Why Canada's Medical Assistance in Dying Legislation Should Be C(h)arter Compliant and What It May Help to Avoid

(2018) 11(1) McGill Journal of Law and Health 61-148

88 Pages Posted: 21 Mar 2018 Last revised: 12 Jun 2018

See all articles by Trudo Lemmens

Trudo Lemmens

University of Toronto - Faculty of Law

Heesoo Kim

University of Toronto, Faculty of Law, Students

Elizabeth Kurz

University of Toronto - Faculty of Law

Date Written: March 19, 2018

Abstract

In 2015, the Supreme Court of Canada in Carter v Canada (AG) (Carter) invalidated the absolute prohibition on what is now known in Canada as medical assistance in dying (MAID), It nevertheless reaffirmed the validity of a more limited criminal law-based prohibition and the role of the criminal law. In response, the 2016 federal legislation provides access to MAID to competent adults who have a grievous and irremediable medical condition that causes enduring and intolerable suffering, but it balances this with restrictions aimed at the realization of several broad goals and values: the protection against errors and abuse; the equal value of every person’s life and the avoidance of negative perceptions of the quality of life of persons who are elderly, ill, or disabled; the prevention of suicide; and the protection of vulnerable people. Access is therefore restricted to people whose natural death is “reasonably foreseeable” and whose “capabilities” are irreversibly declining. Several commentators have criticized the law for being inconsistent with Carter and for violating the Canadian Charter of Rights and Freedoms (Charter) and the law is already being challenged in court. In this article, we argue that the federal legislation constitutes a proper response to Carter, in that it respects Carter as well as the Charter.

The first Part of the article discusses the largely ignored restrictive, and at times contradictory, nature of the Carter trial and Supreme Court decisions, their discussion of the evidence, the subsequent public and parliamentary debates, the introduction of the legislation, and some problematic interpretations that have since been put forward. The second Part of the article looks at serious problems that are increasingly identified in Belgium's euthanasia regime, which has been hailed by some as a good model for MAID regulation, and which played a particular role in the Carter decision. Our discussion highlights how a Belgian-style regime, which provides broad access to MAID outside of the end-of-life context and relies mostly on physician evaluations and post-factum reporting as safeguards, risks undermining the legitimate goals and values of the federal legislation. The authors conclude with recommendations to keep the current end-of-life restrictions in place, to introduce a meaningful reporting system, and to provide proper guidance for the interpretation of the end-of-life restrictions.

Keywords: End-of-Life, Euthanasia, Medical Assistance in Dying, Canadian Charter of Rights and Freedoms, Constitutional Law, Human Rights, Physician Assisted Suicide, Mental Health

Suggested Citation

Lemmens, Trudo and Kim, Heesoo and Kurz, Elizabeth, Why Canada's Medical Assistance in Dying Legislation Should Be C(h)arter Compliant and What It May Help to Avoid (March 19, 2018). (2018) 11(1) McGill Journal of Law and Health 61-148. Available at SSRN: https://ssrn.com/abstract=3143935

Trudo Lemmens (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Heesoo Kim

University of Toronto, Faculty of Law, Students ( email )

Toronto
Canada

Elizabeth Kurz

University of Toronto - Faculty of Law ( email )

882 Davenport Road
Toronto, ON M6G2B6
Canada
416-272-3462 (Phone)

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