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Blanket ban on assisted dying for minors could breach the Charter

Barring minors from medical assistance in dying (MAiD) could be unconstitutional, Toronto estates and trusts lawyer Suzana Popovic-Montag tells The Lawyers Daily.

Just over a year after the passage of Bill C-14, which changed the law to allow capable adults to seek medically assisted death, the legal news outlet reports that federal lawmakers are turning their attention to the situation for under-18s.

The amendments came soon after a landmark Supreme Court decision which struck down portions of the Criminal Code that prevented assisted death for violating s. 7 of the Canadian Charter.

And while Popovic-Montag, managing partner of Hull & Hull LLP, tells the article’s author that a strict reading of the top court’s decision suggests extending the MAiD provisions to under-18s would go beyond its guidelines, she warns that an all-out ban on minors could face legal problems.

“The court has cited its past endorsement of the tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity,” Popovic-Montag says.

“Furthermore, guidelines that make a blanket exclusion of minors from accessing MAiD may be found to impair s. 7 of the Charter. If a mature minor satisfies all other criteria to receive MAiD but for being an ‘adult,’ a denial on this basis could be considered arbitrary.”

Popovic-Montag says in the story that the expansion to mature youths will likely occur, but it won’t be easy.

“Such a development is certainly consistent with previous decisions by the Supreme Court of Canada regarding the rights of mature minors to consent to care, and to make decisions about their own health,” she says. “The determination, however, would have to be very individual and fact specific.”

Still, tackling hard topics is “precisely what the government is elected to do," she adds.

“The amendments to the Criminal Code in response to Carter are illustrative of the government’s respect for controversial rulings of the court,” Popovic-Montag continues.

“Further, in recent years, our government has not generally shied away from controversial issues — the ascent of the Carter case to the Supreme Court of Canada is a prime example of this. As a result, I don’t anticipate Parliament closing the door to debate on further, related conversations on the matter.”

The developments will probably also require updates to child protection laws to account for the weighing of the decisional capacity of minors when it comes to end-of-life decisions, Popovic-Montag tells the publication.

“General policies and procedures protecting against the risks or potential harms of MAiD will also need to be enacted to protect children’s vulnerabilities, in light of the specific and irreversible nature of MAiD,” she says.

“There will also likely be some contention as to how/when/to what extent a parent’s consent/opinion should be factored into a mature minor’s right to consent to MAiD and how to determine whether MAiD is truly in the best interests of a child.”

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