In Truchon c. Attorney General of Canada, 2019 QCCS 3792 (CanLII), a decision of the Quebec Superior Court, The Honourable Christine Baudouin, JCS held that the end of life requirement under section 26 of Quebec’s End-of-Life Care Act and the “reasonable foreseeability of natural death” requirement under the Criminal Code‘s medically-assisted death requirement are both unconstitutional as contravening section 15 of the Canadian Charter of Rights and Freedoms (and that the federal provision contravenes section 7; she did not consider whether the Quebec provision contavened section 7). The facts underpinning the challenges were the same. Nevertheless, should the provisions be analysed the same way and lead to the same result?
The plaintiffs in the case both lived with deteriorating physical conditions that led to much suffering, and otherwise satisfied the requirements for medically-assisted death under both legislative regimes, but they did not meet the end of life/reasonable foreseeability of death requirement.
Jean Truchon, who is 51, has had cerebral spastic paralysis with tripartism since birth, paralyzed except for his left arm, but until 2012 he had been able to live an active life, using a wheel chair, including attending university and living alone in residence. After he received his degree, he lived in an apartment with homecare. He was able to participate in a range of activities. In 2012, “he was diagnosed with severe spinal stenosis (narrowing of the spinal canal of the spine) and myelomalacia (necrosis of the spinal cord)” and in 2012, he lost the use of his left arm. He experiences considerable pain and “also feels great psychic suffering, since he is in a state of total dependence for all the activities of daily life that he has managed to tame. He can not live alone in an apartment anymore. He says he died in 2012.” His life is limited and structured according to the care he receives at a health and social services institution. He considers starving himself to death. (Justice Baudouin describes Mr. Truchon’s life in paragraphs 17 to 34 and summarizes the medical testimony in pararagraphs 38 to 48.)
Nicole Gladu, 73, contracted polio at aged 4, and was not expected to walk again. However, with physiotherapy and three spinal transplants, she was able to recover some movement and lived a fulfilling life, including as a Radio-Canada journalist, “parliamentary correspondent for Montréal-Matin, press secretary for the United Nations in New York and director of communications at the Québec delegation in New York. She also completed a master’s degree at ÉNAP [National School of Public Administration] in 1994”. She travelled and generally led an active life, but when she was 47, “she was diagnosed with post-polio degenerative muscular degenerative syndrome, a degenerative neurological disease characterized by generalized fatigue, progressive or sudden muscle weakness and muscle aches that reduce mobility. This incurable condition stems from over-compensation of the body in polio survivors.” Her condition worsens and is painful. She also has pulmonary disease, with a prognosis of two to three years, but fears complete dependence and being restricted to bed before then. (Justice Baudouin describes Ms Gladu’s circumstances in paragraphs 51 to 64, summarizing the medical testimony in paragraphs 66 to 69.)
Both Ms Gladu and Mr. Truchon have the capacity to consent to a medically-assisted death and their conditions are “grievous and irremediable”, causing them “enduring suffering” that they find “intolerable” (the wording in Carter, in which the Supreme Court of Canada held that the prohibition against assisted suicide was unconstitutional, para. 127).
Quebec enacted its end of life legislation on June 5, 2014; it came into force on December 10, 2015. Rather than being a response to the Supreme Court’s decision in Carter, it had been under consideration for about six years and was carefully written to fall within provincial jurisdiction over health. As Justice Baudouin said, “The Quebec law is not a response from the provincial legislator to a judicial decision, but rather a social response to the initiative of the Quebec medical community who wanted a paradigm shift towards a holistic approach to the issue of appropriate care at the end of the year. life.” (para. 120, Translation [all quotations from the decision are the translation as it appears in CanLII])
Under the End-of-Life Care Act, in addition to being of age (“full” age, but also 14 or over) and having the capacity to consent, an individual must be “at the end of life”, “suffer from a serious and incurable illness” that is characterized by “an advanced state of irreversible decline in capability” and “experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable” (article 26, English version).
The Act defines “end-of-life care” as “palliative care provided to end-of-life patients and medical aid in dying” and “medical aid in dying” as “care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death” (article 3(6), English version).
Article 3 of the Act defines “palliative care” as “the total and active care delivered by an interdisciplinary team to patients suffering from a disease with reserved prognosis, in order to relieve their suffering, without delaying or hastening death, maintain the best quality of life possible and provide them and their close relations the support they need” and “continuous palliative sedation” as “care that is offered as part of palliative care and consists in administering medications or substances to an end-of-life patient to relieve their suffering by rendering them unconscious without interruption until death ensues”. By implication, palliative care is care near the end of life, with the expectation that death will ensue shortly.
