House of Commons Standing Committee on Justice and Human Rights – Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Questions and Answers

2021-000316
(January 2021)

- Q 1 What does Bill C-7 propose to do?
- Q 2 What amendments to Bill C-7 did the House of Commons Standing Committee on Justice and Human Rights make?
Eligibility
Safeguards
Waiver of final consent
Monitoring Regime
- Q 22 What improvements does Bill C-7 propose to federal data collection on MAID?
Charter Compliance
- Q 23 Does this Bill comply with the Canadian Charter of Rights and Freedoms?
- Q 24 Could the Bill potentially engage the Charter rights and freedoms of persons whose only medical condition is a mental illness, given their exclusion from the MAID regime?
Conscience Rights
- Q 25 How does the Bill address conscience rights of health care providers?
Provincial jurisdiction
- Q 26 How does the Criminal Code MAID regime interact with provincial legislation and jurisdiction?
- Q 27 Is the pandemic having an impact on the provision of MAID?
International Regimes
- Q 28 How would Canada compare to other countries with the MAID regime proposed in this Bill?
Preamble
- Q 29 What is meant by the phrase “human rights-based approach to disability inclusion” in the preamble?
- Q 30 Why does the preamble mention suicide as an important public health issue, since MAID is different from suicide?
Coming into Force
- Q 31 When will the changes proposed in this Bill come into force?
Extension in Truchon
- Q 32 What is the significance of the February 26, 2021 deadline?
- Q 33 What is the impact of the pandemic on the February 26, 2021 deadline?
Parliamentary Review
- Q 34 What will be the focus of the five-year parliamentary review of the MAID law?

Q 1 What does Bill C-7 propose to do?

Bill C-7 is identical to former Bill C-7. It responds to the September 2019 Superior Court of Québec Truchon ruling, which struck down the eligibility criterion of “reasonably foreseeable natural death” from the Criminal Code MAID regime. It proposes to amend the Criminal Code to ensure consistency of the MAID law across the country, and to adjust the safeguards for a MAID regime that is no longer limited to end of life circumstances.
More specifically, Bill C-7 proposes to amend the Criminal Code by:
1. repealing the “reasonable foreseeability of natural death” (RFND) eligibility requirement, and excluding persons whose sole underlying medical condition is a mental illness;
2. proposing a two-track approach to procedural safeguards to be followed before MAID is provided, depending on whether a person’s natural death is reasonably foreseeable or not;
3. allowing the administration of MAID without the requirement of “final consent” (waiver) for persons whose death is reasonably foreseeable, who were found eligible for MAID, and who were at risk of losing capacity if they indeed lose capacity to provide final consent before their preferred date for MAID, and have a written arrangement with a practitioner.
Bill C-7 also proposes changes to the federal MAID monitoring regime to enable collection of information in a broader range of circumstances to obtain a more complete picture of MAID in Canada.

Q 2 What amendments to Bill C-7 did the House of Commons Standing Committee on Justice and Human Rights make?

The House of Commons Standing Committee on Justice and Human Rights made two amendments to Bill C-7.
First, it amended the proposed new safeguard requiring expertise in the condition that is causing the person’s suffering. As introduced, Bill C-7 would have required that one of the two assessing practitioners have expertise in the condition that causes the person’s suffering. Witnesses who appeared before the House of Commons Standing Committee on Justice and Human Rights indicated that experts are willing to provide views within their areas of expertise when consulted, but rarely carry out full MAID assessments. The Justice Committee amended the Bill to require that one of the assessing practitioners consult a practitioner with expertise, and share the result of that consultation with the other assessing practitioner, if neither of them has the required expertise.
The second amendment the Justice Committee made was to add a requirement that the Minister of Health, in performing their monitoring functions, consult as appropriate with the Minister responsible for the status of persons with disabilities.

Eligibility

Q 3 What are the current eligibility criteria for MAID?

Under the current Criminal Code eligibility criteria, persons who seek to obtain MAID must satisfy all of the following eligibility criteria (subsections 241.2(1) and (2) of the Criminal Code):
- be 18 years of age or older;
- be capable of making decisions with respect to their health;
- be eligible for government-funded health services;
- make a voluntary request that does not result from external pressure;
- give informed consent after having been informed of all available means to relieve their suffering, including palliative care; and,
- have a “grievous and irremediable medical condition”, defined as:
  1. having a serious and incurable illness, disease or disability;
  2. being in an advanced state of irreversible decline in capability;
  3. experiencing enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions that the person considers acceptable; and,
  4. their natural death has become reasonably foreseeable, taking into account all of their medical circumstances.

