, section 7 states
that “[e]veryone has the right to life, libert y and security of the person and the right not
to be deprived thereof except in accord ance with the principles of fund amental justice.”37
Any legislation (or rules or regu lations) limiting section 7 rig hts must not be arbitrary,
overbroad, or have consequences that a re grossly disproportionate to the (impugned)
law’s objective.38 In instances where li miting legislation is overbroad, arbitrary, or grossly
disproportionate, that law w ill be found to infringe section 7 rights not in accordance
with the principles of funda mental justice, and therefore, they can only be upheld as
constitutional th rough an applicat ion of section 1 of the Charte r (see below).39
In Carter, the SCC found that the prohibitions contained in sections 14 and 241(b) of
the Criminal Code infringed Taylor’s right to life.40 e SCC accepted that the impugned
laws had the potential e ect of forcing persons with such illness es to “take their own lives
prematurely for fear th at they would be incapable of doing so when they reached the poi nt
where suering was intolerable”.41 e SCC also adopted the trial judge’s reasoning t hat
the complete prohibition on MAID had t he eect of shortening the lives of ind ividuals
with grievous and ir remediable illnesses (in ca ses where individuals took their lives
prematurely).42 So—a regulatory regime that prohibited MA ID shortened the lifespan
of certain people whi le a regime that allowed MA ID enabled people to choose to die only
when they reached the point of intolerable suer ing.43
e SCC also held that t he prohibition engaged the plainti ’s rights to liberty and security
of the person.44 e SCC accepted the tr ial judge’s conclusion that the MAID prohibition
engaged secur ity of the person interests by subjecting t hose persons who were unable to
obtain MA ID to “suer physical or psychologica l pain and imposed stre ss due to the
unavailability of physician-assisted dying.”45 Additionally, the SCC acknowledged th at the
35 Carter SCC , supra note 7 at para 57.
36 Ibid at paras 57, 58, 65, 66, 126.
37 Charter, supra note 11, s 7 [emphasis added].
38 Carter SCC, supra note 7 at para 72.
39 Ibid.
40 Ibid at para 58.
41 Ibid at para 57.
42 Ibid at paras 57-58.
43 Carter BCSC, supra note 14 at para 1325.
44 The SCC references Blencoe v British Columbia (Human Rights Commission) to dene liberty:
“theright to make fundament al personal choices free from s tate interference” (Blencoe v British
Columbia (Human Rights Commission), 2000 SCC 44 at para 54 [Blencoe], as cited in Carte r SCC,
supra note 7 at para 64). And the SCC refe rences Rodriguez v British Columbia (Attorney General) to
dene security of th e person: “a notion of personal autono my involving […] control over one’s
bodily integrity f ree from state interference” (Rodriguez v British Columbia (Attorney General),
supra note at 7 para 64). Secur ity of the person rights are ass ailed “by state interference with a n
individual’s physical or psych ological integrity, including any st ate action that causes physical or
serious psychological suering” (Carter SCC, supra note 7 a t para 64, referring to New Brunswick
(Minister of Health and Community Ser vices) v G(J), [1999] 3 SCR 46 at para 58 [G(J)]; Blencoe, supra
note 44 at paras 55-57; Chaoulli v Quebec (Attorney General), 2005 SCC 35 at paras 43, 119, 191,
200).
45 Carter SCC, supra note 7 at 65.
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MAID prohibition enga ged liberty interests by interferi ng with a person’s bodily integrity,
personal autonomy, and right to make decisions about their med ical care.46
e SCC’s reasoning reapplies the e stablished principles underlying an individua l’s right
to refuse life-sav ing treatment, and it analogizes t he right to refuse l ife-saving treatment
with the right to request M AID.47 e SCC referred to AC v Manitoba (Director of Child
and Family Services) (“AC”):
where the claimant soug ht to refuse a potentially lifes aving blood transfusion
on religious grounds, [ Justice Binnie] noted that we may ‘instinctively
recoil’ from the deci sion to seek death because of our belief in the s anctity of
human life […]. But his response is equally relevant he re: it is clear that anyone
who seeks physician-assisted dying because t hey are suering intolerably
as a result of a grievous a nd irremediable medical condition ‘does so out of
a deeply personal and fu ndamental belief about how they w ish to live, or
cease to live’ […].48
e SCC also referred to Fleming v Reid49 and acknowledged that the right to make
personal and fu ndamental life choices “is not vitiate d by the fact that serious consequences,
including death, may ow from the patient’s decision.”50 en the SCC concluded that
the principles underlying the cases concerning the “right to ref use consent to medical
treatment, or to demand that tre atment be withdrawn or discontinued” al so support the
right to choose MA ID.51
e SCC held that all th ree interests protected by section 7 of the Charter were engage d
by the prohibition on MAID.52 is compelled the SCC to t hen determine whether t he
impugned provisions did so in acc ordance with the principles of fundamental justice.
e SCC determined that t he prohibition was not arbitrary,53 but did nd that it was
overbroad.
54
(is paper concentrate s on the overbreadth analysis, as t he MAID prohibition
for persons under 18 years of age is al so overbroad; and if a mature minor ma kes a
constitutional cha llenge to the MAID prohibition for persons under 18 years of age, it is
probable that the court would approach t hat case the way the SCC approached thi s case.)
46 Ibid at para 68. In deciding that the pro hibition of MAID infringed indiv iduals right to liberty and
security of the per son, the SCC cited the trial judge’s reasons:
The trial judge, too, descri bed this as a decision that, for some p eople, is ‘very important to
their sense of dignity an d personal integrity, that is consistent wi th their lifelong values and
that reects their lif e's experience’. This is a decision that is rooted in th eir control over their
bodily integrity; i t represents their deeply per sonal response to serious pain and su ering. By
denying them the oppor tunity to make that choice, the prohibit ion impinges on their libert y
and security of the pe rson [citations omitted] (Ibid).
47 Carter SCC , supra note 7 at para 66.
48 AC, supra note 2, as cited in Carter SCC , supra note 7 at para 68 [citatio ns omitted] [emphasis
added].
49 Fleming v Reid (1991), 1991 CanLII 2728 (ONCA) [Fleming].
50 Carter SCC, su pra note 7 at para 56.
51 Ibid at paras 66- 67. The SCC reached that conclusion citing Ciarlariello v Schacter, [1993] 2 SCR
CanLII 8511 (QCCS).
52 Carter SCC , supra note 7 at para 56.
53 Ibid at paras 83-84.
54 Ibid at para 90. Upon nding the prohi bition overbroad, the SCC determined i t was unnecessary
to consider whether it was also g rossly disproportionate to its pu rpose.
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a. Overbreadth
In Bedford v Canada (Attorney General), the SCC stated overbroad laws “may violate
our basic values”—where overbreadth mea ns “the law goes too far and interferes with
some conduct that bears no connec tion to its objective.”55 In determinin g whether a law
is overbroad, the court is not obligated to contend “with competing social interest s or
ancillar y benets to the general population.”56
e overbreadth inquiry ha s two steps. First, the court must de termine the objective of the
impugned law; second, the cou rt must determine whether the law deprives indiv iduals of
life, liberty, or securit y of the person in cases that do not fur ther that objective.
57
Where the
second step is answered a rmatively, the law deprives persons of section 7 rights under t he
Charter in a manner th at is not in accordance with the principles of fu ndamental justice.58
In Carter, the SCC deter mined that the Criminal Code prohibition on MA ID was
overbroad.59 e Attorney Genera l of Canada argued sections 14 and 241 were aimed
at preventing “vulnerable persons f rom being induced to commit suicide at a moment
of weakness,” and the SCC accepted that this was t he objective of those provisions.
60
However, the SCC also accepted “that not ever y person who wishes to commit suicide is
vulnerable, and th at there may be people with disabilities who have a considered , rational
and persistent wish to end their own l ives.”
