[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 Code^[3] 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.

[4]        In Quebec, the Act respecting end-of-life care^[4] 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. 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 the spirit of the judgment in Carter.

[10]      He argues that the reasonably foreseeable natural death requirement does not infringe ss. 7 and 15 of the Charter but maintains that, were such an infringement to exist, it would be justified under s. 1 of the Charter because it is a reasonable requirement that can be justified in a free and democratic society.

[11]      The Attorney General of Quebec fully agrees with the arguments of the Attorney General of Canada. She defends the constitutional validity of the provincial statute because it was enacted within the province’s jurisdiction over health and because the objective sought by the Quebec legislature in enacting it was to allow medical aid in dying solely to persons who are at the end of life.

[12]      After analyzing all the evidence, the Court finds that the reasonably foreseeable natural death requirement in the Criminal Code infringes upon the applicants’ fundamental rights set out in ss. 7 and 15 of the Charter, that the end-of-life requirement in the Act respecting end-of-life care also violates s. 15 of the Charter, and that these infringements cannot be justified under s. 1. Therefore, the Court declares the impugned provisions to be constitutionally invalid.

[13]      Given the specific circumstances of these proceedings, the Court will grant both legislatures a six-month suspension of the declaration of constitutional invalidity.

[14]      However, the Court will also grant a constitutional exemption to the applicants, who may obtain medical assistance in dying during this period if they meet the eligibility conditions set out in the federal and provincial statutes.

[15]      This case raises many legal, ethical and moral issues that touch on the very foundations of our society, on death and on our relationship with it. First, the Court will consider the situations of the applicants themselves. It will then examine the legislative and social context surrounding the enactment of the federal and Quebec statutes and the process of medical assistance in dying, as currently practiced in Canada. While everyone agrees that this judicial application is important to society as a whole, it is first and foremost a debate anchored in the day-to-day realities of Mr. Jean Truchon and Ms. Nicole Gladu, two citizens who have shown courage and determination in bearing the weight of this case on their shoulders.

[16]      Although the debate over the decriminalization of medical assistance in dying in Canada has already taken place, it is evident that this final act still prompts concern in many and continues to raise questions that remain unanswered, such as, should minors or persons who are incapable be allowed access to medical assistance in dying and should such assistance be permitted on the basis of medical instructions given ahead of time? These matters, which are undoubtedly extremely important, are not at issue in this case. The Court must solely determine the constitutional validity of the legislative requirements of reasonably foreseeable natural death and of being at the end of life, as set out in the Criminal Code and the Act respecting end-of-life care, respectively. This is therefore the only question that it will answer.

[17]      Mr. Truchon is 51 years old and has suffered from spastic cerebral palsy with triparesis since birth. As a result of this condition, he was completely paralyzed with the exception of his left arm, which was functional and which, until 2012, allowed him to perform certain everyday tasks and to move around in a wheelchair.

[18]      His cognitive and mental functions are fully intact, even above normal.[6]

[19]      Mr. Truchon’s physical condition did not prevent him from leading a full and independent life [translation] “that brought him all the satisfaction he could expect from life”.[7] He graduated from university in 1992, obtaining an undergraduate degree in literature from Université Laval.[8] During his studies, he lived alone in residence.

[20]      After he graduated, he moved to Montreal and lived in a supervised apartment, where he received care at home that he could not provide for himself, including help getting up, going to bed, and preparing meals.

[21]      Until 2012, Mr. Truchon was active, despite his disability. He would go to the pool, play wheelchair ball hockey, and play chess regularly. His active social life revolved around his family and friends, with whom he would go out to take part in varied activities. An only child, he is close to his parents, who live in the Saguenay region. He would visit them occasionally, taking the bus on his own.

[22]      Although he always saw his life as a battle for autonomy, he was nevertheless relatively satisfied with his daily life and states that he led a more-or-less normal life.

[23]      In 2011, he experienced weakness and a gradual loss of sensitivity in his left arm. In March 2012, he was diagnosed with severe spinal stenosis (narrowing of the spinal canal) as well as myelomalacia (spinal cord necrosis).[9]

[24]      This is a degenerative condition for which no surgical or pharmacological treatment exists that caused the gradual paralysis of his only working limb. As a result, in 2012, Mr. Truchon permanently lost the use of his left arm and became fully paralyzed, with no hope of improvement.

[25]      This new condition was accompanied by significant physical pain in the arms and neck, with intense burning sensations and painful spasms. Treatments were attempted to relieve his suffering, but to no avail. The pain became enduring and constant. From that moment on, Mr. Truchon has also experienced equally intense psychological suffering because he is now completely dependent when it comes to the daily activities that he had managed to master on his own. He can no longer live in an apartment alone. He says that, in 2012, he died.

[26]      He had to move into a health and social services centre adapted to his needs. Although the transition has not always been easy, Mr. Truchon has tried to cope with his new reality and life in an institution. He went through a depressive episode, but he eventually came out of it.

[27]      He met regularly with Ms. Malo, a psychologist at the Centre, who helped him to try to move forward and find ways to adapt. In 2014, he realized that he was unable to do it. He summarizes his typical day at the Centre as follows: [translation] “They come to give me my pills at 8:00 a.m. I eat breakfast around 9:00 a.m. I am given 15 minutes to digest. After that, I try to catch someone as they are going down the hall to lower the head of my bed and my feet too. After that, they roll me onto my side because it’s more comfortable for me and there’s less pain. Now it’s 11:00 a.m. They get me up, get me dressed, and put me in my armchair. At noon, they feed me. Around 1:00 p.m. or 1:15 p.m., they put me in place to have a bowel movement, every day. I attend the activities in the afternoons or I play chess with friends who come by, three or four times a week. I go to the Centre’s activities. I eat supper around 5:00 p.m. Once again, they feed me because of my arm. Afterwards, around 8:30 p.m., they lay me down and I watch television until 11:00 or 11:30 p.m. That’s basically my life, my poor life.”[10]

[28]      He can no longer go to the pool or play ball hockey, and he rarely goes out, because moving around in a wheelchair, which he now must control by using his chin, is difficult and causes him a lot of pain.

[29]      He therefore began to think about dying in the manner and at the time of his own choosing. Over time, this idea began to take up more and more space in his thoughts. He devised several scenarios to bring his days to an end, taking into consideration the restrictions imposed by his disability.

[30]      First, he considered fasting, but gave up on that idea at the time because of the stages of suffering it causes. He said that he did not want to put his parents through that ordeal. He thought about throwing his wheelchair in front of the metro, a truck or a bus. He also abandoned that idea, saying that he does not want to traumatize the drivers and risk destroying lives other than his own. He also says that he fears failing and finding himself in an even worse condition than now. He thought about drowning himself by driving his wheelchair into the river. But again, he gave up on the idea when he realized that someone might try to save him, putting his or her own life in danger. Finally, he devised a plan to buy a drug on the street and to take a lethal dose, but he was afraid of having his money stolen by dealers and not getting what he wanted.

[31]      Meanwhile, he asked his treatment team to lower his care level from level 2 to level 3[11], so that he would not be transferred to a hospital or resuscitated if his medical condition so required.

[32]       In 2015, he told the team that he had finally decided to stop eating to end his life, starting in September 2016, after his parents’ 50th wedding anniversary. This decision was restated in a letter[12] he wrote to the treatment team in January 2016, in which he asked that his doctor be authorized to administer medication to relieve his pain during the process.[13]

[33]      In a few sentences, Mr. Truchon expressed all the suffering, despair and helplessness that his condition caused him, as well as his [translation] “carefully considered”[14] decision to end his life by refusing all food and liquid. Despite the good care he was receiving and the efforts he had made to adapt, he said that he was unable to prolong his life in the circumstances. He told the team about his decision and asked them to understand and respect it: [translation] “I am aware that going before my parents do is not the best way, because it defies logic, but I can’t take it anymore. ... My family and my friends know this and they respect my decision, even if they do not accept losing me.”[15]

[34]      He provided the Court with a lucid description, in simple and direct language, of what he would experience, because he has learned about every stage of fasting from the professionals at the Centre. He knows that it is a long process, that it causes terrible suffering, and that he will fall into a state of confusion, followed by death.

[35]      At the time, Mr. Truchon was aware that his condition would probably make him ineligible for medical aid in dying because he is not at the end of life. Indeed, his life prognosis is several years, despite his condition. Nevertheless, faced with this prospect, in February 2016, with the help of his father, Mr. Truchon filled out an official request for medical aid in dying.^[16] Because he was not at the end of life, his request was refused by the doctor who received it.^[17]

[36]      In 2017, he decided to challenge the legislative provisions at issue, more specifically, the requirements to be at the end of life and that his natural death be reasonably foreseeable in order to be eligible for medical assistance in dying. He states that he has not given up his intention to stop eating and drinking should the Court not rule in favour of his request.

[37]      Mr. Truchon’s condition, which has been evaluated by several specialists, is the subject of several reports that have not been disputed.

[38]      First, the report of Jean-François Giguère, neurosurgeon, describes the following:[18]

[39]      Dr. Jean-Robert Turcotte, psychiatrist, testified at the hearing.[19] He has been a doctor since 1975, first practicing for ten years as a family physician before obtaining a Master’s in Public Health from Harvard University. He subsequently completed a specialization in psychiatry at McGill University and has been practicing in that field since 1991. He holds an academic position at the Université de Montréal and his practice regularly involves evaluating the capacity of the patients under his care. In addition to meeting with Mr. Truchon on two occasions, Dr. Turcotte studied his full medical file, including the clinical notes of psychologist Ms. Malo. He presented the following portrait:

[40]      Dr. Alain Naud, a family doctor and palliative care physician for the last 31 years, testified at the hearing.[20] He is a tenured clinical professor at Université Laval, a clinician and instructor in family medicine, and a Fellow of the College of Family Physicians of Canada. He has evaluated numerous suicidal patients throughout his career. Since the Quebec law came into force in December 2015, he has provided medical aid in dying to 65 individuals and given several lectures on the subject.

[41]      Dr. Naud’s mandate was to determine whether Mr. Truchon was eligible for medical assistance in dying under the criteria of both the federal and the provincial statutes. To do so, he considered all of Mr. Truchon’s medical files and the notes of the psychologist, Ms. Malo, among other things. He also met with Mr. Truchon.[21]

[42]      Dr. Naud’s observations are clear:

[43]      Finally, Dr. Claude Rivard, a family physician since 1995, has devoted most of his practice to emergency medicine and intensive care. Since January 2017, he has turned his practice toward palliative care. He filed his report on the medical condition of the plaintiffs, including Mr. Truchon.[22]

[44]      Since December 2015, he has evaluated approximately 150 patients for requests for medical aid in dying and administered the procedure more than 130 times. He has trained approximately 20 physicians in this area of practice. Dr. Rivard testified at the request of the Attorney General of Canada.

[45]      To assess Mr. Truchon’s eligibility for medical assistance in dying, Dr. Rivard consulted all his medical files and Dr. Naud’s report. He also met with Mr. Truchon. His observations are the following:

[46]      The Court has also heard the testimony of Ms. Malo, Mr. Truchon’s psychologist since 2014, whose up-to-date clinical notes outline Mr. Truchon’s thought processes in recent years. In her testimony, she revealed her profound attachment to and respect for Mr. Truchon.

[47]      She related that Mr. Truchon’s life no longer has meaning for him, despite the many efforts he has made to try to adapt to his condition. After changing his level of care and considering starving himself, he began this legal battle to obtain medical assistance in dying because, even though he has not given up the idea of fasting, it is a long and painful process and he is hesitant about putting his parents through this ordeal.[24]

[48]      Ms. Malo confirmed that Mr. Truchon is not suicidal. His desire to end his life appears considered and is an act of dignity in a situation of intolerable suffering. The symptoms of depression and sadness that he sometimes displays are explained by his condition. He wants to be able to end his life when he himself wishes, and he is in no way ambivalent about this plan.

[49]      From these reports and testimonies, the Court essentially finds that Mr. Truchon’s current medical condition does not render him eligible for medical assistance in dying. Despite the fact that he meets all the other legislative requirements, his degenerative illness will not cause or hasten his death. Since he could continue to live this way for many years, his natural death is not reasonably foreseeable and he is not at the end of life.

[50]      The Court was very moved by Mr. Truchon’s testimony, which was dignified and modest, while expressing undeniable and palpable suffering. He is an intelligent, perceptive, courageous, empathetic and determined man. Mr. Truchon’s moving testimony was sometimes humorous, and it affected all those present at the hearing.

[51]      Ms. Gladu is 73 years old. She was born before the time of widespread vaccinations against poliomyelitis. She survived an acute paralyzing form of this disease, which she developed at the age of 4 and which sent her into a coma, from which she emerged with significant sequelae, including residual paralysis of the left side and severe scoliosis caused by the gradual deformation of her spinal column.

[52]      Although it was predicted that she would never walk again, she beat the odds. Ms. Gladu spent years in physiotherapy and, at the age of 10, underwent three spinal grafts. Although her scoliosis was only partially corrected, she nevertheless describes a happy childhood thanks to her parents, who raised her in an intellectually stimulating environment.

[53]      She had a classical education and went to university. Her professional career is impressive. She became a journalist for Radio-Canada, a Parliamentary correspondent at Montréal-Matin, a press attaché for the United Nations in New York, and director of communications at the Québec Government Office in New York. She also completed a master’s degree at ÉNAP in 1994. She appears very proud of all of her professional accomplishments despite her physical limitations.

[54]      A very active, energetic and cultured woman, Ms. Gladu has travelled extensively.

[55]      In 1992, at the age of 47, the [translation] “ghost of her childhood”[25] re-emerged when she was diagnosed with degenerative muscular post-polio syndrome, a degenerative neurological disease characterized by general fatigue, gradual or sudden muscular weakness, and mobility-reducing muscle pain. This incurable condition is the result of the body’s overcompensation in polio survivors. [translation] “The degeneration is unpredictable. The disease is like a staircase that one does not descend step by step, but falls down from landing to landing. I have reached the basement.”[26]

[56]      In 1997, she developed thrombophlebitis and a hiatal hernia. Reality was difficult for Ms. Gladu. She suffered from two depressions after the death of her mother and because of her own condition, which was deteriorating. Then one day she said to herself, [translation] “Once I’ve had enough, I’ll just cut the cord.” [27] At that point, she got back on her feet and decided to live fully with her remaining capability, taking advantage of each moment that life brought her.

[57]      Little by little, however, her fatigue, muscle weakness and balance issues have gotten worse. She suffers a serious case of osteoporosis. Her body can no longer hold her up. In addition, her spinal deformity has worsened and the thoracolumbar scoliosis has caused a severe restrictive lung disease with nocturnal desaturation. Her lung capacity is reduced to the equivalent of half a lung. Every breath is a battle. The compression of her rib cage, combined with a hiatal hernia, also makes eating difficult.

[58]      Having always enjoyed an active and proudly independent life, she rejects the prospect of having to depend on others and, above all, of finishing her days in an institution. She became involved in the debate in Quebec through the National Assembly’s Select Committee on Dying with Dignity.[28] She was shocked and angered by the enactment of the federal statute, which requires that natural death be reasonably foreseeable to obtain medical assistance in dying.

[59]      Today, she is very weak. She needs a walker to move around, even inside her own apartment, because she has hardly any limb strength left and a great deal of trouble maintaining her centre of gravity. Simple daily tasks require a lot of effort. She is at a high risk of falling. She broke her femur in 2011.

[60]      Ms. Gladu is in constant pain. Her sciatic nerve, knee, back and hips cause her suffering. She is in a perpetual state of great discomfort and malaise. She never feels well, and she cannot stay in the same position for long. The medication provides no relief.

[61]      Ms. Gladu thought about suicide, but she more seriously considered going to an assisted suicide clinic in Switzerland. She finds it unjust that this possibility is available only to people with financial means and is sad at the prospect of having to [translation] “die alone in a small beige room”.[29] At the moment, however, she has not ruled out this possibility.

[62]      After this full life of which she took full advantage, she says that she is worn out and at the end of her rope, a prisoner of her body and her disease. In her eyes, life is active, it has momentum and energy. She has displayed a formidable appetite for life during her entire existence, and she cannot resign herself to simply existing...like [translation] “a plant”.[30]

[63]      She is therefore faced with a terrible choice, which she explains clearly: she can continue to suffer and deteriorate; she can voluntarily submit herself to additional suffering or a deterioration of her condition in the hopes of qualifying for medical assistance in dying; or she can commit suicide.

[64]      She questions the logic of the principle that she can decide to subject herself to additional suffering by ceasing to eat or drink, for example, in order to achieve a state where she is eligible for medical assistance in dying. In her case, she cannot choose to interrupt or stop treatment because she is not following any.

[65]      Although she did not know Mr. Truchon, she decided to join forces with him to bring this legal action. For this purpose, Ms. Gladu underwent a series of medical exams to determine whether she is eligible for medical assistance in dying under the legislative criteria currently in force.