Q 4 What type of medical conditions could be found eligible for MAID without the reasonably foreseeable natural death (RFND) criterion?

Without the RFND criterion, individuals with a wide range of medical conditions could be found eligible for MAID under the remaining elements of the requirement to have a “grievous and irremediable medical condition”:
1. having a serious and incurable illness, disease or disability;
2. being in an advanced state of irreversible decline in capability; and,
3. experiencing enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable.
Although the removal of RFND would have the effect of rendering some persons whose sole medical condition is a mental illness eligible for MAID, Bill C-7 proposes to specifically make them ineligible for MAID (see question 4).
The broadened MAID eligibility criteria, without RFND, could include conditions producing chronic pain or other symptoms, degenerative conditions, static disabilities and intellectual disabilities. Some examples could include spinal muscular atrophy, spinal cord injuries, and multiple sclerosis, but eligibility would always depend on the entirety of a person’s medical circumstances, and the presence of all of the eligibility requirements, including informed consent and decision-making capacity.

Q 5 Why does the Bill propose to exclude persons whose sole underlying medical condition is a mental illness?

Although the removal of RFND would have the effect of rendering some persons whose sole medical condition is a mental illness eligible for MAID, Bill C-7 proposes to specifically make them ineligible for MAID.
This exclusion would reflect the increased complexities and risks around the provision of MAID to persons suffering from a mental illness only, which include the fact that the trajectory of mental illnesses is generally harder to predict than those of physical diseases, and that a desire to die can be a symptom of some mental illnesses.
These challenges were noted by the Council of Canadian Academies, which produced a report on this issue in 2018, and by the public and stakeholder consultation on MAID, which took place in early 2020.
The Government understands that the suffering associated with mental illness can be just as intolerable as the suffering associated with other types of medical conditions, but believes that the unique considerations for MAID in this kind of situation require further discussion and public debate. The parliamentary review that is required by former Bill C-14 is the appropriate forum for further deliberation on this issue.
Persons with both a mental illness and a physical condition would be eligible for MAID, as long as they meet all the other eligibility criteria, including having decision-making capacity.

Q 6 What is the meaning of “mental illness” for the purposes of eligibility under Bill C-7?

There is no clear definition of mental illness in the medical context. However, for the purposes of MAID, this term has come to be understood as generally referring to those conditions which are primarily treated by psychiatrists or psychologists, and which raise specific types of concerns when it comes to eligibility for MAID (such as illness trajectories being difficult to predict, and the wish to die being a symptom of some mental illnesses).
In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry (such as neurology for neurodegenerative or neurodevelopmental conditions) or specialties outside of medicine (such as education specialists for intellectual disabilities).

Safeguards

Q 7 What are the current safeguards in the MAID regime?

Under the current Criminal Code provisions, before a physician or nurse practitioner can provide MAID to a person, the following safeguards must be met (subsection 241.2(3) of the Criminal Code):
- Witness requirement: After being informed that they have a grievous and irremediable medical condition, the patient must sign and date a written request that must also be witnessed and signed by two independent witnesses;
- Two assessments: Two independent medical and/or nurse practitioners must confirm all eligibility criteria;
- Possibility to withdraw consent: The person must be informed that they can withdraw their request at any time, by any means;
- Reflection period: A mandatory 10-day reflection period must elapse between the signature of the request and the provision of MAID, unless death or loss of capacity is imminent; and,
- Final consent: Immediately before MAID is provided, the person must be given the opportunity to withdraw their consent, and must confirm consent to receive MAID.

Q 8 Bill C-7 proposes to create two sets of safeguards and to keep “reasonably foreseeable natural death” (RFND) as a condition that determines which set of safeguards would apply. What would it mean in the context of Bill C-7?

