Foreseeably Unclear: The Meaning of the "ReasonablyForeseeable" Criterion for Access to Medical Assistancein Dying in Canada

In April 2016, the federal government of Canada introduced draft legislation to regulate medical assistance in dying (MAiD). There was a swift and fierce response to various aspects of the Bill with some of the fiercest criticisms aimed at one of the criteria for eligibility found in the proposed text for s.241.2(2) of the Criminal Code: (2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:… (d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. Some criticized the provision for being inconsistent with the Canadian Charter of Rights and Freedoms (drawing especially but not exclusively on the decision of the Supreme Court of Canada in Carter v. Canada). This criticism is now being litigated in the courts through Lamb v. Attorney General and Jean Truchon and Nicole Gladu v. Attorney General (Canada) and Attorney General (Quebec) and is not the focus of this paper. Others criticized the provision for containing a phrase that is unfamiliar and unclear: “reasonably foreseeable.” Despite attempts to remove s. 241.2(2) (at the hearings for both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee of Legal and Constitutional Affairs, and in amendments passed by the Senate but rejected by the House of Commons), the provision remained in the version of the legislation that came into force on June 17, 2016. Not surprisingly, eighteen months on, there is confusion among health care providers, lawyers, and the public as to what the provision means. One court case tackled the issue head on but, for reasons discussed below, did not resolve all of the confusion. As a result of the ongoing confusion, there is reason to be concerned that under- or overinclusive interpretations of this eligibility criterion are adversely affecting access to MAiD. With critical interests at stake (e.g., access to MAiD and potential criminal liability), it is essential that the meaning of the provision be clarified. Furthermore, the meaning of “reasonably foreseeable” will no doubt be contested in the two Charter challenges to the federal MAiD legislation currently before the courts in British Columbia and Quebec. In order to determine whether s.241.2(2) violates the Charter, the courts will have to first determine what it means because whether the limits on access to MAiD violate the Charter depends on the scope of the limits. For these two reasons, and because MAiD providers and assessors and the public need guidance as they wait for an authoritative interpretation from the courts, it is worth bringing the principles of statutory interpretation to bear on the phrase “reasonably foreseeable.”

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