A Time and Manner to Die: A Study of Medical Assistance in Dying in Canada
144 Pages Posted: 8 Feb 2019
Date Written: September 1, 2018
At the heart of one’s decision to seek medical assistance in dying lie a person’s autonomy and bodily integrity. In Carter v Canada (Attorney General), the Supreme Court of Canada applied this reasoning to hold that every adult person, who has a grievous and irremediable medical condition and is enduring intolerable suffering has the right to a physician-assisted death. I argue in this paper that if a life is no longer worth living due to the very high price to pay to live it, then a person should be permitted to “waive” his/her right to life. In my view, just bearing the grievous and irremediable medical condition that has the effect of causing enduring intolerable suffering to an individual constitutes a very high price to pay. Expecting that individual to have a reasonably foreseeable natural death as well is an affront to that person’s autonomy, bodily integrity and human dignity. I contend that this is the effect of Bill C-14, Parliament’s response to Carter, and Quebec’s Act Respecting End-of-Life Care. Both laws require a patient to prove the elements of a grievous and irremediable medical condition, as the condition is defined in each respective legislation, but in addition, this patient must prove that his/her natural death is reasonably foreseeable and, in Quebec, that he/she is at the end of life. I argue that both laws contravene the essence of Carter and the Canadian constitution on both grounds of federalism and the Canadian Charter of Rights and Freedoms (Charter).
As the notion of dialogue or Charter dialogue often surfaces to describe the relationship between the courts and a competent legislative body, this paper invokes this notion as the basis for its theoretical framework. This paper adopts a normative perspective in anticipation that the Supreme Court will take another look at the issue of medical assistance in dying. It argues what Parliament should have done, or, perhaps, more accurately, what it should not have done in response to Carter. I raise similar arguments in the case of the Quebec legislation. In my opinion, the two laws could successfully be challenged in court.
Note: This paper is the author’s thesis submitted to the Graduate Program in Law in conformity with the requirements for the Degree of Master in Laws at Queen’s University, in Kingston, Ontario (Canada), in September 2018. He is grateful to various professors and colleagues, but, especially, to Law Professor Beverley Baines, his supervisor, whose suggestions and direction proved to be invaluable in completing this project. Frank Catalano practices law as a notary in Montreal specializing in wills, protection mandates and estates. He was also called to the New York Bar in June 1991.
Keywords: medical assistance in dying, MAiD, physician assisted death, grievous and irremediable medical condition, l'aide médical à mourir, Carter, Rodriguez, Bedford, Mills, Sauvé, O'Connor, Charter of Rights and Freedoms, PHS, Securities Reference, Secession Reference, Assisted Reproduction
JEL Classification: K14
Suggested Citation: Suggested Citation