The “reasonable foreseeability of natural death” (RFND) criterion would no longer apply as an eligibility criterion that could have the effect of excluding persons from the MAID regime. However, it would be used to determine which set of safeguards apply to a particular MAID request.
RFND requires a temporal, but flexible, connection between the person’s overall medical circumstances and their anticipated death. Individuals may decline toward death along trajectories of greater or lesser predictability. As such, RFND is not defined by a specific prognosis, but it does require a temporal link to death in the sense that the person is approaching the end of their life in the near term.
As was the case since MAID was enacted in 2016, RFND would be assessed on a case-by-case basis, in relation to the specific person who is seeking MAID, and must consider the whole of their individual and unique medical circumstances.

Q 9 Would a person diagnosed with a fatal disease whose death is expected several or more years in the future meet the requirement that “natural death has become reasonably foreseeable”?

The reasonable foreseeability of natural death, or “RFND”, criterion was enacted in 2016 to create an end of life MAID regime. This means that a temporal connection to death was intended and required, and indeed the Legislative Background document to former Bill C-14 states that RFND requires a temporal, but flexible, connection to death. It is quite clear that RFND does not require a specific prognosis, nor is it only satisfied if death is imminent. A reasonably foreseeable natural death means that death is not too remote, and can be anticipated in the near term for that person, in light of the totality of their individual medical circumstances.
In 2016, Parliament considered legislating a fixed timeline of six or 12 months, but decided against it to preserve flexibility in the inherently difficult and imprecise task of establishing a prognosis, and in light of the variations in trajectories toward death of different types of diseases. Nonetheless, it is quite clear that a timeline of six to 12 months to anticipated death was understood, and still is, as meeting the RFND standard. It is also quite likely that the RFND standard can be met on longer timelines, such as 18 and possibly 24 months, or even longer in exceptional cases, if a practitioner is comfortable foreseeing that specific person’s death on such timelines. But beyond these timelines, the death of a specific individual is likely too remote to be foreseeable.

Q 10 What is the first set of safeguards and who would it apply to?

The first set of safeguards would continue to be tailored to persons whose natural death is reasonably foreseeable (RFND), where risks are reduced given the overall proximity of death and the fact that the suffering is most likely linked to the dying process itself. It would include all current safeguards (written request, two eligibility assessments by independent practitioners, etc.), with two modifications.
First, the requirement that the signed and dated MAID request be witnessed by two independent witnesses would be changed so that only one is needed, and individuals who provide either health or personal care to the person requesting MAID, and who are paid to provide such care, would be allowed to act as independent witnesses.
The second modification would repeal the 10-day mandatory reflection period.
The proposed changes aim to respond to concerns raised by health professionals and other stakeholders to the effect that: finding two independent witnesses is a challenge for many patients, thus posing an access barrier; and the 10-day reflection period is unnecessary, as persons who request MAID often do so after careful consideration, and prolongs patient suffering unduly.

Q 11 What is the second set of safeguards and who would it apply to?

The second set of safeguards would be tailored to persons whose deaths are not reasonably foreseeable, and would therefore reflect the more serious consequences of error in these cases and aim to address the diverse sources of suffering and vulnerability that could potentially lead a person who is not nearing death to ask for MAID.
In addition to existing safeguards and the proposed changes to the independent witness requirement (as for the first set of safeguards), the following new and clarified safeguards would apply:
1. New: minimum 90-day assessment period, which could be shortened if both practitioners agree that loss of capacity is imminent and are able to complete the assessments in a shorter period of time;
2. New: one of the two practitioners undertaking the mandatory eligibility assessments must consult with a practitioner who has expertise in the condition that is causing the person’s suffering, if neither of the assessing practitioners has such expertise (as amended by the House of Commons Standing Committee on Justice and Human Rights);
Two clarifications of informed consent: (1) the person requesting MAID must be informed of and offered counselling, mental health supports, disability supports and palliative care as available and applicable; and (2) the practitioners must agree that they and the patient have discussed and appropriately considered reasonable means of alleviating their suffering.

Q 12 Why does the Bill propose a 90-day assessment period for those whose death is not reasonably foreseeable?

