The legal controversies of MAiD, part one

Law360 Canada (April 25, 2024, 11:19 AM EDT) --

Kim Gale

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)


Section 241.2(1): eligibility criteria for MAiD

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


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:


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:


This is the first of a two-part series. Read the second article: The legal controversies of MAiD, part two.

Kim Gale is an estate litigation lawyer and principal of Gale Law, an estate litigation firm in Toronto. She can be reached at 416-868-3263 or kgale@galelaw.ca. She is the author and creator of the blog Law for Millennials — The Complete Beginners Guide to Law and is co-founder of diversity and inclusion group NCA Network. Jessica Campolucci is a Canadian graduate who obtained her degree in Business Management from York University in Toronto, Ont., and is a 2023 graduate of the Paralegal Education program at Humber College in Toronto. She is currently a licensed paralegal with the Law Society of Ontario. As a paralegal at Gale Law, she assists on all issues related to estates and has also assisted clients in matters before the Small Claims Court and administrative tribunals.

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