Court of Appeal of Quebec

Saba c. Procureure générale du Québec

September 18, 2018


Doyon, Healy, Rancourt

Appeal from a judgment of the Superior Court. Application for authorization to present indispensable new evidence on appeal. Dismissed.

The motion judge declared inadmissible the paragraphs in the appellant’s Notices to the  Attorneys General concerning the constitutional grounds for his challenge of the federal and provincial statutory provisions governing medical aid in dying, which were based on sections 7 and 15 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I) and the division of powers. The judge found that the three grounds were resolved by Carter v.  Canada (Attorney General), (S.C. Can., 2015-02-06), 2015 SCC 5, SOQUIJ AZ-51147227, 2015EXP-471, J.E. 2015-245, [2015] 1 S.C.R. 331.

The appellant challenged the Act Respecting End-of-Life Care (CQLR, c. S-32.0001), the Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (S.C. 2016, c. 3), and the concept that a patient can validly consent to medical assistance in dying, in their entirety. The appellant’s arguments might serve as advocacy for improvement in health services but deficiencies in such services cannot support an argument that the legislation at issue in this appeal permits medical assistance in dying without sufficient protection of the right to life and the security of the person. Indeed, the Supreme Court concluded in Carter that prohibiting medical assistance in dying was inconsistent with section 7 of the Charter. The appellant thus defies the authority of Carter and on that basis, the judge was justified in dismissing the appellant’s challenge under section 7 of the Charter. His alternative argument, based on the exception to the principle of vertical authority that applies when there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate and justifies a reconsideration of settled authority, and seeking to rely on the Annual Report of the Commission on End-of-life Care, must fail.

With respect to the constitutional argument based on section 15 of the Charter, the appellant argued that persons in need of end-of-life care are more likely to suffer depression and they may thus be identified as a disadvantaged group that is incapable of giving an informed consent to medical assistance in dying. In Carter, however, the Supreme Court concluded that the risks identified by the appellant were a preoccupation already addressed in Canadian law. There is no change in circumstances that would allow Carter be set aside on this point.

With respect to the issue of division of powers, the Supreme Court concluded in Carter that the prohibition of medical assistance in dying infringed section 7 of the Charter, and that this declaration of invalidity allowed Parliament and the provincial legislatures, acting in an area of concurrent jurisdiction over matters of health, to enact measures that would authorize and regulate medical assistance in dying.

Finally, the judge was correct in dismissing the appellant’s application for interim costs, and the new evidence he wished to present was not indispensable within the meaning of article 380 of the Code of Civil Procedure (CQLR, c. C-25.01).

*Summary by SOQUIJ

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