Assessments of MAID requests by those whose death is not reasonably foreseeable can be more challenging and raise additional concerns, such as whether the suffering is caused by factors other than the medical condition and whether there could be ways of addressing the person’s suffering other than through MAID.
An “assessment period” is different than a “reflection period”. A minimum assessment period dictates how long the practitioners must take to review a patient’s MAID request and assess whether all eligibility criteria have been met. A reflection period, on the other hand, specifies a minimum amount of time that must pass after a request has been approved, before MAID can be provided, and aims to give the person time to reflect on their decision before they proceed.
The proposed requirement for a minimum 90-day assessment period would seek to ensure that enough time and expertise are devoted to exploring all of the relevant aspects of the person’s situation, including whether there are treatments or services that could help reduce the person’s suffering. Bill C-7 would not require persons seeking access to MAID to undertake treatments that would be unacceptable to them during this assessment period.

Q 13 Why does the Bill require that one of the practitioners assessing eligibility consult with a practitioner who has expertise in the condition that causes the person’s suffering, if neither of the assessing practitioners has that expertise?

Many experts believe that allowing MAID to be provided to people who are not approaching death in the near term raises various types of risk, and involves more serious consequences if errors are made, as compared to people who are dying.
The new and clarified safeguards for people whose death is not reasonably foreseeable are specifically designed to support fully informed decision-making while respecting individual autonomy.
Involving a practitioner with expertise in the condition that is causing the person’s suffering would help to ensure that all treatment options have been identified and considered, while at the same time avoiding the need for specialist involvement, which could pose a barrier in remote or rural areas where specialists may be in short supply.
The amendments would not require that the practitioner with expertise be certified as an “expert” or a “specialist” by a specific board; they would only require them to have experience with the condition, which is expected to facilitate access from a patient’s perspective.
As introduced, Bill C-7 would have required that one of the two assessing practitioners have expertise in the condition that causes the person’s suffering. Witnesses who appeared before the House of Commons Standing Committee on Justice and Human Rights indicated that experts are willing to provide views within their areas of expertise when consulted, but rarely carry out full MAID assessments. An amendment was adopted at Committee to require that one of the assessing practitioners consult a practitioner with expertise, and share the result of that consultation with the other assessing practitioner, if neither of them has the required expertise.

Q 14 Why does the Bill require that the patient and practitioners agree that reasonable means to alleviate suffering have been seriously considered?

This safeguard would require the practitioner to explore reasonable treatment options and other means of relieving suffering with the patient, and be satisfied that the patient has fully considered and weighed the risks and benefits of available treatment options.
This safeguard would not require that the person undertake treatments that may be unacceptable to them, for any reason. A person could obtain MAID after declining to pursue means to relieve their suffering if they have discussed them with the practitioner and have seriously considered them.
This proposed safeguard would be different than the requirement in the Netherlands and Belgium that the patient and practitioner agree that there is “no hope for improvement” or that the “suffering cannot be alleviated.” Practitioners in these countries cannot provide MAID if they believe that there are reasonable means of alleviating suffering that the patient has not tried. These are sometimes called a “MAID as a last resort” requirement.

Q 15 Why does the Bill propose a requirement that the patient be informed of counselling, mental health, disability and community supports before MAID can be provided to a person who is not dying?

This proposed safeguard would expressly require that the person be informed of available counselling services, mental health and disability support services, community services and palliative care, as appropriate to the individual’s situation, and be offered consultation with relevant professionals.
We are confident that most practitioners, as part of good medical practice, fully explore appropriate supports and available treatments in discussions with their patients.
This safeguard would reinforce the importance of these discussions and support the requirement that reasonable means to alleviate suffering have been seriously considered by ensuring that the person requesting MAID is fully aware of the options and treatments available to them.

Waiver of final consent

Q 16 What type of waiver of final consent for MAID does the Bill propose to permit?

The Criminal Code would be amended to permit the provision of MAID without the requirement of “final consent” (waiver) where:
- A person’s death is reasonably foreseeable;
- They were found eligible for MAID and all safeguards, other than final consent, were met;
- They were at risk of losing decision-making capacity before their preferred date to receive MAID; and
- They had a written arrangement with their practitioner in which they provided their consent in advance, and according to which, the practitioner would provide MAID on their preferred date (or earlier if the agreement so provided) if they lost the capacity to provide the final consent.
However, practitioners would not be allowed to provide MAID in cases where the person demonstrates, by words, sounds or gestures, refusal or resistance to the provision of MAID. The Bill specifically provides that reflexes or involuntary responses, such as flinching when being touched, would not be considered an indication of refusal or resistance.

