The Equality Rights Implications of Medically Assisted Death in Canada

In 2016, Canada amended its Criminal Code to permit medical assistance in dying (MAID). The amendments followed a Supreme Court decision that the criminal prohibitions on assisted suicide violated the section 7 Charter rights of competent adults who had a “grievous and irremediable condition” that caused them “intolerable suffering.” The new law permits some MAID to occur. But it includes two criteria not discussed in Carter: that the condition be “incurable” and that death be “reasonably foreseeable”. As a result, some individuals have launched fresh challenges against the new law. This paper looks at the equality rights implications of the new regime with specific attention to substantive equality and the possible role of the Constitution’s “affirmative action” clause. Acknowledging competing arguments from the disability rights community, the paper considers which analytical framework is consistent with previous equality rights jurisprudence, and can promote just outcomes.