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Health & Fitness Quebec court strikes down restriction to medically assisted dying law, calls it unconstitutional

A Quebec judge has struck down a restriction that limited assisted dying to terminally ill patients, concluding the requirement was an unconstitutional barrier that forced two Quebeckers with incurable conditions to keep living in great pain.

Quebec Superior Court Justice Christine Baudouin’s decision, released as a federal election kicked off on Wednesday, could reverberate across the country and the campaign.

The portion of the federal assisted-dying law that Justice Baudouin singled out as unconstitutional – a clause that required patients’ natural deaths to be “reasonably foreseeable" – was championed by the Trudeau government, even though legal experts warned it was out of step with the Supreme Court of Canada ruling that paved the way for medically assisted dying. The earlier case was initiated by 89-year-old Kay Carter, who had spinal stenosis.

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The Liberal government has argued that its approach struck a balance between granting access to new end-of-life options and protecting the vulnerable.

“Three years ago, when the [federal] law was being debated, we raised concerns about the reasonably foreseeable criterion, arguing that it does not comply with the Carter decision," said Cory Ruf, a spokesman for the advocacy group Dying with Dignity Canada, which intervened in the Quebec case.

Since then, Mr. Ruf said, the group has heard from Canadians who later starved themselves, died by suicide or travelled to Switzerland for assisted deaths after failing to qualify because their natural deaths were not imminent.

“The prospect of rules like this being removed and Canada’s assisted dying law being brought closer to the ruling in Carter, that comes as a relief to us,” he added.

André Picard: Medically assisted dying laws are changing, and it’s about time

Advocates for Canadians with disabilities said the Quebec judgment would diminish the value of their lives.

“People with disabilities have been told, with this decision, that simply having a disability is reason enough for us to want to die," said Amy Hasbrouck, director of Toujours Vivant-Not Dead Yet, a project of the Council of Canadians with Disabilities, which also intervened in the Quebec case.

Wednesday’s ruling arose from a constitutional challenge filed by Jean Truchon and Nicole Gladu, Quebeckers with incurable degenerative illnesses.

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Justice Baudouin suspended her ruling for six months to allow legislators to deal with its fallout, but exempted the two plaintiffs, allowing them to proceed with their bids for medical assistance in dying.

The ruling refers to the federal assisted-dying law, passed in June, 2016, and Quebec’s end-of-life care law, which took effect in late 2015 and required patients to be at the end of life.

Quebec Social Services Minister Danielle McCann said the provincial government will carefully analyze the ruling before deciding what to do. “Every step of the way for this issue has seen big evolutions,” she said in Quebec City.

The federal justice department is also reviewing the decision before deciding whether to appeal, a spokeswoman said.

Mr. Truchon and Ms. Gladu met all the requirements of the federal and Quebec laws, except that their deaths were not imminent.

Denying them access to assisted dying because they are not terminally ill is “forcing them to endure harsh physical and psychological suffering,” Justice Baudouin said in her 197-page judgment.

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“The court has no hesitation in concluding that the requirement that their death has to be reasonably foreseeable is violating the rights to liberty and security of [the plaintiffs.]”

The court heard that Mr. Truchon, 51, has spastic cerebral palsy with a gradual weakening of his legs and right arm.

He was active until 2012, when his left arm became paralyzed. He became suicidal and considered moving his wheelchair into the path of a bus or drowning himself in a river, but did not want to traumatize or hurt bystanders.

“He can no longer live on his own. … He says he has been dead since 2012,” Justice Baudouin wrote.

Ms. Gladu, 73, contracted polio when she was four, leaving her with a paralyzed left side and scoliosis.

She had a career as a journalist and press officer at the United Nations. Her condition started to worsen in 1992, weakening her bones and muscles. She now lives in constant pain, and has trouble breathing and moving.

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“She feels worn down, at the end of her tether, a prisoner of her body and illness,” Justice Baudouin wrote.

A spokeswoman for the federal NDP said the decision shows why the law needs to be amended.

“The NDP will continue fighting for [medical assistance in dying] legislation that respects Charter rights and ensures Canadians can die with dignity, compassion and fairness, and without excessive suffering,” Mélanie Richer said.

Conservative Leader Andrew Scheer told reporters he wanted time to review the decision, but governments need to respect court rulings.

Liberal campaign spokesperson Guy Gallant said the party would look at the decision carefully.

When the Supreme Court of Canada struck down the Criminal Code provisions forbidding assisted dying in 2015, its unanimous decision did not say that suffering patients would have to be near death to qualify.

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The Liberals decided to add that condition to their legislation. The law was passed on June 17, 2016.

At least 6,749 people – and likely many more – have received an assisted death since the Quebec and federal laws were passed, according to Health Canada. The national figures are as of Oct. 31, 2018, and do not include the territories.

With reports from Les Perreaux and Marieke Walsh

Editor’s note: A previous version of this story incorrectly spelled the name Justice Baudouin.
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