Q 17 Why does the Bill require that the person requesting MAID and their practitioner agree on a date for the provision of MAID?

The requirement for final (contemporaneous) consent is a very important safeguard to apply in all cases except where it would not be fair to the patient. Permitting waiver of final consent aims to address the unfairness that arises where a person is at risk of losing capacity to consent between the day when they are approved for MAID and the day when they would like to receive it. It would protect such a person’s ability to obtain MAID on their preferred date, if they risk losing capacity earlier.
Setting a date for the provision of MAID ensures that waiver of the important safeguard of contemporaneous consent is limited to persons who are eligible, ready to receive the procedure, but are awaiting their chosen date. It also ensures that they receive MAID according to their wishes, including as to timing. Without this requirement, it would fall to other people to determine when and under what conditions MAID should be provided, which may not be consistent with the person’s wishes.
Providing MAID to a person who is not capable of giving consent, or not capable of withdrawing consent that they previously gave, can create additional burdens for MAID providers, families and others.
Persons whose death is reasonably foreseeable and who have been approved for MAID are unbearably suffering and will therefore have a good sense of when they want to receive MAID. Knowing the timing would in turn allow the practitioner to determine whether there is a risk of capacity loss before then and, therefore, a need for an arrangement waiving final consent.

Q 18 Would a substitute decision-maker be allowed to consent on behalf of the person requesting MAID?

MAID is about respecting individual autonomy. No one can consent to MAID on behalf of another person (whether consent is given in advance or at the time of the MAID procedure), only the person seeking access to MAID can consent it.
Bill C-7’s requirements for MAID to be provided where final consent has been waived are clear: in the written arrangement with the practitioner, the person who has requested MAID on their own behalf must give consent to receive MAID on a specific date, after loss of capacity.
This means that it would continue to be criminally prohibited for a practitioner to administer MAID to any person on the basis of a consent given by any other person.

Q 19 Why does Bill C-7 not propose to allow MAID by “advance requests” following the diagnosis of a capacity-limiting condition?

“Advance requests” refer to a situation where a person with decision-making capacity writes a document setting out that they would want to receive MAID in the future, if they lose decision-making capacity and if specific circumstances arise that they expect would cause them unbearable suffering. This is a request made “in advance” of when they want to receive MAID. For example, after receiving a diagnosis for a capacity-limiting medical condition like Alzheimer’s disease, a person might want to prepare an advance request in anticipation of future suffering.
As noted in the Council of Canadian Academies expert panel report on advance requests, there are many more complexities with advance requests created when the person is diagnosed with a serious condition, but has not yet been found eligible for MAID (i.e., a request prepared long in advance of when MAID would actually be desired and provided).
The overwhelming majority of experts, practitioners and stakeholders consulted on this specific issue earlier this year recommended that this type of broad advance requests be studied further as part of the parliamentary review of the MAID regime that is required by former Bill C-14.

Q 20 How do the Criminal Code amendments proposed in this Bill align with the process on advance requests undertaken by the province of Québec?

Quebec’s Expert Group on Incapacity and Medical Aid in Dying (final report released in November 2019) recommended permitting MAID on the basis of consent given in advance when someone is at the end of life, has been approved for MAID, and loses decision-making capacity before MAID is provided. This is consistent with the amendments proposed in Bill C-7.
It also recommended permitting MAID by advance requests, something that is not included in Bill C-7.
The Government of Quebec indicated its intention to launch public consultations in this regard following the release of the Expert Group’s report in November 2019 and held a national forum on MAID in the context of incapacity in January 2020.

Q 21 Why is the Bill proposing to allow advance consent to MAID administration by a practitioner in cases of failed self-administration?

Under the existing legislation, a practitioner must seek the patient’s express consent immediately prior to administering MAID.
During self-administration, in the unlikely event that the drugs fail to work properly and the patient does not die but is unconscious, a practitioner cannot obtain consent to complete the process. This could result in a prolonged death for the patient or criminal liability for the practitioner. The Canadian Association of MAID Assessors and Providers (CAMAP) flagged the need for clarification of this issue.
The patient and the practitioner must agree in advance that the practitioner will be present at the time of self-administration, and will complete the process if the person experiences complications.
In these particular cases, there can be a very high degree of confidence that the patient was clear in their intent to cause their own death. Completing the process of the administration of MAID is a compassionate action that can be taken to respect the patient’s choice, as to ease any additional distress of those who may be present with the patient.