61
Accordingly, the SCC concluded an absolute
prohibition on MAID was overbroad: s ections 14 and 241 protected the vulnerable, but also
barred persons with a “rationa l and persistent wish to end their own lives” from M AID.62
ii. Application of Section 1 of the Charter
Section 1 of the Charter both g uarantees the rig hts and freedoms set out within the
Charter and permits li mitations on those rights, so long as they are pre scribed by law and
demonstrably justied in a f ree and democratic society.63
e SCC has repeatedly noted t hat a law that infringes sect ion 7 Charter rights c an only
be saved by section 1 in extr aordinary circumsta nces.64 ere is yet to be a case where the
55 Bedford v Canada (Attorney General), 2013 SCC 72 at para 101 [Bedford].
56 Carter SCC, su pra note 7 at para 85. Instead, the court ’s focus is on the law’s eect on the
individual who is challeng ing the impugned law. Furthermore, the de termination as to whether
a law is overbroad must be base d on whether there is a rational connec tion between its eec t
on that specic individua l and the object of the law.
57 R v Appulonappa, 2015 SCC 59 at 27. Even if a law is drawn broadly to make enforcement mor e
practical, such prac ticality does not remedy t he absence of connection bet ween the purpose of
the law and its eect on th e individual. See Carter SCC , supra note 7 at paras 85- 86; see Bedford,
supra note 55 at paras 101, 112-113.
58 Ibid.
59 Carter SCC , supra note 7 at para 86.
60 Ibid at para 29.
61 Carter BCSC , supra note 14 at para 1136, as cited in Carter SCC, supra note 7 at p ara 86.
62 Carter SCC, supra note 7 at para 86. It was the bar ring of this larger class of individuals whi ch was
“not connected to the objec tive of protecting vulnerable persons” (Ibid).
63 Charter, supra note 11, s 1.
64 Carter SCC, su pra note 7 at para 95; Reference re s 94(2) of Motor Vehicle Act (BC), [1985] 2 SCR 486
at para 111; G(J), supra note 44 at para 99. The g overnment may only be able to do so where it
is able to demonstrate that the p ublic good justies the depriv ation of an individual person’s
right to life, liberty o r security of the person; the S CC’s approach to section 1 of the Charter is
able to address that public good in way s the SCC’s approach to section 7 of the Charter cannot, as the
‘section 7 analysis’ addresses the indi vidual’s rights (Carter SCC, supra note 7 at para 95).
APPEAL VOLUME 23
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government has been able to demonstrate such a public good (or proven section 7 rights
have been justiably in fringed under section 1 of the Charter).65
To justify an infring ement of section 7, the law must have a pressing and substantial
objective and the means chosen to obtain that objective must be rat ionally connected
to that objective.66 In Carter, the SCC accepted t he British Columbia Cour t of Appeal’s
conclusion on the pressing and substa ntial objective behind the MA ID prohibition: “where
an activity po ses certain risks, prohibition of the act ivity in question is a rational method
of curtailing the risks.”
67
But the courts wil l also assess whet her any infringement to
those section 7 rights i s minimally impairing. e mi nimal impairment analysis en sures
deprivations of Charter rights a re conned to what is reasonably necessar y to achieve the
state’s objective; and in Carter, despite the reasonableness of the M AID prohibition as a
means of achievi ng the state’s objective, section 14 and 241 of the Criminal Code infringed
the claimant s’ section 7 rights more th an was necessary.68
iii. Demonstrating (or Not Demonstrating) Deference to Parliament
e SCC accepted the tria l judge’s conclusion: “a regime less rest rictive of life, liberty and
security of the person cou ld address the risks associated w ith physician-assisted dying.”69
e SCC also adopted the tri al judge’s conclusion that there are ways to accurately appra ise
the competency and capac ity of persons requesting M AID to ensure that those persons
were not being compelled or coerced into suicide.70 ough t he SCC (referring to Alberta
v Hutterian Brethre n of Wilson Colony)
71
had held a “complex regulatory response” to some
social issues shou ld be accorded “a high degree of deference,”72 the SCC found that there
was a limited amount of deference owed to t he prohibition on MAID, as the Criminal
Code’s MAID provisions were not necessa rily complex.73
In Carter, the SCC fou nd section 1 of the Charter
74
did not justify the complete prohibition
on MAID. Accordi ngly, the law was not upheld as constitutional— or “saved.”
75
e
Attorney General of Ca nada failed to meet the burden of proving there were no a lternative,
65 Constance MacIntosh, “Carter, Medical Ai d in Dying, and Mature Minors” (2016) 10 McGill JL &
Health (QL).
66 R v Oakes, [1986] 1 SCR 103 at paras 73-75 [Oakes]. A law is proportionate when: (i) there is
a rational connection b etween the law’s objective and t he means adopted to achieve that
objective; (ii) the chosen m eans minimally impair the Charter r ight in question; and (iii) the
deleterious and salut ary eects of the law are prop ortionate to one another (Ibid).
67 Carter SCC , supra note 7 at para 100. The SCC is referrin g to the decision of Finch CJBC (Carter
BCCA, su pra note 15 at para 175).
68 Carter SCC, supra no te 7 at para 102.
69 Ibid at para 103.
70 Ibid at para 107.
71 Alberta v Hutterian Bre thren of Wilson Colony, 2009 SCC 37.
72 Ibid at para 37; Carter SCC, sup ra note 7 at paras 97-98.
73 Carter SCC , supra note 7 at para 98.
74 Charter, supra n ot e 11.
75 Despite the SCC’s ruling that the prohibition w as prescribed by law and had a pressing and
substantial objecti ve, it held that it was disproportion ate and not minimally impairing (Carter
SCC, supra note 7 at paras 119, 121, 123).
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less drastic mea ns to achieve the objective of protecting the v ulnerable.
76
Instead, the SCC
held vulnerability c ould be assessed on an individua l basis using the procedure physician s
apply in their assessment of infor med consent and capacity in the context of the medica l
decision-making generally.77
In Carter, the SCC decided that the MA ID prohibition (in sections 14 and 241(b) of the
Criminal Code) infringed Taylor’s “[section] 7 rights to life, libert y and security of the
person in a manner that i s not in accordanc e with the principles of fundamental justice,
and that the infringement is not justied under [section] 1 of the Charter.” 78 e SCC
ruled that the Criminal Code’s MAID prohibitions were void:79
insofar as the y prohibit physician-assisted death for a competent adult person
who [i] clearly consents to the termination of life; a nd [ii] has a grievous a nd
irremediable medica l condition (including an il lness, disease or disability)
that causes enduring suering that is intolerable to the individual in the
circumstanc es of his or her condition.80
e SCC turned the M AID regulatory regime issue bac k to Parliament.
II. PARLIAMENT’S RESPONSE TO CARTER V C ANADA
(ATTORNEY GENERAL)
Parliament’s response to the SCC’s decision in Carter, Bill C-14, came into force on June
17, 20 16 .81 Bi ll C-14 added sections 241.1, 241.2, 241.3, 241.31, 241.4 and 227—and
amended sections 14, 241, and 245—of the Criminal Code.82
76 Ibid at paras 107, 109, 121. This conclusion was informed by eviden ce from ethicists, scientists,
medical exper ts, and others who were familiar with e nd of life practices as well as the impac t
of other jurisdictions ’ permissive regimes on vulnerabl e persons (Ibid at paras 104, 107);
this included evidence by 12 medical pr actitioners who stated that “b ased on their clinical
experience and their un derstanding of medical ethi cs, they would consider it ethical in so me
circumstances to assist a patient w ho wishes to hasten death” (Carter BCSC, su pra note 14 at
para 254). Additionally, Professor Sumne r (Department of Philosophy, Universit y of Toronto)
told the Supreme Court of Br itish Columbia that “there is simply no way to sh ow that, of the
four treatment options (treatment cessation, pain management, terminal sedation and assisted
death), assisted death is uniquely ethically impermissible” (Ibid at para 235); Professor Sumn er’s
belief that allowing MAID wo uld not be unethical was suppor ted by other ethicists (Ibid at paras
238-243). Additionally, it was found that there was no eviden ce from permissive jurisdiction s
that vulnerable popula tions (such as elderly and disabled pe rsons) were at a heightened risk for
accessing MAID (Carter SCC, supra no te 7 at para 107).