[66]      In the spring of 2017, Ms. Gladu met with neurologist Dr. Michel Aubé to determine the extent of her illness and its impact on her life.[31] His written report provides the following information:

[67]      Psychiatrist Dr. Jean-Robert Turcotte assessed Ms. Gladu’s capacity. He outlined his findings in light of her earlier medical records and his meetings with her:[32]

[68]      As was the case for Mr. Truchon, Dr. Alain Naud assessed Ms. Gladu’s condition to determine whether she is eligible to receive medical assistance in dying under the legislative provisions in force, both federally and provincially. He drew the following conclusions:[33]

[69]      Finally, Dr. Claude Rivard, the expert hired by the Attorney General of Canada, met with Ms. Gladu and reviewed her prior medical assessments to verify her eligibility for medical assistance in dying:[34]

[70]      The Court finds that Ms. Gladu also meets all of the federal and provincial legislative requirements except the requirement of being at the end of life or of her natural death being reasonably foreseeable.

[71]      The Court would like to stress Ms. Gladu’s determination and courage when she testified in Court. She is as everyone describes her: an intelligent woman, a fighter with determination that inspires admiration, esteem and respect. At times a little mischievous, she has displayed lucidity and courage throughout her life.

[72]      Both Ms. Gladu and Mr. Truchon felt betrayed and bitterly disappointed when the federal government decided to include the requirement of natural death to be reasonably foreseeable to qualify for medical assistance in dying into the legislative regime it put in place after the judgment in Carter. They consider themselves capable and able to make this decision without the state preventing them from doing so under pretense of protecting them.

[73]      In the next section, the Court will outline the major stages of the legislative history of Bill C-14 and Bill 52 to ensure proper comprehension of the reality and issues that were debated in Canadian and Quebec society and that led to the legislative regimes currently in place.

[74]      The judgment in Carter, rendered on February 6, 2015, shook up the country’s established framework by decriminalizing assisted suicide under certain conditions. By declaring ss. 241(b) and 14 of the Criminal Code unconstitutional, the Supreme Court gave Parliament the option of establishing a legislative regime that complied with the principles in its judgment and ordered the suspension of the declaration of constitutional invalidity for one year.[35]

[75]      The government was granted an additional suspension period to complete its task.[36] On June 17, 2016, the Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)[37] received royal assent, and ss. 241.1 to 241.2 Cr. C. respecting medical assistance in dying came into force.

[76]      To better understand the process leading up to the passage of Bill C-14, it is useful to divide the period from the rendering of the judgment in Carter to the royal assent of the bill into several stages, the first ones characterized by the work of three committees[38] that were formed with a view to drafting the bill.[39]

[77]      The External Panel created to “hold discussions with the interveners in Carter and with ‘relevant medical authorities,’ and to conduct an online consultation open to all Canadians and other stakeholders”[40] also led fact-finding missions to four countries[41] that have legalized medical assistance in dying.

[78]      The election of a new government in October 2015 resulted in a deferral and modification of its mandate. The External Panel was no longer to present legislative options in response to Carter, but merely to summarize its consultation activities and main findings. The External Panel’s report was presented to the Minister of Justice and the Minister of Health on December 15, 2015.[42]

[79]      Without making any recommendations, the External Panel found that “respect for autonomy intersects with the protection of vulnerable persons”: on the one hand, “[v]ulnerability, in and of itself, must not preclude the expression and recognition of an autonomous choice to pursue physician-assisted death”; on the other, “vulnerability...may impede or distort the expression of autonomy, when choices are coerced or induced”.[43]

[80]      According to the External Panel, the Supreme Court’s declaration of invalidity in Carter “did not limit access to persons with terminal conditions, or physical conditions”.[44] It also found that, “the Court did not indicate that the person must be at the end of life, have a terminal diagnosis or be at an advanced stage of decline.”[45] In other words, “Carter extends beyond those diagnostic and prognostic parameters”.[46]

[81]      At the same time, a Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying established by 11 provinces and territories[47] carried out consultation activities on issues relating to medical assistance in dying. Its mandate was to develop recommendations “to assist provinces and territories in deciding what policies and procedures should be implemented within their jurisdictions in response to the Supreme Court’s judgment in Carter.”[48]

[82]      The Advisory Group acknowledged the authority of each provincial government to respond to Carter “as it deems appropriate” within its area of jurisdiction. It nevertheless urged the provinces and territories to “work closely with the federal government, with each other and with health professional regulatory authorities to ensure an efficient approach to planning, communication and implementation”[49] with regard to medical assistance in dying throughout Canada.

[83]      The Advisory Group found that medical assistance in dying “fits within a continuum of end-of-life services”[50] and that it “should be treated as one appropriate medical practice within a continuum of services available at the end-of-life.”[51]

[84]      The Advisory Group formulated its recommendations specifically in response to Carter. Its final report, published on November 30, 2015, contains 43 recommendations to be implemented in provincial and territorial legislation. The Court considers the following recommendations to be of relevance to this case :

[85]      According to the Advisory Group, the eligibility criteria for medical assistance in dying should be the ones established by the Supreme Court in Carter.[55] It underlines that “the Supreme Court did not limit the ruling to those unable to take their own lives, to cases of terminal illness, or to people near death”.[56]

[86]      It proposes a pathway for the assessment of eligibility for medical assistance in dying based on the following criteria: eligibility for publicly funded health services, competency, grievous and irremediable medical condition, and intolerable suffering. When the patient’s eligibility appears unclear, the doctor should seek an additional assessment from relevant experts.

[87]      Despite the concerns expressed by some of the interveners about vulnerable populations and the need to protect them by enacting measures such as a mandatory mental health assessment, the Advisory Group believes that “existing mechanisms are sufficient to ensure that patients are making an informed choice and that physicians can effectively assess patient competence”.[57]

[88]      In December 2015, Parliament resumed its work after the federal elections and implemented a Special Joint Committee of the Senate and the House of Commons[58] to “make recommendations on the framework of a federal response on physician-assisted dying”[59] that complies with the Charter.

[89]      In its report, filed on February 25, 2016, the Joint Committee formulated 21 recommendations relating to “eligibility for MAID (which are substantive safeguards), procedural safeguards, and oversight”,[60] of which the following are relevant in this case:

[90]      The Joint Committee noted the differences in the interpretation of Carter regarding terminal illness as a condition of eligibility for medical assistance in dying:

[91]      The Joint Committee declared however, that it “agrees with the External Panel and does not interpret Carter as limiting MAID to terminally ill individuals”. It justified its recommendation proposing access to medical assistance in dying for individuals with terminal and non-terminal illness by enduring suffering that is intolerable:

[92]      As for the balance between the protection of vulnerable people and the right to autonomy, the Joint Committee recommends that each case be assessed individually, taking into account “any factors affecting consent, such as pressure from others, feelings of being a burden or lack of supports”.[64]

[93]      The Vice-Chair of the Joint Committee and three other members filed a dissenting report. According to them, the regime recommended by the Committee does not comply with Carter because it is too permissive and does not sufficiently protect vulnerable individuals.[65]

[94]      Under Carter, the declaration of constitutional invalidity of ss. 241(b) and 14 of the Criminal Code was to take effect 12 months later, that is, on February 6, 2016.[66]

[95]      In this context, in January 2016, the Attorney General of Canada asked the Supreme Court to extend for six months the suspension of the declaration of invalidity. The motion was opposed by the claimants in Carter, who in turn, along with certain interveners, sought an individual constitutional exemption for persons who wished to obtain medical assistance in dying during this period. The Attorney General of Quebec also asked that Quebec be exempted from the suspension if the extension was granted “to avoid uncertainty as to whether the Quebec regime conflicts with the federal prohibition preserved by any extension of the suspension.”[67]

[96]      Given the interruption of parliamentary business for the federal elections, the Supreme Court granted the extension, but only for four months, giving Parliament until June 6, 2016 to formulate a legislative response to Carter.

[97]      The Supreme Court recognized the tight deadline imposed on Parliament but found that this did not justify “unfairly prolong[ing] the suffering of those who meet the clear criteria […] set out in Carter.”[68] Individuals eligible for medical assistance in dying under paragraph 127 of Carter were therefore granted individual exemptions, which allowed them during that additional period of suspension to apply to the superior court of their jurisdiction for an order authorizing the administration of medical assistance in dying.[69]

[98]      Quebec was also granted an exemption from the four-month extension. In authorizing the exemption, the Supreme Court took into consideration the lack of opposition from the Attorney General of Canada and from the provincial Attorneys General. The Court also noted that granting the exemption “should not be taken as expressing any view as to the validity”[70] of the Quebec statute.

[99]      Four judges, dissenting in part, were of the view that individual exceptions should not be granted[71] and that Quebec[72] should not be exempted during the four-month extension.

[100]   In April 2016, the government introduced Bill C-14 in the House of Commons[73]. This came after several months of focused work that involved analyses of Carter, of the reports of the committees referred to above, of the consultations led by provincial physicians’ associations and other medical associations, as well as of the substance of other legislative regimes to regulate medical assistance in dying, including the approach favoured by the Quebec legislator that would serve as a source of inspiration for Parliament.[74]

[101]   During the second reading of the Bill, the Minister of Justice described the government’s process:

[102]   Referring to paragraph 127 in fine of Carter, the Minister of Justice stated that she was persuaded that Gloria Tayler and Kay Carter, the claimants in that case, would be eligible for medical assistance in dying under the proposed bill and said that “this approach to eligibility” is consistent with the parameters set out by the Supreme Court:

[103]   The bill’s consistency with Carter is also discussed through the prism of Parliament’s role in legislating in the interest of the population without merely copying the words of the Supreme Court in its new bill.[77]

[104]   The Minister of Justice drew a line between the risks related to medical assistance in dying, particularly for vulnerable individuals, and the control of these risks in the case of dying patients:

[105]   Thus, the government found that it “makes sense” to limit medical assistance in dying to persons whose death is reasonably foreseeable in reaction to the fear that medical assistance in dying would be considered “an appropriate response to a life with disability” or that its availability might inadvertently tempt vulnerable persons to choose a premature death.[79]

[106]   Essentially, the Minister of Justice stated that Bill C-14 “respects personal autonomy, protects the vulnerable, and affirms the inherent value in every human life.”[80] In the same vein, the Minister of Health found that this bill demonstrated “the government’s commitment to supporting the autonomy of patients who are approaching the end of their lives, while protecting the most vulnerable in our society.”[81]

[107]   The speeches in response to the one of the Minister of Justice reveal the MPs’ contrasting readings of the bill. Some felt that it is inconsistent with Carter because it represents a “slippery slope”[82] and is not in harmony with efforts to eliminate depression and suicide,[83] and that vulnerable people would therefore not be sufficiently protected.

[108]   In contrast, many denounced the limits imposed by the bill in permitting assistance only for patients whose natural death is characterized as reasonably foreseeable.[84] This would force grievously ill persons who are not at the end of life to endure intolerable suffering, which would constitute a violation of their right to security and integrity of the person.[85] In addition, a promise of possible legislative changes and improvements to the bill[86] would not assuage these peoples’ sufferings.

[109]   In May 2016, the House referred Bill C-14 to the House of Commons Standing Committee on Justice and Human Rights,[87] which studied over 100 amendments. Several proposals sought to remove[88] or more restrictively define[89] the reasonably foreseeable natural death requirement.

[110]   Thereafter, the Standing Committee filed its report, proposing 16 amendments.[90] The House of Commons debated several motions for amendment, including one that would strike the reasonably foreseeable natural death requirement. After a debate, it was once again rejected.[91]

[111]   The issue of the constitutional validity of the reasonably foreseeable natural death requirement was again addressed by several members of Parliament at the third reading of the bill. Finally, Bill C-14 was passed and referred to the Senate on May 31, 2016.

[112]   In April 2016, the Senate adopted a motion authorizing a preliminary study of the contents of Bill C-14 by the Standing Senate Committee on Justice and Constitutional Affairs.[92]

[113]   In its report filed on May 17, 2016, the Senate Committee made ten recommendations, including the addition of the term “terminal illness” to the first criterion of the definition “grievous and irremediable medical condition.”[93] A small minority of the Senate Committee recommended striking s. 241.2(2) Cr. C., which defined the term “grievous and irremediable medical condition” in favour of using the formulation in Carter.[94]

[114]   On May 31, 2016, the Senate officially received Bill C-14, which was read for the first time.[95] The following day, it received the Minister of Justice and the Minister of Health in plenary committee to present Bill C-14. On that occasion, the Minister of Justice reaffirmed that the federal law “must respect the legal principles set [out] in Carter but it does not have to mirror, exactly, the court’s wording to be constitutional.”[96] Indeed, since it was based on “different objectives and new evidence”, the federal law sought to propose “a new balance through a complex regulatory regime” that would be entitled to court deference.[97]

[115]   After the second reading and the official referral of the bill to the Standing Senate Committee on Legal and Constitutional Affairs[98], the Committee reported the bill back to the Senate without amendments because it deemed it more judicious to present the amendments at the bill’s third reading.[99]

[116]   The third reading debate began on June 8, 2016, when several of the proposed amendments were debated. A senator proposed an amendment to strike the definition of “grievous and irremediable medical condition”, which contained the reasonably foreseeable natural death requirement.[100] The amendment was passed the same day.[101]

[117]   Therefore, on June 15, 2016, the Senate passed Bill C-14 on third reading, without the reasonably foreseeable natural death requirement.[102]

[118]   On June 16, 2016, the House of Commons rejected the amendment striking the definition of “grievous and irremediable medical condition” that contained the requirement for natural death to be reasonably foreseeable. The House of Commons was of the view that this amendment “would undermine objectives of Bill C-14 to recognize the significant and continuing public health issue of suicide, to guard against death being seen as a solution to all forms of suffering, and to counter negative perceptions about the quality of life of persons who are elderly, ill or disabled.” It was of the opinion that “C-14 strikes the right balance for Canadians between protection of vulnerable individuals and choice for those whose medical circumstances cause enduring and intolerable suffering as they approach death”.[103]

[119]   Because the Senate did “not insist on its amendments”,[104] the House of Commons passed Bill C-14, which received royal assent and came into force on June 17, 2016. As a result, several provisions of the Criminal Code were amended[105] by the addition of ss. 241.1 to 241.4 respecting medical assistance in dying. Sections 241.2(1) and (2) more specifically, provide the following:

[120]   Unlike the federal legislative process, the debate on medical aid in dying in Quebec lasted six years, from 2009 to 2015, and its scope and usefulness was emphasized multiple times during the passage of the federal statute.[106] The Quebec statute is not the provincial legislature’s reaction to a court judgment, but rather a social response to the Quebec medical community’s initiative that sought a paradigm shift towards a holistic approach to the issue of appropriate end-of-life care. Therefore, before Bill 52, which became the Act respecting end-of-life care, was introduced, several reports and research studies were produced on the subject.

[121]   Three important documents were produced during this period by (1) the Collège des médecins du Québec; (2) the Select Committee on Dying with Dignity; and (3) the Comité de juristes experts.

[122]   Drawing inspiration from the reflections of its Task Force on Clinical Ethics,[107] the Collège des médecins du Québec published a research document in October 2009.[108] Therein, it proposed redirecting the debate on euthanasia[109] towards a perspective of “appropriate end-of-life care” given the many medical interventions possible. From that perspective, the challenge facing doctors of identifying the most appropriate care options both at the beginning of and throughout life remains just as relevant at the end of life. End-of-life care should therefore be addressed like all other types of care, with a focus on “a careful and thorough decision-making process involving all parties concerned” [110] in order to avoid aimless or futile treatment.

[123]   This dynamic and complex process has two components: (1) communication between autonomous and responsible moral actors; and (2) the recognition of and respect for the role of these actors, i.e., acknowledgment of the possibility for the patient to refuse treatment, as well as for the doctor, whose role is not that of a mere agent, to refuse to provide health care services.[111]

[124]   Citing article 58 of the Code of ethics of physicians,[112] the Collège noted “a new sensitivity” among the public and the medical profession ready to recognize the need for a frank and open discussion of the various types of care, up to euthanasia, which “could be considered to be a final step required to assure the provision of quality care”.[113]

[125]   In December 2009, the National Assembly unanimously adopted a motion creating a Select Committee on Dying with Dignity[114], whose mandate was to make recommendations in response to the following questions: “What is our society’s answer to the suffering experienced by some people at the end of life? How should we respond to requests for help to die? How can we ensure that people die with dignity?”[115]

[126]   Like the Collège, the Select Committee observed “some trends in Québec society”[116] and noted the evolution of social values, medicine and the law that had encouraged and stimulated reflection on end-of-life care.[117]

[127]   In March 2012, the Select Committee filed a unanimous report on a variety of types of end-of-life care, although euthanasia[118] occupies an important place within it. It formulated 24 recommendations on palliative care, palliative sedation, advance medical directives and medical aid in dying. On this latter subject in particular, the Committee recommended:

[128]   The criteria relating to the person’s medical condition – i.e., a serious incurable disease and an advanced state of weakening capability, with no chance at improvement – express the Select Committee’s clear objective to propose medical aid in dying “for people whose condition is irreversible and who are at the end of life”.[120] The Select Committee recognizes the challenge posed by the requirement of being at the end of life.[121]

[129]   For the Select Committee, the end-of-life requirement appears to be a critical factor needed to exclude requests for medical aid in dying from certain categories of persons, such as individuals who are severely disabled as a result of an accident. Because people in this situation are not at the end of life and are not suffering from an illness, “medical aid in dying cannot be conceived as the final step in the continuum of care”.[122]

[130]   In keeping with the evolution of social values, of the law and of medical practice,[123] medical aid in dying has become a “new option”[124] – “one more option”[125] – which, like other palliative care, is available on the continuum of care that is appropriate at the end of life.[126] This additional end-of-life care option is necessary because, although palliative care “is the best answer to the suffering of most end-of-life patients”[127], it has limits and cannot relieve the suffering of all such patients, for example, those with degenerative diseases.[128]

[131]   The Select Committee also addressed some of the issues raised in this case, including informed consent to medical aid in dying, suicide prevention, the risk of abuse, and the trivialization of the procedure.

