The Legal Controversies of MAiD, Part One

The Legal Controversies of MAiD, Part One


Co-written by: Kim Gale and Jessica Campolucci

In a groundbreaking decision by the Court of King’s Bench of Alberta, the legal complexities surrounding Medical Assistance in Dying (MAiD) have been brought to the forefront in the case of W.V. v. M.V., 2024 ABKB 174, opined by Justice Colin C.J. Feasby.

This case involves a 27-year-old woman, M.V. (M), diagnosed with autism and associated behavioural disorders, and her father, W.V. (W), who initiated legal action to prevent her from receiving MAiD.

Background of the case

M, while not suffering from any intellectual development or speech disorders, requires support due to her Level 1 Social Communication Disorder and substantial support for her Level 2 Restricted-Repetitive Behavioural Disorder. Interestingly, M has no physical ailments and has not been seeking treatment for any adverse psychological or physiological conditions. Her recent interactions with medical professionals were solely in pursuit of MAiD, leading to a significant legal battle initiated by her father.

W brought forth an injunction to stop M from receiving MAiD, which was initially granted by Justice R. Paul Belzil on an ex-parte basis. M subsequently applied to have this interim injunction set aside, a motion heard in the Court of King’s Bench, which is the superior trial court for the province, hearing trials in civil and criminal matters and appeals from decisions of the Court of Justice.

Historical context of MAiD in Canada

The evolution of MAiD in Canada is marked by significant legal milestones and societal debates that have shaped the current framework of assisted dying. Here’s a more detailed look at the historical progression:

Rodriguez v. British Columbia (Attorney General) [1993] 3 SCR 519

In this pivotal case, Sue Rodriguez, who had amyotrophic lateral sclerosis (ALS), challenged the constitutionality of s. 241 of the Criminal Code, which criminalized aiding and abetting suicide. She argued that the prohibition infringed on her rights under ss. 7 (right to life, liberty and security of the person), 12 (freedom from cruel and unusual punishment) and 15 (equality rights) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada upheld the constitutionality of the law, finding that the prohibition on assisted suicide was consistent with the principles of fundamental justice, despite acknowledging the impairment of Rodriguez’s rights.

Carter v. Canada (Attorney General), 2015 SCC 5

This landmark decision by the Supreme Court of Canada overturned the previous ruling in Rodriguez. The court found that the prohibition on assisted dying was unconstitutional as it applied to competent adults suffering from grievous and irremediable medical conditions that cause enduring suffering that is intolerable to the individual. The court ruled that the law unjustifiably infringed on the rights under s. 7 of the Charter and was not saved by s. 1, which allows rights to be limited if it is justified in a free and democratic society.

Legislative response and amendments

In response to the Carter decision, the Canadian government amended the Criminal Code in 2016 to allow eligible adults to request medical assistance in dying. These amendments specified the criteria under which individuals could seek MAiD, focusing on those with grievous and irremediable medical conditions whose death was reasonably foreseeable.

Truchon c. Procureur général du Canada, 2019 QCCS 3792

In a significant development in the legal landscape of MAiD, the 2019 Quebec Superior Court case, Truchon c. Procureur Général du Canada, 2019 QCCS 3792, addressed the limitations imposed by the MAiD legislation, which previously required that a person’s death be “reasonably foreseeable.” This requirement was challenged as it did not accommodate individuals with grievous and irremediable medical conditions who were not nearing death.

Justice Christine Beaudoin ruled that limiting MAiD to those facing imminent death was discriminatory. She emphasized that the protection of vulnerable individuals should be managed by medical professionals, not by arbitrary legislative barriers that unfairly exclude certain groups.

Revisiting Criminal Code sections pertinent to MAiD

Section 241(1)

  • s.241(1)(b): Assisting or encouraging suicide remains a criminal offence punishable by up to 14 years in prison.
  • s.241(2): This subsection provides an exemption for medical practitioners and nurse practitioners who administer medical assistance in dying in accordance with the safeguards outlined in Section 241.2.

Section 241.2(1): eligibility criteria for MAiD

The Criminal Code specifies the following criteria to be eligible for MAiD:

  • The individual must be eligible for health services funded by a Canadian
  • The individual must be at least 18 years old and capable of making health-related
  • The individual must have a grievous and irremediable medical
  • The individual must have made a voluntary request for MAiD, free from external
  • The individual must give informed consent to receive MAiD after being informed of other means available to relieve suffering, including palliative care.

Section 241.2(2): definition of grievous and irremediable medical condition

 A grievous and irremediable medical condition is defined as meeting all the following criteria:

  • The individual has a serious and incurable illness, disease or
  • The individual is in an advanced state of irreversible decline in
  • The illness, disease or disability or state of decline causes enduring physical or psychological suffering that is intolerable to the individual and cannot be alleviated under conditions they consider acceptable.

Safeguards under MAiD (two tracks system) Track 1: Natural death is reasonably foreseeable. Track 2: Natural death is not reasonably foreseeable.

Track 2 requires: Two independent medical opinions confirming the person meets the eligibility criteria, is given assurance that they can withdraw their request at any time and is provided full information about available means to relieve suffering.

Independence criteria (s.241.2(6)(c))

A medical or nurse practitioner is considered independent if they:

  • Are not a mentor or responsible for supervising the work of the other practitioner
  • Do not stand to benefit financially or materially from the person’s death, other than receiving standard compensation for their services related to the MAiD process.
  • Have no other connections to the other practitioner or to the person requesting MAiD that could affect their objectivity.

This is the first of a two-part series.


This article was originally published by Law360 Canada part of LexisNexisCanada Inc.

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