Canadian Lawyer

May 2021

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Page 12 of 43 11 Columbia v. the Attorney General of Alberta — the majority held that the federal govern- ment had the right to do so. This right existed because reducing greenhouse gas emissions is a matter of national concern under the "peace, order and good government" section of the Constitution. In considering Parliament's authority to enact the GGPPA, wrote Wagner in his reasons, "the Court must give effect to the principle of federalism, a foundational prin- ciple of the Canadian Constitution, which requires that an appropriate balance be main- tained between the powers of the federal government and those of the provinces." Determining that a matter is one of national concern involves a three-step anal- ysis, Wagner wrote. "First, Canada must establish that the matter is of sufficient concern to the country as a whole to warrant consideration as a possible matter of national concern. . . . "Second, the court must undertake the anal- ysis explained in Crown Zellerbach through the language of 'singleness, distinctiveness and indivisibility.' . . . The first of these principles is that . . . jurisdiction based on the national concern doctrine should be found to exist only over a specific and identifiable matter that is qualitatively different from matters of provin- cial concern. The second principle . . . is that federal jurisdiction should be found to exist only where the evidence establishes provincial inability to deal with the matter." If these two principles are satisfied, the court proceeds to the third step to determine whether the scale of impact of the proposed matter of national concern is reconcilable with the division of powers between the federal and provincial governments. Medical assistance in dying is expanded Q&A Troy McEachren Partner MILLER THOMSON LLP With the passage of Bill C-7 into law on March 17, Canadians have expanded rights to medical assistance in dying (MAID), legislation that was first enacted in 2016 through amendments to the Criminal Code. The amended legislation addresses the constitutional issues raised in recent cases such as Quebec's Truchon c. Procureur général du Canada and more closely aligns with the Supreme Court of Canada's 2015 decision in Carter v. Canada (Attorney General), says Montreal private client and estate and trust lawyer Troy McEachren. Were these amendments to the Criminal Code anticipated? I think it was very much expected. At the time the legislation was introduced following the Carter decision, constitutional commentators correctly identified that what the government enacted in the Criminal Code in 2016 was much more restrictive and did not comply with the Carter decision. That decision was quite clear on two fronts: You had to consent to the termination of life and have a grievous and irremediable medical condition. It came as no real surprise that those 2016 changes to the Criminal Code would be challenged and that the challenge would be successful. How does the amended legislation address that? The Criminal Code modification appears to be much more in line with what the Supreme Court found to be constitutionally permissible within the Carter decision; imposing the requirement of being imminently near death was a far greater restriction on access to end- of-life assistance than the Constitution requires. The Truchon decision from Madam Justice Christine Baudouin makes it quite clear that all of the people involved were able to consent, and she took great care to describe that none of them were in a state of depression. The government has now imposed a 90-day waiting period between the first assessment for MAID eligibility and the date of the procedure when natural death is not foreseeable. This safeguard is welcome. How has consent been expanded? It was always understood that you had to be able to consent at the time that the procedures were implemented. Now, if you've consented to that assistance in dying and you specify a date, and if you lose your capacity to consent before the date arrives, then the medical professionals can still grant your wishes. So, that is a real step ahead. It is possible to design a system with mechanisms that are protective and respectful. That slippery slope that we fear — that someone is coerced — doesn't seem to bear empirically out. I think that's key. The most difficult MAID scenario is dealing with mental illness. I'm glad the government has created a panel with a two-year mandate to determine how to deal with this because the capacity to consent can be affected by mental illness. Fast facts: » Years in practice as a private client lawyer: 22 » Significance of amended MAID legislation on his law practice: "My clients are sometimes at an age or illness level where this comes into play. I had a client who was concerned about the limitations of the legislation before it was changed. We discussed at length, and he wanted to know if his family could bring him to a less restrictive jurisdiction. My next call is going to be to that family to discuss it further and say, "The circumstances appear to be changing, and we need to see how Quebec will respond, but one expects it to comply." These are real issues that we as lawyers deal with regularly; we have to be informed and help clients in their planning. "Federal jurisdiction should be found to exist only where the evidence establishes provincial inability to deal with the matter."

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