[132]   Finally, in the trial judgment in Carter, the Honourable Lynn Smith considered the Select Committee’s recommendations.[129] The admission into evidence of those recommendations is explained by their relevance to the issue of the societal consensus on medical aid in dying.[130] In her analysis of the risks of decriminalization of medical aid in dying, Smith J. quoted the criteria proposed by the Select Committee, summarized the other recommendations,[131] and concluded that “the risks [of] physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced”.[132]

[133]   To implement the Select Committee’s recommendations, a three-member[133] panel of legal experts, the Comité de juristes experts, was formed in June 2012. Its report, submitted in January 2013, analyzes end-of-life patient’s decisions from the perspective of the criminal law, the civil law, and the Charters.[134] It proposes a new legal framework for end-of-life care practices[135] and considers the role of the Attorney General of Québec in the application of an eventual law circumscribing end-of-life care, including medical assistance in dying.[136]

[134]   The Comité noted that despite the absolute prohibition against assisted suicide under the Criminal Code, euthanasia or assisted suicide is practiced to some degree surreptitiously and that no prosecutions had been brought in Quebec in the context of end-of-life care.[137]

[135]   It recommended that all end-of-life care be circumscribed and managed by the health care system and that the rights of patients at the end of life be recognized by law. These rights should include the right to information, the right to confidentiality, the right to choose the place where one’s life will end, and above all, the right to decision-making autonomy. In the context of end-of-life care, a patient’s right to decision-making autonomy means the right [translation] “to choose the moment and manner of dying, when death has become a probable outcome of his or her treatment”.[138] Decision-making autonomy also underpins the following rights, which the statute should set out: the right to refuse care, the right to interrupt treatment, the right to abstain from treatment, the right to palliative care, including terminal palliative sedation, and the right to medical aid in dying.[139]

[136]   Like the Select Committee, the Comité defines medical aid in dying as [translation] “a new type of care” that is part of “the current evolution of patients’ rights at the end of life” and of the “continuum of end-of-life care”.[140]

[137]   A few months later, in June 2013, Bill 52 was introduced in the National Assembly. At this first introduction stage, the end-of-life requirement was not explicitly set out as a condition for eligibility for medical aid in dying. According to s. 26 of the bill, to obtain medical aid in dying, the person must be of full age, be capable of giving consent to care, be an insured person,[141] suffer from an incurable serious illness, suffer from an advanced state of irreversible decline in capability, and suffer from constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable.[142]

[138]   In early fall 2013, public hearings were held under the aegis of the Committee on Health and Social Services, during which several organizations, legal experts, physicians and professors were heard on the subject of the bill. For example, the Fédération des médecins omnipraticiens du Québec presented a brief in which it [translation] “insists that MAID be available only in a situation of imminent death”.[143] It therefore recommended the end-of-life requirement be added to s. 26 of the bill.

[139]   In response to this request, which was supported by other groups and organizations, s. 26 of the bill was amended to expressly include the notion of “end of life”.[144]

[140]   When the bill was adopted in principle on October 22, 2013, Minister Hivon drew attention to [translation] “the important democratic and citizen-led process” that had led to the introduction of a bill that “seeks to give its proper place to the stage of life that is the end of life, by recognizing the right of individuals to all the care and support they need in their specific end-of-life situation”:

[141]   Repeatedly associated with the notion of the continuum of appropriate end-of-life care[146], medical aid in dying was presented as [translation] “the final care provided on the continuum of care.”[147] Support for the patient at all times and the presence of a physician are also crucial elements in order for medical aid in dying to be considered as a form of care. These elements also make it possible to distinguish medical aid in dying from assisted suicide, which is permitted in certain American states for persons with a prognosis of mortality in six months or less.[148] Moreover, Minister Hivon believed that the Quebec model combined the American approach, the requirement of being at the end of life but not necessarily suffering, with that of the Benelux countries, the need for constant and uncontrollable pain without necessarily being at the end of life, thereby offering [translation] “the most stringent framework” and “the most circumscribed” of all the statutes permitting medical aid in dying.[149]

[142]   The fear of the “slippery slope” and of the fact that medical aid in dying could be administered without an explicit request was also raised during consultations and the work preceding the enactment of the Quebec statute.[150]

[143]   The protection of vulnerable persons was also a preoccupation. Without a legislative framework, the vulnerable would not be adequately protected. The [translation] “excessively strict” framework of medical aid in dying, which pairs the requirements of being at the end of life and of suffering, would allow this objective to be achieved.[151]

[144]   The need to define or clarify the notion of “end of life”[152] came up during the clause-by-clause consideration of Bill 52.[153] Although the National Assembly ultimately chose not to define the concept of end-of-life,[154] several definitions were added to s. 3, including that of “palliative care” and “medical aid in dying”, to clarify the idea that medical aid in dying is not included in palliative care.[155]

[145]   The debate over the passage of Bill 52 began on February 20, 2014, but because of the elections, it was delayed until the next legislature. And again, the following points were emphasized: the excellence of the work that had been done, the lack of political partisanship, the humanity of the bill and the privilege of having taken part in this historic debate in Quebec. The National Assembly passed Bill 52 on June 5, 2014.

[146]   The Quebec statute was assented to on June 10, 2014, and came into force a year and a half later, on December 10, 2015. Chronologically, its coming into force falls between the judgment in Carter and the enactment of the federal statute.

[147]   The changes in Canada’s legal landscape with respect to medical assistance in dying as a result of Carter and the enactment of the federal statute raised questions about the application of the Quebec statute in this new context,[156] but they remained unanswered by the Quebec legislature. Indeed, the Quebec statute has not been amended since medically-assisted dying was decriminalized in Canada.[157]

[148]   From the outset, the possibility of a jurisdictional conflict was defused by the federal government. During the second reading of Bill C-14, the federal Minister of Justice, who was asked about the constitutional validity of the Quebec statute because it is more restrictive due to the end-of-life requirement, considered that there was no legislative conflict between the two statutes, given that they had been enacted within their separate areas of jurisdiction.[158]

[149]   The co-existence of the two statutes continues to fuel debate, however. In its last report, the Commission sur les soins de fin de vie pointed out the differences between the federal and Quebec statutes, particularly as regards the eligibility criteria for medical assistance in dying (”end of life” versus “reasonably foreseeable natural death”; “serious and incurable illness” versus “serious and incurable illness, disease or disability”), the possibility of self-administering medical assistance in dying and the possibility of a nurse practitioner administering medical assistance in dying, as opposed to under the Quebec statute. These differences are sources [translation] “of very difficult and complex situations for physicians, individuals at the end of life, and the public”, and in the Commission’s view, the harmonization of the two laws is crucial.[159]

[150]   Whatever the case may be, since the federal legislation came into force, administrative formalities in Quebec have been adjusted[160] to make them consistent with the requirements in the Criminal Code.

[151]   At the moment, s. 26 of the Quebec statute, of which subsection 3 of the first paragraph is impugned, remains in the following terms:

[152]   Thus, the Court is hearing challenges to provisions from both legislative regimes, one federal (s. 241.2(2)(d) of the Criminal Code) and the other provincial (subsection 3 of the first paragraph of s. 26 of the Act respecting end-of-life care), each of which uses its own terms to make an individual’s eligibility to receive medical assistance in dying dependent on whether he or she is approaching death. These provisions are impugned, because they allegedly infringe ss. 7 and 15 of the Charter.

[153]   Since the legalization of this practice, the impugned requirements have been subject to multiple interpretations by legal experts, university professors,[161] colleges of physicians and surgeons,[162] organizations working in the field,[163] and even on one occasion, in the case law.[164] Some have been very critical,[165] while others have easily accommodated them.[166] Whatever the case may be, the impugned requirements are currently an integral part of the legislative regimes and, therefore, of the daily lives of physicians who practice medical assistance in dying in Canada. It is thus essential to understand how medical assistance in dying is practiced in the field in this country in order to analyze the impact and consequences of these requirements on the fundamental rights of the plaintiffs.

[154]   Unlike in the cases that have come before the courts in the past[167], there is clearly no question here of undertaking a theoretical or abstract analysis of the issues and the different aspects of medical assistance in dying or, more broadly, of euthanasia or assisted suicide.[168]

[155]   Since there was an absolute prohibition against medical assistance in dying in Canada before 2015, certain parallels with foreign regimes permitting a form of euthanasia, or at times a purely theoretical concept of the process, formed the evidence base of the debate. This obviously left room for multiple interpretations, preconceived notions and conjectures.

[156]   Since its legalization, medical assistance in dying has become an inescapable reality in our society, with a process and a practice in place now for more than three years. Many people emphasize its end result, since it is obviously irreversible and heavy in consequences. It is, however, a complete process, i.e., one that begins long before the final act and the passage from life to death. Above all, it is framed within a discussion involving the physician, the treatment team, the patient and, in many cases, the patient’s loved ones.

[157]   To properly grasp all the facets of this exceptional procedure, and to bring the law face-to-face with medical and social reality, it appears critical to the Court that the process be understood.

[158]   Of all the experts heard at the hearing, only four actually had any practical knowledge of medical assistance in dying in Canada and in Quebec in the role of a physician involved in the process. The others had theoretical, intellectual and administrative knowledge, but had never taken part in an actual process or in its administration in any capacity whatsoever.

[159]   The four physicians are described in the following sections. First, for the applicants:

[160]   Dr. Naud has been involved in the medical assistance in dying process since its legalization. At the time he filed his report, he had provided this type of aid to approximately 65 individuals and had trained several physicians and professionals in the field. He is one of the specialists who assessed the eligibility of Mr. Truchon and Ms. Gladu in this case. He described in detail the procedures and the process, from the patient’s written request for medical aid in dying to its administration and administrative follow-up.

[161]   Dr. Naud is very critical of the reasonably foreseeable natural death requirement. According to him, Quebec physicians understand the meaning of “end of life”, but they have no idea what “reasonably foreseeable natural death” means. He stated that he is [translation] “comfortable”[170] with the application of the “end of life” criterion which has greater medical or clinical meaning, even if it is not defined in terms of prognosis,[171]but he is [translation] “not comfortable” with the reasonably foreseeable natural death criterion.[172] In his view, this requirement is impossible to interpret, has no medical or clinical meaning, can be used to refuse a legitimate request or to accept an unfounded request, and is inconsistent with the end-of-life requirement in the Quebec statute.[173] Moreover, he considers it aberrant and [translation] “completely incoherent” that a prognosis is not required in order to conclude that natural death is reasonably foreseeable.[174] He does not restrict eligibility to medical assistance in dying to a prognosis of six months. Some of the patients to whom he has administered that aid had a prognosis of twelve months. The longest prognosis he has established is eighteen months.[175]

[162]    Using concrete examples and displaying great compassion, he was able to express to the Court the emotions that inevitably accompany these various stages and the profound respect he feels for his patients.

[163]   Dr. Downar, who also holds a master’s in bioethics, is very familiar with medical assistance in dying, given that he has administered about fifty requests in Ontario since the federal law was enacted. Like Dr. Naud, he provided a detailed description of the process from the first request to its administration. 

[164]   Dr. Dembo has practical experience in the field, having acted as the second physician evaluating the capacity to give consent in several medical assistance in dying cases since the enactment of the federal statute.[178]

[165]   And for the Attorney General of Canada:

[166]   Dr. Rivard is the only witness for the defendants who was able to enlighten the Court on how the medical assistance in dying process actually unfolds, given his active practice in the field and in palliative care. At the hearing, he estimated that he has carried out 150 assessments and proceeded with 123 cases of medical aid in dying in Quebec since December 2015.

[167]   His testimony echoes Dr. Naud’s with respect to the broad steps in the process and the work required from doctors who provide medical assistance in dying. Their disagreements concern primarily the interpretation and application in practice of the requirement of reasonably foreseeable death.

[168]   The reasonably foreseeable natural death requirement and the end-of-life requirement are synonymous for Dr. Rivard.[180]He associates reasonably foreseeable natural death to the time the patient enters a pre-terminal stage (death within three to six months) or a terminal stage (death within one month) of the illness.[181] He feels it is difficult for a clinician to determine end of life beyond six months, and is therefore of the view that [translation] “a patient who has a survival rate of over six months is not at the end of life and their death is not reasonably foreseeable.”[182] His practice appears to have evolved, however, and he no longer restricts the administration of medical assistance in dying to patients in the terminal stage.[183] Therefore, although he states that he is comfortable administering medical assistance in dying in cases where the prognosis is six months or less, he acknowledges that a rapid decline of the illness makes patients with a prognosis of up to eighteen months eligible.[184]

[169]   Dr. Rivard also assessed Mr. Truchon and Ms. Gladu in this case. He was very frank in his testimony and provided clear explanations of the reasons he is opposed to the removal of the impugned statutory requirement from the medical assistance in dying process.

[170]   The Court will refer to the testimony provided by these experts as it analyzes the evidence on the reasonably foreseeable death requirement in connection with the legislative objectives at issue. That being said, these experts are unanimous regarding the manner in which medical assistance in dying is received, evaluated and, if appropriate, administered: it is a highly rigorous and cautious process that requires the collaboration of many health professionals at various stages; it is a process that requires time, listening, a thorough evaluation of the situation and, above all, an approach focused on the person, the whole in accordance with federal[185] and provincial statutory requirements.[186]

[171]   In that respect, while there may be some specific points of divergence, the descriptions provided by these physicians are consistent and, all in all, quite similar. Here are the practice’s central tenets.

[172]   The requests processed by physicians who provide medical assistance in dying do not come from out of the blue. The very large majority are from persons who are already hospitalized in the institution where those doctors practice. The others come from patients being treated in care facilities, clinics or at home, but who are followed by these physicians or an attending physician connected with the institution.

[173]   To illustrate, approximately 70% of the requests that Dr. Naud receives are from patients who are already in palliative care at the CHUL in Québec City, while approximately 30% of the patients are in another department in the institution – for example, in cardiology, oncology or neurology– and are refusing palliative care.

[174]   These patients are very well known by the professionals in the institution and, more specifically, by the physicians, nurses, pharmacists, psychologists, occupational therapists and social workers. They often have a significant medical history, and their record reveals the progress of the illness afflicting them. In this sense, and as Dr. Rivard testified, a request for medical assistance in dying made by a patient who is unknown to the institution – submitted from the emergency department, for example – has no chance of being considered.

[175]   It is then the responsibility of the physician who receives the request to verify whether the patient meets the requirements of the law. To do so, the physician must, of course, use his or her clinical judgment, which requires an assessment of the patient’s overall situation, rather than merely reference to the official diagnosis. The assessment is demanding and, when the answer is positive, a second physician must, in turn, independently assess the patient’s eligibility and provide a written opinion to confirm, if appropriate.[187]

[176]   Before anything else, the physician will verify that the written request for medical assistance in dying was dated and signed by the patient in front of witnesses.[188] He or she then performs a thorough analysis of the medical file, which can take several hours.[189] The file provides a great deal of information on the basic diagnosis, the progress of the illness, the associated medical conditions, current and past treatments, test and imaging results, the opinion of other colleagues, and information on the patient’s human environment and psychological and emotional state.[190] At times, the treatments under way and the dosages prescribed make it possible to assess the patient’s suffering.[191]

[177]   In almost all cases, medical assistance in dying has already been discussed by the patient with several actors, such as the attending physician, the palliative care physician, specialists, social workers or spiritual care providers.[192]

[178]   The physician then meets with the patient alone or in the presence of his or her loved ones. The meeting takes place essentially to verify the medical condition, the progress of the illness, the level of suffering, the reasons and motivations that led the patient to request medical assistance in dying and, at the same time, to assess the patient’s capacity to consent.

[179]    This stage is important – indeed, critical – because beyond consulting the contents of the medical record, making human contact and hearing expressions of motivations and of the degree of suffering allows doctors to better comprehend the patient’s situation and grasp his or her values, convictions and fears.

[180]   The experts state that, in almost all meetings, the patients spontaneously talk about the many types of psychological and physical suffering they can no longer endure and about their loss of autonomy and dignity. They express their fear at the prospect of dying in agony, either from smothering or in uncontrolled pain. They state that they have fought hard but that they have reached the end of the road, that the time left no longer has any meaning, and that they cannot go on suffering anymore. The composure, lucidity and determination shown by these patients was reported with a great deal of empathy and discernment by both Dr. Rivard and Dr. Naud.

[181]   In their assessment, physicians have a duty to ensure that the person has made a voluntary request that, in particular, was not made as a result of external pressure, and that his or her consent is informed, i.e., after having been told of the means available to relieve the suffering, in particular, palliative care.[193] Frequently, they even have conversations with the patient’s family members or close friends to verify these aspects.

[182]   All of the physicians involved say they are fully able to assess the capacity of patients who request medical assistance in dying. The assessment is carried out continuously, throughout the process. The patient is informed that he or she must remain capable and that he or she may withdraw the request or change his or her mind at any time.

[183]   After that, sometimes the physician will discuss matters more thoroughly with the attending physician or the treatment team to verify or confirm certain elements. The physician must then determine whether the patient’s natural death seems reasonably foreseeable or evaluate his or her death trajectory on the basis of the clinical condition.

