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Source: US Global Legal Monitor

(Nov. 10, 2020) On October 5, 2020, the minister of justice and the attorney general of Canada reintroduced in the House of Commons Bill C-7, which amends the federal Criminal Code’s provisions on medical assistance in dying (MAID). The changes are the same as an earlier version of the bill proposed in the previous parliamentary session. According to Canada’s Department of Justice, “[t]he proposed changes follow extensive consultations with Canadians, experts, practitioners, stakeholders, Indigenous groups, provinces and territories, and an online questionnaire that received over 300,000 responses.”

Background of MAID

On February 6, 2015, in a unanimous decision in Carter v. Canada, the Supreme Court of Canada struck down a blanket ban on physician-assisted suicide that was contained in sections 241(b) and 14 of Canada’s Criminal Code (for an overview of this decision, see FALQs: Physician-Assisted Suicide in Canada). In June 2016, the Parliament of Canada amended the Criminal Code by passing Bill C-14, which “allows eligible Canadian adults to request medical assistance in dying.” The eligibility criteria is set out in section 241.2 (1), with one condition stipulating that the person “have a grievous and irremediable medical condition.” One of the criteria for a grievous and irremediable medical condition is that “[a person’s] 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.”(Criminal Code § 241.2 (2)(d).) Section 241.2 (3) sets out a number of procedural safeguards that must be met before a medical practitioner or nurse practitioner (NP) can provide a person with MAID, including a 10-day reflection period between the submission of a person’s request and receiving MAID, and a final consent that, immediately before providing MAID, “give[s] the person an opportunity to withdraw their request and ensure that the person gives express consent” to receiving MAID. The medical practitioner or NP must also ensure that another independent medical practitioner or NP “has provided a written opinion confirming that the person meets all of the criteria.”

On September 11, 2019, the Superior Court of Québec issued a judgment in Truchon v. Attorney General of Canada which found the “reasonable foreseeability of natural death” eligibility criterion in the Criminal Code and the “end-of-life” criterion in Quebec’s Act Respecting End-of-Life Care to be “too restrictive” and unconstitutional. The court suspended the declaration of invalidity for six months to allow the federal government to amend the Criminal Code. The federal government first introduced amendments on February 24, 2020, and was granted two extensions, but it failed to get the bill through because of the adjournment of Parliament caused by the COVID-19 pandemic in mid-March and the proroguing of Parliament in August 2020.

Bill C-7

The bill introduces a number of changes to the Criminal Code provisions on MAID. It repeals Section 241.2 (2)(d), which requires that “a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying.” Also, the bill excludes eligibility for persons who are “suffering solely from mental illness.” The bill also “introduce[s] a two-track approach to procedural safeguards” that is dependent on whether a person’s natural death is reasonably foreseeable:

  1. existing safeguards will be maintained and certain ones will be eased for eligible persons whose death is reasonably foreseeable
  2. new and modified safeguards will be introduced for eligible persons whose death is not reasonably foreseeable

Under the bill, persons whose death is reasonably foreseeable will no longer be subject to a 10-day reflection period. (Bill C-7, § 1(5).) The bill also adds a section 241.2 (3.2) which allows for the waiver of final consent for “eligible persons whose natural death is reasonably foreseeable and who may lose capacity to consent before MAID can be provided.” The bill adds a section 241.2 (3.1) with more stringent safeguards before a medical practitioner or NP provides persons whose death is not reasonably foreseeable with MAID. Among the safeguards the bill introduces is a 90-day waiting period between when the first assessment is made and MAID is provided. The physician or NP can determine a shorter waiting period that they consider “appropriate in the circumstances” if they are both of the opinion that the person’s loss of capacity is imminent. The bill introduces a further safeguard requiring that another physician or NP provide a written opinion confirming that the person meets the criteria. According to the bill’s legislative summary, “[i]f the first physician or NP does not have the expertise in the condition that is causing the person’s suffering, the written opinion must be provided by a physician or NP with that expertise.” Other safeguards include the physician or NP

  • informing the person of the “means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care and has been offered consultations with relevant professionals who provide those services or that care,” and
  • discussing with the person “reasonable and available means to relieve the person’s suffering” and “agree[ing] with the person that the person has given serious consideration to those means.”

The bill’s second reading has been completed in the House of Commons, and the bill has been referred to the Standing Committee on Justice and Human Rights. The government has until December 18, 2020, to pass the amending legislation to comply with the Superior Court’s ruling.

Reactions to the Bill

On October 9, 2020, the House of Commons began debating the bill, and continued debate on October 19. Liberal MP Stéphane Lauzon expressed that the bill achieves “the right balance between the freedoms and rights of those who are dying and who are seeking a peaceful medically assisted death and our medical practitioners who need a clear framework for timing and consent.” Some members of the Conservative party felt that the decision of the Quebec Superior Court should have been appealed and that the current process to pass the bill was being rushed. Some members also felt that the bill goes beyond the scope of the Quebec Superior Court decision and removes too many important safeguards.