Charter challenges to C-14

Truchon and Gladu v. Canada (Attorney General) and Quebec (Attorney General)

On June 13, 2017, two plaintiffs challenged both Québec’s and Canada’s MAiD legislation. Jean Truchon and Nicole Gladu argued the laws violate their Charter rights because they are too restrictive, especially since the federal government requires that a person’s natural death has become “reasonably foreseeable” and the Quebec legislation requires that a person be at the “end of life”. Jean Truchon has cerebral palsy; Nicole Gladu has post-polio syndrome.

The decision was released on September 12, 2019. Justice Christine Baudouin found that “reasonably foreseeable” and “end of life” breach the Charter and struck them down. She suspended her declaration of invalidity for six months to give the governments time to respond legislatively should they wish to do so. So, for now, we wait. In the meantime, Jean Truchon and Nicole Gladu are permitted to access MAiD.

Julia Lamb and British Columbia Civil Liberties Association v. Canada (Attorney General)

On June 27, 2016, Julia Lamb and the British Columbia Civil Liberties Association launched a Charter challenge to the federal medical assistance in dying legislation. This claim challenged the constitutional validity of the legislation, arguing that it is too restrictive, especially because of the following underlined portions of s. 241.2 of the Criminal Code:

241.2 (1) A person may receive medical assistance m dying only if they meet all of the following criteria:

(a) they are eligible or, but for any applicable minimum period of residence or waiting period, would be eligible for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering including palliative care.

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;

and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances. without a prognosis necessarily having been made as to the specific length of time that they have remaining

On July 27, 2016, the Attorney General filed its response to the civil claim.

On September 18, 2019, the BC Civil Liberties Association announced that the case had been adjourned because, based on the uncontested evidence of one of the Attorney General of Canada’s expert witnesses, and due to the evolution of clinicians’ understanding of what is meant by “reasonably foreseeable”, Julia Lamb would likely be found to be eligible for MAiD. Their expert stated:

If Ms. Lamb were to be assessed now, and she indicated an intent to stop BiPaP [a machine similar to a CPAP machine, which helps a person breathe better while sleeping] and refuse treatment when she next developed pneumonia, it is likely that she would be found to meet the threshold for having a reasonably foreseeable natural death … She would not be required to develop an episode of pneumonia before being approved for MAID. Most would consider it sufficient that she expresses certain intent to refuse treatment when this occurs, as she will inevitably develop a chest infection in the near future.

Therefore, while the case did not advance our understanding of whether the federal legislation violates the Charter or not, it did advance our understanding of the phrase “natural death has become reasonably foreseeable” and, because of its expansive interpretation, should result in greater access to MAiD.

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