Suicide had been a crime in Canada since its colonization. It was also considered immoral and sinful in many religions. In 2016 the Supreme Court of Canada (SCC) decided it could no longer be a crime. Legislation soon followed making it legal under certain conditions, now known as Medical Assistance in Dying (MAID). Our blog has written extensively in the past on this subject. What follows is an update on some of the ongoing legal developments occurring across Canada.
We know that there are doctors opposed to having any involvement with MAID. Their numbers are not known. However, McGill University recently published a national survey of 1,200 graduating physicians on their willingness to perform MAID. The result was that overall, 71% of the respondents would be open to providing MAID. The graduates from the province of Quebec were the most supportive at 85%, and those from Alberta were the least supportive at 63%. Religious belief was the main reason cited for non-support amongst the respondents.
Jean Truchon and Nicole Gladu are asking the Quebec Superior Court to rule that the federal and provincial MAID requirements are too restrictive and constitutionally invalid. Nicole had polio as a child and has since developed post-polio syndrome. She suffers from a lack of mobility and function due to her deteriorating muscles and relies on an electric wheelchair. Jean has cerebral palsy and has lost the use of all of his limbs. Although these conditions will progressively worsen, it is not a certainty that their lives will end soon naturally. They both wish to end their lives through MAID, with Gladu stating that for her, living is mere existence, and not a life with real quality or meaning. Both Gladu and Truchon have undergone evaluations which concluded that they are competent and do not suffer from any condition that would affect or impair their judgement.
To be considered eligible for access to MAID at the federal level, the applicant's natural death is imminent and foreseeable. The provincial legislation in Quebec goes a step further, requiring that the applicant is at the end of their life. The thrust of their argument is that the SCC, in their Carter decision, gave the right to MAID for all patients with a grievous and irremediable medical condition. There was no additional requirement imposed that the person must also be close to death or that their death was foreseeable. These requirements in the legislation are subjective and dependent on the assessment of doctors and not the patients. The counterargument is that these provisions protect the vulnerable patient who although seriously ill, is not close to death. The results of Gladu and Truchon's federal challenge would apply nationally, subject to appeal.
There is also an ongoing debate and study on the following issues:
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.