Gold’s Legal Minute*GLM*
By Allan Gold, lawyer Montreal and elder law attorney
Vol. 15, #3 –March 31, 2024
Opening
With Medical Assistance in Dying (MAiD), our past mistake has come back to haunt us. Going down this road, we’ve committed a social blunder. We’ve slid down the slippery slope. A case in point is the Alberta injunction case of W.V. v. M.V. 2 This involves a twenty-something female, not a terminal illness sufferer, wanting assisted death. In first instance, it illustrates the difficulty of a close family member dealing therewith. O Canada, how you’ve lost your way!
In Quebec, it’s more complicated. That’s due to the Charter of human rights and freedoms (chapter C-12) enacted in 1975. The ‘right to live’ is ensconced therein. Quebec also has a so-called ‘good samaritan law.’ Fortunately, this complexity might be a saving grace.
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“The road to hell is paved with good intentions.” – Such is a derivation from James Boswell’s 1791 biography of Samuel Johnson.
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W.V. v. M.V. Injunction Case: MAiD At Issue
At the center is M.V. a 27-year-old woman wanting MAiD (medical assistance in dying). In 2023, she applied and received approval from one doctor. Another denied the application. She then applied to a third physician who also approved the procedure. Distressed and in opposition, her father, W.V. addressed the court. The assisted suicide was to take place on Feb. 1, 2024. An interim injunction was granted the day before. The father believes his daughter “is vulnerable and is not competent to make the decision to take her own life. He says that she is generally healthy and believes that her physical symptoms, to the extent that she has any, result from undiagnosed psychological conditions.” At the March 11 hearing, M.V. asked the court to set aside the interim injunction. In contrast, W.V. asked that the injunction be continued. He also sought a judicial review into how M.V. had obtained MAID approval. On March 25,. 2024, Justice Colin Feasby rendered his decision. The judge acknowledged the “profound grief” that W.V. would suffer, but still sided with the daughter. He declined to issue/continue an injunction. The critical ratio was that “Dignity and right to self-determination’ outweigh parent’s concerns.” The judge also refused to order the requested judicial review. But nevertheless, he did issue a 30-day stay of his decision so that W.V. could go to the Court of Appeal.
As to M.V.’s medical condition, the Court noted that she had autism and ADHD. It’s significant what the Court didn’t find. And it’s noteworthy that “Eligibility for MAID for persons suffering solely from a mental illness has been delayed until March 17, 2027.” This case illustrates the difficulty in navigating the current legal landscape relative to medical assistance in dying .
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“In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.”- Theodore Roosevelt
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FYI, I don’t like MAiD!
I need to be upfront about my views about MAiD. I don’t agree with it. While I have empathy when the patient is at the end-of-life, I still have serious reservations. But I really don’t like it when we’re dealing with emotional, psychological, and social well-being or anything even close. For your information, I wrote an article titled, “I say, “No to Medical Assistance in Dying (MAiD) for those whose sole underlying medical condition is a mental illness.” It was dated May 18, 2023 and posted at my blog at https://allanjgold.com/blog-glm/
Quebec: Silver Lining?
In Quebec, the waters are more muddied. Let’s start with the Charter of human rights and freedoms. It enunciates fundamental freedoms and rights, equality rights, etc. Such is generally considered a “super’ overriding law. Section 1 says that a human has the ‘right to live.’ In other words, he or she should not be killed by another entity. Section 2 imposes an obligation to render aid if it can be accomplished without serious risk to the good samaritan or a third person. This duty to respond is different from other provinces and territories, where responding to the emergency is voluntary. I note the case of Tremblay v. Daigle [1989] 2 SCR 530. Judgment was rendered Nov. 16, 1989. While the focus was to consider foetal rights, the Supreme Court said, “A foetus is not included within the term “human being” in the Quebec Charter and, therefore, does not enjoy the right to life conferred by s. 1.” It’s also noteworthy that the National Assembly of Quebec passed Bill 52, an Act respecting end-of-life care, on June 5, 2014. The Act came into force 18 months later, on December 10, 2015.
For your ready reference, I’m reproducing these two charter provisions.
Charter of human rights and freedoms (chapter C-12)
“1. Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality. 1975, c. 6, s. 1; 1982, c. 61, s. 1.
2. Every human being whose life is in peril has a right to assistance.
Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason. 1975, c. 6, s. 2.”
So What Does One Do?
A parent has rights, duties, powers, responsibilities and authority in relation to a child. True, this is an instance involving a person not a minor. However, a parent never turns off the imperative to be there for a child in need even when he/she is an adult.
This said, if your adult child comes over and announces,“I’m requesting medical assistance in dying” what are you supposed to do with that? Be smiley and congratulatory? Of course not. You’ll ask, “What’s wrong? How can I help? And if all else fails, do you give up? I don’t think so. But what should one do exactly?
In Quebec, the term “good father of a family” was used in the Civil Code of Lower Canada. It was replaced by “prudent and diligent.” Accordingly, it can be said that parental responsibility gives way to being prudent and diligent. In other words, you must use reason and act in a timely fashion.
It’s possible for a judge of Court of Quebec to order the hospitalization of a person for a psychiatric exam even against the will of the subject. This is known as ‘temporary confinement.’ The requisite test is a danger to himself or others. But in these circumstances,. this approach is more or less inappropriate.
An application seeking an interim (interlocutory/permanent) injunction might be the more suitable recourse. Setting it apart from the Alberta case, Section 1 and 2 of the Charter of human rights and freedoms may make all the difference in the world. For me, it’s a common sense approach at last resort!
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“Our greatest weakness lies in giving up.” – Thomas Edison
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Conclusion
It’s a heartbreaking dilemma. In my belief, this father is on the right side of the debate. This said, I have great sympathy for his daughter. So where do we go from here? I’m a Montreal attorney. Elder law is one of my practice areas. Personally, I would like to see a new court challenge. We should go back to the Supreme Court so that the high court can strike down the extension beyond terminal disease situations. As well, concerned citizens should petition lawmakers not to increase eligibility for MAID for persons suffering solely from a mental illness. At the very least, I propose that after all the delays already set down under MAiD, in the absence of life-threatening maladies, there should be an added cooling off period. In other words, I suggest that there be a waiting time of at least 90 days once a person applies for MAiD so that he/she may receive further counseling.
We need to do something substantive and we need it now. Tomorrow is too late!
Allan Gold, lawyer Montreal and elder law attorney
P.S. “It is better to do something than to do nothing while waiting to do everything.” – Winston Churchill
! Call to action: To every attorney in the field, I say, “Write a post/article. Let’s help seniors & their families become better informed about elder law Canada! And by the way, please send it along. I’d love to read it.”
NOTICE – CAUTION –DISCLAIMER. The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.
- Image by Peggy und Marco Lachmann-Anke from Pixabay
- https://www.cbc.ca/news/canada/calgary/calgary-maid-father-daughter-court-injunction-judicial-review-decision-1.7154794
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