MAiD and Mature Minors - Part 2: The Charter of Rights and Freedoms with Emmett Macfarlane
Last week I talked to Dr.
about the ethical implication of considering Medical Assistance in Dying (MAiD) for mature minors. If you haven't watched that video yet, you can find it here. As interesting as that conversations was, it’s only one part of the story. Today, in Part 2, I talked to Dr. about MAiD and mature minors in the context of the Canadian Charter of Rights and Freedoms1.Emmett is a political scientist at the University of Waterloo whose research focuses on constitutional law and governance. He also writes on Substack about Canadian governance, the Supreme Court, the Charter of Rights, Parliament, constitutional reform, and free expression. Our conversation looks at how past court rulings could influence a constitutional challenge to the exclusion of mature minors from accessing MAiD.
You can watch the video on YouTube, listen to the audio below, or read my summary of our conversation.
The Foundation: Carter v. Canada
The 2015 Carter2 ruling struck down the criminal prohibition on assisted dying, recognizing that an absolute ban violated Section 73 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person. The Court found that forcing individuals with irremediable medical conditions to endure intolerable suffering was both arbitrary and grossly disproportionate. It ruled that individuals who are adults, capable of informed consent, and suffering intolerably from an irremediable medical condition had the right to seek MAiD.
However, the decision did not explicitly address mature minors. The Court’s wording, by referencing “adults,” left the question of whether minors with decision-making capacity could access MAiD unresolved. Parliament later codified this restriction in Bill C-144, which limits eligibility to individuals aged 18 and over.
The Legal Precedent for Mature Minors
While the Carter decision set the groundwork for MAiD, the broader legal framework around medical decision-making for minors is shaped by the mature minor doctrine5—a concept long recognized in Canadian common law and affirmed by the Supreme Court in A.C. v. Manitoba (2009)6. This case involved a Jehovah’s Witness minor who refused a blood transfusion. The Court recognized that minors under 16 could be assessed for decision-making capacity, meaning that if they demonstrated the ability to make an informed medical decision, their wishes should carry significant weight. However, the ruling also maintained that a minor’s decision could still be overridden if it was not deemed to be in their best interests.
Macfarlane pointed out that, in the context of MAiD, the application of this doctrine presents a fundamental challenge to the outright exclusion of minors: “[The logic of the Carter decision] applies, I think, equally to mature minors as it relates to section 7.”
Charter Challenges: Section 7 and Section 15
A constitutional challenge to the exclusion of mature minors would likely focus on two key sections of the Charter:
Section 7: Life, Liberty, and Security of the Person
The Supreme Court has consistently recognized that security of the person includes the right to be free from unnecessary suffering. In cases like Morgentaler (1988)7 and Bedford (2013)8, the Court ruled that government-imposed restrictions that cause undue physical or psychological harm violate Section 7. The Carter decision extended this logic to MAiD, and it is difficult to see how mature minors with decision-making capacity would not have the same rights.Section 15: Equality Rights9
The prohibition on MAiD for mature minors could also be challenged as age discrimination under Section 15. Canadian law recognizes that age-based restrictions are sometimes justified, but only when they serve a valid protective function. The mature minor doctrine already allows young people to make high-stakes medical decisions, including refusing life-saving treatment. If a 16-year-old can refuse a blood transfusion, why can’t they request MAiD in cases of intolerable and irremediable suffering?
Macfarlane noted that courts are unlikely to uphold an outright exclusion of mature minors if they are faced with a strong plaintiff: “I don't know how a court in this country can read the Carter decision, read the Truchon decision out of Quebec, and not arrive at an outcome where in some cases, mature minors should have access to this service.”
Could Parliament Act First?
A legal challenge may not be necessary if Parliament chooses to act preemptively. While governments have historically deferred to the courts on contentious social issues—same-sex marriage, abortion, and even MAiD itself—there is nothing preventing lawmakers from amending the law to permit mature minors to access MAiD under carefully defined criteria.
However, political reluctance remains a significant barrier. As Macfarlane pointed out, despite overwhelming public support for MAiD, politicians have been hesitant to engage with further expansion, leaving courts to take the lead. “parliament, and governments in particular, don’t like expending political capital on these controversial social issues,” he said, “and that's the very reason that the absolute prohibition on medical aid in dying stood for as long as it did.”
The Future of MAiD for Mature Minors
If a constitutional challenge were to proceed, one of the key questions would be whether additional safeguards are necessary for mature minors. Currently, there is no evidence suggesting that vulnerable individuals, including adults, are being coerced into MAiD1011. Any challenge would likely involve an examination of whether the existing safeguards—such as capacity assessments and independent evaluations—are sufficient to protect mature minors as well.
It is also possible that a case could arise in which a mature minor seeks MAiD against their parents’ wishes. This would add another layer of complexity, given that parents currently retain some legal authority in medical decision-making for minors. The courts would need to weigh the minor’s right to autonomy against the parental role in decision-making.
At its core, this debate is not just about legal principles but about our collective moral discomfort with the idea of young people seeking MAiD. But the law does not exist to make people comfortable—it exists to ensure that rights are protected. And if a young person is suffering intolerably from an irremediable condition, the same arguments that led to Carter may well apply to them, regardless of age.
If you want to read more about the intersection of constitutional law and public policy, check out Emmett Macfarlane’s Substack, Defending Canadian Democracy.
Thank you for writing this article. Two brief points:
A minor arguably has not adopted a religion. At majority, a person might adopt the parents' religion, a different religion or no religion. People born into a family with Jehovah's Witness parents tend to have a high defection rate in adulthood. So it is important to take steps to help minors live so that they can reach the developmental stage when they can reflect on the issue of religion for themselves.
This article also canvasses the issue of Medicial Assistance in Dying for Mature Minors: https://www.albertalawreview.com/index.php/ALR/article/download/774/767/