Monitoring Regime

Q 22 What improvements does Bill C-7 propose to federal data collection on MAID?

The Regulations for the Monitoring of MAID came into force in November 2018, and set out the framework for mandatory reporting by all physicians, nurse practitioners and pharmacists who participate in MAID. The new federal monitoring regime provides the only consistent and comparable national data set on MAID and will serve to demonstrate accountability and transparency around the law and its implementation in Canada.
The data collected will provide Canadians with information about who is requesting MAID, their underlying medical conditions, the availability of palliative care and disability support services, and the nature of the patient’s suffering. The first report under the permanent monitoring regime was published by Health Canada in July 2020.
Bill C-7 proposes amendments to enable gathering data from medical and nurse practitioners who assess eligibility before receiving a written request, from persons who are responsible for preliminary assessments of eligibility, and from pharmacy technicians who dispense MAID substances to aid medical or nurse practitioners in the provision of MAID. This information cannot be collected under the existing law, and would provide a more complete picture of MAID in Canada, including on reasons why persons are found ineligible.
Following an amendment by the House of Commons Standing Committee on Justice and Human Rights, Bill C-7 would also require that the Minister of Health, in performing their monitoring functions, consult as appropriate with the Minister responsible for the status of persons with disabilities.

Charter Compliance

Q 23 Does this Bill comply with the Canadian Charter of Rights and Freedoms?

Under s. 4.1 of the Department of Justice Act, I am required to examine every government bill for consistency in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons. I reviewed Bill C-7 and identified no inconsistencies with the Charter.
Some of the key considerations that informed the review of Bill C-7 are set out in the Charter Statement, which was tabled in Parliament on October 21^st, 2020 in accordance with s. 4.2 of the Department of Justice Act. The Charter Statement outlines the potential effects that Bill C-7 may have on Charter rights as well as the considerations that support its consistency with the Charter. This includes considerations relevant to the specific rights that may be engaged, and to a potential section 1 justification.
The exclusion of persons whose sole medical condition is a mental illness could engage their section 7 (liberty and security) rights. It also engages section 15 because the exclusion from MAID eligibility applies to individuals who suffer from a mental illness. Although the exclusion amounts to a distinction based on mental disability, the Government’s position is that the exclusion is consistent with the Charter because it is protective, instead of harmful, for persons suffering solely from mental illness. (See Question 24)
The repeal of the reasonably foreseeable natural death criterion could impact the section 7 and 15 rights of persons with disabilities. A number of considerations support the consistency of this aspect of the Bill with the Charter. Crucially, individuals would continue to be eligible for MAID only if they have made a voluntary request that was not the result of external pressure, and would still have to give informed consent after having been informed of the means available to relieve their suffering.

Q 24 Could the Bill potentially engage the Charter rights and freedoms of persons whose only medical condition is a mental illness, given their exclusion from the MAID regime?

Bill C-7 would potentially engage the rights to liberty and security (section 7), and engages the equality rights (section 15) of individuals whose sole medical condition is a mental illness. The following considerations support the consistency of this proposal with the Charter.
The proposed exclusion is crafted narrowly and would apply only to conditions that are primarily within the domain of psychiatry. Individuals would not be excluded if, in addition to a mental illness, they also have a physical medical condition and they otherwise meet all eligibility criteria.
The exclusion is based on the inherent risks and complexity that MAID would present for these cases, which include challenges in assessing decision-making capacity and predicting the trajectory of mental illness.
There is evidence that screening for decision-making capacity is difficult in relation to persons who suffer from a mental illness since hopelessness, feelings of worthlessness, and the wish to die are symptoms of some mental illnesses.
There is also evidence that the trajectory of a mental illness is generally difficult to predict. Although some will not improve in terms of their suffering and associated wish to die, others will, and there is no reliable way of knowing which patients will not improve.
Experience in the few countries that permit MAID for people whose sole condition is a mental illness (in Belgium, the Netherlands and Luxembourg) has also raised concerns, both in terms of the increasing numbers of these cases and the wide range of mental illnesses in respect of which MAID has been provided.
Based on the evidence available at this time, it is not clear that the inherent risks associated with this practice can be adequately mitigated.