77 Ibid at para 106.
78 Ibid at para 126.
79 Ibid at para 126-127. Parliament was granted one year to dev ise an acceptably constitutional
legislative scheme for MAI D before the existing Criminal Code provisions ruled invalid in Carter
became of no force and ee ct, but the SCC granted a motion for a four-mo nth extension in
2016 (Canada, Parliamentary Informatio n and Research Service, Legislative Summar y of Bill C-14,
(Ottawa: Library of Par liament, 2016) [Canada, Legislative Summary of Bill C-14]; Carter v Canada
(Attorney General), 2016 SCC 4.
80 Carter SCC, su pra note 7 at para 127.
81 Canada, Legislative Summary of Bill C-14, supra note 79.
82 Ibid.
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Parliament developed a marginally more permissive MAID regulatory regime, closely
connected to the SCC’s “minimal ist decision” in Carter, as demonstrated throu gh that
regulatory reg ime’s relatively restrictive eligibility requ irements and signicant safe guards.83
Section 241.2(1) establishes el igibility requirements for MAI D, with the provision reading:
241.2(1) A person may receive medical a ssistance in dying only if they meet
all of the following criter ia:
(a) they are eligible—or, but for any applicable min imum period of residence
or waiting period, would be eligible—for health services funding by a
government in Canada;
(b) they are at least 18 years of age and capable of mak ing decisions with
respect to their hea lth;
(c) they have a grievous and irremediable med ical condition [84];
(d) they have made a voluntary request for med ical assistance in dy ing that,
in particul ar, was not made as a resu lt of external pressure; and
(e) they give informed consent to receive medica l assistance in dy ing
after having be en informed of the means that a re available to relieve their
suering, includi ng palliative care.85
ere are also signi cant safeguard s to protect persons requesting MA ID. ose safeguards
are aimed at protectin g vulnerable persons from compulsion, coercion, error, and abuse, and
they are set out in sect ion 241.2(3) of the Criminal Code. Among those sa feguards, there
are requirements that t he medical or nurse practitioner ensure that t he request for MAID
was made in writing—and that t he request for MAID be signed by two independent
witnesses; the person reque sting MAID must be able to withd raw their request, and they
must wait at least ten days be tween the day of their request and the day of thei r MAID.86
Section 241.3 of the Criminal Code applies a deterrent to coercion, compulsion, and abuse:
medical practitioners and nurse practitioners who fail to comply with a ll the relevant
requirements in section 241.2(3) are liable to a term of imprisonment of not more than
ve years (on conviction of an indicta ble oence) or a term of imprisonment of not more
than 18 months (on summary convict ion).87
83 D oug Surtees suggests that Car ter is a “minimalist decision”: “the SCC decide d no more than
it had to (and some will say less than it oug ht to have) in order to resolve the matter before
it” (Doug Surtee s, “The Authorizing of Physician Ass isted Death in Carter v Canada (At torney
General)”, (2015) 78 Sask L Rev 225).
84 A “grievous and irre mediable medical condition” is d ened in section 241.2(2) of the
CriminalCode:
(2) A person has a grievous and irrem ediable medical condition onl y if they meet all of the
following criteria:
(a) they have a serious and incurable illne ss, disease or disability;
(b) they are in an advanced state of ir reversible decline in capabilit y;
(c) that illness, disease or disabilit y or that state of decline causes the m enduring physical
or psychological suer ing that is intolerable to them and that cann ot be relieved under
conditions that they consider acceptable; and
(d) their natural death has become r easonably foreseeable, tak ing into account all of their
medical circumstances , without a prognosis necessarily hav ing been made as to the specic
length of time that they have remaini ng (Criminal Code, supra not e 1).
85 Ibid, s 241.2(1) [emphasis added].
86 Ibid, s 241.2(3).
87 Ibid, s 241.2(3)(a)-(b).
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III. SECTION 241.21B OF THE CRIMINAL CODE IS
UNCONSTITUTIONAL AND UNRESPONSIVE TO THE
JURISPRUDENCE ON MATURE MINORS
Instead of aski ng how section 241.2(1)(b) balances mature minors’ rights to life, liberty,
and bodily autonomy again st Parliament’s interests in protecting child ren (vulnerable
to compulsion and coercion by virtue of t heir illness or inexperience), it could be asked
whether section 241.2(1)(b) balance those th ings at all.
In Part III, the paper surveys the substanti al jurisprudence on mature minors’ rights
to bodily autonomy, including their rights to request a nd refuse life-savi ng medical
treatment. e paper reviews t hose rights because they are not incorporated into
Parliament’s MAID regu latory regime, and could constitute a more complex alternative
to a complete prohibition. e SCC holds that those rights must be i ncorporated into
legislation respecti ng the medical decision-mak ing rights of mature mi nors.
88
Mature
minors are able to request and ref use life-saving medica l treatment, those courts have held,
because those actions align with their r ights under section 7 of the Charter.89 e paper
suggests th at these criteria could also be applied to M AID decisions for minors and would
be suciently rigorous to screen out minors who a re incapable of making these dec isions.
is paper argue s that the existi ng “mature minor principle” and the “best i nterests
standard ” are less restricting than an age-ba sed criterion; they could protect vulner able
minors while upholding autonomy of minors in rare situat ions of paediatric irremediable
and grievous dise ase. is argument is supported by the recommendat ions and nding s
of independent groups, who studied eligibil ity requirements for MAID before the new
Criminal Code provisions were implemented.
is paper then ana lyzes the constitutional ity of section 241.2(1)(b) of the Criminal Code.
After ana lyzing Parliament’s MAID reg ulatory regime through t he same structure the SCC
used to assess Parl iament’s prohibition on MAID in Carter, the paper concludes section
241.2(1)(b) of the Criminal Code contravenes mature minors’ rights to life, liberty, and
security of the person. Add itionally, this paper concludes t hat this infrin gement cannot
be justied under sect ion 1 of the Charter. is paper su ggests that the total prohibition
on MAID for persons u nder the age of 18 is likely unconstitutional; but Parliament could,
conceivably, still save that regu latory regime by removing the arbitrary a ge restriction—
and by implementing standa rds similar to the criteria currently used to me asure minors’
capacity to make med ical decisions.
A. Parliament’s Response to Carter Ignores Jurisprudence on Mature
Minors’ Bodily Autonomy
e SCC and provincial and terr itorial trial and appellate cour ts have held age restrictions
are an arbitrar y way to determine minors’ capacity to reques t or refuse medical treat ment;
instead, those cour ts maintain minors must be a ssessed individually (throug h the “mature
minor rule” and “be st interests standard”).90 ese individua l assessments are accepted as
an eective, ecient, a nd accurate way to assess those m inors’ capacities, and Parliament’s
response to Carter ignored jurisprudence on matu re minors’ right to bodily autonomy.
88 AC, supra note 2 at paras 3 -4, 21.
89 Ibid at p ara 101.
90 See AC, supra note 2 at paras 107-108.
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i. The “Mature Minor Rule”
e “mature minor rule” was rst articulated in 1985 in the United Kingdom in Gillick
v West Norfolk and Wisbech AHA (“Gillick”).91 e issue in this cas e was whether doctors
could provide contraceptive advic e and prescriptions to a girl under the age of 16 without
parental conse nt.
92
e House of Lords recognized that, although parenta l rights and
duties of custody did not completely disappea r until the age of majority, the line between
childhood and adult hood was not rigid but gradual.93 e “mature minor rule” wa s
armed by the Supreme Court of Briti sh Columbia in Ney v Canada (Attorney General)
(“Ney”), in 1993, and the SCC in AC, in 2009.94
As detailed be low, both the SCC and L egislative Assembly of British Columbia have stated
that it is arbitrar y to use age as a denitive restriction on minors’ ability to consent. AC
sets out the common law “mature minor ru le” in Canada.95 In this case, t he SCC upheld
impugned provisions of Manitoba’s Child and Family Services Act (“CFSA”),
96
which
allowed the court to i ntervene in minors’ medical decisions, despite those minors’ right
to autonomy over their bodies. e SCC found that, when interpreted appropriately,
the scheme achieved the requisite balance between t he public’s interests in protecting
vulnerable child ren and respecting the autonomy of minors97—and that it did not violate
section 7 of the Charter.
