Medical Assistance in Dying

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Ever since 2015, when the Supreme Court of Canada decided in Carter v Canada (Attorney General) that a prohibition on physician-assisted suicide was unconstitutional, Canada has had to redefine what end of life care means and what rights individuals have at this time. This is an ongoing process that will likely continue for many years.

The Supreme Court declared that it violated an individual’s rights to life, liberty, and security of the person to be denied medical assistance in dying (“MAiD”) if the person consents, and if they had a grievous and irremediable medical condition that causes enduring and intolerable suffering. In response to Carter, the federal government passed a law that allowed an individual to receive MAiD, but only if they met the conditions in Carter and if their natural death had become reasonably foreseeable.

The new law has been the subject of another constitutional challenge by the BC Civil Liberties Association, which was one of the plaintiffs in the Carter decision in 2015. They argue that the current law is overly restrictive, and that it excludes people with multiple sclerosis, Huntington’s disease, and Parkinson’s disease that should be allowed to have access to MAiD.

The discussion around MAiD continues in the courts, Parliament, legislatures, and in our homes. If you or a loved one is considering MAiD, be sure to research and understand the legal and personal implications of this important decision.

If you need legal advice on medical assistance in dying, end of life planning, or any other law related inquiry, please contact us.

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What to do After You Have Been in a Car Accident

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After a motor vehicle accident it is very important to gather the appropriate information in case of a he said/she said battle over legal responsibility or liability.

Assuming that you do not need emergency medical attention after the motor vehicle accident you should look at and record the other driver’s licence number, the licence plate of the vehicle that hit you as well as their insurance information. It is worth stressing the importance of verifying the other driver’s licence number and not just asking for their name. This will remove the chance of the other driver providing you with a phony name. Take a picture of the other vehicle (and licence plate), the other driver and the other driver’s licence.

Also, take pictures of the scene of the accident, which would include any damages to vehicles as well as the position of the vehicles after the accident. If there are any 3rd party witnesses, their information and identity should be recorded to provide their account of the accident if there is a battle over liability.

After the accident there are also different entities that you should contact. Right after the accident you should contact ICBC. At this initial contact you should provide ICBC with the information that you gathered at the scene of the accident. Also, it may be necessary to call the police after the accident. If it is a hit-and-run accident you must contact the police; by calling the police you create a record of the accident which can be of assistance later on in the ICBC process. Finally, you should contact a personal injury lawyer. The lawyer will act on your behalf, guide you through the legal process and ensure that you are appropriately compensated from the accident.

If you or someone you know has been in a car accident contact Heath Law LLP.

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The Defence of Inevitable Accident

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On your usual commute to work something unusual happens. While driving to work, a wild animal darted across the road which resulted in you colliding with another vehicle and injuring the other driver. The other driver has sued you and the liability for the accident has currently been assigned to you at 100%. You are thinking that this is extremely unfair as there was nothing that you could have reasonably done to avoid the accident. This situation is governed by the defence of inevitable accident (the “defence”).

The defence places an onus on the person asserting the defence to prove that the exercise of reasonable care while driving could not have prevented the accident. The circumstances of the accident must have been beyond the driver’s control.

The defence has been pled in a few different scenarios in which the defendant has claimed that the accident was entirely out of their control. For example, defendants have pled the defence when a rogue bee has flown into their car, when a wild animal darts across the road and when the driver loses consciousness while driving.

For the defence to be successful the court must be satisfied that the inevitable accident was indeed inevitable and that the circumstances causing the accident were not reasonably foreseeable.

The court must be satisfied that there was nothing that the driver could have done to avoid the accident. For example, the defence may not be successful every time an animal crosses the road as the amount of time to react, the driver’s attentiveness and the type of animal will be considered. A driver’s evasive or lack of evasive action must be deemed by the court to have been reasonable in the circumstances.

The court must also be satisfied that the circumstances which caused the accident were not reasonably foreseeable. For example, if the road you were travelling on was frequented by darting deer, it would make a deer appearing on the road and causing an accident reasonably foreseeable. Also, if you have a health condition that may cause you to lose consciousness, losing consciousness on the road and causing an accident could be also be considered reasonably foreseeable. Lastly, if you know that the outdoor temperature was going to cool below freezing after a rain, slipping on ice would be reasonably foreseeable.

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What is needed for a Valid Will

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Not every attempt to make a valid Will is successful. The Wills Estates and Succession Act (WESA) of British Columbia has certain requirements that must be established and proven if the Will is to be deemed valid.

There is an age requirement that is designated by s. 36 of the WESA. S. 36 states that a person who is 16 years or older and is mentally capable may make a Will. A Will that is made by someone under 16 is therefore presumptively invalid.

There are other somewhat more technical requirements needed to make a valid Will found in s. 37 of the WESA. For a Will to be valid it must be (a) in writing, (b) signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the Will-maker. S. 40 of the WESA provides the age requirements for witnesses to a Will. Signing witnesses to a Will must be 19 years of age or older.

Once the technical requirements for making a Will are met there are also limitations to the type of property that can be gifted in a Will. S. 41 of WESA states that a person may by Will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the Will is made. This effectively means that one is only able to gift property that the Will-maker actually has or is entitled to.

Creating a Will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first Will or have any questions regarding your existing Will please contact Heath Law LLP at 250-753-2202.

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