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Superior Court Translated from the original French Truchon c. Procureur général du Canada 2019 QCCS 3792 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL NO.: 500-17-099119-177 2019 QCCS 3792 (CanLII) DATE: September 11, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE CHRISTINE BAUDOUIN, J.S.C. ______________________________________________________________________ JEAN TRUCHON -AND- NICOLE GLADU Applicants v. ATTORNEY GENERAL OF CANADA -AND- ATTORNEY GENERAL OF QUEBEC Defendants -AND- ASSOCIATION QUÉBÉCOISE POUR LE DROIT DE MOURIR DANS LA DIGNITÉ -AND- DYING WITH DIGNITY CANADA -AND- LE COLLECTIF DES MÉDECINS CONTRE L’EUTHANASIE -AND- JB5013 LIVING WITH DIGNITY -AND- CANADIAN ASSOCIATION FOR COMMUNITY LIVING -AND- COUNCIL OF CANADIANS WITH DISABILITIES -AND- 2 CHRISTIAN LEGAL FELLOWSHIP -AND- ALLIANCE DES CHRÉTIENS EN DROIT Interveners ______________________________________________________________________ JUDGMENT ______________________________________________________________________ TABLE OF CONTENTS OVERVIEW .......................................................................................................... 3 BACKGROUND .................................................................................................... 5 2019 QCCS 3792 (CanLII) 1. The Plaintiffs ............................................................................................ 5 2. Legislative History .................................................................................. 19 MEDICAL ASSISTANCE IN DYING IN CANADA ............................................... 41 1. The Practice of Medical Assistance in Dying ......................................... 41 2. The Vulnerable Persons that the Requirements Seek to Protect ........... 58 3. Comparison with Certain Foreign Regimes ......................................... 103 4. Conclusions on the Evidence ............................................................... 111 THE ISSUES .................................................................................................... 111 ANALYSIS ........................................................................................................ 112 1. Has Carter Created a Constitutional Right to Medical Assistance in Dying? ........................................................................................................... 112 2. Does the Reasonably Foreseeable Natural Death Requirement, Set out in s. 241.2(2)(d) of the Criminal Code, Infringe Section 7 of the Charter, Which Protects the Rights to Life, Liberty and Security of the Person? ................... 122 2.1 The Right to Life ............................................................................... 122 2.2 Rights to Liberty and Security of the Person .................................... 124 2.3 Principles of Fundamental Justice .................................................... 126 The object of the impugned provision ........................................................ 128 Arbitrariness ............................................................................................... 132 Overbreadth ............................................................................................... 133 Grossly disproportionate ............................................................................ 134 Conclusion on the principles of fundamental justice .................................. 135 3. Is the Infringement of the Applicants’ Fundamental Rights under Section 7 of the Charter Justified by Section 1? ......................................................... 135 Limit prescribed by law .............................................................................. 137 Pressing and substantial object of the statutory provision ......................... 137 Proportionality of the law ........................................................................... 138 4. Does the Reasonably Foreseeable Natural Death Requirement Set out in s. 241.2(2)(d) of the Criminal Code Infringe Section 15 of the Charter, Which Guarantees Equal Treatment? ...................................................................... 145 4.1 General Principles ............................................................................ 145 3 4.2 On Its Face or in Its Impact, Does the Reasonably Foreseeable Natural Death Requirement Create a Distinction Based on an Enumerated or Analogous Ground? ................................................................................... 148 4.3 Does the Reasonably Foreseeable Natural Death Requirement Impose a Burden or Deny an Advantage? .............................................................. 152 5. Is the Violation of the Applicants’ Fundamental Right Set out in Section 15 of the Charter Justified under Section 1? ................................................. 156 6. Is Subsection 3 of the First Paragraph of s. 26 of the Act respecting end- of-life care Unconstitutional by Virtue of the Same Principles? ..................... 157 7. Are the Attorneys General Entitled to Have the Declaration that These Provisions Are Inoperative Suspended and, If So, Are the Applicants Entitled to a Constitutional Exemption? .......................................................................... 166 VARIA ............................................................................................................... 168 CONCLUSIONS................................................................................................ 170 2019 QCCS 3792 (CanLII) OVERVIEW [1] Is it permissible, in the absence of coercion or constraint, for a capable, adult person who is seriously ill with no chance of improvement, in an advanced state of irreversible decline in capability and enduring constant and intolerable suffering to receive medical assistance in dying even though he or she is not approaching death? [2] Medical assistance in dying, legalized in the wake of the 2015 Supreme Court judgment in Carter,1 is strictly circumscribed in this country.2 To receive such assistance, a person must be of full age and eligible for publicly-funded healthcare. He or she must also be capable of making decisions with respect to his or her health, of making a voluntarily request, and of providing free and informed consent. There are also requirements relating to the person’s medical condition. [3] In Canada, the Criminal Code3 provides that a person must have a grievous and irremediable medical condition fulfilling the following criteria, all of which must be met: (a) they have a serious and incurable illness, disease or disability; (b) their medical condition is characterized by an advanced state of irreversible decline in capability; (c) they are subject to enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable; and (d) their natural death has become reasonably foreseeable. 1 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, 2015 SCC 5. 331 (“Carter”). 2 Criminal Code, R.S.C. (1985), c. C-46, ss. 241.1-241.4; Act respecting end-of-life care, CQLR, c. S-32.0001, s. 26-32. The provisions concerning medical assistance/aid in dying are reproduced in their entirety in a schedule to this judgment. 3 R.S.C. 1985, c. C-46 (“Cr. C.” or “federal statute” or “Bill C-14”). 4 [4] In Quebec, the Act respecting end-of-life care4 requires that the person be at the end of life, be suffering from a serious and incurable illness, be in an advanced state of irreversible decline in capability, and experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable. [5] The applicants, Mr. Jean Truchon and Ms. Nicole Gladu, who have been declared ineligible for medical assistance in dying, challenge the constitutional validity of the requirements in s. 241.2(2)(d) of the Criminal Code and subsection 3 of the first paragraph of s. 26 of the Act respecting end-of-life care, which respectively require that their natural death be reasonably foreseeable or that they be at the end of life in order to obtain such assistance. [6] They argue that these requirements infringe upon their right to life, liberty and security of the person and their right to equality, which are guaranteed by ss. 2019 QCCS 3792 (CanLII) 7 and 15 of the Canadian Charter of Rights and Freedoms.5 [7] In their view, these requirements also violate the principles set out in Carter, with the consequence of removing from them their right to obtain medical assistance in dying, which this decision had, in fact, granted them. [8] Should the Court rule in favour of their applications, they ask that no suspension of the declaration of constitutional invalidity be granted the Attorneys General or, in the alternative, that they be granted a constitutional exemption to allow them to obtain medical assistance in dying. [9] The Attorney General of Canada argues that Parliament’s response to Carter, which requires a reasonably foreseeable natural death, makes it possible to achieve the legislative objectives at issue. More specifically, he argues that permitting medical assistance in dying only for people whose deaths are reasonably foreseeable strikes a reasonable and appropriate balance between, on the one hand, the autonomy of persons who seek medical assistance in dying and, on the other, the interests of society and of vulnerable persons. Thus, this requirement appears to be consistent not only with the Charter but also with
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