In many respects the law of Quebec differs from that of other provinces. In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.
In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable. The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable. The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed. The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome. Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.
The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms. While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.
Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter. The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”
The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional. The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.
Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional. Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect. Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.
As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.
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The Supreme Court of Canada recently refused leave to appeal a decision of the Quebec Court of Appeal that raises the issue of whether old age should be considered as a factor during sentencing.
The appellant had been convicted of fraud, conspiracy to commit fraud, and laundering the proceeds of crime at the direction of or in association with a criminal organization. A prior appeal regarding the conviction itself had been dismissed by the Quebec Court of Appeal.
The Lower Court recognized the role of the appellant as a directing mind of a criminal organization and the losses suffered by the government as a result of his fraudulent acts. The Court had stated that age, even if it could be taken into account, was “only one factor among many”, which “cannot have a determinative impact because of the great number of aggravating factors”.
The appellant subsequently sought leave to appeal his four-year prison sentence. The appellant asserted that, at 81 years of age and in a poor state of health, his sentence ought to be replaced with a conditional sentence to be served in the community or otherwise limited in duration to allow him the prospect of life after prison.
The Quebec Court of Appeal summarized the law as it relates to the consideration of age during sentencing as follows (at paras 38, 39, 42, 43):
The advanced age of an accused must be taken into account when determining a sentence, as Chief Justice Lamer indicated in R. v. M. (C.A.)…
The age factor must, however, be considered in light of the health of the offender as it relates to his life expectancy. Consequently, the mere fact that an accused is elderly is not, in and of itself, a mitigating factor in determining a prison sentence, unless the evidence reveals that he has little chance of serving the sentence before passing away. This is increasingly true with the general aging of the Canadian population and the raised probability of longer life expectancies.
As a result, if at the time a sentence is imposed, the offender’s state of health does not suggest that he is unlikely to complete the sentence before his demise, the judge then has the necessary discretion to impose an appropriate sentence in light of all the usual factors and criteria…
It is possible that an offender’s state of health deteriorates following sentencing. This possibility increases with the age of the offender. The sentencing judge may not, however, speculate on this subject and must determine the sentence in accordance with the evidence before him when it is rendered…
The Court nevertheless considered the prison sentence to be appropriate, notwithstanding the expectation of the appellant that he may not survive it. The Supreme Court agreed with the reasons of the Quebec Court of Appeal.
With Canada’s aging population, cases like this, in which an individual convicted of a crime is elderly and/or in a poor state of health, can be expected to increase in frequency. The Supreme Court has confirmed that (for the time being at least), while age is a factor to be considered during sentencing, it is merely one to be assessed among others, rather than being determinative of the issue.
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In 2016, it is no longer out of the ordinary for Canadians to call more than one province home. It has also become more common for Canadians to move among different provinces throughout their lives. Either way, it is important to consider the implications of the validity of a power of attorney for personal care that was granted in one province and whether it will be recognized in another.
For those who have executed a power of attorney for personal care outside of Ontario, the Substitute Decisions Act provides at section 85 (1),
As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,
(a) the power of attorney was executed;
(b) the grantor was then domiciled; or
(c) the grantor then had his or her habitual residence.
However, for those who have executed a power of attorney for personal care within Ontario and the attorney is now seeking to use it in another province, the rules as to its validity will vary.
For instance, in Quebec, the Civil Code governs the rules surrounding protection mandates (the equivalent of a power of attorney for personal care). The most significant distinction in this regime is that a mandate given in anticipation of incapacity is conditional upon “the homologation of the mandate” (i.e. the court procedure confirming the validity of the mandate).
A mandatary (attorney) has no authority to act until this step has been completed. Therefore, any acts performed by the mandatary prior to the homologation of the mandate may be annulled. This measure is seen as a protective tool to help circumvent potential power of attorney abuse.
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Canada Day is the day on which we celebrate Confederation—when the United Province of Canada [(formerly) Upper Canada and Lower Canada] joined the colonies of New Brunswick and Nova Scotia to become a new nation, the Dominion of Canada.
In that sense, one might say that Canada Day is less a celebration of our collective self-assertion to obtain our autonomy by force and more a celebration of our ability to come together, our ability to work together and even our ability to live together—which is a really nice thing to celebrate.
We hope this Canada Day that you are able to come together with the people you love the most, doing the things you love the most. Whether at a cottage, at a BBQ or overlooking a firework’s show, wherever this message finds you, may you remember the privilege we all enjoy by the fact that we do and are able to come together and live together in Canada.
From your friends at Hull & Hull LLP, we wish you a very Happy Canada Day!
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In Quebec, while formal and holograph wills are recognized, there is also a third kind of will called a notarial will, which involves more formalities than the other two.
A notarial will is a will drawn by a notary, who ensures the formalities in articles 716 and 717 of the Civil Code of Quebec are observed. It is generally made before the notary in the presence of one witness, though in special circumstances two witnesses are required; for example, if the testator is blind or cannot sign for him or herself. The will must indicate the date and place it was made. Once the will has been read by the notary in the presence of the testator and the witness, all sign the will in each other’s presence.
The original will is kept by the notary, and the Chambre des notaries maintains a register of all notarial wills. In Quebec, notarial wills do not require probate and are more difficult to contest in court.
Under section 15 of the Estates Act, R.S.O. 1990 c. E.21. A notarial will made in Quebec may be admitted to probate in Ontario without production of the original will upon filing a notarial copy with the other proper proofs to lead grant.
To Apply for a Certificate of Appointment of Estate Trustee with a Will for a notarial will, you must file an Affidavit of Execution by the notary, which is not a requirement in Quebec. If the notary cannot be found, the Estate Trustee should file an affidavit explaining why together with an affidavit from any other person present when the will was executed, even though that person did not sign the will as a witness.
If neither the notary nor any witnesses can be found, the Estate Trustee must file an affidavit indicating attempts to locate them together with an affidavit by a person (not a beneficiary) who can attest to the signature of the deceased.
If no witnesses can be located, the Estate Trustee can file an affidavit and draft order in support of a motion to dispense with the affidavit of execution.
If you would like more information on wills in Quebec, see this Government of Quebec website.
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Sharon Davis-Click here for more information on Sharon Davis.
Listen to Madore-Ogilvie vs. Ogilvie Estate.
This week on Hull on Estates, Rick and Sean discuss the case of Madore-Ogilvie vs. Ogilvie Estate which was recently featured in the CCH periodical Will Power.