Jocelyn Downie outlines Bill C-7, Canada’s newly amended medical assistance in dying legislation, and recounts the legal history of the changes.
They’ve done it again. Canada’s medical assistance in dying (MAiD) law just changed as Parliament passed Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). So how did we get here and where are we now?
In February 2016, in a case known as Carter, the Supreme Court of Canada struck down Canada’s prohibition on medical assistance in dying (MAiD) – it declared that the prohibition breached the Canadian Charter of Rights and Freedoms insofar as it prevented competent adults with a “grievous and irremediable medical condition” experiencing enduring, irremediable, and intolerable suffering from making a free and informed decision to access MAiD.
In response, the federal Parliament passed Bill C-14 to bring the Criminal Code in line with the Charter. But Bill C-14 narrowed the eligibility criteria to include only those who have a “serious and incurable illness, disease or disability”; are in “an advanced state of irreversible decline in capability”; whose “illnesses, disease, or disability or state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable”; and whose “natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”
Charter challenges to Bill C-14 followed. Truchon and Gladu v. Canada (Attorney General) and Quebec (Attorney General) was heard first and Justice Baudouin rendered her judgement on September 12, 2019, declaring that the “natural death has become reasonably foreseeable” eligibility criterion in C-14 violates the Charter.
The government decided not to appeal Truchon – having concluded that the decision was sound and that they would likely lose on appeal. Instead, they committed to amending the Criminal Code to make it compliant with the decision and the Charter. After delays caused by an election, COVID-19, and a prorogation of Parliament, Bill C-7 was finally passed by the House of Commons. The most significant and expected amendment is the removal of the “reasonably foreseeable” eligibility criterion. The concept of reasonably foreseeable however remains in the legislation – it determines whether a person is on track one or track two with respect to the procedural safeguards. Those whose natural death is not reasonably foreseeable (track two) are subject to more onerous procedural safeguards. For instance, they have a 90-day waiting period, they must be informed about and consider alternative means of relieving their suffering, and if neither their assessor or provider have expertise in the condition causing their suffering, someone with such expertise must be consulted.
Other amendments include: reducing the number of independent witnesses from two to one (for both tracks); and removing the ten-day waiting period between the signed request for and provision of MAiD (for track one). Another significant amendment is the “final consent waiver”. This allows someone on track one who has been assessed and found to be eligible for MAiD to make a written agreement for the provision of MAiD on a specific date in the future should they lose decision-making capacity. This prevents the situation in which a person goes ahead with MAiD earlier than they would otherwise want to because they fear that they may lose decision-making capacity and, thus, access to MAiD.
The Senate of Canada then considered the Bill and amended it. The Senate’s amendments were as follows:
- Sunset clause on mental illness exclusion (meaning that the express exclusion of “mental illness” from “serious and incurable illness, disease or disorder” would cease to have any force or effect 18 months after the passage of Bill C-7)
- Explicit clarification that neurocognitive disorders do not count as “mental illness” for the purposes of the Act (and so are not excluded from MAiD)
- Extending the final consent waiver to those whose natural death is not yet reasonably foreseeable
- Requiring the health minister to collect disaggregated data concerning race and how it intersects with requests for and access to MAID
- Requiring a Joint Committee of the House and Senate conducting a Parliamentary review of the MAID regime to begin within 30 days of C-7 receiving Royal Assent and a report to be submitted within 180 days of the committee’s establishment.
The House of Commons rejected some of these amendments and tweaked others. Specifically, they rejected the clarification of what’s included in “mental illness” (leaving it undefined) and the extension of the final consent waiver (leaving it only for people on track one). They accepted the sunset clause but extended it to 24 months and added in the creation of an independent expert panel to develop protocols for the actual implementation of MAiD for mental illness. They accepted the collection of race-based data but added to that Indigenous identity data and analysis of all of the data collected to determine the presence of inequality (including systemic inequality) or disadvantage. They also tweaked the Parliamentary review giving the Joint Committee a year to submit its report.
The Senate accepted these changes and Bill C-7 was passed and came into force on March 17, 2021.
So Canada’s new MAiD law will now be implemented. Policies, procedures, and practices will be revised to reflect the new realities including, especially, the eligibility of persons whose natural deaths are not yet reasonably foreseeable and the ability of patients to make agreements with their clinicians for the provision of MAiD at a specific time in the future when they have lost decision-making capacity.
At the same time, an expert panel will be appointed by the Ministers of Justice and Health to conduct an independent review “respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.” They will report back within a year of the legislation receiving royal assent. In addition, within thirty days of royal assent, a Joint Committee of the House and Senate will commence a review of “issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities.” This Committee must submit its report to Parliament within a year of commencing its work.
Most important of all is that those who have a mandate to educate health care professionals, lawyers, and the public should develop and disseminate educational materials and programs to ensure that all Canadians are fully aware of the new rules that govern access to MAiD in Canada.