Canadian Lawyer

May 2020

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www.canadianlawyermag.com 27 JOURNEY THROUGH THE COURTS 1993 Rodriguez v. British Columbia: SCC dismisses application s. 242(b) of Criminal Code — banning assisted suicide — is invalid on Charter grounds. Medical assistance in dying remains illegal 2015 Carter v. Canada: SCC rules s. 242(b) is contrary to s. 7 of Charter, protecting right to life, liberty and security of the person 2016 Parliament of Canada passes federal legislation allowing eligible Canadian adults to request medical assistance in dying 2019 Truchon v. Procureur général du Canada: Quebec Superior Court rules requirement of a candidate for medical assistance in death be facing a "reasonably foreseeable death" was unconstitutional and of no force and effect 2020 (February) Federal government proposes An Act to amend the Criminal Code (medical assistance in dying), to make Canada's medical assistance in death laws Charter-compliant from the September 2019 Quebec Superior Court decision Truchon c. Procureur général du Canada. In Truchon, the plaintiffs — Jean Truchon and Nicole Gladu — had been denied medical assistance in death because they fell short of both the federal requirement of having a "reasonably foreseeable death" and the requirement under Quebec's legis- lation that they be at the "end of life." They argued that Carter did not require a person be facing imminent death to qualify and such a requirement was counter to their s. 15 right to equality and s. 7 rights. Justice Christine Baudouin agreed, declaring the 2016 Criminal Code amendments of no force an effect. Truchon and Gladu were given an exemption to the reasonably foreseeable and end-of-life requirements. In response to Truchon, among the proposed changes announced in February is the removal of the requirement that a person be facing a "reasonably foreseeable" death to be eligible, as well as the inclusion of a waiver of final consent for those near death and at risk of losing capacity for consent. "The situation that unfortunately I've seen a couple times is where you have a client that is seeking medical assistance in dying, they go through their assessment, they go through their waiting period and then, by the time it comes down to giving their final consent, they're already too far gone to do that final consent," says Trotta. He says the new legislation has provided some clarification to medical practitioners. "This new bill does have a waiver of final consent and a test on how that works. And I think that's a really important addition because it's a big concern for a lot of people who get diagnosed with Alzheimer's or some sort of neurological degenerative issue. . . . How long do I have to be able to make these decisions? And what happens if I'm too late?" But for those who want to plan for the unknown, who may have a family history of a degenerative illness but no personal diag- nosis, the proposed changes still lack the provision of advance directives, says Trotta. "I think I will have some clients that will be "I think I will have some clients that will be a bit disappointed that it didn't go far enough." Matt Trotta, Field Law

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