The federal government recently reintroduced1 Bill C-7: An Act to amend the Criminal Code (medical assistance in dying)2 ("Bill C-7") which, if passed, will amend provisions in the Criminal Code regarding medical assistance in dying ("MAID"). Some of the proposed amendments contained in Bill C-7 are responsive to the decision of the Quebec Superior Court in Truchon v. Procureur général du Canada ("Truchon"),3 in which the Court held that individuals should not be precluded from seeking MAID on the basis that their deaths are not reasonably foreseeable. The purpose of this Bulletin is to provide a brief history of MAID in Canada and an overview of some of the key features of Bill C-7.
Brief History of MAID in Canada
In February 2015, the Supreme Court of Canada ruled in Carter v. Canada that those provisions of the Criminal Code ("Criminal Code")4 that prohibited MAID would be need to be amended in order to comply with the Canadian Charter of Rights and Freedoms (the "Charter"). The Supreme Court of Canada gave the federal government until June 6, 2016 to establish new laws pertaining to MAID. In June 2016, the federal government responded by passing legislation that enables Canadians to request MAID if they meet certain criteria. Provisions governing medical assistance in dying are contained in the Criminal Code.
In order to be eligible for MAID pursuant to the Criminal Code, individuals need to meet all of the following five eligibility criteria (collectively, the "Eligibility Criteria"):
- they are eligible for health services funded by a government in Canada;5
- they are at least 18-years-old and are capable of making decisions regarding their health;
- they have a "grievous and irremediable medical condition" (which criterion is further detailed below);
- they have made a voluntary request for MAID that was not made as the result of external pressure or influence; and
- they give informed consent to receive MAID after having informed of the means available to relieve their suffering, including palliative care.6
Under the current legislation, an individual is considered to have a "grievous and irremediable medical condition" if they meet each of the following criteria:
- they have a serious and incurable illness, disease or disability;
- they are in an advanced state of irreversible decline;
- their illness, disease, or disability causes enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions they consider acceptable; and
- their natural death has become reasonably foreseeable (the "Federal Reasonably Foreseeable Criterion") taking into account the individual's medical circumstances and does not require a prognosis as to the specific length of time the individual has left to live.7
Individuals seeking MAID must also fulfill a number of procedural safeguards. Before providing MAID, a physician or nurse practitioner8 is required to:
- be of the opinion that the individual meets all of the Eligibility Criteria;
- ensure that the individual's request has:
- been made in writing, and has been dated and signed by the individual or, if the individual is unable to sign the request, by another person who is over 18-years-old, understands the nature of the request, and has no financial interest in the request; and
- been signed and dated by the individual after they have been informed by a physician or nurse practitioner that they have a grievous and irremediable medical condition (as defined above);
- be satisfied that the request was signed and dated in front of two independent witnesses, who also have signed and dated the request;
- ensure that the individual knows he or she can withdraw the request at any time and in any manner;
- ensure another physician or nurse practitioner has provided a written opinion confirming that the Eligibility Criteria have been met;
- ensure that they and the other physician or nurse practitioner (as applicable) are independent;
- ensure there at least 10 clear days between when the request was signed and when MAID is provided, unless they and the other physician or nurse practitioner believe the individual's death or loss of capacity to provide informed consent is imminent, in which case this period may be shorter;
- give the individual an opportunity to withdraw the request and ensure the individual has provided express consent immediately before providing MAID; and
- take all necessary measures to communicate information to individuals if they may have difficulty communicating.9
Provinces and territories have the authority to enact their own rules to facilitate the provision of MAID in their jurisdictions provided that the rules: (a) are within their provincial or territorial (as the case may be) power; and (b) do not conflict with the applicable provisions of the Criminal Code.10
The Truchon Case
In Truchon, the applicants challenged the constitutional validity of:
- the Federal Reasonably Foreseeable Criterion; and
- the requirement under section 26(1)(3) of Quebec's Act Respecting End-of-life Care11 ("Quebec's Act re End-of-Life Care") that an individual "be at the end of life" to obtain MAID (the "Quebec End-of-Life Criterion")12
The applicants both suffered from physically debilitating diseases, and met all of the eligibility criteria for obtaining MAID in Quebec other than the criterion that their deaths were not reasonably foreseeable.13 They argued that Federal Reasonably Foreseeable Criterion and Quebec End-of-Life Criterion:
- infringed upon their right to life, liberty and security of the person and their right to equality, as guaranteed by sections 7 and 15 of the Charter; and;
- violated the principles set out in Carter, with the consequence of stripping them of their right to MAID.14
In response to the applicants' arguments, the Attorney General of Canada contended that permitting MAID for individuals whose deaths are reasonable foreseeable "strikes a reasonable and appropriate balance, on the one hand, the autonomy of persons who seek [MAID] and, on the other, the interests of society and of vulnerable persons."15
In its September 2019 decision, the Quebec Superior Court held that:
- the Federal Reasonably Foreseeable Criterion violates section 7 of the Charter because it is inconsistent with the principles of fundamental justice and cannot be justified under section 1 of the Charter;
- the Federal Reasonably Foreseeable Criterion and Quebec End-of-Life Criterion violate section 15 of the Charter and cannot be justified under section 1 of the Charter; and
- on the basis of the foregoing, Federal Reasonably Foreseeable Criterion and Quebec End-of-Life Criterion were of no force and effect.
