House of Commons Standing Committee on Justice and Human Rights – Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

MAID Litigation Overview

Summary of MAID-related litigation

  1. Lamb and BCCLA v AGC (British Columbia Supreme Court)
    BCCLA claims that s. 241.2 (2) of the Criminal Code, as amended by Bill C-14 (medical assistance in dying) infringes ss. 7 and 15 of the Charter. The challenge is to the criteria that a person seeking MAID must have an incurable illness, be in an advanced state of irreversible decline in capability, and that their natural death has become reasonably foreseeable. Ms. Lamb has Spinal Muscular Atrophy, a progressive degenerative disease that causes weakness and wasting of the voluntary muscles. The Plaintiffs seek a declaration of invalidity with respect to the provision. In the event that the invalidity is suspended, they seek a constitutional exemption for Ms. Lamb during the suspension period. In the alternative, they seek a declaration of constitutional exemption exercisable by application for authorization by the superior court of the jurisdiction. The trial was initially set for November 2019 but was adjourned sine die upon Ms. Lamb learning that she was eligible for MAID.
  2. Truchon and Gladu v AGC and AG Quebec (Quebec Superior Court)
    A declaratory action was filed challenging the constitutionality of s. 241.2(2)(d) of the Criminal Code, as well as the equivalent Quebec provision, s. 26(1)(3º) of the Act Respecting End-of-Life Care, which requires that a person’s death must be reasonably foreseeable in order to benefit from MAID. The plaintiffs both suffered from serious and incurable handicaps, and have both applied for MAID, but were refused for the sole reason that, despite suffering from serious conditions, their death was not reasonably foreseeable. The plaintiffs therefore argued that the provisions violated their ss. 7 and 15 Charter rights. They further argued that the term “reasonable foreseeability of death” is vague and imprecise, subject to various interpretations across the country. On September 11, 2019, the Quebec Superior Court held that s. 242.1(2)(d) of the Criminal Code (the reasonably foreseeable death criteria) is contrary to s. 7 and 15 of the Charter and the breach is not justified by s. 1 of the Charter. Section 26 al.1 (3) of the Quebec law (the end-of-life criteria) was also declared invalid. The declaration of unconstitutionality was initially suspended for 6 months (later extended to December 18, 2020). The Court also granted Truchon and Gladu a constitutional exemption notwithstanding an appeal.
  3. 4v Victoria Hospital London Health Sciences Centre, South West Local Health Integration Network, Centre for Independent Living, Minister of Health and Long-term Care, AG Ontario, AGC [Foley] (Ontario Superior Court)
    This claim alleges that there is inadequate long-term health funding for persons with chronic ailments and that the medical assistance in dying legislative provisions are unconstitutional as they fail to require medical practitioners to take alternative steps prior to providing MAID. He claims a right to “assisted life” rather than having the option of MAID. Mr. Foley claims that his Charter ss. 7, 12, and 15 rights have been infringed. All of the defendants (including the AGC) brought motions to strike the Claim in September 2018, but subsequently agreed to withdraw their motions and suspend timelines in the action to allow Mr. Foley an opportunity to be assessed for eligibility for funding for in-home medical care. This was an agreement brokered through case management in an effort to provide Mr. Foley with a means of getting out of hospital. The parties consented to an Order, dated January 23, 2019, reflecting their agreement. Mr. Foley was assessed and found to eligible for in-home funding, but has refused to cooperate with the discharge process. Accordingly, the Defendants brought back their motions to strike on September 30, 2019. In response, the Plaintiff brought a motion to enforce the consent Order, which he argues to be a settlement preventing the Defendants from reviving the motions to strike. In response, the Defendants argued that the consent Order does not prevent the Defendants from reviving their motions, a fact reflected in correspondence between counsel when the order was being negotiated. Mr. Foley’s motion was heard before Justice Lederer on March 4, 2020 and dismissed on March 16, 2020. Mr. Foley’s lawyer, indicated that his client intends to seek leave to appeal to the Divisional Court. While a Notice of Motion on the Crown was served, no other steps were taken to move the appeal forward. Mr. Foley’s counsel has also mentioned the possibility of amending his claim to reflect the anticipated post-Truchon amendments to the MAID regime. In light of these issues – and the Covid-related court shutdowns – the Defendants have not yet taken steps toward resuming their motions to strike.
  4. Katzenback v Attorney General of Canada et al (Saskatchewan Court of Queen’s Bench)
    The plaintiffs commenced an action against the Saskatchewan Health Authority (“SHA”), the government of Saskatchewan and the Attorney General of Canada seeking damages and various declarations relating to alleged improper health care provided to Norma Katzenback (“Norma”). Norma is 84 years old. The claim alleges that Norma had health issues, which led to placement in the intensive care unit. The family was later given medical advice, and Norma was moved to general ward, and eventually discharged, both moves of which the plaintiffs say violated Norma’s rights. The plaintiffs include family members and a private business. [redacted].
  5. Applications for Individual Exemptions in Québec (MAID applications not meeting the RFND criterion) (since March 2, 2020, last update: October 13, 2020)
    Applications for Individual Exemptions in Québec (MAID applications not meeting the RFND criterion) (since March 2, 2020, last update: October 13, 2020)
    No Court Number Name Date of application Position of the AGC Date of decision Ruling
    1 [redacted] [redacted] 2020-04-06 AGC did not participate 2020-05-20 Application granted
    2 [redacted] [redacted] 2020-04-29 AGC did not participate 2020-05-27 Application granted
    3 [redacted] [redacted] 2020-06-02 AGC did not participate 2020-06-18 Application granted
    4 [redacted] [redacted] 2020-08-14 AGC did not participate 2020-09-10 Application granted
    5 [redacted] [redacted] 2020-08-19 AGC did not participate 2020-09-14 Application granted
    6 [redacted] [redacted] 2020-09-09 AGC did not participate 2020-10-01 Application granted
    7 [redacted] [redacted] 2020-09-17 AGC did not participate 2020-10-07  
    8 [redacted] [redacted] 2020-09-22 AGC did not participate 2020-10-09 Application granted
    9   [redacted] 2020-09-23 AGC did not participate 2020-10-15  
    10 [redacted] [redacted] 2020-10-02 AGC did not participate 2020-10-13 Application granted