The Supreme Court of Canada held that the prohibition against medically-assisted suicide was unconstitutional in its February 5, 2015 decision in Carter, finding that it was a contravention of section 7 of the Charter (it did not address section 15), leaving it to Parliament to decide whether to act; if Parliament acted, however, it was to craft legislation in accordance with the requirements or scheme set out by the Supreme Court at paragraph 127:
The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The Court neither imposed a temporal limitation on when assisted death could occur nor explicitly stated that it could occur at any time.
In response, the federal Parliament enacted amendments to the Criminal Code to permit medically-assisted dying on June 17, 2016 (the Medical Assistance in Dying Act). (However, the physician-assisted dying had been legal as of June 6, 2016, the date on which the Supreme Court’s deadline for amending the Criminal Code expired.)
Parliament’s approach was to permit medically assisted dying, while at the same time creating restrictions — preconditions on eligibility — that would ensure to the extent possible that it was not abused or, put another way, that vulnerable people would be protected, in particular by ensuring that an individual would have to be close to death before being eligible for medically assisted death.
Section 241.2(1) of the Criminal Code provides that a person must be at least 18 with the capacity to make decisions, “have a grievous and irremediable medical condition” and must make a voluntary request after being informed of alternatives. The indicia of “a grievous and irremediable medical condition” are as follows:
.(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. (section 241.2(2))
Both Quebec’s statute and the Criminal Code provide for a considerable number of safeguards to ensure that the person’s decision is informed and voluntary, among other requirements.
Although in many respects, the provisions in the End-of-Life Care Act and under the Criminal Code are similar, in one way, they are very different: the Quebec provisions are part of a statute dedicated to ways in which patients may receive care at the end of their lives, and in that sense, are part of a comprehensive scheme, while the Criminal Code provisions provide a limited exemption to what would otherwise be a criminal offence and address nothing other than medically-assisted death.
The Truchon and Gladu challenges were limited to the end-of-life/reasonable foreseeability of natural death requirements. Justice Baudouin found both provisions contravened section 15 of the Charter and that the Criminal Code provision also contravened section 7 because they exclude Mr. Truchon and Ms Gladu and others like them from the benefit of medically-assisted death. She accepted the interpretation of the Supreme Court’s statement of eligible criteria that because the Court did not impose a temporal restriction, it intended that medically-assisted death should be available at any time: the Court “aim[s] to recognize each person’s decision-making autonomy and medical decision-making on their own body, regardless of the timing and potential consequences of that decision” (para. 532).
Justice Baudouin considers both provisions under section 15 of the Charter. The distinction, she says, is based on physical impairment: “because of their own physical condition, applicants can not obtain medical assistance in dying despite the fact that they otherwise meet all the other requirements of the law, and are deprived of the possibility of dying under conditions that would be available if they were at the end of their life” (para. 654). This is not quite the case. Their physical condition does not put them in any different position to anyone else as far as this point, as articulated, is concerned; however, it can be argued that they are disproportionately hurt by the circumstances of their physical condition in a way others may not be and, echoing Carter‘s appreciation of harm, “[a]lthough the law as drafted does not force the applicants to live, it forces them to chooose between suffering, suffering more or committing suicide.” (para. 657)
Mr. Truchon cannot commit suicide by himself (although he can refuse to eat); for Justice Baudouin, this means the requirement of reasonably foreseeable death “is equivalent to that of a total prohibition on medical assistance in dying”; yet this in itself does not place him in a position different from others: he, like others, will be eligible when his death is reasonably foreseeable. What is different from others (or may be different) is that he will suffer constantly until that time arrives. It is the case, however, that he is effectively (but not entirely) foreclosed from taking his own life in a way others are not.
Justice Beaudouin rejects the paternalism of the provision (and of the Attorney General’s submissions) and ultimately bases her finding of a contravention of section 15 on this:
[ 680 ] The legislator’s connection between the reasonably foreseeable natural death requirement and the vulnerability of all persons with disabilities betrays, with respect, a paternalistic view of individuals as plaintiffs. Because of their disabilities, the state considers implausible … that these people can give a valid consent to medical assistance to die, autonomy being necessarily compromised by their vulnerability ….
[ 681 ] By addressing only one of the stereotypes of which persons with disabilities are victims – vulnerability – the impugned provision may perpetuate another perhaps more pernicious stereotype – the inability to fully consent to medical assistance in dying. However, the evidence amply demonstrates that Mr. Truchon remains perfectly fit to make fundamental choices concerning his life and death. He is therefore deprived of exercising those choices essential to his dignity as a human being because of his particular characteristics, the disputed provision of which does not take into account. He can not commit suicide by whatever means he chooses, … or seek legal assistance.