98
In AC,
99
Justice Abella in sisted it would be “inherently arbitrar y
to deprive an adolescent under the age of 16 of the opportun ity to demonstrate sucient
maturity when he or she is under the c are of the state,”100 and she generally accepted that
there is no constitutional just ication to deprive a minor of that opportunity.101
Further, the SCC found that, with proper i nterpretation, the CFSA10 2 did not arbitrarily
restrict minors under 16 years of a ge from proving they were capable medica l decision-
makers.103 Rather, the CFSA only precluded them from a rebuttable presu mption of
91 Gillick v West Norfolk and Wisb ech AHA, 1986 AC 112, as cited in AC, supra note 2 at para 48.
92 AC, supra note 2 at par a 48.
93 Ibid at paras 48-51.
94 Ney v Canada (Attorney General), 1993 CanLII 1301 (BCSC) [Ney]. It is important to note that the
Manitoba Law Reform Commi ssion concluded the ‘mature minor rule’ is “a well -known, well-
accepted and workable prin ciple which [...] raise[s] few diculties on a day-to- day basis” (Minors’
Consent to Health Care (1995), Report 91, at 33), as cited in AC, supra note 2 at para 46 .
95 AC, supra note 2.
96 The Child and Family Services Act, CCSM 1985 c C80 [CFSA].
97 AC, supra note 2 at para 108.
98 Charter, supra n ote 11.
99 In AC, supra note 2, a 14-year-old -girl received a blood tran sfusion despite her refusal on
religious grounds. The t ransfusion was ordered by the trial co urt because it was determine d
to be in the child’s best interest . The authority to do so came from M anitoba’s CFSA. Although
the plainti had been foun d to have capacity to consent to treatment, the t rial court found it
was in her best interests to o rder the blood transfusion, de spite her refusal of it. The plainti
challenged the constitut ionality of the legislative schem e on the grounds that it violated
her section 7 rights . However, the SCC held that because the scheme prov ided a thorough
assessment of maturity of th e minor to determine whether the trea tment was in their best
interest, the scheme achie ved the requisite balance betwee n the protection of the vulnerab le
and autonomy of minors and that it d id not violate section 7 of the C harte r.
100 Ibid at para 114.
101 Ibid at para 29.
102 CFSA, supra note 9 6, ss 25(8), 25(9).
103 AC, supra note 2 at para 108.
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capacity—a presumption that persons 16 years of age and older were aorded .104 e
CFSA required court s to consider the maturity (and corresponding self-determination)
of a minor under 16 years of age when deciding whet her a self-elected medical de cision
was or was not in their “b est interests” (see below).105 erefore, their ability to make
treatment decisions was “ultim ately calibrated in accordanc e with maturity, not age.”
106
is
nding by Justice Abel la is important when deciding whether the cu rrent age restriction
for MAID is constitutional, as the current provisions do not provide a n opportunity for
anyone under the age of 18 to prove their capacity to request M AID.
e Legislative A ssembly of British Columbia has also ack nowledged that age is an a rbitrary
measurement of a minor’s capability to consent to medic al procedures. In 1992, British
Co lumbi a’s Infants Act107 was amended. e previous version required persons bet ween 16
and 18 years of age to satisf y a test before being deemed to have the capacity to con sent.108
Colin Gabelma nn, then the Attorney General of British Columbia, acknowledged th at
this previous provision wa s vulnerable to a constitutional c hallenge, and he held “[t]he
amendment removes arbitrar y distinctions between minors of dierent a ges, and makes
the requirements for consent to health c are uniform for all minors.”
109
e current version
of the Infants Act110 does not include an age re quirement and instea d provides a uniform
test to determine the medic al decision-making capacity of minors.111
is paper contends that, in c ertain circumsta nces, medical decision-mak ing by minors is
analogous to their a bility to request MAID, and a complete prohibition on MAI D based
solely on age is arguably a rbitrary.
ii. The “Best Interests Standard”
Canadian jur isprudence has considered how the “mature minor rule” applies in cases
where minors refuse life-sav ing treatment. In certa in cases, a minor’s decision to refuse
life-saving tre atment can be overridden if a court deter mines it to be in the child’s best
interests. When it comes to a minor’s refusa l of treatment (including life-saving t reatment),
the mature judgement and capac ity of a minor to make me dical decisions are important
considerations when deciding whet her the courts can override the wishes of a minor.112
As Justice Abel la accepted:
It is a sliding scale of scr utiny, with the adolescent’s views becoming
increasingly determ inative depending on his or her ability to exercis e mature,
104 Ibid at para 24. This is consis tent with the arguments advanced in Informed Consent: Legal Theory
and Clinical Practice, referenced in AC:
Authors in this area agree that ag e cut-os should not be used as automat ic determinants of de
facto capacity fo r any type of decision but may func tion as an indicator to shift presump tions.
Thus, individuals below t he age of consent are presumed to lack capa city unless shown
otherwise, and those ab ove the age of consent are presumed to have capaci ty until shown
otherwise (Jessica W B erg, et al, Informed Consent: Legal Theory and Critical Practice, 2nd ed
(Oxford, Oxfor d University Press, 2001), as cited in AC, supra note 2 at para 111).
105 AC, sup ra note 2 at para 116.
106 Ibid at para 111 [emphasis added].
107 Infants Act, RSBC 1979 c 196 s 16.
108 British Columbia, Ocial Repo rt of Debates of the Legislative Assembly (Hansa rd), 35th Parl, 1st
Sess, Vol 5, No 4 (24 June 1992) at 3056 (Hon C Gablemann). [BC Hansard].
109 Ibid.
110 Infants Act, RSBC 1996 c.223 s .17 [Infants Act].
111 BC Hansard, supra note 108 at 3056.
112 AC, su pra note 2 at para 96. Considerations made in this determination of decisional capacity
include: the inuence of parent s on the child’s wishes; the likelihood that th e treatment would
be successful; and the child’s devel opmental experience, intellig ence, and understanding of the
nature of their condition (Ibid ).
APPEAL VOLUME 23
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independent judgment. e more serious the nature of the decision, and
the more severe its potential impact on t he life or health of the child, t he
greater the degree of scrut iny that will be required.113
Applying such scrutiny, a court ca n interfere with a minor’s right to autonomy, and this
interference does not violate section 7 of the Charter.114
e “best interests st andard”115 comes from the provincia l statutory schemes that govern
mature minors’ ability to c onsent to treatment.116 e SCC has held that such a standa rd
does not violate section 7 when its application bala nces a minor’s right to medical decision-
making autonomy with the st ate’s interest in protecting vulnerable minors, wh ich was
the case in AC .117 To achieve thi s balance, “a thorough ass essment of maturity, however
dicult, is require d in determining their best interests.”118
at statutory scheme refers to t he considerations applied when determining whether a
minor’s medical decisions are or are not in t heir best interests. is includes factors like
“the mental, emotional and physica l needs of the child; his or her mental, emotional and
physical stage of deve lopment; the child ’s views and preferences; a nd the child’s religious
her it ag e.”
119
e court considers the complete circu mstances of the minor ma king the
medical decision when as sessing best interest.