[184]   Once all these stages are complete, and once the patient becomes eligible after a second medical opinion is received, the final stage of administering medical assistance in dying takes place. Without any doubt, this is a very emotionally-charged moment for everyone involved: the patient, his or her family and loved ones, as well as for the physician responsible for the administration and the treatment team.

[185]   In recounting their experience to the Court, the experts were able to express how serene, peaceful and sometimes even humorous this moment is. They systematically described it as a deliverance for the patient and a moment of great emotion for those close to them who have also been experiencing the illness, decline and suffering of their loved one for months, sometimes even years.

[186]   It is generally the patient who sets the date of the procedure. He or she determines the time it will happen and who will be present. Dr. Naud arrives at least one hour before the agreed time, to reassure the patient that he is indeed there, to verify whether the patient has changed his or her mind, and to meet the family to explain how the procedure will unfold. He testified that the greatest fear of patients at this stage is that the doctor will not show up or that something postponing the procedure will happen.

[187]   The doctor then leaves the patient with his or her family and returns a few minutes before the agreed time. The patient’s consent is once again verified. Generally, the patient spontaneously says that he or she is ready.

[188]   The injection procedure takes place in three phases. The first puts the patient to sleep and lasts about 8 minutes. The second sends the patient into a deep coma, much like during surgery. The third paralyzes the patient’s muscles and causes respiratory arrest. [translation] “The patient ... feels no suffering, no distress, no sensation of that”.[194] [translation] “It’s easier for the family in terms of the grieving also, because there was no agony”.[195]

[189]   Once cardiac arrest has been observed, the physician auscultates the patient and pronounces the death. The physician generally leaves the room to allow the patient’s loved ones to experience this moment together, returning about twenty minutes later. The physicians testified that it is a very emotional, very human, moment.

[190]   The administration of medication or substances causing the patient’s death does not mean that the physician’s work is done. Approximately two to three hours of administrative work follows. This last stage, regarding which only Dr. Naud testified, involves documenting the process from the official request for medical assistance in dying to the patient’s death, in accordance with the provincial and federal rules.

[191]   Within the next ten days, the physician must complete, file in the person’s medical record[196] and send to several bodies[197] the Declaration of Information Relating to Medical Aid in Dying form developed by the Ministère de la Santé et des Services sociaux.[198] A more recent formality requires the physician to also fill out a federal form.

[192]   The provincial form contains three parts detailing the procedure.

[193]   In the first part, the physician must:

[194]   The second part of the form concerns information about the physician who administered the medical aid in dying: his or her specialization and therapeutic relationship with the person, the medication protocol followed and the relationship with the pharmacist.

[195]    Finally, the third part of the form contains information that identifies the physician who administered medical aid in dying and the physician who gave a second opinion, as well as information that allowed them to identify the person who received medical aid in dying.[200]

[196]   The physician must send a copy of all parts of the form to the Council of physicians, dentists and pharmacists of which the physician is a member[201], or to the Collège des médecins du Québec if he or she practices in a private health facility.[202]The physician must also send a copy of parts 1 and 3 of the form to the Commission sur les soins de fin de vie.[203]

[197]   In every case of medical aid in dying, the Commission verifies, based on the information received, whether the physician fulfilled his or her obligations under s. 29 of the Quebec statute.[204]

[198]   Since the coming into force of the Regulations for the Monitoring of Medical Assistance in Dying on November 1, 2018, Quebec physicians who administer medical aid in dying must also follow federal regulations respecting information collection and monitoring.[205] Consequently, within 30 days of the death, the physician must submit information about the patient, the physician and the request for medical assistance in dying to the Deputy Minister of Health and Social Services.

[199]   To lighten the administrative burden on physicians and to avoid having them fill out two separate forms, a single electronic form for the declaration of information required under both the Quebec and federal regulation was designed and adopted in collaboration with the Commission sur les soins de fin de vie.[206]

[200]   Every year, the Collège des médecins du Québec must prepare a report on medical aid in dying administered by physicians exercising in a private health facility. This annual report[207] must be sent to the Commission sur les soins de fin de vie and must indicate the number of times medical aid in dying was administered by these physicians at the patient’s home or in a palliative care hospice.[208]

[201]   The Commission sur les soins de fin de vie must submit an annual report of its activities and a five-year report on the overall situation of end-of-life care in Quebec to the Minister of Health and Social services.[209] The Minister then tables these reports in the National Assembly.[210]

[202]   The Commission has produced three annual reports of its activities for the periods of December 10, 2015, to June 30, 2016,[211] July 1, 2016, to June 30, 2017,[212] and July 1, 2017, to March 31, 2018.[213]

[203]   In April of this year, after this case was taken under advisement, the Commission tabled in the National Assembly its first report on the situation of end-of-life care in Quebec from the coming into force of the Quebec law until March 31, 2018.[214] The admission into evidence of this report was the subject of an objection by the Attorneys General. The objection was dismissed, and the report was admitted, as described in the section “Objections” of this judgment.

[204]   According to the data compiled[215] by the Commission, since its legalization in Quebec, medical aid in dying has been administered to 1632 individuals.[216] This figure is broken down quarterly, making it possible for the Commission to find that [translation] “the number of individuals who receive MAID has been increasing since the Act came into force. In 2017, the number of times MAID was administered rose by 73% in comparison with 2016”:[217]

[205]   According to the Commission, this significant increase in the number of cases of medical aid in dying is a sign of social acceptability.[218]

[206]   When calculated as a percentage of the total number of deaths in Quebec between January 2016[219] and March 2018, death by medical aid in dying represented 1.09%, [translation] “rising from 0.77% in 2016 to 1.29% in 2017”:[220]   

[207]   The Commission compared these numbers with the situation in Canada and Belgium.[221] It found that, for the aforementioned period, the proportion of deaths by medical aid in dying in Quebec was [translation] “slightly higher than that reported in Canada as a whole ... and slightly lower than that observed in Belgium”.[222]

[208]   More precisely, since the coming into force of the federal statute in June 2016, death by medical assistance in dying in Canada has hovered between 0.6% to 0.9% for the period between June 2016 and June 2017, and was 1.07% between July and December 2017.[223] In Belgium, sixteen years after euthanasia was legalized, the proportion of related deaths was 1.9% in 2016 and 2.1% in 2017.[224]

[209]   Citing a study published in 2016, the Commission stated that [translation] “generally speaking, the proportion of deaths by euthanasia or medically assisted suicide ranges between 0.3% and 4.6% in countries where these acts are permitted.”[225]

[210]   The Commission’s report also provides descriptive data on persons who received medical aid in dying in Quebec, again using an approach comparing Canada with Belgium. The following were the criteria for compiling the data indicated in the declaration forms:

[211]   Since June 2017, the Commission sur les soins de fin de vie must also retroactively analyze the reasons some requests for medical aid in dying have been rejected since December 10, 2015.[235] This data, however, can be found only in the records of patients who made written requests for medical aid in dying. The Commission therefore sought the collaboration of institutions that had this information in their possession, but it is impossible for it to obtain information about verbal requests for medical aid in dying or even about requests to physicians practicing in private health facilities.

[212]   In the circumstances, the Commission warned that the data must be interpreted cautiously given its retrospective compilation and the proportion of missing data, which is as high as 16%. The implementation of the single electronic form will make the collection of this data easier in the future.[236]

[213]   According to the information received from the institutions, between December 10, 2015, and March 31, 2018, there were 830 official written requests for medical aid in dying that were refused. This represents 34% of a total of 2,462 requests for medical aid in dying in Quebec in the same period.[237]

[214]   The main reasons for refusal are: eligibility conditions were not met at the time of the request (23%), the person was eligible when the request was made but ceased to be during the process (20%), the person changed his or her mind (20%), or the person died before the end of the evaluation process (20%) or before medical aid in dying was administered (8%).[238]

[215]   According to the data presented in table 7.2 of the report, the Commission found that just fewer than 400 people who were potentially eligible for medical aid in dying requested it but did not receive it.[239]

[216]   The end-of-life requirement was the main obstacle for persons not eligible for medical aid in dying at the time of the request. Indeed, in 51% of cases, the person was not considered to be at the end of life. The percentages for the other unfulfilled eligibility requirements were: 30% incapable of giving consent to care, 25% without constant and intolerable physical or mental suffering, 19% without a serious and incurable illness, and 18% not in an advanced state of irreversible decline in capability.[240]

[217]   Section 13 of the Regulations for the Monitoring of Medical Assistance in Dying[241] sets out the duty of the federal Minister of Health to publish, at least once a year, a report based on the information gathered throughout the country. This report must contain information relating to requests for medical assistance in dying, in particular the number, the characteristics of the patients, the reasons for refusal, including which of the eligibility criteria were not met, and so on. This will provide a more complete portrait of the practice of medical assistance in dying in Canada. Currently not in force, this provision will come into effect on November 1, 2019.[242]

[218]   The implementation of this Canada-wide monitoring system was preceded by the publication of three interim reports prepared by Health Canada from data submitted by the provincial governments. The interim reports compile data relating to medical assistance in dying in Canada in three six-month periods: June 17 to December 31, 2016 (first interim report)[243], January 1 to June 30, 2017 (second interim report)[244] and July 1 to December 31, 2017 (third interim report).[245]

[219]   According to this data, the deaths that can be attributed to medical assistance in dying in Canada can be broken down as follows:

[220]   When the cases of medical aid in dying administered in Quebec immediately after the Quebec statute came into force are considered, the number of cases of medical assistance in dying in Canada between December 10, 2015, and December 31, 2017, totals 3,714.[249]

[221]   Despite the upward trend in the number of cases in Canada, the percentage “remains consistent with that of other international assisted dying regimes where between 0.3% to 4% of total deaths have been attributed to assisted death”.[250] In comparison, the data from the Netherlands (3.75% in 2015), Belgium (1.83% in 2015) and Oregon (0.37% in 2016) are recorded in the first interim report.[251]

[222]   As noted above, the characteristics relating to the age, sex and diagnosis of people who received medical assistance in dying in Canada seem similar to those reported in Quebec.

[223]   The age of Canadians who obtained this type of assistance is between 56 and 90 years, with an average age of approximately 73 years.[252] The breakdown by the sex of patients is evenly balanced, at 49% men and 51% women.[253]

[224]   As in Quebec (78%) and elsewhere (76.9% in Oregon, 69% in Belgium, and 68% in the Netherlands), cancer is the most frequently mentioned medical condition, representing 65% of all cases of medical assistance in dying in Canada.[254]

[225]   Finally, Health Canada gathered information from Alberta, Manitoba, Saskatchewan and Quebec relating to requests for medical assistance in dying that were refused. The same recommendation of caution in the interpretation of the data is made. The data obtained indicate that, “[o]f the 1,066 requests for medical assistance in dying reported by these provinces, approximately 8% were declined”, with loss of competency and the failure to meet the reasonably foreseeable natural death criterion as the most frequently cited reasons.[255]

[226]   One thus observes that there has been a general increase in requests, that the reasons for refusal are related to the impugned requirements and that the procedure that must be followed to be entitled to medical assistance in dying is onerous indeed.

[227]   In addition to this data, which sheds light on the practice of medical assistance in dying in this country, several national and international witnesses testified at the hearing to contextualize this information from a broader perspective, in connection with the present constitutional challenge. The Court will analyze their testimony, which represents a substantial portion of the evidence adduced.

[228]   The Court has decided to present all of the evidence submitted by the parties at this point to allow a better understanding of the facts and opinions submitted and to facilitate the reading of this judgment. Although traditionally the evidence is discussed as part of the analysis of the issues in dispute and in a certain order, the volume of the evidence and the convergence of the subjects addressed require the Court to depart from the traditional approach.

[229]   This evidence concerns various aspects of the record. First and foremost, the Attorney General of Canada raises concerns regarding the need to protect vulnerable and suicidal persons and to ensure consistency with its message of suicide prevention. In the Attorney General’s view, the requirement of reasonably foreseeable natural death makes it possible to achieve these objectives.

[230]   The Attorney General of Canada called several witnesses to testify on the impact that the removal of the reasonably foreseeable natural death requirement would have on the vulnerable persons that the government wants to protect. It also submitted ample documentary evidence describing the same concerns, which the Court has reviewed.[256]

[231]   In addition to the five experts[257] who specifically considered the assessment of the plaintiffs’ eligibility for medical assistance in dying in relation to the legislative requirements in force, the opinions of fourteen experts (the plaintiffs called four experts and the Attorney General of Canada called ten) [258] were also presented on various other issues related to medical assistance in dying, essentially to debate whether the reasonably foreseeable natural death requirement is a necessary and justified criterion to protect the vulnerable persons in our society.

[232]   The evidence is substantial and specialized. It covers several subjects that are foreign to the plaintiffs, justified in part by the fact that the reasonably foreseeable natural death requirement goes beyond their own circumstances and is of interest to society at large. For example, all of the issues concerning suicide (in general and in various groups, such as members of the military, veterans or Indigenous peoples), the phenomenon of suicide contagion, and the issue of psychiatric illness as the only underlying medical condition for a request for medical assistance in dying, concern neither Mr. Truchon nor Ms. Gladu, who are not suicidal and do not suffer from any psychiatric condition.

[233]   As well, this evidence is critical to the Attorney General in order to meet the important burden of justifying the measure adopted, as is the case in all constitutional challenges arising from the violation of a fundamental right.

[234]   The evidence of the Attorney General of Quebec, which is exclusively documentary, consists mainly of reports by various authorities and the parliamentary proceedings prior to the enactment of the Quebec statute.

[235]   The plaintiffs, for their part, filed two expert reports, those of Dr. James Downar and Dr. Justine Dembo, which, other than setting out their practical experience, seek primarily to respond to the various arguments and issues identified by the Attorney General’s experts. In this regard, the evidence may appear somewhat unbalanced, in terms of both the number of experts retained by each party and the subjects addressed.

[236]   The Court’s analysis of the evidence will be divided into two main sections: the evidence regarding the intended legislative objectives of the impugned requirement in connection with the protection of vulnerable persons, and the evidence related to foreign regimes.

[237]   In the first section, the Court will analyze the evidence in the following order:

[238]   In the second section, the Court will examine the content of the evidence presented by the Attorney General concerning foreign systems, through experts Professor Boer, Professor Lemmens and Dr. Kim. It will then conclude with the testimony of Dr. van der Heide on behalf of the plaintiffs.

[239]   At the outset, however, the Court will examine the concept, addressed numerous times during the hearing, of “vulnerable person”, as described by the various witnesses, as well as the ability of physicians and the treatment team to properly assess the capacity of patients, whether vulnerable or not, who request medical assistance in dying. These two concepts transcend all the evidence adduced at trial.

[240]   The concept of vulnerable person invoked by the defendants as the cornerstone of their positions is not defined in the legislation. This “person,” however is at the heart of the current debate, because the impugned provision is, according to the Attorney General, essentially intended to ensure his or her protection by prohibiting medical assistance in dying for all persons who are not close to death.

[241]   The Court notes that the Attorney General considers persons who are elderly, ill or disabled to be vulnerable[259], as well as persons who could be induced to end their lives in moments of weakness, who are suicidal or who cannot make a free and informed choice regarding decisions concerning their health.[260] It relies on two concepts of vulnerability: the first individual and the second collective.

[242]   In regard to the latter, the evidence is indeed focussed on certain “groups of vulnerable persons”. These consist of persons living with a physical or intellectual disability, persons suffering from a psychiatric illness or condition and groups of persons with a greater propensity for suicide, such as members of the military, veterans, and members of Indigenous communities.

[243]   The issue of vulnerability was addressed by several of the Attorney General’s experts in a more or less precise manner. They each have their own understanding of this notion according to the context in which they operate.[261] The Attorney General addressed this concept in three separate categories: persons who are vulnerable due to physical or intellectual disability, persons vulnerable to suicide and, finally, persons suffering from a psychiatric condition.

[244]   It essentially submits that removing the reasonably foreseeable natural death requirement would undermine Parliament’s objective of affirming the inherent and equal value of vulnerable persons’ lives and of addressing and preventing suicide and would put vulnerable individuals at risk.[262]

[245]   The plaintiffs’ experts address the issue of vulnerable persons in a more general manner and submit that the concept remains very difficult, even impossible to identify, because vulnerability can be defined in several ways depending on various physical, psychological, socioeconomic or other factors.[263]

[246]   They maintain that a person may very well find himself or herself in a position of vulnerability but still be capable of making personal decisions in his or her best interests. Consequently, an individualized approach to vulnerability that takes into account characteristics that are specific to the person, rather than labelling someone as a “vulnerable person” on the basis of their membership in a group, would be more appropriate.[264]

[247]   According to the plaintiffs, in the context of medical assistance in dying, a vulnerable person is akin to someone who does not have the capacity to express his or her needs and wishes, who cannot decide for himself or herself, or who is likely to be subjected to external pressure.[265]

[248]   In this sense, the impugned requirements of a reasonably foreseeable natural death and being at the end of life do not protect vulnerable persons more than persons who are ineligible for medical assistance in dying, given the other safeguards in the legislation, whereas they do prevent certain persons, such as Ms. Gladu and Mr. Truchon, from choosing this path to put an end to their suffering. That could lead some towards suicide or even greater suffering.[266]

[249]   While this may be a truism, the Court finds that, essentially, all human beings, regardless of their specific characteristics, have the potential to be or to become vulnerable at one point or another in their lives.

