In the recent decision of Truchon c. Procureur général du Canada, 2019 QCCS 3792 ("Truchon"), the Superior Court of Quebec considered the constitutionality of Canada's and Quebec's requirements in accessing MAiD.
The plaintiffs in Truchon were each suffering from grave and incurable medical conditions causing tremendous suffering and a total loss of autonomy. However, they had each been refused MAiD under the Quebec legislation regarding end of life care as they were not "at the end of life". They also did not meet the requirements of the federal Act to Amend the Criminal Code and to make related amendments to Other Acts (Medical Assistance in Dying) as the ends of their lives were not "reasonably foreseeable".
The plaintiffs argued that the Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 ("Carter") - the seminal case which legalized MAiD in Canada in certain situations - had not required that a person's end of life be reasonably foreseeable in order for that person to qualify for MAiD. They further submitted that the legislated end of life requirement violates the right to equality under s. 15 of the federal Charter, as well as the right to life, liberty and security of the person under s. 7.
The defendant, the Attorney General of Canada, argued that the conclusions reached in Carter cannot be extrapolated to apply to the new federal legislation which was enacted after the decision. Further, the requirement of death being reasonably foreseeable allowed flexibility to doctors and nurses to take into account the total medical condition of the person wishing to utilize MAiD. The Attorney General of Quebec made similar submissions. Both Attorneys General maintained that the end of life prerequisites did not violate s. 7 or 15 of the Charter.
Access to MAiD
In order to access MAiD under the federal legislation, a person must:
(a) be eligible for health services funded by a government in Canada;
(b) be at least 18 years of age and capable of making decisions with respect to his or her health;
(c) have a "grievous and irremediable" medical condition, which requires that:
(i) the person has a serious and incurable illness, disease, or disability;
(ii) the person is in an advanced state of irreversible decline in capability;
(iii) the illness, disease or disability, or the state of decline, causes the person enduring physical or psychological suffering that is intolerable to them and cannot be relieved under...