However, as minors move from childhood to adolesc ence, the “distinct ion between
promoting autonomy and protecting welfare” sta rts to collapse. In W(A Minor), Re (whic h
was referenced with approval i n AC), Lord Balcombe addressed th at collapse:
[A]s children approach the age of majority, they are increa singly able to make
their own decisions concerni ng their medical treatment. [...] Accordingly
the older the child concerned the greater the weight the court should give
to its wishes, certa inly in the eld of medical treatment. In a sense this is
merely one aspect of the application of the test t hat the welfare of the child
is the paramount considerat ion. It will normal ly be in the best interests of
a child of sucient age and u nderstanding to make a n informed decision
that the court shou ld respect its integrity as a human being a nd not lightly
override its decision on such a personal matt er as medical treatment, all t he
more so if that treatment is inva sive.120
113 Ibid at para 20.
114 See AC, supra no te 2.
115 The “best inter ests standard” is used in provin cial legislation that governs medical d ecision-
making by minors and the cour ts’ ability to override a minor ’s autonomy and order a treatment
believed to be in the minor ’s best interest despite the minor’s refus al of such treatment. The
SCC has held that the best interest s standard must consider the minor ’s treatment wishes and
relevant capacity to make m edical decisions, as well as the cour ts overarching responsibility to
protect children from ha rm (AC, supra note 2 at paras 21-23, 32). The SCC stated that the level
of the minor’s maturity be comes more determinative of their abi lity to make such a decision
without interference f rom the court when the impact o f the decision on the life of the minor
is less severe. Additionally, the cour t should consider all relevant fac tors such as the mental,
emotional, physical and edu cational needs of the child and the chi ld’s mental, emotional and
physical stage of development.
116 Infant s Act, supra note 110, s 17; CFSA, supra note 93; Child, Family and Community Se rvice Act,
RSBC 1996 c 46 s 29; Child and Family Services Ac t, SS 1989-90, c C-7.2, ss 4(b), 11.
117 AC, supra note 2 at p ara 115.
118 Ibid at par a 4; Charter, supra no te 11.
119 AC, supra n ote 2 at para 89.
120 W(A Minor) (Medical Treatment: Court’s Jurisdiction), Re, [1992] 4 All ER 627 at 643-644, as cited in
AC, supra note 2 at para 55 [emphasis removed].
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Returning to t he “best interest s standard,” Lord Balcombe also accepted that the courts
should demonstrate some deference— and “give eect to the child ’s wishes on the basis
that prima facie th at will be in his or her best interests.”121
In AC, the SCC referenced severa l cases where minors’ decisions to refus e treatment have
been upheld. As an exa mple, in Re LDK (An Infant), a 12-year old (who was also a Jehova h’s
Witness) refused the blood tra nsfusions required as a consequence of chemotherapy; t he
Ontario Provincial Cour t considered the improbability of success (the prospect of succ ess
was estimated at 10 to 30 percent), the sincerity of her reli gious beliefs, and the emotional
trauma involved, accept ing her decision.122 In Re AY, as a nother example, the trial judge
accepted a decision made by a 15-year old (who was also a Jehovah ’s Witness) to refuse a
blood transfusion a nd chemotherapy; recognizing the improbabil ity of successful treatment
(the prospect of success was es timated at 10 to 40 percent) and the minor’s maturity, and
the trial judge acc epted the minor’s decision.123 In these instances, t he minors refusing
treatment had termina l illnesses, the treat ment had a low chance of saving their lives, and
they were found to be capable of mak ing their own medical decisions.124 ese decisions
were based on the requirement that t he courts consider the mental st ate and emotional
impact of ordering medica l treatment against a minor’s wishes.125
e SCC (in AC) a lso referenced several ca ses where the courts inter vened in minors’
medical decisions. In D ueck (Re), the Saskatchewan C ourt of Queen’s Bench overruled
the decision of a 13-year old boy to refuse surgery and continued chemotherapy wa s
overturned, as t he boy “was deeply inuenced by his father”—a nd “[t]he father controlled
the information the boy was getting about treatment, and misled him with respect to
the nature of his condition.”126 In H(T) v Children’s Aid Society of Metropolitan Toronto,
a 13-year old girl (who was also a Jehovah ’s Witness) was overruled after she refu sed a
blood transfu sion, as the girl “ lacked the maturity to judge the foreseeable cons equences
of her decision.”127
is paper argue s that these cases il lustrate similar circumst ances to a mature minor who
requests MA ID. Rather than an a rbitrary age requirement, t he courts considered the
complete circumstances of the minor making t he medical decision. e “best interests
standard ” acted as a safeguard in t hese cases, as it could be a safe guard in cases of mature
minors requesting M AID: it may permit some mature minors to access MAID, while
preventing those that lack the necessary intel ligence, independence, or maturity f rom
receiving MA ID.
121 Ibid.
122 Re LDK (An I nfant), 1985 CanLII 2907 [Re LDK].
123 R e AY, 1993 CanLII 8385 [R e AY].
124 Ibid at paras 14, 18, 23, 28, 34, 37. In Re AY, the Newfoundlan d Supreme Court denied a reques t
by the state to administer blo od products to a 15-year-old who was suer ing from terminal
cancer and who had refuse d such treatment. The likelihood that th e treatment would arrest the
progress of the child’s disease w as somewhere between 10 to 40 percent (Ibid at par a 14). In Re
LDK, the Ontario Provincial Co urt, found that a 12-year-old minor, who was suering fro m acute
myeloid leukemia, was of sucie nt intelligence to refuse a blood trans fusion; the chances of
successful treatment were be tween 10 to 30 percent (Re LDK, supra note 122 at paras 3-4, 14).
125 Re AY, supra note 123 at para 14; Re LDK, supra note 122 at paras 17, 19, 21, and 34. Specically,
courts focused on wh ether the treatment would violate the m ature minor’s right to freedom of
religion, produce side e ects that cause pain and anguish, an d the impact the treatment would
have on the minor’s dignity and p eace of mind when that treatment was forced u pon them,
among other issues.
126 AC, supra note 2 at p ara 60; Dueck (Re), 1999 CanLII 20568 (SKQB).
127 AC, supra note 2 at p ara 59; H(T) v Children’s Aid Society of Metropolitan Toronto, 1996 CANLII 8153
(ONSC).
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In light of the decision in AC, t his paper argues that in order to meet the const itutional
balance of a minor’s autonomy with society’s interest to protect vul nerable minors, the
MAID provisions mus t at least consider a minor’s maturity and capa city to consent to
and refuse medic al treatment before precluding them. is could be achieved th rough
a more restrictive and controlled “ best interests standa rd,” as seen in the refusal of li fe-
saving treatment ca ses.
B. Parliament Rejected Recommendations for a More Permissive
Regulatory Regime
is paper accepts t hat the existing existing “matu re minor rule” and the “best interests
standard ” are less restrictive t han an aged-based criterion and that they could protect
vulnerable minors whi le upholding the autonomy of minors in rare situations of irremediable
and grievous pediat ric disease. is a rgument is supported by recommendations a nd
ndings of independent groups who stud ied eligibility for MAI D before the new provisions
were implemented.
One of those independent groups is the Provincial-Territorial Expert Advisor y Group
on Physician-Assisted Dy ing (“Advisory Group”).128 e Advisory Group was created
by Parliament to consult with sever al stakeholders129 to make recommendat ions for an
amendment to the Criminal Code as a response to Carter. One of the recommendations
made by the Advisory Group wa s that eligibility for M AID be based on competenc e
(rather than age).130 eir Final Report st ates:
[…] in assessi ng whether someone is an adult person, an arbitrar y age limit
such as 18 years old provides no valid sa feguard. Instead, it is important
that willing physicians carefu lly consider the context of each request to
determine whether the person ha s the information needed, is not under
coercion or undue pressure, and is competent to ma ke such a decision.131
Additionally, the Special Joint Committee on Physicia n-Assisted Dying (“Joint
Committee”), another group created by Parl iament, studied submissions from Benoît
Pelletier (External Panel; Facu lty of Law, University of Ottawa) and Derryck Smith
(Physicians Advisor y Council, Dying with Dignit y Canada). Pelletier stated that “suering
is suering, reg ardless of age and that there is a r isk that the provisions may be challeng ed
on the basis of section 15 of the Charter (equality rig hts) if minors are excluded.”132
e Joint Committee also recom mended that “the capacity of a person requesting me dical
assistance i n dying to provide informed consent should be asse ssed using existing med ical
practices, emphasi zing the need to pay particula r attention to vulnerabilities in end-of-life
128 Prov incial-Territorial Expert Advisor y Group on Physician-Assisted D ying, Final Report
(30 November 2015), online: 5/docs/
eagreport_ 20151214_en.pdf > archived at at Appendix 1
[Canada, PT Expert Group]. Members of the Advisory Gr oup included experts in bi oethics, human
rights, and medical and m ental health (Ibid).
