Should euthanasia be available to patients who are not dying?
Quebec Court issues decision in Truchon
When the government legalized euthanasia/assisted suicide (“MAID”) in 2016 with Bill C-14, one of the stipulations was that it only be available to those whose death was “reasonably foreseeable”. Since MAID was understood as “hastening” death in the end-of-life context, it was intended to be limited to those who were already dying or near death, not those who had potentially many years left to live.
Last week, however, the Quebec Superior Court declared the “reasonably foreseeable” requirement unconstitutional (it made similar findings with respect to Quebec’s provincial law regulating MAID). Its order is suspended for 6 months, so the current law remains in effect until then, but unless the government appeals, the “reasonably foreseeable” requirement will be struck down at that time. In the interim, the two individual plaintiffs who challenged the law have been granted a constitutional exemption, such that they may now obtain MAID, even though their deaths are not “reasonably foreseeable”.
Christian Legal Fellowship (CLF), represented by Robert Reynolds, intervened in the case, and argued that the “reasonably foreseeable” requirement was both a valid and important safeguard in fulfilling the new legislation’s objectives. CLF urged the Court to consider those objectives, which were spelled out in Bill C-14’s preamble and included (among others) a commitment to (i) protecting the inherent and equal value of every human life, (ii) avoiding negative perceptions about the quality of life those who are elderly, ill, or disabled, and (iii) the prevention of suicide. CLF argued that the “reasonably foreseeable” requirement fulfilled these objects, by underscoring the “principle that those who are not dying should be encouraged to choose life over death” and preventing the “social acceptance of suicide as a choice-worthy solution to suffering”.
CLF pointed to evidence in the record, including suicide-prevention experts who expressed concerns that an open-ended euthanasia regime would undermine suicide-prevention efforts, as well as evidence from Holland which showed an increase in suicide generally following the legalization of euthanasia in that country. CLF quoted legal expert Trudo Lemmens, who observed, “The more we move away from the end-of-life context, the harder it is also to argue that the practice is not a substitute for suicide.”
CLF also made detailed legal submissions about why the provisions were rationally connected and proportionate to the objectives of the law, and therefore constitutional.
Remarkably, the Quebec Court refused to accept the statements in Bill C-14’s preamble as representing the objectives of the law, stating that they were broad “affirmations of values or social issues” (para 555, unofficial translation). Instead, the Court determined that the only objective of the law, at least in relation to the impugned provisions, was to protect vulnerable persons from being induced to end their lives in a time of distress. This mirrored the Supreme Court’s approach in Carter, which also interpreted the objective of the former euthanasia law narrowly, and in both cases, this ultimately determined the analysis and outcome. A key difference of course, is that in Truchon, unlike in Carter, the wider purposes of the law were expressly stated in the text of the legislation itself.
As a result of this restrictive framing of the law’s objects, submissions related to the prevention of suicide, upholding the sanctity of life, and avoiding negative perceptions about those who are ill, elderly and/or disabled were thus largely deemed irrelevant (or ignored altogether). As CLF explained in its submission to Parliamentarians on Bill C-14, a narrow framing of the law’s purpose as solely the protection of vulnerable patients “make[s] it easy to find a violation of s. 7 of the Charter (since a law to protect the vulnerable that applies to non-vulnerable people is inherently ‘overbroad’)” and also “side-line[s] ethical and societal concerns”.
CLF is reviewing the 186-page decision (currently available only in French) and will be providing further analysis (stay tuned to this space for updates); litigation counsel Robert Reynolds will be speaking about the case at the upcoming CLF National Conference.