[250]   In purely abstract terms, it is easy to understand that persons who request medical assistance in dying, like Mr. Truchon or Ms. Gladu, may correspond to a certain concept of vulnerability because they are seriously ill, have no hope of recovery or improvement and are suffering intolerably. Although some of these people appear very vulnerable because of their health conditions, they may nevertheless be fully capable of consenting to receive medical assistance in dying. This is where the weakness of the position of the Attorneys General lies.

[251]   In this regard, the Supreme Court in Carter stated the following at paragraph 86:

[252]   The Court cannot accept the concept of collective vulnerability suggested by the Attorney General because the broad protection that results therefrom is too general an application of a precautionary principle. Vulnerability should not be understood or assessed on the basis of a person’s belonging to a defined group, but rather on a case-by-case basis, at least for the purposes of an analysis under section 7 of the Charter. In other words, it is not the person’s identification with a group characterized as vulnerable – such as persons with disabilities, Indigenous persons or veterans – that should bring about the need to protect a person who requests medical assistance in dying but, rather, that person’s individual capacity to understand and consent in a free and informed manner to such a procedure, based on his or her specific characteristics.

[253]   Therefore, the Court finds that, for a doctor working in the area of medical assistance in dying, a vulnerable person should be defined as a person who is incapable of consenting, who depends on others to make decisions regarding his or her care, or who may be the victim of pressure or abuse. These conditions are already included in the legislation.

[254]   It is clear from the legislative regime in place that a patient’s capacity to consent to medical assistance in dying is a sine qua non condition to its administration.[267] The person making the request must be able to consent thereto in a free and informed manner, in addition to satisfying the other requirements.

[255]   Physicians must make sure that the request is indeed being made freely, voluntarily, without undue pressure or coercion, and ensure that no person obtains such assistance without their knowledge or without having truly consented.[268]

[256]   The Court notes that the experts who practise medical assistance in dying consider themselves fully able to assess the capacity of patients who make such requests without feeling the need to consult the opinion of a psychiatrist. They testified that the assessment of a patient’s mental capacity is a common medical procedure in their practice.

[257]   As for Dr. Naud, he clearly explained how a patient’s capacity is assessed in such circumstances.

[258]   He first specified that obtaining the patient’s free and informed consent is a requirement for all medical and surgical procedures, and even moreso when the medical procedure is irreversible, as in this case. The meeting with the patient allows the physician to assess, through discussion and specific questions, his or her capacity to receive medical assistance in dying, underlying motivation and knowledge of the steps taken and possible alternatives, if any.

[259]   The assessment of the patient’s capacity is part of common medical practice in this country. It is performed in accordance with generally-accepted criteria in which physicians in Canada are well trained.[269] According to Dr. Naud, no other medical procedure, even irreversible,[270] is subject to such a consistent, rigorous and thorough assessment of competence as medical assistance in dying.

[260]   He testified that it is a continuous process that starts at the first meeting with the physician, ends after the administration of medical assistance in dying and involves the entire treatment team, who knows the patient and supports him or her throughout the process.[271] In addition, a second assessment of capacity must be performed by another independent physician.

[261]   He declares himself absolutely able to assess the capacity of patients in such circumstances and comfortable doing so, without needing to call upon a psychiatrist’s expertise, although he would not hesitate to do so if need be.

[262]   Dr. Downar is very familiar with the process of medical assistance in dying, given that he has been involved in about fifty such cases since the enactment of the federal legislation. Like Dr. Naud, he described this process in detail from the initial request until its administration.

[263]   All the assessments he performs are in accordance with strict practice standards accepted in Ontario.[272] The capacity assessment of a person who requests medical assistance in dying is carried out in a continuous manner by the medical staff involved with the patient and after a complete review of the medical record.[273] The assessment is rigorous and is the same whether or not the patient is at the end of his or her life.

[264]   The fact that the law requires two separate medical capacity assessments is a standard that goes far beyond all those required for other types of decisions, even irreversible ones. Every patient is different and must be assessed on the basis of his or her specific characteristics, regardless of the nature of the illness or its stage.[274]

[265]   While he acknowledges that the assessment of a patient’s capacity is sometimes complex, he considers himself qualified and well trained to perform this task.

[266]   Dr. Dembo has assessed several medical assistance in dying requests as the second assessing physician since the enactment of the federal statute.[275]

[267]   Her report describes in detail the steps that are to be taken to assess the capacity of a person, including patients suffering from psychiatric conditions. In her practice, she applies the guidelines of the Canadian Psychiatric Association,[276] the College of Physicians and Surgeons of Ontario’s policy on medical assistance in dying[277] and the criteria developed by Appelbaum in 2007, which correspond to the accepted scientific literature and good medical practice.[278] She has also given conferences on patients’ capacity assessment in the context of requests for medical assistance in dying. She specified that all persons, even those with psychiatric conditions, are presumed capable and that capacity must not be assessed in a global manner but, rather in light of the medical procedure sought and can also fluctuate over time.

[268]   During her assessment, she performs a psychiatric evaluation if the patient has psychiatric symptoms or if there are indications to that effect. In other cases, if there are no signs that the patient is suffering from a psychiatric condition, she assesses his or her capacity, but nevertheless makes sure to verify, for example, that there are no undetected psychiatric illness or cognitive distortions.[279]

[269]   The patients are informed that they have to remain capable until the end, that their capacity will be reassessed during the process until the final moment and that they can change their mind and withdraw their request at any time.

[270]   Dr. Rivard’s testimony was similar to Dr. Naud’s with regard to the process followed to obtain medical assistance in dying, including the capacity assessment. He reviews the patient’s complete medical record before meeting him or her. He talks with the patient, in particular, to determine whether he or she is on an end-of-life trajectory or not. In addition to performing a physical examination, he listens to the patients speak about the rationale of their decision and responds to their questions and concerns, if any.[280] These inform him about the patient’s capacity.[281]

[271]   Dr. Rivard states in no uncertain terms that he is comfortable assessing his patients’ capacity without requiring the help of another expert.[282] He has had to consult a psychiatrist in only two or three cases. He has refused several requests from patients he deemed to be incapable.[283]

[272]   He specified that the determination of the capacity of a patient seeking medical assistance in dying is a medical responsibility. He clearly described the process he follows, which includes, inter alia, the guidelines provided by the Collège des médecins du Québec.[284] His approach is identical for all patients, regardless of their illness or condition.

[273]   The Court finds that Canadian physicians are perfectly able to assess the capacity of patients who request medical assistance in dying and that there is currently no other medical procedure that is as strictly regulated in this regard, given that two formal assessments are required and the treatment team must ensure that the patient remains competent throughout the process and until the very end. Because physicians are able to assess an individual’s decision-making ability, they can therefore determine whether they are dealing with a vulnerable person or not.[285]

[274]   Professor Tom Shakespeare teaches and conducts research on disability[287] at Norwich Medical School at the University of East Anglia in the United Kingdom. He has been involved in many projects related to persons with disabilities and has published several books[288] on the subject. With the parties’ agreement, the Court qualified him as an expert in research on disabilities with a specialization in the theoretical, sociological and bioethical aspects of disability.

[275]   Professor Shakespeare is also a staunch defender of the rights of persons living with a disability and of the importance of promoting their autonomy and their inclusion in all spheres of society.[289] He testified at the request of the Attorney General of Canada.

[276]   He stated that respect and exercise of autonomy remain fundamental for disabled people, allowing them to express their choices with respect to their dignity, assert their rights and make their voices heard.

[277]   He explained that the concept of autonomy for persons with disabilities does not mean doing physically the same things as others but, rather exercising control over their lives. Although they might be dependant physically, autonomy comes from being socially independent nevertheless, particularly in the manner their choices are exercised.

[278]   According to Professor Shakespeare, disabled persons experience a double disability: the disability that affects them physically and another that is social, being imposed on them by society, its organization and its attitude towards persons with disabilities. It is therefore essential, in his view, to have a societal model that affirms the inherent value of their lives, their equality and their contribution to society and that does not reinforce negative stereotypes in their regard.

[279]   Professor Shakespeare submits that, paradoxically, although society assumes that disabled persons are unhappy and live a life of misery, this is just a perception and that reality is completely different. Persons with disabilities, especially those born with a disability, are often happy and believe they have a good quality of life.[290]

[280]   As for persons who become handicapped over the course of their lives, he acknowledges that, at first, they experience a very difficult period during which they perceive their situation as being devoid of quality of life and hopeless. After some time, however, they become for the most part able to adapt and live a full life. “I am describing the state of the research. This is the disability paradox. The majority of people come to terms with disability over time, and end up with a possibility of leading a good life. There are issues that make life more difficult, pain and so forth, but people deal with those and find other meanings of life, and lead … a flourishing existence.”[291] He estimates that the hopelessness these persons experience decreases after three months, although it remains high throughout the first year.[292]

[281]   In his view, removing the requirement of reasonably foreseeable natural death would have negative consequences on persons living with disabilities.

[282]   First, it would inevitably lead to an increase in the number of persons likely to request such assistance. Professor Shakespeare believes that a majority of disabled persons meet the other eligibility criteria of the federal law simply due to their physical condition: they are disabled and have an incurable condition; they are certainly experiencing an irreversible decline in their capability; they are at an advanced stage and are suffering in a manner that sometimes cannot be relieved.

[283]   Allowing medical assistance in dying outside of the temporal sphere of end of life would send the social message that disability is in itself a ground for requesting medical assistance in dying and, therefore that the life of a person with a disability is less valuable, further reinforcing the stigma against them.

[284]   In particular, he stated that, in such a context, persons living with a disability risk not only being subject to social pressure, but also of receiving the implicit message that they would be better off dead, that their best option is to end their lives and that life with a disability is not worth living. Removing the reasonably foreseeable natural death requirement would thus increase the risk for disabled persons by making their death possible solely on the basis of their condition, when they could live a full and perhaps happy life for several more years.

[285]   On the other hand, prohibiting persons whose death is not reasonably foreseeable from obtaining medical assistance in dying creates equal eligibility for medical assistance in dying for all, because in such a case this option is not available to persons living with a disability on the sole basis of their disability. According to Professor Shakespeare, the requirement should therefore remain in place for the well-being of disabled persons and for the recognition of the inherent value of their lives and quality of life.

[286]   The Court accepts in part the testimony and evidence adduced by Professor Shakespeare. He presented his opinion in an eloquent and determined manner, while making important nuances when necessary. For example, he confirmed that his opinion does not necessarily represent that of the majority of disabled persons, who, generally speaking, are rather inclined to promote respect for decision-making autonomy under the principle of equality, even when the decision leads to death. In that regard, the plaintiffs are in fact perfect examples:

[287]   Finally, he also acknowledged that he is not aware of the empirical data regarding disabled persons who avail themselves of medical assistance in dying in Canada or elsewhere, for example, the studies submitted by Dr. van der Heide that found that in the Netherlands and in Oregon there is nothing indicating that persons with disabilities or persons suffering from chronic illnesses are more likely to request and receive medical assistance in dying than the rest of the population.[294]

[288]   Mr. Bach testified as a lay witness at the Attorney General of Canada’s request. His eloquent and empathetic testimony was consistent with Professor Shakespeare’s.

[289]   Mr. Bach is the Managing Director of the Institutes for Research and Development on Inclusion and Society, whose mandate is to promote the inclusion in Canadian society of persons living with an intellectual disability, as well as their families, through research, policy development and training.

[290]   Previously, for fifteen years he was the head of the Canadian Association for Community Living (CACL),[295] an intervenor in this case, whose mission consists of defending the rights of persons with intellectual disabilities, supporting their families and providing training to the principal actors in the community, including professors and employers, to properly meet their needs.

[291]   The CACL was involved in the legislative process that led to Bill C-14 following the Supreme Court’s decision in Carter. It was concerned by the government’s legislative response, particularly due to the fact that disabled persons could be put at risk by the forthcoming regime. The CACL therefore made submissions before the various legislative committees to ensure that the reasonably foreseeable natural death requirement would be included in the federal provisions adopted by Parliament.[296]

[292]   Two concerns in particular emerge from its work.[297] The first is that persons with disabilities are more likely to use medical assistance in dying as a means to end their lives because of their life situation.[298] The second and even more serious concern posits that the system could be designed in such a way that would facilitate their death by equating disability with a reason for requesting medical assistance in dying.

[293]   According to Mr. Bach, on the one hand it is important to acknowledge under the fundamental principle of equality that persons living with intellectual disabilities, like all other Canadians, want access to medical assistance in dying, and that their disability should not in itself be an obstacle to accessing a public service available to other citizens.[299] On the other hand, the inherent right to life of persons with disabilities must be supported and defended by establishing safeguards and interpreting them strictly. The system put in place must not promote their death but, on the contrary, protect them against discrimination and negative perceptions and promote their value and the respect owed to them by society.[300]

[294]   The essence of these concerns was the subject of a presentation, first in February 2016 before the Special Joint Committee of the Senate and the House of Commons on Physician-Assisted Dying.[301] Mr. Bach explained that, at the time, his association was concerned by the trend it saw emerging in Canadian society against restricting medical assistance in dying to persons at the end of life.[302]

[295]   Then, in April 2016, immediately after Bill C-14 was introduced, the CACL submitted a report intended for members of Parliament[303], and shortly thereafter, a document proposing amendments to Bill C-14 as introduced.[304] Among the many messages conveyed by the CACL on behalf of its members, one of the most important aimed at preserving the balance between the right to autonomy and ensuring that the legislation does not undermine vulnerable persons’ protection by keeping the reasonably foreseeable natural death requirement in order to request and obtain medical assistance in dying.

[296]   Finally, the CACL also presented its position before the Senate Committee in May 2016.[305] As Mr. Bach noted: “Basically, our message was that Bill C-14 got the balance good enough. It was a good enough balance between autonomy and ensuring that the legislation did not undermine the protections and the rights of persons who could be vulnerable in the system. And it did that by having the end of life condition within it. That’s how it got the balance right, and that was the message CACL (ACIC) wanted to communicate.”[306]

[297]   To summarize, the interventions of the CACL were focused on seeking the same access to medical assistance in dying for persons with intellectual disabilities[307] as other citizens have, while ensuring that the system put in place includes strict safeguards that value these persons’ lives, rather than sending the message that living with a disability is, in itself, a reason to die and that this reason is accepted by society.

[298]   The Attorney General of Canada filed a detailed affidavit prepared by Ms. Wilcox, Director General of Employment and Social Development Canada (ESDC).

[299]   ESDC seeks to support and coordinate, within the government, between different governments, internationally and in the private and non-governmental sectors, the social and economic advancement of persons with disabilities. In particular, it develops and administers programs intended to break down barriers and foster inclusion, elaborates policies based on current data to respond to the challenges that arise and raises awareness within the government on issues related to disability.[309]

[300]   In 2018, the Canadian government published the results of a survey on persons living with a disability[310] in the country on the basis of data gathered in 2017.[311] Ms. Wilcox’s affidavit sets out the main findings of that survey. In particular, the Court notes that:

[301]   She noted that, in 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities, which recognizes the need to promote and protect the human rights of persons with disabilities.[313] Canada submitted its first report in February 2014, setting out several government policies and programs implemented in the country to ensure the inclusion of persons with disabilities and their full participation in Canadian society.[314]

[302]   In its final remarks concerning that report, the United Nations Committee on the Rights of Persons with Disabilities issued three recommendations in connection with the federal law authorizing medical assistance in dying:

[303]   The data submitted by Ms. Wilcox thus presents a demographical and statistical portrait of the situation of persons living with a disability or handicap in Canada and illustrates the government’s desire to protect their rights and foster their inclusion as full-fledged citizens in society.

[304]   The Court fully understands the warnings made by Professor Shakespeare and Mr. Bach regarding the potential danger related to the social normalization of medical assistance in dying and the possible societal perception of the inherent value of persons with physical or intellectual disabilities if the reasonably foreseeable natural death requirement is removed.

[305]   However, the Court cannot disregard the fact that, like any other capable and well-informed person, disabled persons may have a rational and legitimate desire to end their lives because of their condition, but also, and especially, because of the enduring and intolerable suffering they are experiencing. While their physical or mental condition might possibly, in some cases, correspond to the legislative requirement of a grievous and irremediable medical condition, the person must also meet the other statutory requirements.

[306]   The physical or mental condition of disabled persons is but one element among others that might render them admissible for medical assistance in dying. Their capacity to consent, the suffering they experience and that is objectivized, and the advanced decline of their capability are all relevant elements in the global assessment of the request. While caution is required, it is far from obvious that a person could or would want to receive medical assistance in dying solely because of his or her disability.

[307]   Mr. Truchon’s case is, in fact, a perfect example. His physical condition is but one of the elements that would justify granting his request. His ability to understand the process, to explain his underlying reasons and to consent were also assessed, as were the advanced and irreversible decline of his capability and his great suffering, which cannot be alleviated despite the efforts expended.

[308]   Therefore, it is clear in this context that, for Professor Shakespeare and Mr. Bach, the reasonably foreseeable death requirement seeks to protect persons with disabilities from themselves and from social bias.

[309]   In the Court’s view, however, we cannot, in the name of the principle of protecting certain persons from themselves or of socially affirming the inherent value of life, deny medical assistance in dying to an entire community of persons with disabilities precisely because of their disability. That is what the legislator is doing indirectly by providing wide-ranging protection of certain groups instead of implementing strict structural conditions to ensure that such persons are well protected, should it deem it appropriate. Again, collective vulnerability cannot be conceptually used as a basis to refuse medical assistance in dying.