[ 682 ] The full autonomy of persons placed in the same situation as Mr. Truchon must be exercisable not only at the end of life but also at any time during their life, even if it means death, when the other eligibility requirements for medical assistance in dying are met.
The reality is that regardless of their physical or psychic suffering, no one who wishes a medically-assisted death is fully eligible until they are near death. They are also deprived of their autonomy. Again, however, where Mr. Truchon and Ms Gladu differ is the degree and extent of their suffering before they meet the requirement. The issue, therefore, is whether Parliament took into account the circumstances facing the plaintiffs in designing the provisions. It did not. Assuming that the reasonable foreseeability of death requirement does contravene section 15, is it saved by section 1? In Justice Baudouin’s view, it is not. She rejects the argument that this measure is the only one available because it is not possible to address all circumstances, since physicians are able to do so. Applying her section 1 analysis under section 7 to section 15, she concludes that the provision is not justified.
Much of the section 15 analysis relating to the Criminal Code provision also applies to Quebec’s end-of-life provision, but there are additional considerations. In particular, for Justice Beaudouin, the fact that the Quebec legislation is explicitly designed to address issues related to the end of life is irrelevant:
The fact that the Quebec law was designed ” specifically on the issue of end-of-life care ” does not immunize it against its discriminatory effects. Victims of pre-existing stereotypes and prejudices because of their physical deficiency, the applicants are refused a care designed precisely for the exceptional situations that are theirs, except the end of life. Once again, they find themselves protected against themselves because of the nature of the care and belittled by legislation that claims to reflect their unique characteristics without actually doing so. (para. 717)
That this is an appropriate analysis is not clear. The Quebec legislation is designed for persons who are reaching the end of their life; its purpose as set out in Title 1 is the following:
The purpose of this Act is to provide end-of-life care that respects their dignity and independence. To this end, it specifies the rights of these individuals as well as the organization and supervision of end-of-life care so that everyone has access to quality care throughout the continuum of care. adapted to his needs, especially to prevent and alleviate his suffering.
One might argue that by failing to take into account that the long-term physical incapacity and suffering resulting from some conditions the legislation is discriminatory. If this is so, to pemit persons with these conditions to access medically-assisted dying prior to what would otherwise be the end of their life requires changing the purpose of the Act. One has to ask whether it is enough or appropriate to make exceptions to the Act to recognize these conditions? As Justice Baudouin points out, the End-of-Life Care Act was enacted prior to Carter and was intended to avoid challenging the Criminal Code provisions against assisted suicide.
Futhermore, she treats “end-of-life” and “the recognition of dignity and autonomy” as two parts of the purpose. She says, “medical assistance in dying is not a care because it is at the end of life, it is a care because it relieves the suffering of people at the end of life” (para. 724) and “[t]he appropriate care, related to the suffering and the decisional autonomy, is not determined by the criterion of the end of life…[O]ne of the purposes of the Act is to recognize the dignity and the right to autonomy of individuals at the end of life by providing appropriate care” (para. 726) In a sense, this requires “end of life” to be modified by an additional phrase “end of life as determined by the individual”.
Justice Baudouin did not assess the Quebec provision under section 7, but did assess the Criminal Code provision. Although not arbitrary, since it does have a rational connection to its purpose (which Justice Baudouin finds to be the “protection of vulnerable people who might be motivated to end their lives in times of distress by preventing mistakes when assessing requests for medical assistance in dying” [para. 556]), the Criminal Code provision is overbroad because the plaintiffs, and others like them, are eligible for medically-assisted dying and they do not need protection because of vulnerability (para. 576). She rejects the Attorney General’s argument that they will eventually become eligible and that they are being denied only a particular way to die, since they can choose to die through a different method:
The foundation of Carter is intended to enable persons, capable of doing so, to put an end to intolerable suffering when they know that they have a serious and incurable disease, that they no longer have any hope for improvement and that they are helpless to the advanced and irreversible decline of their capacities. The teaching of the Supreme Court is not intended to keep alive and against their will, people who, after a while, will naturally arrive at the stage of an imminent death where they can seek medical assistance in dying at the end of unnecessary suffering and at the price of the complete negation of their dignity. (para. 584)
She finds that the provision is “totally disproportionate to the purpose of the measure”.
