Medical Aid in Dying: Two People go to Court to recover their Rights

MONTRÉAL, June 14, 2017 /CNW Telbec/ - Two Montrealers and their lawyer, Me Jean-Pierre Ménard, announced today the filing of an application for a declaratory judgment in order to declare sections 26 (3) of the Act respecting end-of-life care (hereafter "the Quebec law") and section 241.2 (2) (d) of the Criminal Code as amended by An Act to amend the Criminal Code and to make related amendments to other Acts (medical aid in dying) (hereafter "the federal law") unconstitutional and inoperative.

For the plaintiffs, Jean Truchon and Nicole Gladu, this is the first step of a long legal journey through which they hope to recover the rights they lost following the adoption of the federal law and thus possibly receive medical aid in dying at the time they will choose. The plaintiffs both suffer from serious and irremediable health problems, causing persistent and intolerable suffering, and both clearly consent to end their lives. Their situation therefore meets the criteria developed by the Supreme Court of Canada in Carter in February 2015. However, the federal law passed by the Canadian government in response to the Carter decision revoked their right to receive medical aid in dying by adding a new criterion to those already developed by the Supreme Court, namely, the reasonable foreseeability of death. "The purpose of our legal proceedings is not to broaden the parameters of medical aid in dying, but simply to enforce the guidelines established in Carter. It is unfortunate that people with serious and incurable illnesses must go through the courts to enforce rights that were already recognized by the Supreme Court just two years ago," said Me Jean-Pierre Ménard.

The plaintiff Jean Truchon, 49 years old, has been suffering from cerebral palsy since he was born, but nevertheless lived an active and fulfilling life for 45 years. However, in 2012, he lost the use of his left arm, which was his only remaining functional limb. Since then, he is therefore entirely dependent on others for his daily needs and activities. This complete loss of autonomy led him to conclude that this life of dependence is not made for him. "Today I challenge the laws for medical aid in dying for me above all, and for all those who would, like me, desire to put an end to their lives and who are unfortunately caught in their bodies and are dependent on others for their whole life," said Mr. Truchon.

The plaintiff Nicole Gladu, 71 years old, survived an acute form of poliomyelitis during her childhood, which left her with severe weaknesses on the left side of her body, severe scoliosis, and a restricted lung capacity. In spite of everything, she led an accomplished life until she was 40, when she worked as a journalist, unionist, information officer, and director of communications in the private and public sectors in Montreal, Quebec City, and New York. In 1992, she was diagnosed with post-poliomyelitis syndrome and her condition deteriorated gradually. Since then, Ms. Gladu has had to learn to live with new and increasingly important physical limitations. "At 71 years old, I am more concerned about the quality of my life than its prolonging. What I am asking today is to show respect for all those who, like myself, have been faced with death for a long period of time, but not in the same spectacular way people think when they hear 'terminal phase,'" said Ms. Gladu.

In the Carter decision rendered in February 2015, the Supreme Court unanimously concluded that the complete prohibition of medical aid in dying violates the rights guaranteed by section 7 of the Canadian Charter in that it prevents people with serious and incurable illnesses, who experience constant physical or psychological suffering and who are not at the end of life to have access to medical aid in dying. The Court also found that the total prohibition was not justified within the meaning of section 1 of the Canadian Charter and therefore requested the Canadian legislature to provide the conditions set out in the judgment, namely that a capable adult is clearly consenting to end his or her life and is suffering from serious and irremediable health problems (including a condition, illness or disability) that causes him or her persistent suffering that is intolerable to him or her, to die. With respect to this judgment, the plaintiffs qualify for medical aid in dying.

These legal proceedings also apply to the Quebec law because it includes a "end of life" criterion. However, the Quebec law was passed seven months before the Supreme Court rendered its decision in the Carter case and was not subsequently amended.

A copy of the application is available on the Ménard, Martin avocats website at: http://www.menardmartinavocats.com

SOURCE Ménard, Martin, avocats

Me Jean-Pierre Ménard, [phone] poste 225