By Mrs. Isabelle Germain, partner, Mr. Nicolas Moisan, partner, and Mrs. Julie Pamerleau, associate
On last September 11, the honorable Justice Christine Beaudoin, of the Superior Court, rendered a much awaited and publicised decision1 on the Quebec and Canadian legislative scheme respecting medical assistance in dying. Justice Beaudoin ruled that the reasonably foreseeable natural death requirement within the meaning of the Criminal Code2 violated the fundamental rights provided under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms3 (hereinafter the “Charter”) and that the end of life criteria under the Quebec statute, being the Act respecting End-of-Life Care4, (hereinafter the “Act”), also breaches s. 15 of the Charter. Justice Beaudoin considered that those violations are not justified under Section 1 of the Charter and that they were hence unconstitutional.
Justice Beaudoin suspended the constitutional invalidity declaration for a six (6) month period and granted the two (2) applicants, Mr. Jean Truchon and Mrs. Nicole Gladu, a constitutional exemption for that same period.
The two (2) levels of government just recently confirmed that they would not appeal the case.
FACTS
Mr. Truchon, aged 51, was born with a spastic cerebral palsy with a triparaisis leaving him totally paralyzed, except for his left arm. In 2012, he was given a severe spinal stenosis and a myelomalacia diagnosis with the result that his left arm was permanently paralyzed. Notwithstanding his condition, his life expectancy is established for several more years.
For her part, Mrs. Gladu, 73 years old, contracted poliomyelitis during childhood. She is still affected with residual paralysis on her left side and serious scoliosis caused by a spinal column distortion. At the age of 47, she was diagnosed with a muscular degenerative post-poliomyelitis syndrome and, since then, her condition considerably deteriorated. Her life expectancy was however established at two (2) or tree (3) years.
The two (2) applicants both comply with all the medical assistance in dying requirements of the Criminal Code except for the reasonably foreseeable natural death, and with all the criteria of the provincial act, except for being at the end of their life. As they were declared ineligible for medical assistance in dying, they challenged the constitutionality of those requirements considered unconstitutional since they are in violation of ss. 7 and 15 of the Charter in connection with the right to life, to liberty, to security as well as the right to equality.
According to the applicants, those requirements also violate the principles set out in Carter v. Canada (Attorney General) (hereinafter the “Carter decision”)5, hence denying them the right to obtain medical assistance in dying, a right that they were nonetheless granted in that decision.
REASONS OF THE DECISION
THE CARTER DECISION DID NOT INTRODUCE A CONSTITUTIONAL RIGHT TO MEDICAL ASSISTANCE IN DYING
The Carter decision decriminalized assisted suicide under certain conditions. The Supreme Court then held that ss. 241 b) and 14 of the Criminal Code were unconstitutional and gave the legislator the option to establish a legislative scheme in accordance with the principles set out in its decision. The Supreme Court in no way, explicitly or implicitly, qualified or restricted the opportunity of obtaining medical assistance in dying only to the persons for which a natural death is reasonably foreseeable or being at the end of their life. The basis of the Carter decision is the respect of a person’s wishes, the safekeeping of her dignity and the relief of her suffering.
Hence, the requirement of reasonably foreseeable natural death set out in s.241.2 (2) d) of the Criminal Code as well as the one with regards to the end of life stated in the third paragraph of s. 26 of the Act are not consistent with the principles set out in the Carter decision. Notwithstanding the fact that they are not consistent with the Supreme Court decision, those requirements aren’t however de facto unconstitutional.
The Tribunal consequently reviewed their constitutionality in the light of ss. 7 and 15 of the Charter.
THE REASONABLY FORESEEABLE NATURAL DEATH REQUIREMENT, UNDER S. 241.2 (2) D) OF THE CRIMINAL CODE, VIOLATES S. 7 OF THE CHARTER
In the light of the conclusion that s. 7 of the Charter is infringed, the applicants must establish that the act or state action deprives them of their right to life, liberty and security or that it violates those rights. They must also establish that such deprivation or violation does not accord with the principles of fundamental justice since the minimal constitutional requirements are not satisfied.
