The current law limits the Charter rights of people with mental disorders who want to seek a medically assisted death
The Senate is facing an institution-defining question this week: should it allow another delay to the expansion of medically assisted death for patients with mental illnesses? Will the Senate defer to the House of Commons in passing Bill C-62, or will it respect the Charter and the rights of people with mental disorders and reject the legislation?
Governments are allowed to limit Section 7 rights if they do so “in accordance with the principles of fundamental justice.” One of these principles is “overbreadth” – does the law restrict the rights more than it needs to in order to achieve its goal? They are also allowed to limit any of the rights if doing so is “demonstrably justified in a free and democratic society.” However, when we examine Bill C-62 to see if it impairs people’s rights as little as possible, it fails to pass that test.
Exemption orders are not a new idea. They already exist in other contexts within the Criminal Code. They are also analogous to what courts fashioned as a remedy in the two main MAID cases: Carter and Truchon. In Truchon, Quebec Superior Court Justice Christine Baudouin concluded that one aspect of the government’s MAID law was unconstitutional – the requirement that natural death had to be “reasonably foreseeable.” Like the Supreme Court, she crafted an individual court exemption process until the government redrafted its MAID law. Carter and Truchon illustrate a path to balancing the rights of Canadians against the additional time the government wants.
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