Canadian Lawyer

May 2020

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Page 27 of 59

26 THE LAW ON medical assistance in death is slowly evolving. This year, after a Quebec Superior Court found the current law uncon- stitutional, the federal government intro- duced new legislation: An Act to amend the Criminal Code (medical assistance in dying). But there is still a gap between what clients are asking for in their end-of-life arrange- ments and what the law according to the new amendments will allow, say estates lawyers. Canada has moved in "baby steps" toward medical assistance in death, says Matt Trotta, a Calgary-based tax, trusts and estates lawyer at Field Law. "We're getting there slowly. We're moving more toward what other countries have been doing for a while. . . . I think we're on the right track," he says. "And I think it's a positive change." Section 241(b) of the Criminal Code makes it an indictable offence to "counsel," "abet" or "aid" a person in dying by suicide. Section 14 Medical assistance in dying laws have become less restrictive, but some lawyers say their clients would like them to be further loosened Evolution of medical assistance in dying of the Code makes it a crime for a person to "agree to have death inflicted on them." Up until 2016, these provisions forbade medical assistance in death. But the year before, in Carter v. Canada, the Supreme Court of Canada found these restrictions were contrary to s. 7 of the Charter, which provides for the right to life, liberty and security of the person. The justices decided that denying a competent adult who "clearly consents to the termination of life" and suffers from a "grievous and irremediable medical condition" the right to decide their fate affronted their liberty by interfering with their "bodily integrity." Security of the person was compromised through forcing terminally ill patients to undergo intolerable suffering, they said. The court also reasoned that the laws deprived some people of life by forcing them to take their own, prematurely, before their conditions worsened to the point that they'd be incapable of doing so. The SCC decision was counter to its previous ruling from 1993 — Rodriguez v. British Columbia — which, the court in Carter said, upheld a "blanket prohibition" on medically assisted death. The change was due to a shift in the "legal conception" of s. 7 — including the advance of the law relating to the principles of overbreadth and gross disproportionality — as well as a new "matrix of legislative and social facts," said the SCC in the Carter decision. Carter forced the feds to act. In 2016, the Liberal government passed amendments to s. 241, adding an exemption for medical profes- sionals providing medical assistance in death. Since then, several Charter challenges have emerged contending aspects of the legisla- tion and deeming it still too restrictive. On Feb. 24, the federal government announced the introduction of a bill amending the law on medical assistance in death. The feds say their proposed amendments stem directly LEGAL REPORT WILLS, TRUSTS & ESTATES

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