[310]   Mr. Truchon and Ms. Gladu, who belong to this category of persons, want to be given the choice to decide for themselves. The Court agrees with this. To do otherwise could lead to discrimination against persons with disabilities on the sole basis of their disability. These people are full citizens and consequently have the same rights as all other citizens, especially those that involve making decisions of utmost importance to their bodily integrity and dignity as human beings. Respect for their individual freedom that is expressed thoughtfully, freely and clearly also contributes to the affirmation of the inherent value of their lives.

[311]   According to the evidence, suicide is one of the main public health emergencies of the 21st century.[316] The federal government is going to considerable lengths to address this scourge, notably through a national framework for suicide prevention setting out strategic objectives, guiding principles and commitments on this issue.[317] As a result of these efforts, the suicide rate in the country is today relatively stable and has even been decreasing slowly since 2000.[318]

[312]   Approximately 4,000 people decide to take their own lives every year in Canada, and suicide is the second-leading cause of death among Canadians aged 15 to 34.[319] Among the principal risk factors are problems related to a physical condition,[320] such as a serious illness[321] or chronic pain, and symptoms or a diagnosis of a mental disorder.[322]

[313]   In view of the foregoing, it is not surprising that certain groups appear to be more at risk overall of committing or attempting suicide. The evidence addresses the particular features of the groups among whom the prevalence of suicide remains above average in the general population. They consist of persons with disabilities, persons who are sick or in poor physical condition, persons suffering from a mental illness, the elderly, veterans, members of the military and members of Indigenous communities.[323]

[314]   From all of the evidence, the Court notes and acknowledges the importance for our society to take every possible and necessary action to fight against this scourge through both the implementation of preventive measures and the contribution of social, medical and community resources.

[315]   The experts and witnesses heard at trial or who filed affidavits on this issue all work tirelessly with the general population and various groups to counter this phenomenon, and their work certainly deserves to be recognized and applauded.

[316]   The Court will first provide a brief portrait of the specific features of the various reports, testimony and affidavits that make up the crux of the Attorney General of Canada’s evidence and of the responses from the plaintiffs’ experts. The Court will then review the documentary evidence and the evidence of the situation prevailing in foreign jurisdictions, before highlighting the key points for the purpose of its analysis.

[317]   The Attorney General of Canada filed abundant evidence on the phenomenon of suicide and suicide contagion in connection with medical assistance in dying.[324] Eminent experts and witnesses directly involved in suicide prevention provided a complete portrait of the critical battle against suicide and the efforts made to prevent it, including the phenomenon of suicide contagion.

[318]   Dr. Sareen specializes in suicide prevention with members of the military, veterans, persons suffering from post-traumatic syndromes, First Nations communities in Manitoba and the homeless population.[326]

[319]   His report sets out the negative impact that the withdrawal of the reasonably foreseeable natural death requirement would certainly have in his view on persons suffering from a physical illness or health condition[327] and in particular, the risks incurred by members of the military, veterans[328] and members of Indigenous communities,[329] who are more likely than the rest of the population to exhibit suicidal behaviour.

[320]   In his view, without the requirement in question, many members of these groups who would otherwise engage in suicidal behaviour would become eligible for medical assistance in dying and could avail themselves of it to end their lives. As such, the state “would be actively facilitating it as a societal objective”.[330]

[321]   He considers it very difficult to distinguish suicide from medical assistance in dying, because he is of the opinion that medical assistance in dying is in itself a way to kill oneself.

[322]   Moreover, in these circumstances, medical assistance in dying would undermine the suicide prevention efforts being made in this country. “Without the element of foreseeable death, the commitment to suicide prevention would necessarily be diminished, and rather than seeking to prevent suicide, Canada would be actively facilitating it as a societal objective. As well, such a change could, in my opinion, be expected to lead to more premature deaths – whether by MAID or by suicide – than would be the case if the law remained in its current state.”[331]

[323]   Dr. Conwell clearly identified the factors associated with suicide in older adults, which often co-exist with a lack of access to adequate medical resources and services to treat these symptoms in this segment of the population.[333] In general, elderly people who wish to end their lives are ambivalent when faced with the choice, and many would choose a different solution if they were to receive the appropriate care.[334]

[324]   Unlike the situation in other demographic groups, suicide among the elderly is rarely the result of an impulsive act; rather, it is thought out and planned, while using less violent methods.[335]

[325]   If he were to receive a request for medical assistance in dying, he would address the situation and treat the patient as an individual at suicidal risk. In his view, the characteristics of a suicidal person and of someone who requests medical assistance in dying do not so much overlap as belong to one and the same category of persons at risk for taking their lives.[336]

[326]   Dr. Conwell believes that without the reasonably foreseeable natural death requirement, which serves as an essential safeguard, many elderly people would die by opting for medical assistance in dying, having failed to find alternative solutions.[337] In addition, the social bias that victimizes the elderly would increase because the state would be sending them the message that killing themselves by obtaining medical assistance in dying was a good solution for them.

[327]   He added: “Given that the risks for suicide overlap greatly with those that predispose a person to seek MAID, then the inclusion of the reasonable foreseeability criterion is the best means by which to minimize the likelihood that people will die unnecessarily with medical assistance. By removing the reasonable foreseeability criterion, Canada would greatly expand the time at which people in their most vulnerable state have access to assisted death, increasing the number of people who die unnecessarily when alternatives could, and in many cases would have been found. The foreseeability criterion serves to protect them.”[338]

[328]   With supporting data, Dr. Sinyor described the scourge that suicide represents for all classes and all age groups in Canadian society and the importance of continuing to invest in the resources needed to prevent it.[340]

[329]   Dr. Sinyor is a specialist in the well-known phenomenon of suicide contagion, whereby a vulnerable person identifies with another person who committed suicide and decides to emulate by acting on his or her suicidal thoughts.[341] Scientific studies show that the combined factors of knowledge of a suicide, either through media coverage of the event or in some other way[342], and identification with the person who committed suicide can lead vulnerable individuals to do the same.[343]

[330]   In his view, there is no distinction between medical assistance in dying and suicide, except where death is reasonably foreseeable. Outside of this specific context, medical assistance in dying clearly constitutes suicide.[344] He can see a difference, however, when death is reasonably foreseeable, because the choice is not whether or not to live, but solely about when and how the death will occur.[345]

[331]   To date, no study on the impact of medical assistance in dying on suicide contagion has been conducted in Canada or elsewhere in the world.[346] There is, therefore, no probative data in this regard.[347]

[332]   Just like anything else, however, medical assistance in dying entails a risk of contagion. More widespread awareness of the practice “could potentially result in unassisted suicide”, although, at this stage, this is only a potential harm and a hypothesis.[348]

[333]   Dr. Sinyor stated that it seems possible to infer from some literature[349] that, in the countries that have legalized a form of euthanasia, the suicide rate remains stable or even shows a potential for increase.[350] Finally, he alleged that the removal of the reasonably foreseeable natural death requirement would send a normalization message from the government that suicide is an acceptable way of coping with a difficult life and would undermine suicide-prevention efforts that have been made.[351] “MAID is already legal in Canada as a mean of alleviating suffering associated with end of life. Expansion of the use of MAID to include people whose deaths are not reasonably foreseeable has the potential to increase suicide contagion. That is because most people who have suicidal thoughts are experiencing suffering not at the end of life and are apt to identify with those seeking death to remedy that circumstance. Legal and governmental support for the notion that suicide is a potentially effective way of coping with suffering not at the end of life is at odds with modern efforts at suicide messaging and prevention. It undermines the narrative that people contemplating suicide must work to find other solutions and should seek help.”[352]

[334]   Dr. Heber testified in her capacity as Chief of Psychiatry of Veterans Affairs Canada, a position she has held since 2016. She described her previous experience as a psychiatrist for the Canadian Armed Forces, during which time she took part in ten post-suicide inquiries conducted among members of the military and their families.[353]

[335]   In collaboration with international experts, she contributed to the preparation of a joint suicide prevention strategy aimed at identifying suicide risk factors among veterans and prevention strategies.[354]

[336]   Veterans are more likely to act on suicidal thoughts than the rest of the population, due in particular to the physical and mental health problems from which they suffer and that constitute known suicide risk factors.[355] According to Dr. Heber, it is therefore essential that suicide prevention remain a priority among this population.[356]

[337]   Mr. Therrien Pinette testified by affidavit. The First Nations of Quebec conducted a Regional Health Survey in 21 communities of 8 nations. Among other things, the survey shows how significant the problem of suicide is in these communities.[358]

[338]   Between 2000 and 2011, 32.2% of persons who committed suicide in these communities had a mental health problem, excluding those related to abuse and addiction.[359] Mr. Therrien Pinette related his own experience with several members of his community. He has seen over 20 suicides in his social circle, and he has witnessed the phenomenon of suicide contagion.[360]

[339]   The data obtained through the Regional Health Survey reveals that the majority of adults age 35 and over have several chronic health problems, including diabetes, which affects close to one out of every four adults between the ages of 40 and 64.[361]

[340]   The implementation of suicide-prevention measures and sound practices for intervention with suicidal persons remains essential in these communities.[362]

[341]   The crux of Dr. Kim’s report will be addressed in the section on persons who are vulnerable in connection with their psychiatric condition as well as in the foreign regimes section. The plaintiffs objected to the filing of Dr. Kim’s report. The Court dismissed the objection on the grounds outlined in the “Objections” section of this judgment. His report and testimony are therefore admitted into evidence.

[342]   The Court understands from the analysis conducted by Dr. Kim on the issue of medical assistance in dying in relation to suicide that he considers it difficult to distinguish the two concepts, particularly when the patient’s death is not reasonably foreseeable. Although he did not provide any specifics when addressing this issue, he is of the view that the evidence put forth in his report does not support the conclusion that suicide and medical assistance in dying can be easily distinguished.[364]

[343]   He submits that medical assistance in dying provided when death is not reasonably foreseeable is actually just a way of dying, whereas the question that should instead be asked is whether or not it is appropriate to do so. He therefore equates assistance in dying with painless suicide: “However, when MAID is performed in persons who are not dying in any reasonably foreseeable future, the mere changing of the manner of death cannot speak to the issue of whether to provide MAID (i.e., deciding whether one lives or dies, not just how one dies) is appropriate or not. A painless suicide may be preferable to a painful one, but merely making it painless does not justify not attempting to prevent it. Thus, for MAID where death is not reasonably foreseeable, mere appeal to differences in manner of death begs the question whether MAID can be reliably and validly separated from suicides.”[365]

[344]   Dr. Quill practises palliative care in the state of New York, where no form of medical assistance in dying or assisted suicide is authorized.

[345]   He notes that palliative care is in general very effective in alleviating patients’ suffering and often allows them to prolong their life. Sometimes, patients who suffer terribly must be given high doses of medication, which causes them to become drowsy and not fully aware of their environment. Other than the administration of medication, there are two other end-of-life methods he uses in his practice: the stopping of active treatment and the voluntary stopping of eating and drinking, which he referred to by the acronym VSED.[367] The Court adopts this term for the purpose of this judgment.

[346]   Dr. Quill described in great detail the steps that must be taken by patients who, due to their medical condition and suffering, wish to end their lives by completely stopping eating and drinking. It is a decision that requires great willpower since the process generally takes 10 to 14 days before death occurs. According to Dr. Quill, while it is relatively easy not to eat, fighting thirst is very difficult and causes intense suffering.

[347]   The patient must be monitored, supported verbally and encouraged to persevere. If the patient drinks even a small quantity of water, the process can continue for a long period of time … even months.[368]

[348]   Throughout the process and particularly in the last days, the patient becomes very weak, delirious and confused.[369] Dr. Quill testified that even if the patient loses his or her capacity to consent, if the patient asks to drink, he will let him or her drink.

[349]   He recommends this option for his patients in palliative care whose death is not foreseeable or imminent and who are capable of consenting at the beginning of the process. He did not report having any problems assessing the capacity of patients who request VSED. He is hesitant to characterize VSED as suicide, but because the persons who chose this option are capable, do not have a mental illness and are suffering, he characterizes it as rational suicide.

[350]   In his view, it is a means available of hastening death for persons who are not at the end of life. The advantage lies in the fact that death is under the control of the patient, not the physician.

[351]   As a physician who evaluates patients requesting medical assistance in dying and who has significant clinical experience in intensive and palliative care, Dr. Downar is categorical that he would never confuse a suicidal patient with a patient who requests medical assistance in dying. In fact, he described the significant distinctions between the two concepts.[370] In his view, medical assistance in dying and suicide should be considered two separate realities:[371]

[352]   He explained that suicide is generally an impulsive act committed alone, whereas medical assistance in dying is the culmination of a carefully thought out process, discussed with the physician and the family. He also noted significant demographic differences between suicide and medical assistance in dying. Suicide is generally committed by younger men with a combination of mental health problems, addiction, chronic pain, relationship problems and financial difficulties, and who sometimes have little social support. Medical assistance in dying is mostly requested by elderly, educated people without mental health problems or addictions, who are being followed in the healthcare system, have a good social circle and are suffering from the final stages of an illness that is causing them suffering.[373]

[353]   As for the concept of suicide contagion, he has analyzed several national and foreign statistics[374] and concluded that the legalization of medical assistance in dying does not result in a phenomenon of suicide contagion. Finally, he refutes the idea that the removal of the reasonably foreseeable natural death requirement would result in a significant increase in the number of people who would avail themselves of medical assistance in dying.

[354]   For Dr. Dembo, it is clear that removing the requirement in question would not have any impact on suicide, the efforts made to prevent suicide, or the phenomenon of suicide contagion because these concepts are completely separate from medical assistance in dying.[375]

[355]   Patients who request medical assistance in dying would like to live but are fully aware that it is not possible in their current situations. They wish to put an end to their great suffering, in the manner and at the moment they choose, usually surrounded by their families. The decision is not made in haste and, to come to fruition, all steps and all safeguards provided in the legislation have to be scrupulously carried out.[376]

[356]   Suicide, on the contrary, often appears violent and impulsive and is performed in secret as a way of bringing life’s difficulties to an end. In her view, we cannot extrapolate the data obtained from the phenomenon of suicide contagion and apply it to medical assistance in dying.[377]

[357]   Authorizing medical assistance in dying for patients who are not at the end of life or whose death is not reasonably foreseeable but who satisfy all the other legislative requirements would not undermine the efforts made to prevent and fight against suicide. “I do not believe that there would be any impact of removing the “reasonably foreseeable” criterion on suicide prevention in my practice. Suicide prevention is an essential part of any psychiatrist’s practice, and the existence of MAID with or without a ‘reasonably foreseeable’ death does not undermine suicide prevention in any way. I would again remind the reader that MAID is not equivalent to suicide.”[378]

[358]   The Court has also reviewed the official statement issued by the American Association of Suicidology (AAS) titled: “‘Suicide’ is not the same as ‘Physician Aid in Dying’”[379], which several experts commented on abundantly throughout the hearing.[380]

[359]   The position of the AAS, whose mission is to prevent and fight against suicide, is clearly expressed in the executive summary:

[360]   The AAS notes that one of the sources of the confusion between the two realities comes from the use of the expression “assisted suicide” to refer to medical assistance in dying, an expression that should never be used.[382]

[361]   Moreover, contrary to what some of the Attorney General’s experts claim, the Court finds that the statement of the AAS is not limited to the situation prevailing in certain U.S. states where only the self-administration of lethal medication supervised by a physician is permitted, but includes all the other legislation in the world that allows medical assistance in dying, including the European jurisdictions and Canada.[383]

[362]   The AAS outlines 15 points of difference between suicide and medical assistance in dying. Although it acknowledges that there may be some overlap between the two, it identifies this particularly in cases of depression, mental illness and cognitive distortion. In these cases, the AAS suggests a consultation with a psychiatrist to ascertain patients’ capacity, and if necessary, that they be screened out of the process and provided with services and treatment traditionally given to suicidal persons.[384]

[363]   The 15 points of difference identified include:

[364]   Finally, the AAS notes that, in the case of suicide, psychiatric conditions and mental illness abound, whereas, in medical assistance in dying, such patients are identified and screened out of the process.[386]

[365]   In Canada, the Groupe de recherche sur la souffrance psychique et l’aide médicale à mourir, in conjunction with the Collège des médecins du Québec, published a document titled : Exploration de la souffrance psychique dans le cadre d’une demande d’aide médicale à mourir[387]. There, it provides a table comparing medical aid in dying and suicidal ideas, which is worth reproducing here:

[366]   Before the enactment of the Quebec statute, the Select Committee noted that the suicide rates did not increase and the abuses associated with the anticipated slippery slope had not been observed in countries that have legalized medical assistance in dying. Moreover, the Association québécoise de la prévention du suicide has not opposed the legalization of medical aid in dying.

[367]   In addition, the Select Committee rejected the abuses argument that presupposed the complicity of physicians, health care system staff and the patients’ families.[388] The members of the Select Committee said that, on the contrary, they were “reassured when [they] saw how strictly the practice was controlled, as well as how carefully” physicians approached medical assistance in dying in foreign jurisdictions.[389]

[368]   As a result, these documents published by groups of experts in the field clearly show that there are many fundamental differences between suicide and a request for medical assistance in dying.