129 Ibid at Appe ndix 2. These stakeholders i ncluded the British Columbia and Cana dian Civil
Liberties Associations, Canadian Hospice Palliative Care Association, and College of Family
Physicians Canada (Ibid).
130 Canada, Leg islative Summary of Bill C-14, supra note 79 at ss 1.4, 1.5, 1.6.
131 Canada, PT Exp ert Group, supra note 128 at page 34.
132 Parli ament 1st Sess, 42nd Parl, Special Joint Committee on Physi cian-Assisted Dying, Evidence (26
January 2016), 1810 (Benoît Pelletier), as cited in Parliament of Canada, Specia l Joint Committee
on Physician-Assisted Dying, Medical Assistance in Dying: A Patient-Centred Approach, February
2016) (Chairs: Hon Kelvin Kenneth Ogilvie & Rober t Oliphant), online: 2LGZ> [Canada, Special Joint Committee].
Content/Committee/421/PDAM/Reports/RP8120006/pdamrp01/pdamrp01-e.pdf> archived at
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circumstances.”133 After a review of ma ny arguments for and against a llowing minors to
access MA ID, the Joint Committee stated:
Allowing competent mi nors access to MA ID would not be eliminating
the requirement for competence. Given exist ing practices with re spect to
mature minors in health care […] and the obvious fact that minors can
suer as much as any adu lt, the Committee feels that it is di cult to justify
an outright ban on acce ss to MAID for minors. A s with issues of mental
health, by institutin g appropriate safegu ards, health care practitioners can
be relied upon to identify appropriate cas es for MAID and to refus e MAID
to minors that do not satisf y the criteria.134
e Joint Committee acknowledged t hat there were dierences of opinion among witness es
(and the reports and recommendat ions the Joint Committee received)—a nd that those
opinions reected the range of public perspectives.135 As an example, the Canadian
Paediatric Society ma intained minors should not necessari ly be brought into Parliament’s
revised MA ID regulatory reg ime; its reasons included “the lack of evidence before the
court in Carter regardi ng minors; the fact that an age limit is not a rbitrary : and the lack
of social consensus w ith respect to MAID for minors [sic].”
136
Instead, the Canadian
Paediatric Society ad vised addressing minors’ access to M AID at a later date, when more
data was avai lable to address the issue.137 Also— Margaret Birrell (A lliance of People with
Disabilities Who A re Supportive of Legal Assisted D ying Society) and John Soles (Society
of Rural Physicians of Ca nada) “were open to minors possibly having access, but felt th is
should not be allowed at the present time.”138
e External Panel repor ted some witnesses were skeptica l of an age-based criterion.
Specically, the College of Physicia ns and Surgeons of British Columbia told the Extern al
Panel that excluding mi nors would be inconsistent with legislation (of several provinces)
that allows minors to make their own medica l decisions.139 Additionally, three medica l
ethicist s140 recommended an approach to MA ID eligibility restrictions that did not
133 Canada, Special Joint Committee, supra note 132 at 18.
134 Ibid at 20 -21 [citations omitted]. Peter Hogg (Osgoode Hall Law S chool) also asserted (to the
Joint Committee) that the SCC spoke onl y of ‘competent adults’—meaning the Joint Commi ttee
could set the age of “adulthood ” though adulthood is accepted as bet ween the ages of 18 and
21 (Parliament 1st Sess, 42nd Parl, Special Joint Commit tee on Physician-Assisted Dying , Evidence
(25 January 2016), 1240 (Peter Hogg), as cited in Canada, Special Joint Committee, sup ra note 132
at 18 -19).
135 Canada, Special Joint Committee, supra note 132 at 21.
136 Ibid a t 19.
137 Ibid.
138 Ibid at 20; Parliam ent 1st Sess, 42nd Parl, Special Joint Committee on Physicia n-Assisted Dying,
Evidence (4 February 2016), 1730 (Margaret Birrell), online:
en/42-1/PDAM/meeting-12/evidence> archived at /perma.cc/K62E-W56V>; Parliament
1st Sess, 42nd Parl, Special Joint Committe e on Physician-Assisted Dying, Evidence (4 Februar y
2016), 1900 (John Soles), online: en/42-1/PDAM/meeting-12/
evidence> archived at . It should be noted that, at this same
session, Michael Bach (Cana dian Association for Community Li ving) also asserted: “We
strongly urge that mature mino rs not be eligible. We don’t deny the suer ing of children and
adolescents, but we bel ieve that palliative care is the answer for thos e situations” (Parliament
1st Sess, 42nd Parl, Special Joint Committe e on Physician-Assisted Dying, Evidence (4 Februar y
2016), 1925 (Michael Bach), online: AM/meeting-12/
evidence> archived at /perma.cc/K62E-W56V>.
139 External Panel, supra note 9 at 54.
140 Those m edical ethicists are Dr. Thomas Foreman , Joshua Landry, and Michael Kekewich of th e
Champlain Centre for Health Care Ethics, Ottawa Hospital.
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reference age. Instead, t hey argued that an age-ba sed criterion would be arbitrary, and they
advocated for an approach to M AID eligibility requirements based on ac tual capacity.141
Wayne Sumner (Department of Philosophy, University of Toronto) suggested that
therevised reg ulatory regime allow MAID for minors bet ween the ages of 12 and 18.
Sumner stated:
e Court did not restrict eligibility for [physician-assiste d dying] to
competent adults only and there is no just ication for doing so. Some
provision must also be made for decision-mak ing by ‘mature minors’
(between the a ges of twelve and eighteen). In this case, however, it may be
best to reverse the presumption of capacity, so that adolescents will need
to demonstrate that they have t he maturity to handle a decision of th is
magnitude. If so, then t he decision should be left in their hand s, though
(especially in the ca se of younger adolescents) consultation with parents or
legal gua rdians may be mandated; t he rule of thumb should be that if a
minor is deemed to be competent to refuse l ife-sustaining treatment then
he or she is also competent to request life- shortening treat ment.142
ough the recommendations a nd reports from these groups (and the testimony of their
witnesses) reveals a r ange of opinions regarding minors a nd the MAID regulator y regime,
most maintain a ge-based restrictions a re problematic and probably unconstitutional (as
those restrictions d isrespect mature minors’ rights to bod ily autonomy). e testimony of
many witnesses (and groups) reecte d those witnesses’ (and groups’) professional, politica l,
and ethical interests in protecting populations v ulnerable to coercion and compulsion;
competence appeared as a n acceptable alternative to an age-based re striction.
is paper reviewed t he recommendations and ndings of independent groups who stud ied
eligibility requirements f or MAID in anticipation of a “section 7 analy sis” and “section 1
analysis” under t he Charter. As the paper reviews below, these groups’ arg uments that the
Criminal Code ’s age-based el igibility requirement is probably arbitrary or d isproportionate
to the objective of the MA ID regulatory regi me are relevant to the constitutiona lity of
section 241.2(1)(b)—as is their contention that t here are alternatives to that a ge-based
eligibility requirement t hat are less likely to infringe a matu re minor’s bodily autonomy.
C. Section 241.2(1)(b) of the Criminal Code Probably Infringes Mature
Minors’ Rights to Life, Liberty, and Security of the Person
In Carter, the SCC determined “that there may be people with disabilitie s who have a
considered, rational and per sistent wish to end their own lives”143— and the SCC decided
“not every person who wishes to commit suicide i s vulnerable.”144
So—is it possible that t here are also mature minors “who have a considered, rationa l and
persistent” wish to die? In its attempt to protect vulnerable children from compul sion
and coercion into suicide, is it possible that Parlia ment drafted an amendment to the
Criminal Code that went beyond that objective, capturing mature minors that are not
necessa rily vulnerable?