The Court suspended the declaration of inapplicability for the Federal Reasonably Foreseeable Criterion and Quebec End-of-Life Criterion for a period of six months to allow the governments to amend the legislation accordingly.16
Amendments Proposed by Bill C-7
In response to the Truchon decision, the federal government introduced Bill C-7 in February 2020. However, due to the COVID-19 pandemic, Bill C-7 was not passed before Parliament was prorogued in August.17 The government has now reintroduced the legislation, again as Bill-C-7, as the moratorium on the Truchon decision is set to expire on December 18, 2020.18 As of the date of this Bulletin, Bill C-7 has passed third reading in the House of Commons and first reading in the Senate.
If passed, Bill C-7 will amend the eligibility criteria and procedural safeguards for obtaining MAID under the Criminal Code. It will also remove the requirement for final consent in specific circumstances and will instead permit certain individuals to provide advance consent.
i. Eligibility Criteria
Two amendments will be made to the current eligibility criteria. First, the Federal Reasonably Foreseeable Criterion will be repealed,19 thereby broadening eligibility for MAID. However, while it is no longer required that an individual's natural death is reasonably foreseeable for them to be eligible for MAID, Bill C-7 expressly excludes individuals whose sole medical condition is mental illness as being eligible for MAID. More specifically, one of the Eligibility Criteria is that a individual possess a "serious, and incurable illness, disease or disability". Bill C-7 specifically excludes mental illness as constituting such a "serious, and incurable illness, disease or disability".20
ii. Procedural Safeguards
Bill C-7 will also create two sets of procedural safeguards for individuals seeking MAID; one set for those whose natural death is reasonably foreseeable, and one for those whose death is not reasonably foreseeable.
Where Death is Reasonably Foreseeable
For individuals whose death is reasonably foreseeable, the safeguards under the Criminal Code – in its current form – will continue subject to the following modifications:21
- an individual's written request for medical assistance in dying only needs to be signed by one independent witness rather than two, who can be a healthcare provider; and
- the 10-day requirement between when MAID is requested and when the procedure takes place has been removed.
Where Death is not Reasonably Foreseeable
Individuals whose death is not reasonably foreseeable must meet the same requirements as for those whose death is reasonably foreseeable (as set out above) in order to be eligible for MAID. Additionally, they must meet the following criteria:
- the individual must discuss reasonable and available means to relieve his or her suffering with a physician or nurse practitioner, and both must agree that the individual has given serious consideration to these means; and
- there must be at least 90 clear days between the day the individual is first assessed for the purpose of obtaining medical assistance in dying and the date of the procedure (although this may be shortened if the individual is at risk of losing capacity to consent). 22
iii. Advance Consent
Additionally, Bill C-7 permits individuals whose natural death is reasonably foreseeable, and who have been otherwise assessed and approved for MAID, to provide advance consent, thereby waiving the need for a final express consent (as is currently required by the Criminal Code) 23 in two situations:
- An individual loses the capacity to consent. To provide
valid advanced consent, an individual will need to have:
- entered into an a written agreement with a physician or nurse practitioner24 stating that the practitioner would administer a substance to cause death on a specified day;
- been informed by the physician or nurse practitioner of the risk of losing the capacity to consent prior to the specified day; and
- consented in the written agreement to the administration of the substance to cause death on or before the specified day even if the individual lost the capacity to consent.25
- An individual loses the capacity to consent after
self-administering a substance to cause his or her death. To
provide valid advanced consent, an individual will need to have
entered into an a written agreement with a physician or nurse
practitioner26 before losing the capacity to consent
which states that :
- the practitioner would be present at the time the individual self-administered the substance; and
- the practitioner would administer a second substance to cause death if the first administration failed to do so, and the individual lost capacity to consent in the interim.27
However, advance consent will be invalidated if an individual demonstrates by words, sounds, or gestures that he or she does not wish to proceed with MAID.28
We will continue to monitor and report on the progress of Bill C-7.
1. As further detailed below under the heading, "New Amendments", these changes are the same as those proposed by Bill C-7 in the previous parliamentary session.
2. Bill C-7,First Reading, October 5, 2020. ["Bill C-7"]
4. RSC1985 c C-46.
5. Or during the applicable minimum period of residence or waiting period for eligibility. Typically, visitors to Canada are not eligible for MAID.
6. Criminal Code, supra note 4, section 241.2 (1).
7. Criminal Code, supra note 4, section 241.2(2).
8.Policies and procedures for who can provide MAID services is province / territory dependent. For example, in Ontario while both physicians and nurses may provide MAID services, in Quebec, only physicians may provide MAID services.
9. Criminal Code, supra note 4, section 241.2(3).
10. For example, in Ontario, the Medical Assistance in Dying Statute Law Amendment Act, 2017, S.O. 2017, c. 7 - Bill 84 amends was enacted to provide further guidance for MAID in the province.
11. RSQ c S-32.0001.
12. Section 26(3).
13. Truchon, supra note 3, paras 17-72.
14. Truchon, supra note 3, paras 6 and 7.
15. Truchon, supra note 3, para 9.
16. Truchon, supra note 3, paras 764-767.
19. Bill C-7, supra note 2, section 1(1).
20. Ibid, section 1(2).
21. Ibid, sections 1(4), 1(8).
22. Ibid, section 1(7).
23. As noted above, under the existing law, a medical practitioner must provide an individual with an opportunity to withdraw their request and ensure the individual gives their express consent to receive MAID immediately before MAID is administered.
24. Please refer to footnote 8 above for further information regarding medical practitioners who are permitted to provide MAID services.
25. Ibid, section 1(7).
26. Please refer to footnote 8 above for further information regarding medical practitioners who are permitted to provide MAID services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.