Quebec Superior Court Justice Christine Baudouin ruled in Truchon c. Procureur général du Canada that provisions of the medical assistance in dying regime are unconstitutional.

Plaintiffs Jean Truchon and Nicole Gladu suffered from incurable medical conditions that significantly affected their quality of life.

Mr. Truchon — paralyzed from birth except for one arm — was diagnosed with a degenerative condition that cost him the use of his functioning arm, forced him into a care facility and left him in constant pain.

Ms. Gladu was diagnosed with a syndrome arising from childhood polio that left her in constant pain as well. “Every breath is a battle,” Justice Baudouin wrote.

The plaintiffs were nevertheless declared ineligible for medical assistance in dying because their natural deaths were not “reasonably foreseeable, taking into account all of their medical circumstances.” They argued this violated their rights to equality and to life, liberty and security of the person as set out in the Canadian Charter of Rights and Freedoms.

The court agreed.

The reasonably foreseeable death criterion “denies persons who are disabled and grievously ill the right to make fundamental decisions, and this, out of a desire to protect them,” Justice Baudouin wrote. “By seeking to protect them from themselves … the state is sending the message that it does not consider them to be persons truly capable of making decisions.”

She was particularly horrified by Mr. Truchon’s evidence that he considered starving himself to end his life.

“He knows that it is a long process, that it causes terrible suffering,” the judge wrote. She called it “repugnant” that people like Mr. Truchon should be forced to resort to starvation to end their lives.

“While the law as drafted does not force the applicants to live, it nonetheless forces them to choose between suffering, suffering even more, or committing suicide,” she wrote.

“The applicants have always fully lived their lives with a physical disability. What they are truly seeking is for the law to recognize equally the suffering, dignity and, ultimately, the autonomy of people like themselves who have grievous and irremediable medical conditions, without hierarchy and regardless of whether or not death is imminent.”

Justice Baudouin declared that the reasonably foreseeable death requirement violated the Charter but suspended the declaration of inapplicability, giving the federal government time to change the law.

The judge, however, allowed the plaintiffs to receive medical assistance in dying before the law is changed. Mr. Truchon died with assistance in a Montreal-area long-term care facility on April 7, 2020. Ms. Gladu is still living.

“The court will remain forever marked by their testimony,” Justice Baudouin wrote, “and wishes [to] express its deepest respect for them.”

Reasonably foreseeable natural death

Bill C-7 would repeal the reasonably foreseeable natural death requirement that the Superior Court of Quebec found to be unconstitutional.

Section 241.2 of the Criminal Code outlines the criteria that must be met for a person to be eligible for medical assistance in dying. One of those criteria is that the person must have a “grievous and irremediable medical condition.”

Subsection 241.2 (2) currently says that a person has a grievous and irremediable medical condition “only if” they meet four criteria:

• They have a serious and incurable illness, disease or disability
• They are in an advanced state of irreversible decline in capability
• Their illness, disease, disability or state of decline causes intolerable and enduring physical or psychological suffering that cannot be relieved under conditions they consider acceptable
• 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.

Bill C-7 would repeal the last criterion.

Mental illness

The bill establishes that medical assistance in dying is not available to people suffering solely from a mental illness. It adds language specifying that mental illness “is not considered to be an illness, disease or disability” for the purposes of subsection 241.2 (2) of the Criminal Code, as outlined above.

Safeguards — when natural death is reasonably foreseeable

The bill would remove the 10-day waiting period between the signing of a request for medical assistance in dying and the day that assistance is provided.

It would replace the waiting period with a requirement that people who have difficulty communicating be provided with a reliable means to relay their decision to seek medical assistance in dying and to understand information provided to them.

Safeguards — when natural death is not reasonably foreseeable

The bill would introduce a 90-day waiting period for people whose natural death is not reasonably foreseeable. This waiting period could be shortened if the medical practitioner and nurse practitioner are of the opinion that the person seeking an assisted death may soon lose the capacity to consent.

Patients would also have to be informed of other means available to relieve suffering and be offered consultations with professionals who can provide these services. In addition, medical personnel would have to discuss these means with the patient and agree that the patient had seriously considered them.

Consent

Currently, medical personnel must confirm the consent of the person seeking an assisted death immediately before providing that assistance.

For a person whose death is reasonably foreseeable, Bill C-7 would allow medical personnel to proceed without confirming consent if, among other things:

• The person had lost the capacity to consent
• The person had entered into a written agreement that assistance in dying would be provided on a specific day
• The fatal substance is administered in accordance with the terms of the agreement.

Monitoring

Bill C-7 would impose a more rigorous monitoring regime for medical assistance in dying by placing new reporting requirements on medical and pharmacy staff who are involved in medical assistance in dying cases and by expanding the scope of information they are required to submit to Health Canada.

For more information, the Library of Parliament has prepared a detailed legislative summary of Bill C-7.