[369]   Put simply, the Court accepts that, in European jurisdictions where medical assistance in dying regimes are anchored in the principle of intolerable suffering, the connection between suicide and medical assistance in dying is neither easy nor straightforward to establish.[390]

[370]   The empirical data provided by the witnesses establish that in the Netherlands, where, need we repeat it, no temporal guidelines are required for eligibility to obtain medical assistance in dying, 92% of assisted dying cases are administered to patients with less than six months’ life expectancy.[391]

[371]   Although the evidence establishes an increase in the number of medical assistance in dying cases where the survival prognosis is greater than six months, it is not sufficient to convince the Court that the Netherlands has a disproportionate number of such requests and that a parallel can therefore be drawn with the situation that would prevail in Canada should the reasonably foreseeable natural death requirement be removed.

[372]   Finally, and although it draws no formal conclusion in this regard, the Court cannot but surmise that, while the experts have not observed any reduction in the suicide rates in countries that allow one form or another of euthanasia, this is perhaps because there is no formal connection between the two.

[373]   The Court has read the voluminous evidence presented by the Attorney General and paid careful attention to his witnesses who presented their view and analysis on the potential connection between suicide and medical assistance in dying. The Court takes from that the following common points:

[374]   The Court cannot accept the association made by these experts between the issue of suicide and medical assistance in dying, or the inferences they have drawn between the two. Here is why.

[375]   First, the Court is astounded by the fact that the experts for the Attorney General of Canada had not even a basic knowledge of the practice of medical assistance in dying in Canada, which has nonetheless been legal throughout the country since 2016. None of them has participated in the request process for medical assistance in dying, either by assessing a patient or by providing such medical assistance. None of them has done any research on the subject or even tried to consult the data available in Canada.[398]

[376]   Therefore, when they all state that there is no difference between suicide and medical assistance in dying, they are considering and presenting only one side of the story, one part of the equation. They compare the two issues without ever having analyzed, learned, or addressed the specifics of medical assistance in dying, its parameters, its eligibility criteria, or how it is practised in Canada.

[377]   Their comparison therefore remains purely theoretical at best, and their opinion is based on biases[399] or a practice that does not correspond to reality.

[378]   Moreover, each of them disregards, and even ignores, the safeguards provided in the legislation and the strict eligibility conditions involved in a request for medical assistance in dying, as though they did not exist or were of no importance in a scenario where lack of consent is suspected.[400]

[379]   These experts cling solely to the fact that death results from a person’s voluntary request in order to equate medical assistance in dying with suicide in every circumstance. Consequently, they erroneously assume, without further nuance, that every vulnerable or otherwise suicidal person suffering from a disease or disability could ipso facto go through the process of, and be granted, medical assistance in dying.

[380]   Contrary to what is affirmed in Carter, none of them considers that there may be people who have a rational, considered and persistent wish to end their lives and who, moreover, are not vulnerable as such. And even if these people fall within a certain definition of vulnerability, they nonetheless have the capacity to make personal decisions concerning their life, their dignity and their own physical integrity.[401]

[381]   The Court instead accepts the evidence adduced by the applicants that establishes that medical assistance in dying and suicide are two separate phenomena that belong to two different realities, although there may be certain points in common, such as the obvious one that they both lead to the person’s voluntary death.[402]

[382]   The Court thus finds that the evidence adduced by the applicants draws a more accurate portrait of the reality and differences between medical assistance in dying and suicide.

[383]   The applicants’ experts and Dr. Rivard, who all have personal experience with medical assistance in dying in their practice, all stated that they would not confuse one with the other and that they are two separate phenomena. Dr. Naud has treated many suicidal patients in his family medicine practice and does not see how one could equate the two phenomena.[403] Moreover, Dr. Rivard seemed astonished at the hearing that anyone could associate the two.

[384]   In Quebec, these patients must be known to the medical team involved, make an official request on a form before witnesses, and meet two different physicians who will assess every facet of the request, including their capacity to consent.[404] Dr. Downar[405] and Dr. Dembo,[406] who assess patients requesting medical assistance in dying in their medical practice, unequivocally agreed with this assessment and confirmed that the two realities are clearly dissimilar. They claim that there is nothing to indicate that removing the impugned requirement will lead to an increase in requests for medical assistance in dying, influence the suicide rate in Canada, or undermine suicide prevention efforts.

[385]   Finally, in the same vein, the Court also accepts the testimony of Dr. Quill[407] and of the psychologist, Ms. Malo[408], both of whom outlined the necessary distinctions between medical assistance in dying and suicide. In summary, the Court finds that the expert evidence filed by the applicants is clearly more conclusive in this area than that of the Attorney General of Canada.

[386]   As previously stated, while the applicants undeniably suffer from severe physical disabilities, this is not the case with regard to their mental condition. Neither Mr. Truchon nor Ms. Gladu has a psychiatric illness that could be related to their request for medical assistance in dying.

[387]   Therefore, the relevance of any evidence adduced by the Attorney General of Canada on the subject of people who might avail themselves of medical assistance in dying based solely on a psychiatric illness is doubtful, to say the least.

[388]   In his report, Dr. Kim seriously questions the physician’s ability to properly assess the capacity of patients requesting medical assistance in dying who are not at the end of life and having an underlying psychiatric condition. The essence of Dr. Kim’s report and testimony deals with the danger of extending access to medical assistance in dying to patients suffering from a psychiatric condition.

[389]   He claims that, even though physicians regularly assess their patients’ capacity in the normal course of their practice, assessing people with a psychiatric condition remains difficult and always represents a challenge. It falls into a grey zone, which requires considerable clinical judgment.[409]

[390]   The methods of assessing the capacity of patients with a psychiatric condition may, therefore, present difficulties for physicians, some of whom, moreover, would not be properly trained to perform this task.[410] According to Dr. Kim, these difficulties establish that capacity assessment cannot serve as a universal safeguard.

[391]   He also disputes the idea that a refusal of, or a legitimate decision to stop, life-sustaining treatment is akin to a request for medical assistance in dying when death is not reasonably foreseeable from the perspective of assessing the patient’s capacity to make that choice.[411]

[392]   Dr. Kim claims that the current practice of assessing patient capacity is not adapted to the new reality of medical assistance in dying and therefore cannot serve as guidance for such an assessment when the people requesting medical assistance in dying are not at the end of life and have a psychiatric condition.[412] He feels that capacity assessment in these conditions represents “a unique set of considerations” and that “... the circumstances of evaluating the capacity of non-dying persons with psychiatric disorders seeking MAID will be such that current practice of capacity assessment cannot provide direct guidance for that novel context.”[413]

[393]   He presents a portrait of difficulties physicians might face when dealing with such requests from patients with a psychiatric condition.[414] Furthermore, removing the reasonably foreseeable natural death requirement would lead to an increase in the pool of candidates, some of whom would certainly be suffering from an undiagnosed or improperly treated psychiatric condition.[415] He claims that it is well known that the risk of incapacity is increased where many psychiatric issues exist.[416]

[394]   Thus, by drawing a parallel with the situation in Belgium and the Netherlands, Dr. Kim claims that removing the reasonably foreseeable natural death requirement in Canada would increase the number of persons who will request such assistance, a majority of whom will have psychiatric conditions, and that this risks causing significant consequences for that population.[417]

[395]   His analysis is based primarily on Belgian and Dutch data[418], which he analyzed and presented as being the prevailing situation in those countries and which he does not hesitate to describe as a “robust finding”.[419]

[396]   The data presented by Dr. Kim was drawn primarily from an article published by Belgian psychiatrist Dr. Lieve Thienpont, who, from 2007 to 2010, assessed 100 consecutive requests for euthanasia by patients with various psychiatric conditions.[420]

[397]   Dr. Kim arrived at two main findings based on this data. The first is that women, as a potentially vulnerable group, appear to be overrepresented, with a rate of 73% of requests. The second questions the capacity assessment conducted by this psychiatrist, who found that every patient assessed had the capacity to consent to euthanasia.

[398]   He also presented a study published in the JAMA Psychiatry journal in 2016, in which he participated in the Netherlands between 2011 and 2014, and which forms the basis of his report to the Court.[421] This article describes the case of 66 patients with a psychiatric condition and also concludes, among other things, that women are overrepresented.[422]

[399]   The Court wishes to make several remarks about Dr. Kim’s report and testimony in order to explain why it has decided to disregard them and not consider them in the present case.

[400]   Dr. Kim is without a doubt a highly qualified psychiatrist, professor, author and bioethicist, both academically and professionally. While the Court appreciates his warnings throughout his testimony about physicians’ ability to properly assess the capacity of people with psychiatric conditions, the Court notes that these are merely hypotheses or extrapolations from the data. The evidence on which he bases his opinion is either too insufficient or theoretical to be truly probative. It is, therefore, not reasonably possible to draw any inference regarding the current practice in Canada from this data.

[401]   More specifically, the Court cannot, based on two foreign studies conducted on 100 and 63 patients respectively and all suffering from psychiatric illnesses, draw any probative conclusion whatsoever on the practice of capacity assessment in Canada. Nor can it, as did Dr. Kim, elevate anecdotal and still-marginal cases to the rank of broad principles applicable to the situation prevailing in Canada.[423] Moreover, the testimony of the applicants’ expert, Dr. van der Heide, contradicts these arguments and rightly urges the Court to consider Dr. Thienpont’s study and conclusions with much caution.

[402]   Furthermore, although he was very confident during his examination in chief, on cross-examination Dr. Kim often hesitated before answering even simple introductory questions. Above all, it became clear during his cross-examination that he has very little knowledge, if any at all, about medical assistance in dying in Canada, the criteria of the federal or provincial legislation, local data, or even the existence of the Commission des soins de fin de vie, one of the objectives of which is precisely to analyze, compile and publish up-to-date data on capacity assessment. Moreover, he was also unable to confirm simple facts about the applicants themselves, such as, for example, whether they were suffering from a psychiatric condition that could possibly defeat their application for medical assistance in dying. He even went so far as to qualify the possibility that Mr. Truchon might be suffering from a psychiatric condition as a “detail”, even though he then added that it would not be a “trivial detail”.[424]

[403]    In reply to the question as to whether the difficulties he raised regarding the capacity assessment of patients who apply for medical assistance in dying and who may in fact be suffering from a psychiatric condition are the same in Canada as abroad, he answered: “I don’t know about what’s happening in Canada. … Because there are no data in Canada”.[425]

[404]   For the Court, this places some of his observations within the ranks of mere conjecture or anecdote, such as the over-representation of women in euthanasia applications based on a psychiatric condition, which he nonetheless unhesitatingly described, at the risk of repetition, as “robust findings”.[426]

[405]   As he rather astonishingly stated on cross-examination, he draws no conclusions from the data (particularly that taken from Dr. Thienpont’s study) he nevertheless cites throughout his report, even though he raised concerns about this data.[427]

[406]   Finally, and more generally, although interesting and certainly relevant, the issue of psychiatric illnesses as the sole condition granting access to a request for medical assistance in dying is but one facet of the reality of people who might request medical assistance in dying. The Attorney General is mistaken on the importance to be assigned to the issue of the presence of psychiatric illnesses under the legislative provisions currently in force, because the Attorney General confuses the person’s capacity to consent with the presence of a diagnosed mental illness. The only thing that is relevant for the Court’s purposes is the determination of capacity taking into consideration the presence of any illness. Once again, the overwhelming evidence, on a balance of probabilities, does not at this time raise any doubt as to the quality of the process for assessing the capacity of a patient who has requested medical assistance in dying in Canada, whether or not the patient is suffering from a psychiatric condition.[428]

[407]   For all these reasons, the Court does not accept the evidence presented by Dr. Kim.

[408]   Dr. Gaind’s report is based on the hypothesis that people might be tempted to request medical assistance in dying when they are suffering only from an underlying psychiatric condition, with no other illness or physical condition.[430] Dr. Gaind’s report was filed subject to an objection. The Court rejects the objection for the reasons set out in the section “Objections” of the judgment and allows Dr. Gaind’s report and testimony to be filed.

[409]   In this specific context, Dr. Gaind discusses the impact that psychiatric symptoms can have on patients’ perception of suffering and their decision-making capacity. Since suffering remains highly subjective, a patient who is depressed or has another psychiatric illness is more likely to perceive stress and everyday challenges as overwhelming, even insurmountable. In this regard, the perception and characterization of the patient’s suffering as more or less tolerable can be affected by the illness itself.[431]

[410]   The psychiatric symptoms felt by a person can also affect the decision-making cognitive process. Psychiatric symptoms can cause cognitive distortions and negative emotions that influence decision-making process, even if the person still has full legal capacity.[432]

[411]   According to Dr. Gaind, suffering due to a psychiatric illness can be caused not only by the illness, as such, but also by various external psychosocial factors.[433] It then becomes difficult for a physician to determine with certainty whether the suffering expressed by a patient applying for medical assistance in dying is actually related to the illness or whether it is perhaps also explained by external factors.

[412]   In Dr. Gaind’s view, this situation creates a potential danger of a shift towards the possibility of no longer attributing the intolerable suffering to the illness itself but, rather, to all sorts of external factors. At that point, physicians would not be best placed to conduct this assessment, which would, moreover, leave much room for arbitrary interpretation and for subjective, inconsistent application.

[413]   In his opinion, it is therefore vital to keep the reasonably foreseeable natural death requirement in the legislation in order to counter this situation.

[414]   Dr. Gaind also believes that it is impossible to determine with certainty whether or not a psychiatric illness in a given case is irremediable, unlike many physical diseases.[434] Therefore, he feels that people with psychiatric illnesses should not be eligible based on the current legislative criteria.

[415]    The Court would like to state its appreciation for the compassion, devotion, attention and concern for his patients’ suffering that marks Dr. Gaind’s testimony. As was the case for Dr. Kim, in addition to the previous remarks and, once again, although he appears highly qualified, the Court can only find that he goes too far in the conclusions he draws from the assumptions he presented. In addition, they are at odds with all the testimony heard from physicians who practice in the field[435] and are not based on practical experience.[436]

[416]   While it is true that the assessment of a person’s mental capacity may sometimes present a challenge for physicians, and that the fears expressed by Dr. Kim and Dr. Gaind could, in fact, occur in a psychiatric patient[437], there is no reason to believe that the members of the medical community who conduct such assessments are not aware of the potential particularities and difficulties raised and are not up-to-date in their practice in this respect.[438]

[417]   Unlike Dr. Kim, who believes that outside the context of end of life the capacity assessment of non-dying patients requesting medical assistance in dying is a unique process, the Court, like the Supreme Court, believes instead that the assessment of the person’s capacity to request such assistance is similar to that sought when withholding or withdrawing life-sustaining treatment. The Court concludes that the decisive factor is based not so much on the temporal connection with natural death, but instead on the fact that the decision leads to death. Whether or not the person requesting assistance in dying is at the end of life does not constitute a clinical criterion in the assessment of the patient’s capacity to make such a decision.

[418]   Based on the evidence, the Court finds that, because a person’s decision in these circumstances leads to death, which is a grievous and irreversible consequence, the assessment of the person’s capacity to consent to medical assistance in dying is all the more rigorous. It requires two independent physicians, who in practice seek the opinion of a psychiatrist when necessary.[439]

[419]   As well, this is not an assessment that physicians must perform in the context of an emergency. On the contrary, the evidence establishes that they take the necessary time to conduct a full and rigorous assessment, with access to the patient’s medical history and the assistance of a support team.[440]

[420]   Therefore, and despite what Dr. Kim claims, nothing establishes that it is impossible to reliably assess the mental capacity of patients with a psychiatric condition. The Supreme Court reached this same finding in Carter.[441] The Attorney General of Canada has failed to establish that the situation in Canada has changed since then.

[421]   Last, it bears repeating that neither Carter nor the federal legislation excludes people with a psychiatric condition from requesting and being granted medical assistance in dying like any other Canadian who meets the legislative requirements. These people are, therefore, eligible, regardless of their official diagnosis, once they are deemed competent by two independent physicians and meet the other legal requirements.

[422]   The Court concludes that physicians in Canada are able to conduct such an assessment and eliminate non-eligible patients, not because they have a psychiatric illness, but because they do not have the capacity to decide and make this fundamental choice due to their mental condition.[442]

[423]   In addition to the data currently available in Canada, the Court heard from a number of experts on the situation in certain foreign jurisdictions that allow one form or another of euthanasia. Heavy emphasis was placed on the Netherlands and Belgium, the first countries to have legalized the practice over twenty years ago. In both these countries, euthanasia and assisted suicide are not restricted to people at the end of life or whose death is reasonably foreseeable.[443]

[424]   The data from the American states, the state of Victoria in Australia and Colombia were also discussed, but more superficially. All these states have a regime that imposes time limits for access to assisted suicide.[444] In the American states, individuals must be suffering from a terminal illness with a life prognosis of six months or less.[445] In Australia, life prognosis cannot exceed six months[446], and in Colombia, the patient must be in the terminal stage of the illness and maintain the request for 25 days.[447]

[425]   Before considering this evidence in more detail, the Court wishes to make the following remarks. First, although some aspects are comparable to our own, none of the foreign regimes is identical to the one currently in force in Canada, and each of them was designed and based on its own cultural and social specificities. Comparisons and conflations with our regime must therefore be approached with caution.