With the adoption of the reasonably foreseeable natural death requirement, the State directly attacks the physical integrity of the applicants, causes them physical and psychological pains and deprives them of making a fundamental choice respectful of their dignity and of the integrity of their person.
THE VIOLATION OF THE APPLICANTS’ FUNDAMENTAL RIGHTS (UNDER S. 7 OF THE CHARTER) IS NOT JUSTIFIED BY S. 1 OF THE CHARTER
To determine whether the fundamental rights infringement is justified by Section 1 of the Charter, the Tribunal applies the criteria set out in Oakes6. First, the restriction must be prescribed by law and the objective of the challenged provision must be pressing and substantial. Next, it must be established a sufficient degree of proportionality between the objective and the means used to achieve it. To assess such a degree, one must consider the connection between the restriction and the objective, the minimal violation of the right or liberty and the proportionality existing between the provision’s objective and the greater public good.
In the present instance, the restriction originates from a prescription of the Criminal Code. Its objective (aimed at the protection of vulnerable persons) may present a pressing and substantial character considering the implications at sake and the possible death consequences.
However, it has not been established that the reasonably foreseeable natural death requirement constitutes the least drastic means to protect the vulnerable persons that might be induced to commit suicide at a time of distress.
As to the proportionality of effects, the Tribunal considered that the deleterious effects affecting persons that are not dying persons, but that are still affected by a serious and irreversible condition, who experience a decrease of their capacities, whit no chance of recovery, and most of all people that are constantly and intolerably suffering from physical and psychological pains, are far more important than the anticipated benefits to society as a whole considering the sufficiency of the others measures set out in the law.
THE REASONABLY FORESEEABLE NATURAL DEATH REQUIREMENT SET OUT IN S. 241.2 (2) D) OF THE CRIMINAL CODE, ALSO VIOLATES S. 15 OF THE CHARTER
In the present case, because of their own physical condition, the applicants cannot have access to medical assistance in dying notwithstanding the fact that they otherwise comply with all the other requirements set out in the law. They are also denied the opportunity of dying in conditions that would otherwise be available if they were at the end of their life. In the present case, the challenged requirement fails to take account of the applicants’ personal situation, characteristics and real needs in a fashion that would be respectful of their values as human beings.
THE APPLICATION OF S. 1 OF THE CHARTER DOES NOT JUSTIFY THE VIOLATION OF THE APPLICANTS’ FUNDAMENTAL RIGHTS (UNDER S. 15 OF THE CHARTER)
The Tribunal determined that the reasonably foreseeable natural death requirement set out in s. 241.2 (2) d) of the Criminal Code does not meet the minimal impairment and the proportionality of the effects standards. Hence, it is not justified under section 1 of the Charter
SUBPARAGRAPH 3 OF THE FIRST PARAGRAPH OF SECTION 26 OF THE ACT IS ALSO UNCONSTITUTIONAL IN VIRTUE OF THOSE SAME PRINCIPLES
As it was the case in its analysis of the Criminal Code provision, the Tribunal determined that subparagraph 3 of the first paragraph of section 26 of the Act violates s. 15 of the Charter and that is not justified under section 1 of the Charter. The Tribunal considered that there was no need to review the challenged provision in the light of s. 7 of the Charter.
CONCLUSION
One must consider this judgment as an important milestone in the decriminalization of medical assistance in dying. The decision also obliges the provincial and federal legislators to pursue their reflection on that issue.
In the next following years, medical assistance in dying will once again necessarily be the object of fundamental reflections. Indeed, many questions remain unanswered with regards to the application of that right to minors and incapacitated persons, just to give a few examples. The legislators will not be dispensed with an in-depth reflection on the concrete applications of medical assistance in dying. One must also expect that the courts will be asked to examine those issues.
1 Truchon v. Attorney General of Canada, 2019 QCCS 3792.
2 R.S.C. (1985), c C-46, ss. 241.2 (1) and 241.2 (2).
3 Part I of the Constitution Act, 1982, [Schedule B to the Canada Act, 1982, (UK), 1982, c 11].
4 CQLR, c. S-32.0001, s. 26.
5 [2015] 1 S.C. R 331.
6 R. v. Oakes, [1986] 1 S.C.R. 103.