Justice Beaudouin’s analysis under section 1 accepts that the court should give deference to Parliament: “The solution developed by the legislator should not be perfect and several solutions may exist in respect of a social issue, hence the importance of giving proper deference to the legislature” (para. 603). However, she does not appear to accept that she need show “great deference”, since unlike the Attorney General, she does not believe that this is a complex issue (quoting the Attorney General as saying, “‘a measure of complex regulation to address a social problem'”): “medical aid in dying is the answer to the recognition of the right to autonomy and not a complex regulatory measure aimed at countering the ills that afflict our society” (paras. 604 and 609).
Nevertheless, the provision is not justified under section 1. Justice Beaudouin accepts that “the protection of vulnerable persons, even in the context of a legislative scheme that contains certain safeguards, may be urgent and real in the light of the implications and possible consequences of death” (para. 601) and that there is a rational connection between the impugned provision and the objective of the Criminal Code provisions. The reasonably foreseeable death requirement is not minimally impairing because there are other safeguards (that is, that it is not necessary) and finally, “the impugned provision has serious effects on persons who, like Mr. Truchon and Ms. Gladu, are not dying and that the benefits expected from such a measure are far from surpassing the prejudicial effects it created [that is, sending the message that “the expression of their will and the overwhelming suffering that consumes them are not important or considered” (para. 634)]” (para. 637).
However, even if this is correct with respect to the federal requirement, does it necessarily follow for the Quebec provision? They exist within two different schemes. The Criminal Code provides an exemption from the prohibition against assisted suicide and is entirely concerned with permitting legal medically-assisted death (although those who wish it must be advised of alternatives). The Quebec Act addresses a range of end-of-life care along a continuum: palliative care, continuous palliative sedation and medically-assisted death. It is entirely concerned with end of life — this is the purpose of the regime. It is about health, albeit perhaps a way of avoiding the Criminal Code provisions.
Justice Baudouin’s decision is limited to persons with the kind of physical disability experienced by Mr. Truchon and Ms Gladu, that is, an ever increasing decline and very limited capacity to function independently and even with help, living a limited life full of pain.
The potential ramifications of Justice Baudouin’s analysis and conclusions, if ultimately accepted by the Supreme Court of Canada, are considerable. There are others for whom recognition of their autonomy would lead to the conclusion that they should be eligible for medically-assisted death, such as mature minors (consent always being a requirement) or persons with severe and debilitating mental illnesses (note that mental illness may support a request, according to information provided on a Government of Canada website), although they may require additional safeguards, despite the considerable number already in the Criminal Code. There is also the outstanding question of advance directives (which I discussed previously on Slaw). Although studies (not recommendations) have been prepared on these issues, no further action has been taken.
One argument against changing the law is that the problem lies not with the law, but with the lack of alternatives, notably adequate care, including palliative care. Justice Baudouin refers to the response by the United Nations Committee on the Rights of Persons with Disabilities to Canada’s 2014 report on the UN’s Convention on the Rights of Disabled Persons, ratified by Canada, which made, among others, the following recommendation: “To ensure that persons seeking assisted death have access to other options and a dignified life made possible by appropriate palliative care, assistance to persons with disabilities, home care and other social assistance measures promoting the development of the person.” (para. 302)
The Truchon and Gladu decision has been called “flawed, and dangerous” in a Globe and Mail opinion column by Tom Koch, “a gerontologist and medical ethicist specalizing chonic and palliative care”. He argues for a “prior right”, the right “to live with dignity despite restrictions”. His experience is that with proper supports people who have conditions such as those experienced by Mr. Truchon and Ms Gladue can live full lives, mentioning people who have done so. If everyone does not have access to the support these people had, “the failure is judicial and social”.
We must, he says, provide more as alternatives to medically-assisted dying. And while one’s life may change, especially with a condition such as a debilitating stroke, or the increasingly difficult of a condition developed at birth or early in life, the new life “will not be ‘autonomous’ – and really, none of us is independent – but one based on familial, personal and social support. And that should be our focus, in courts and in society at large.”
Palliative care must be enhanced and more widely available, although it is unlikely pallliative care could meet Mr. Truchon’s or Ms Gladu’s needs, given how long they may live. And, based on Justice Baudouin’s descriptions of their lives, neither of them appear to have easily chosen medically-assisted dying.
Although we do well to be concerned about abuse by relatives and others and therefore ensure safeguards for medically-assisted dying and although we may wish that those developing, say, a disability through accident, give themselves time to discover whether there is a life for them that can be full and satisfactory, we have to be aware of slipping into paternalism or maternalism. If Justice Baudouin’s decision does one thing clearly, it is to remind us how important it is for people to decide whether the life they face is one they can live with, on their own terms. Recognition of this principle, which underlies the Truchon and Gladu, regardless of its focus on their specific circumstances, would change access to medically-assisted dying dramatically.