[426]   Second, data and scholarly analyses were submitted to the Court on subjects that, although highly interesting at first glance, sometimes do not concern either the applicants’ situation or the issue to be decided by the Court. For example, the analysis of new euthanasia practices outside the traditional sphere in the Netherlands and Belgium and, to a certain extent, cases of patients whose request for euthanasia is based solely on their psychiatric condition. The Court will assume that these cases were to warn it of the potential abuses in Canada.

[427]   Last, the experience abroad, with all the necessary distinctions, no longer carries the weight it once did. The primary focus now should be the findings drawn from the experience in Canada, an experience modelled on our own social and cultural reality and reflecting the successes and flaws of a regime put in place by Parliament and the legislature.

[428]   Four experts testified before the Court, including three for the Attorney General of Canada: Professor Boer, Professor Lemmens and Dr. Kim. The applicants called epidemiologist Dr. van der Heide.

[429]   Dr. Boer, a Dutch bioethicist specialized in end-of-life decisions, filed a report on the evolution of euthanasia practised in the traditional sphere and on the most recent or expected developments departing from this sphere.[449]

[430]   He confirmed that euthanasia appears well established in Dutch society.[450] Dutch legislation does not contain any requirement for end of life, terminal illness, or irreversible decline in capability. The legislation is essentially based on the unbearable suffering people can endure at any stage of their life.

[431]   The legal criteria have not changed for over twenty years and are broadly worded. A physician must: (1) be satisfied that the patient’s request is voluntary and well-considered; (2) be satisfied that the patient’s suffering is lasting and unbearable; (3) adequately inform the patient about his or her situation and prognosis; (4) have concluded, together with the patient, that there is no other alternative and that the suffering cannot be alleviated; (5) consult a second independent physician; (6) perform the euthanasia him or herself according to due medical care.

[432]   Not only is there no requirement that the person be experiencing an irreversible decline in capability, it should be noted that, unlike our regime, the second physician’s opinion is not binding, and euthanasia is even available to a certain category of minors[451] and on the basis of advance medical directives.

[433]   The primary objective of the Dutch legislation is to protect physicians, rather than to affirm the right and autonomy of the person making the request. Physicians must report on an anonymous basis any euthanasia performed to the public authorities, who will collect the data and ensure that the exercise was performed with due care. According to Dr. Boer, physicians are very conscientious.

[434]   A neutral committee, the RRC,[452] records the data and publishes it in a report every five years for study and statistical purposes, making it possible for the practice to be constantly assessed throughout the country. If the committee finds a breach of due medical care, it can forward the file to the Public Prosecutor.

[435]   Following the official enactment of the legislation in 1994[453], the number of requests increased and then stabilized in subsequent years. Since 2007, however, Dr. Boer has observed a continuous increase in the number of cases that he is unable to explain. Today, euthanasia accounts for 4.5% of deaths in the Netherlands.

[436]   In the Netherlands, euthanasia is still primarily practised in classic cases of patients with cancer, AIDS or other fatal illnesses, in the days, weeks or months leading up to their expected natural death. He noted, however, that in recent years the practice has changed and has moved toward non-traditional spheres, such as psychiatric illness or dementia, as well as cases featuring social considerations, such as loneliness, age, inability to face life’s challenges or “life complete”, the latter being the opinion and belief of people who feel that they have arrived at the end of their life and simply no longer wish to continue.

[437]   While these non-traditional cases remain marginal, they are, nevertheless, a source of debate in Dutch society. From an ethical perspective, Dr. Boer believes that the reasonably foreseeable natural death requirement would protect Canada against any risk of abuse, such as those he feels these new cases in the Netherlands represent.

[438]   With respect to the relationship between suicide and euthanasia, Dr. Boer stated that there is no data supporting a relationship between the practice of euthanasia and a decrease in the suicide rate. In other words, the availability of euthanasia has not resulted in a decreased number of suicides in the Netherlands.

[439]   Professor Lemmens was the second witness called by the Attorney General of Canada to testify about the experience in other countries. A law professor at the University of Toronto and an expert in health law, comparative law and medical ethics in end-of-life care, he is knowledgeable on the various euthanasia regimes worldwide and the Belgian regime in particular.[455]

[440]   His substantial and voluminous report covers a number of topics, including a review of the various foreign regimes, the Belgian and Dutch data, where euthanasia is not restricted to terminal or end-of-life situations, his fears regarding the ability of physicians to properly assess subjective criteria such as patient suffering and capacity, particularly where the patient has a psychiatric condition, the increase of euthanasia in non-traditional spheres where, for example, suffering is not physical but strictly existential, and the importance of safeguards to avoid errors.

[441]   It is his opinion that euthanasia should always remain an exceptional procedure in a society that permits such a practice and that important safeguards are crucial to avoid errors and to protect vulnerable people who may consider it in a moment of weakness.

[442]   He states that, if euthanasia became available independently of the end-of-life stage, people with a mental illness could then avail themselves of it based on their mental illness alone and that it would therefore be very difficult to ensure their free and informed consent and to distinguish this practice from suicide. Without the reasonably foreseeable natural death requirement, suffering will become the primary criterion to consider when assessing a request for medical assistance in dying. Not only is this criterion subjective, it is also likely to broaden the pool of eligible candidates even more, as is presently the case in Belgium.

[443]   Professor Lemmens claims that broader access for people who are not in the terminal stage of their illness must be weighed against the promotion of important social values. He states that a regime that does not limit itself to the end-of-life criterion opens the door to possible errors and the normalization of the practice, which would have a direct impact on the perceived value of the life of vulnerable groups, such as the elderly, the ill, or people with disabilities.

[444]   He noted an increase in the number of requests for euthanasia in these jurisdictions in recent years, an increase in the number of euthanasia cases outside the specific context of end of life, and an increase in the number of requests based on mental illness. He attributes these developments to two possible causes: either the public is better informed, or the practice has become normalized, which might influence how both individuals and society perceive the situation and what is expected from each in terms of social acceptance.

[445]   In Belgium, the percentage of people who are administered euthanasia even though they were not suffering from a terminal illness has been increasing, reaching 14.79% in 2015. There is nothing to indicate that this increase will stabilize.[456] Moreover, 4.6% of all deaths in the Flemish region of Belgium are due to euthanasia, which exceeds the 4.5% rate of deaths by euthanasia in 2015 in the Netherlands.[457]

[446]   Based on his own experience and interpretation of the scientific literature, Professor Lemmens questions the safeguards in place in the foreign regimes, including physician assessment, consultations with a second physician, assessment of the patient’s decision-making autonomy and the subsequent process for disclosing and reporting information to authorities. He believes that Canada should be prudent.

[447]   The Court has already addressed the evidence submitted by Dr. Kim concerning his analysis of capacity assessment of patients with mental illnesses in Belgium and the Netherlands and the practice of euthanasia of these same patients who base their application on a psychiatric condition.[458]There is no need to revisit it.

[448]   Dr. van der Heide is an epidemiologist, professor, and researcher in the field of euthanasia and palliative care in the Netherlands. Since 1995, without interruption, she has participated in collecting and analyzing information and studies published every five years in her country. She thus has extensive knowledge of the data collected in the Netherlands and Belgium in this field. Without taking anything away from Professor Boer and Professor Lemmens, the first two experts called by the Attorney General of Canada, the Court particularly appreciated Dr. van der Heide’s testimony, which was frank, objective and consistently based on empirical data.[460]

[449]   She claims that there has never been a debate about an end-of-life requirement in the Netherlands, because the regime is based primarily on the idea that unbearable suffering is not solely an attribute of the end of life. There are many cases where suffering occurs outside a person’s final moments, and Dutch society considers it imperative to offer a solution. She added that it is also often difficult to correctly estimate a patient’s life expectancy.

[450]   While the number of euthanasia cases is rising, and in 2015 accounted for 4.5% of all deaths in the country, it is still largely administered to patients with terminal illnesses and limited life expectancy. She confirmed that there have been more controversial cases, where euthanasia, due to the broad wording of the legislation, has extended beyond the traditional sphere. This is the case particularly for people with a mental illness, dementia, or cases known as “life complete”. Although these situations are currently still marginal, they are nonetheless cause for debate within Dutch society on whether euthanasia should be available to these non-traditional cases.

[451]   She believes that there is no evidence establishing that the practice of euthanasia in the Netherlands or Belgium has created a heightened risk for vulnerable groups or has been increasing amongst such individuals. She acknowledges, however, that she has no reliable data on the possible existence of any implicit or social pressure to administer euthanasia to vulnerable people.

[452]    Two analyses conducted on the subject in 2008 and 2015 do not, however, reflect any increase in euthanasia cases in this category or indicate that vulnerable people requested or were granted authorization in a moment of weakness. Quite the contrary:

[453]   In the Netherlands, as in the United States, the evidence reveals that the majority of people who apply for assistance in dying are educated, are not from a minority community and are socially and economically well off.

[454]   Aside from the fact that society appears to be better informed about existing practices, this finding also led Dr. van der Heide to relate the general increase in requests for euthanasia since 2007 to the fact that the aging baby-boomer generation has always valued, even demanded, autonomy and control over their own lives and environment. The control that members of this generation wish to exercise over their death is no exception to the culture of control over their life and destiny.[462]

[455]   She emphasized that no one in the Netherlands has ever made any direct or formal link between euthanasia and suicide, and that there is no data linking the two. Suicide remains a major social issue in her country, however, the actions implemented through various public health measures and policies to fight it never refer to or establish a cause and effect relationship with euthanasia, which has now been practised for nearly three decades.

[456]   Last, she stated that the regime works well, is supported by the population, and physicians take their role very seriously, proceeding with caution and being able to properly assess the cases they accept. The safeguards are effective. There is no evidence that the Netherlands or Belgium are on a slippery slope[463], in particular with respect to the possibility of euthanasia being administered to people without their consent.[464]

[457]   Any breach of the legislative criteria between 2012 and 2016 is listed in a table in her report. For the most part, such cases appear to be due to problems with the administration of the procedure. Dr. van der Heide stated that vigilance is clearly still required to ensure that the most vulnerable members of society remain valued.

[458]   The Court concludes that the evidence does not support the argument that the prevailing situation in foreign jurisdictions includes heightened risks, abuse, or reflects a morally or ethically unacceptable practice that could have repercussions or be imported into Canada.

[459]   It does not establish that vulnerable populations in the Netherlands or Belgium are actually at greater risk of requesting and being administered euthanasia, or that physicians might have difficulty assessing the free and informed consent of patients, even those with a psychiatric condition. The fact that doubts have been raised is one thing, but any possible “slippery slope” remains theoretical. While it is clear that we must remain vigilant and ensure that the practice always remains at an optimal level, the evidence adduced does not support this hypothesis. Nor does it support the existence of a link between euthanasia and the rate of suicide in these societies.

[460]   In other words, the argument about the danger to vulnerable groups is based more on a strict application of the precautionary principle, since the reality is that there is no evidence linking medical assistance in dying to the alleged danger to vulnerable groups. It then becomes difficult to explain to people such as the applicants that they must be denied medial aid in dying in the name of a mere hypothesis positing the vulnerability of some otherwise unidentified people.

[461]   In the Court’s view, the fact that some interpret the absolute number of euthanasia cases in these jurisdictions, or its increase, as a warning sign is more the result of a value judgment. Some view it as a problem in itself, while others, who are of the opposite opinion, view it as an affirmation of personal autonomy to counter a medical culture of therapeutic obstinacy that has long prevailed in certain societies. Several factors might also explain this situation. It is risky, to say the least, to draw a parallel here with any potential future trend in Canada. It stands to reason that, when a completely new regime begins in the wake of a total prohibition, there is an upswing in the number of cases, because the starting point is zero. Nothing indicates, however, that after several years Canada will not follow the data collected abroad in terms of percentage of deaths associated with medical assistance in dying.

[462]   We must also exercise caution before claiming that the trends in the Netherlands and Belgium will be transposed to Canada if the reasonably foreseeable natural death requirement is removed from the legislation. The safeguards in our country differ from those in Belgium or the Netherlands.

[463]   In Carter, the Supreme Court adopted the trial judge’s assessment of the various inferences drawn from these same foreign regimes:

[464]   As the Supreme Court stated in 2015, there is no indication that a permissive regime in Canada with properly designed and administered safeguards cannot protect vulnerable people from abuse and error.[466] That remains the case today.

[465]   The evidence in this case does not lead the Court to conclude that the situation in these foreign jurisdictions has since changed or evolved in a way that modifies the assessment of the situation made in Carter. The evidence instead demonstrates that the situation remains stable. Even though a small number of euthanasia cases outside the traditional sphere has been observed in certain regimes, nothing indicates that, with the regime in place in Canada, even in the absence of the reasonably foreseeable natural death requirement, the same problem will occur here, or that the safeguards in place will not be adequate.

[466]   From the evidence as a whole, the Court concludes as follows:

[467]   In 2015, the Supreme Court’s decision in Carter resolved the broad legal and social debate surrounding the legalization of a certain form of assisted suicide or euthanasia in Canada, which began over twenty years earlier. It laid the foundation for a new permissive regime that includes important guarantees and safeguards.

[468]   Previously, a highly divided Supreme Court in Rodriguez[467] had upheld the general prohibition against assisted suicide in Canada. However, despite that decision, the country continued to debate the legalization of a certain form of euthanasia, and Canadian society’s social and ethical evolution has since been marked by an increasing willingness to revisit our relationship with death and end-of-life care.

[469]   In 1983, well before Rodriguez, the Canadian Law Reform Commission had already noted that “the legal profession, the public and those working in the health professions are in favour of legal reforms or at least clarifications in the area of euthanasia, aiding suicide and cessation of treatment”.[468] Between 1991 and 2010, several draft bills and studies on the subject were debated in the House of Commons. The Senate submitted a report in 1995 on assisted suicide and euthanasia.[469] In 2011, the Royal Society of Canada also published its report in favour of a certain degree of openness[470]. In 2012, in Quebec, the Select Committee on Dying with Dignity[471] tabled its report in the National Assembly, which served as the springboard for the enactment of the Act respecting end-of-life care that, for the first time in the country, provided for medical aid in dying as end-of-life care.

[470]   Meanwhile, society condemned a form of medical practice expressing therapeutic obstinacy and was aware of developments in foreign jurisdictions that had decided to allow euthanasia.

[471]   This historical context led to Carter, when, in 2012, the Honourable Lynn Smith of the Supreme Court of British Columbia heard a constitutional challenge to the Criminal Code provisions prohibiting assisted dying.

[472]   Of course, many remain opposed to any form of opening to or legalization of medical assistance in dying, either on cultural or religious grounds, or because they fear a change in the social paradigm of our relationship with death and, in particular, major shifts to the detriment of the most vulnerable persons in our society.

[473]   Also, during these same years, the case law on the principles of self-determination, autonomy and human dignity was evolving through a number of major Supreme Court decisions that attest to the rising importance of these values in our law. This trend had already been identified in Jones,[472] Morgentaler[473] and Rodriguez,[474] but was subsequently consolidated in Blencoe,[475] Chaoulli[476] and PHS Community Services Society.[477]

[474]   Thus, more than two decades after Rodriguez, the Supreme Court in Carter agreed to review the issue once again and analyze the rights enshrined in the Charter in light of social progress and with the goal of striking a balance between values that at first glance appear to be competing, namely, the autonomy, liberty and dignity of adults who wish to end their lives due to a grievous and irreversible medical condition, on the one hand, and the protection of the lives of vulnerable persons, on the other.

[475]   In this sense, Carter reaffirms the scope of the individual rights of life, liberty and security of the person and lays the foundation for the legalization of medical assistance in dying throughout Canada. It is, therefore, impossible to ignore it. As such, the teachings of the Supreme Court will guide the Court here.

[476]    The applicants ask the Court to conclude that the legal principles developed by the Supreme Court in Carter are now enshrined in the Canadian Constitution and the Charter, and that the legislative regime enacted in response to this decision is unconstitutional, in that it requires their natural death to be reasonably foreseeable. They note that the Supreme Court urged Parliament and the provincial legislatures to enact, should they so choose, “legislation consistent with the constitutional parameters set out in [its] reasons”.[478] Based on their analysis, the applicants conclude that this was not done.

[477]   Given that the Supreme Court’s ruling does not require that a person‘s natural death be reasonably foreseeable to request assistance in dying, the addition of such a requirement, therefore, appears to the applicants to be inconsistent with the constitutional parameters developed by the Supreme Court. This is so because it restricts access to this assistance for many Canadians who, like themselves, otherwise satisfy all the criteria in Carter and is, for all practical purposes, tantamount to a total prohibition in their cases. They submit that, in so doing, the federal legislation takes away the right granted to them by the Supreme Court and reinstates, for people in their condition, a regime of prohibition.

[478]   They add that the constitutional parameters developed in Carter are a minimum threshold that the legislature had to respect in order for the legislative regime on the matter to be constitutional.

[479]   With respect to the provincial legislation that preceded Carter, they submit that Quebec legislators had an obligation to amend the law so that it complied with the Supreme Court requirements. Their failure to do so means that the end-of-life requirement is unconstitutional.

[480]   The Attorneys General dispute these arguments. They contend that the reasonably foreseeable natural death and end-of-life requirements are entirely consistent with the spirit of Carter, in that they correspond to the factual circumstances of the main protagonist, Gloria Taylor, who was in the terminal stage of a neurodegenerative disease at the time she joined the litigation before the British Columbia Supreme Court.