As a weighted hypothet ical, consider a constitutional challenge to section 241.2(1)(b)
of the Criminal Code by “Adolescent.” Adolescent is a competent, capable, and strong-
141 External Panel, supra note 9 at 54.
142 Ibid.
143 Carter BC SC, supra note 14 at para 1136, as cited in Carter SCC, sup ra note 7 at para 86.
144 Ibid.
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willed 17-year-old who was diagnosed with a degenerat ive disease when he was 14. He
has been told by multiple physicians that he w ill not live to see his next birt hday, and
before he succumbs to the condition, he wil l endure more and more severe suering and
pain, eventually becoming immobile. His physicians have also told him he will need
signicant persona l care. He fears he will have to have assistance from strangers; and he
fears, simil ar to Taylor, that this will re sult in interference with his “privacy, dignity, and
self-esteem.”145 Adolescent knows that there are pall iative care options available to hi m,
though he also ack nowledges palliative ca re cannot completely prevent his severe suerin g;
he has considered suicide as a n alternative.
To determine whether section 241.2(1)(b) of the Criminal Code, which prohibit s Adolescent
from accessing M AID because of his ag e, infringes his sect ion 7 rights to life, liberty, and
security of the person, the court would consider the reasons in Carter. Speci cally, the
court would determine i f the reasons for the nding that Taylor’s section 7 interests were
engaged by a prohibition on MAI D would extend to someone in Adolescent’s position.
e court would then determ ine if section 241.2(1)(b) of the Criminal Code was overbroad
in achieving its pur pose to protect vulnerable minors from taking their own lives in a
moment of weakness, includin g coercion and a lack of understanding of their choice.
i. Application of Section 7 of the Char ter
Admittedly, Adolescent may have dic ulty claiming he has the s ame life experience that
Taylor had had, and he may have diculty cla iming he has rmly esta blished life principles
that he lives by; and t hose factors were import ant issues in Carter.
However, he may wish to access MA ID for reasons fundamental to him, and a gain, he
may fear the loss of privac y or self-esteem that could come from dependence on stra ngers
for care and a lack of independence g enerally. As a 17-year-old, he has an understandi ng
of his own body (and he is entitled to a realm of per sonal privacy). Adolescent also faces
the same fear of intolerable suer ing that Taylor faced. As a result of these fe ars, despite
his age, Adolescent could still have a “funda mental belief ” about how he wishes to live
his life (or cease to live his l ife). He may have to face the same sort of “cruel choice” t hat
Taylor faced.
e nding, in Carter, t hat a total prohibition on MAID in fringes the right to life (of
those seeking M AID) by potentially forcing them to premat urely take their own life cou ld
logically extend to mat ure minors. Certain matu re minors who experience the intolerable
suering of irremedi able and grievous ailments cou ld be faced with the same c hoices
that Taylor was forced to face. For example, in the instance of Adolescent, he fears the
imminent and intolerable suerin g that will be caused by his ir remediable disease as well
as loss of privacy and dignity. As a result of these fear s, Adolescent could have a “deeply
personal and fu ndamental belief” about how he wis hes to cease living. However, section
241.2(1)(b) of the Criminal Code does not allow him to pu rsue MAID, and inste ad, he
must choose to face the intolerable suer ing and dependence on strangers for personal
care (in this clea rly weighted hypothetical) or be forced to ta ke his own life while he is stil l
physically capable. A lthough cases as serious a s Adolescent’s are rare, they are possible, and
this paper arg ues that based on the reasons in Carter, the existing provisions potentia lly
infringe a matu re minor’s right to life.
Section 241.2(1)(b) infringes minors’ (evolving ) right to autonomy over their own body,
and they may face intolerable physica l and psychological pain because t hey were denied
access to MA ID. erefore, the state interference with minors’ access to M AID engages
both liberty a nd security of the person interests (see above and below).
145 Carter S CC, supra note 7 at para 12.
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a. Overbreadth
Applying the “section 7 ana lysis” used by the SCC in Carter, this paper asserted that
the current regulator y regime restrictin g access to MA ID to persons aged 18 and older
infringed t he liberty and security of the per son interests of mature minors, turning to t he
weighted hypothetica l of “Adolescent.” is paper acknowledges t hat the current scheme
restricting ac cess to MAID i s probably overbroad, and therefore, it infringes a mat ure
minor’s rights to life, libert y, and securit y of the person. In order to be saved, the law must
be justied by section 1 of the Charter.
In order to determine overbreadth, the cour t must focus on the eect of the law on the
individual matu re minor. First, the cour t must consider the object of the prohibition on
access to MA ID for persons under 18 years old. Second, the consideration tur ns to whether
depriving the mature m inor of their section 7 rights fu rthers the objective of protecting
minors who are part icularly vulnerable by vi rtue of their age; or disabi lity, disease, or
illness; or compulsion or coercion by others who may induce t hem to take their own lives.
If the court est ablishes that the mature minor is not vu lnerable by virtue of those factors,
it must conclude that the government’s infringement of their rig hts applies to a larger
group than the lawm akers intended. is means that the age-based M AID safeguard is
catching more persons than it is required to catch, including t hose who would not be
considered especial ly vulnerable. In eect, t he court must nd that the new provi sions
are overbroad and take away t he life, liberty, or security of the person in a way that ru ns
afoul of basic societa l values.146
e current Criminal Code provi sions restrict minors from proving they are not v ulnerable
based on age. At common law, the “mature minor rule” requires that an ind ividual
assessment of maturit y determine an adolescent’s (or child’s) capacity to consent to medical
treatment, rather tha n any pre-determined age limit.147 A minor’s developing intelligenc e
and relative capacity to u nderstand what is involved in mak ing informed choices about
proposed medical treat ments determines their entitlement to decision-makin g autonomy.
148
As mature minors h ave been found capable of consenting and refusi ng consent to medical
treatment, it must follow that they a re capable of being competent, fully informed, and
free from coercion and duress i n similar circumsta nces. us, a mature minor who meets
all other eligibil ity requirements for MAID wou ld not be vulnerable if a permissive
regulatory reg ime was available to them. is paper a cknowledges that, by limiti ng access
to MAID ba sed on age and not an individua l’s maturity, the law eectively capt ures
minors who are not necessarily vulnerable. Minors who are c ompetent, fully informed,
and free from coercion and dures s are not at risk of being induced into taking their ow n
lives in a moment of weakness.
Returning to t hat weighted hypothetical, as sume that Adolescent meets all ot her eligibility
requirements to access M AID, including giving his i nformed consent as approved by two
independent medical or nurse pract itioners. Additionally, in the opinion of a psychiatrist,
he is of sucient intelligence and relative capacity to understand the implications of a
request for MAID. It could be argued that Adolescent is not vu lnerable to be induced
into taking hi s own life in a moment of weakness, but rather entitled to ma ke that choice
by virtue of his sec tion 7 rights under the Charter. However, because Adolescent does not
meet the age requirement (by a mat ter of months, in this hy pothetical) he is not eligible
for MAID and is subject to intolerable pain and suering. It wa s likely not Parliament’s
intention to deny this person the right to decide to end their life when such pain and
146 Bedford, supra no te 55 at paras 94-96.
147 Van Mol, supra note 6 at paras 76 -77; Ney, supra note 94 at 142.
148 Van Mol, supra note 6 at p ara 75.
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suering ensued. However, the eec t of their chosen criteria for MA ID is denying this
choice to a person who is not vulnerable.
e Department of Justice (“DOJ”), however, argues that e stablishing a clea r age cut-
o for accessing M AID rather than an individua lized assessment “is justied in light of
the unique interests at sta ke.”149 It has been recognized th at in some cases, determin ing
the capacity and mat urity of a minor is not a precise measure a nd they could be subject
to coercion and inuence from others.150 As such, to protect from mista kes in judgment
regarding a mi nor’s capacity, it is argued a clear-cut o age is justied . However, this
practicalit y justication does not change the absenc e of connection between the purpose
of the law and its eect on an individual mature minor who is c apable of making such
decisions. According ly, such an argu ment is better dealt with under the sect ion 1 analysis
(see below).
