I INTRODUCTION
The changes to the Criminal Code of Canada with respect to the provision of medical assistance in dying (MAiD) was one of the high profile and progressive social reforms introduced by the Government of Canada in 2016. A full and detailed analysis of the history of the initiative is beyond the scope of this article. Suffice it to say that the issue has been debated in Canada, and elsewhere, over a long period, has attracted no small amount of litigation, commentary and literature, and is going to continue to be a controversial topic for the foreseeable future. (1) The issue is also affecting jurisdictions beyond Canada including several countries in Europe, a number of states in the United States and, quite recently, the State of Victoria in Australia. (2) It is fair to say that Canada's contribution to the debate has been and will continue to be significant and, therefore, of great interest both nationally and internationally. (3)
II THE JOURNEY THROUGH THE CANADIAN COURTS
There is little doubt that a key moment in the Canadian debate came in the early 1990s with both the release of the Final Report of the Special Senate Committee on Euthanasia and Assisted Suicide (1994) and the Supreme Court of Canada decision in the case of Susan Rodriguez. (4) Ms. Rodriguez suffered from amyotrophic lateral sclerosis (A.L.S., a.k.a., Lou Gehrig's disease) and wished to die with dignity. She wanted a physician to install an intravenous line containing a substance that would allow her to end her life, when she chose to do so. She sought but was denied an order declaring invalid the then s 241 of the Criminal Code of Canada (5) (aiding and abetting suicide) claiming the s violated provisions of the Canadian Charter of Rights and Freedoms. (6) Ms. Rodriguez eventually took her own life with the assistance of others in 1994. (7)
Medical assistance in dying continued to be an active issue throughout the late 1990s but did not reach the Canadian courts again until the early 2000s with the so-called 'Carter' case. (8) The plaintiffs, who included a woman suffering from amyotrophic lateral sclerosis (ALS) as well as two persons who had helped a family member obtain an assisted death in a clinic in Switzerland, applied for a declaration that s 241(b) of the Criminal Code was unconstitutional. The BC Supreme Court granted the application but suspended its order for one year to allow the government to amend the legislation to make it comply with the Charter. The court gave the woman with ALS a special constitutional exemption to allow her to obtain a physician assisted death during the period of the suspension of the order.
The decision of the BC Supreme Court in Carter was subsequently overturned by the British Columbia Court of Appeal. The Court of Appeal decision was, then, in turn appealed to the Supreme Court of Canada. (9) In February, 2015 the Supreme Court of Canada unanimously issued the following declaration:
s 241(b) and s 14 of the Criminal Code of Canada unjustifiably infringe upon s 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (i) clearly consents to the termination of life and (ii) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition The decision was suspended for 12 months but this was later extended to June 2016. (10) The Supreme Court of Canada also endorsed the granting of constitutional exemptions under prescribed circumstances by the superior courts of the provinces.
During the 12 months following February 2015, the federal and provincial governments had the opportunity to consider what, if any, responses to muster in order to address the Supreme Court of Canada's decision. The principal response came from the federal government in the form of amendments to the Criminal Code of Canada through the Medical Assistance in Dying Act. (11) The response was informed significantly by two major reports on the topic--the 2015 Provincial/Territorial Expert Advisory Group on Physician Assisted Dying: Final Report, (12) and and the 2016 Report of the Special Joint Committee on Physician Assisted Dying. (13) In addition, the Province of Quebec set a powerful precedent by introducing and passing legislation in support of its policy of providing a spectrum of services for end of life (i.e., palliative) care which included medical assistance in dying. (14)
At the time of writing (March 2020) it seems highly likely that changes will occur to expand, rather than limit, MAiD and that some changes will occur this Spring. (15) A mandatory review of MAiD is required by 10 of the new legislation and is expected to address several issues which have arisen since the legislation came into force especially those identified in the reports from the Council of Canadian Academies commissioned by the Government of Canada in 2016. (16)
III CONSTITUTIONAL EXEMPTIONS POST-CARTER
Constitutional exemptions were granted by the superior courts of several provinces while waiting for the Government of Canada to introduce and pass the 2016 legislation. These cases are of importance not only because they constitute a part of the history of MAiD legislation in Canada but also because they highlight some of the issues which have arisen in practice and that are likely to be addressed in the forthcoming review.
The first application for a constitutional exemption was made to the Alberta Court of Queen's Bench in February 2016. In Re H.S., (17) a 66 year old woman with amyotrophic lateral sclerosis sought a physician-assisted death on the basis of the Carter criteria: she was an adult who was competent to make the decision; who clearly consented to the termination of her life, and who had a grievous and...