In response, this paper argues that the M AID regulatory regime can be bettered by the
addition of the “mature minor rule” a nd “best interests standa rd.” In addition to ensuring
that they have the capacity for informed consent, the “mature m inor rule” and “best
interests standa rd” can protect minors from compulsion, coercion, and abuse.
ii. Application of Section 1 of the Charter
If the new provisions under the Crimina l Code infringe a mature mi nor’s section 7 Charter
rights contrar y to the principles of fundamental justice, they will not automatica lly be
struck down. Instea d, the provisions would need to be exami ned under section 1 of the
Charter, which would justif y the infringement in circum stances “of sucient importance,”
such as where the counterva iling public good requires i nfringement to the rights of the
individual gu aranteed under section 7.151
Recalli ng the “section 1 analysis” addres sed in Part I: as established i n Carter, the protection
of vulnerable persons (including m inors) is a pressing and subst antial objective.
e primary considerat ion under the section 1 analysis, in this case, wou ld likely be
whether the law is proportionate to its objective .
152
Section 241.2(1)(b) would likely satisf y
the rst part of the proportionality test. e current prohibition on acces s to MAID
for persons under 18 is rationally connected to t he goal of protecting minors, who are
vulnerable becau se of their age; or disability, disease, or i llness; or compulsion or coercion
by others; and a prohibition on access to MAID would prevent any possibility t hat they
could be induced into tak ing their own lives.
149 Canada, “Legislative Backgroun d”, supra note 2. The DOJ asserted “[r]espectin g a mature minor’s
refusal of further u nwanted medical treatment is not the sa me as acquiescing to a request for
active measures to cause deat h” (Ibid). However, the DOJ acknowledged that the issue r equired
additional study, specic ally saying that there needed to be “add itional safeguards to protect
mature minors if they were to have access to suc h assistance” (Ibid).
150 AC, su pra note 2 at paras 4, 143.
151 Oakes, supra note 6 6 at paras 69-70; R v Big M Drug Mart Ltd. [1985] 1 SCR 295 at 352.
152 Oake s, supra note 66 at para 73.
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However, there is a strong argument to be made t hat it is not minimally impairing —and
it is probable that the current prohibition on mature minors’ acc ess to MAID would be
subject to criticisms that there a re less drastic alternatives available.153 e provisions are
considered minima lly impairing if the government meets it s burden of proving the absence
of less drastic mea ns of achieving the objective i n a real and substantive ma nner. us,
courts must determi ne whether an age restriction is the lea st drastic means of ensurin g the
protection of vulnerable minors (in response to t he unique vulnerability of chi ldren—and
the gravity of the inter vention at issue).
It would be dicult for the state to demonstrate that there are not more minim ally
impairing altern atives to the MAID prohibition for persons under the age of 18 in
section 241.2(1)(b) of the Criminal Code. is paper reviewed the “mature minor rule”
and “best interest s standard” to demonstr ate that age restrictions in medical decision-
making a re acknowledged as overbroad to simi lar stated objectives; an assessment of
individual matu rity levels is the appropriate test.154 A dditionally, this paper reviewed
the recommendations made by exp erts (through the independent groups established as a
response to the SCC’s decision in Carter), and those expert s reported that there are more
minimal ly impairing alternatives than t he current MAID prohibition for persons under
18 years of age.
As a result, it is unl ikely section 241.2(1)(b) would withstand the scrut iny of a “section
1 analysis”—a nd the impugned provision would likely be considered unconstitutiona l.
iii. Deference Owed to Parliament
e current Criminal Code MAID provisions may require t he court to exercise deference.
e complete prohibition on MAID did not receive defere nce because it was not a complex
response by the legislatu re to the underlying issues of a permissive MA ID regime.
e new scheme is more complex in that it sets out eligibi lity requirements and restrictions,
safeguards, and processes for acce ssing MAID, but it can be a rgued that the current
eligibility rest riction based solely on age is not suciently complex for minors. Inter ference
with mature minors’ rig hts to bodily autonomy must address the complexity of the i nterests
at stake.155 e common law entitles m inors to a degree of decision-making autonomy
commensurate to their mat urity.156
153 The p rovisions are minimally impairing if th e government meets its burden of pr oving the
absence of less drastic means o f achieving the objective in a real and su bstantive manner; that
is, is there a way to protect vuln erable minors in ways that are neither ove rbroad nor arbitrary
while still permitti ng the free exercise of their sec tion 7 rights under the Charter? For an exam ple
of a more minimally impairing l egislative scheme, it is import ant to consider the MAID regimes
of other jurisdictions . In both Belgium and the Netherlan ds, people under the age of 18 are
able to request MAID. The reg ime for MAID in Belgium originally excl uded those who had not
reached the age of majorit y (18 years old), but in 2014 the law surrounding MAID removed the
age requirement and instea d recognized that the decision- making capacity varied de pending
on the child (MacIntosh, supra n ote 65 at S28). A minor who requests MAID in Belgium mus t have
a “serious and incurable diso rder,” be in a hopeless situation and be exp eriencing unbearable
suering (Ibid at S27-28); additionally, the parent s of the minor must consent (Ibid at S28). In
the Netherlands, childr en over the age of 12 may request MAID (Ibid at S30). The Dutch MAID
regulatory regime re quires that a physician can only grant a reque st for MAID when the
physician is convinced that the patie nt is voluntarily seeking MAID and is we ll informed of their
options (Ibid); additionally, the patient must be experiencing lasting and intolerable suering
and be convinced that MAID is the onl y solution for them after two a ssessments of eligibility by
independent physicians (Ibid). Depending on the age of the minor, the parents mu st either be
consulted or consent (Ibid).
154 Van Mol, supra note 6 at p aras 76-77; Ney, supra note 94 at 142.
155 AC, sup ra note 2 at para 84.
156 Ibid at para 108.
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A counter-argument is that the re quirement by Bill C-14 to furt her study mature minors’
access to MA ID creates a sucient bal ance between the countervailing public and
individual interest s. With further study, Parliament can determine if furt her safeguards
should be put in place for the protection of vulnerable minors, and a constitutional
challenge commenced before the completion of that study may lead the cou rt to defer
to that process.
CONCLUSION
After applying a sec tion 7 and a section 1 (Charter) analysis, thi s paper argued the amended
MAID reg ulatory regime remains u nconstitutional, as it infringe s the rights to life, liberty,
and security of the per son of mature minors.
e paper reviewed the jurisprudence on mature minors in Canada, as mature minors’
rights to request and ref use (potentially life-saving) med ical treat ment was a reasona ble,
relevant point of comparison to the M AID regulatory regime. e “mature mi nor rule”
provides a means for child ren who have decisional capacity to refuse potentia l life-saving
treatment when it is determined to be in their best interests; and the “be st interests
standard ” provides a means for the court to inter vene in the medica l decisions made by
mature minors to prevent them from ac ting contrary to their bes t interests. rough those
rules, there are way s to protect vulnerable children while al so promoting mature minors’
rights to life, liberty, and security of the person; and they add to the stringent eligibilit y
criteria and safeguards already in plac e to protect adults from taki ng their own lives in
moments of v ulnerabil ity.157
e paper also addres sed the recommendations made by independent expert groups th at
those rules are applic able to the issue of MAID a nd mature minors. ose independent
expert groups reported t hat the “mature minor rule” and “best interests standa rd” are a
more sophisticated, subjective approach to deter minations of decisional capacity.
e paper then applied that sect ion 7 and section 1 (Charter) analysis to the weig hted
hypothetical of “Adolescent.” Adopting as many of the tr ansferable facts from Taylor’s case
as possible, that weighted hy pothetical demonstrated it is possible the M AID prohibition
in section 241.2(1)(b) of the Criminal Code inf ringes the section 7 Charter right s of mature
minors in ways contrar y to the principles of fundamental justice.
157 Criminal Code, supra no te 1, ss 241.2(2), 241.2(3).
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