Conscience Rights

Q 25 How does the Bill address conscience rights of health care providers?

The Government is committed to respecting the personal convictions of health care providers. Nothing in the existing federal law or Bill C-7 would compel a health care provider to provide or assist in the provision of medical assistance in dying. This is already stated expressly under subsection 241.2(9) of the Criminal Code.
The delivery of health care and the regulation of medical professionals fall within the jurisdiction of the provinces and territories. No province or territory currently compels practitioners to provide MAID. However, provinces and territories could adopt policies requiring “effective referrals,” which in the MAID context means referring the person, in good faith, to a practitioner who does not object to MAID.
A provincial or territorial law or regulation that affects the conscience rights of providers can be challenged under the Charter, as was the effective referral policy of the College of Physicians and Surgeons of Ontario in 2018-2019, which applies to MAID. The Ontario Court of Appeal agreed that Ontario’s effective referral policy infringes on practitioners’ Charter-protected freedom of religion, but upheld the policy as a reasonable limit of religious freedom.

Provincial jurisdiction

Q 26 How does the Criminal Code MAID regime interact with provincial legislation and jurisdiction?

Parliament has exclusive jurisdiction over the criminal law, including exemptions to criminal offences. As MAID involves actions that are otherwise criminally prohibited (namely murder and aiding a person to die by suicide), the federal MAID regime in the Criminal Code sets out who is eligible to receive medical assistance in dying, and what safeguards must be followed for medical and nurse practitioners to be exempted from criminal responsibility.
Provinces and territories have jurisdiction over the delivery of health care and the regulation of medical professionals. They can legislate with respect to aspects under their jurisdiction, such as requiring specific forms to be used, specifying how the cause of death should be recorded, setting up mechanisms to review cases to ensure all legal rules were followed, and adding safeguards to be followed. For example, a province could require a psychosocial assessments for requests by persons whose death is not reasonably foreseeable.
However, provinces and territories, and the professional regulatory bodies created by their legislatures, cannot permit what is prohibited under the criminal law.
At the moment, only Quebec has comprehensive legislation in place that addresses how MAID must be provided and that establishes a dedicated oversight body.

Q 27 Is the pandemic having an impact on the provision of MAID?

The COVID-19 pandemic has resulted in increased pressures and demands on healthcare systems across Canada. As a result, some health authorities temporarily suspended MAID programs during the pandemic (e.g., health networks in Hamilton and Ottawa). Others are encouraging the assessment and witnessing of MAID requests by virtual means, where appropriate, to comply with physical distancing requirements (e.g., British Columbia and Nova Scotia).

International Regimes

Q 28 How would Canada compare to other countries with the MAID regime proposed in this Bill?

Most jurisdictions that have legislated to permit MAID have adopted end of life regimes, limiting eligibility to a six- or 12-month prognosis or a terminal illness. This is the case for all nine US States that have a MAID law, for Colombia, for New Zealand and the Australian states of Victoria and Western Australia (which have enacted laws very recently).
With the removal of the end of life limit, Canada’s MAID regime would become comparable to that of Belgium, the Netherlands and Luxembourg (the “Benelux” countries), which permit MAID on the basis of suffering that cannot be relieved, regardless of proximity to death.
There would also be some differences. The Canadian MAID regime would be narrower than the Benelux countries by requiring an advanced state of irreversible decline in capability, which is not required in the Benelux laws. It would also be broader than the Benelux laws by requiring the person to seriously consider other means of relieving their suffering; the Benelux countries require the patient to try reasonable treatment options and to actually be left with no hope of improvement.
Bill C-7 would make Canada the fifth country to allow MAID by advance consent. Belgium and Luxembourg require the person to be irreversibly unconscious, while the Netherlands requires the person to be conscious. Colombia allows the terminally ill to receive MAID after loss of capacity, but there is very little available information on MAID in this country.

Preamble

Q 29 What is meant by the phrase “human rights-based approach to disability inclusion” in the preamble?

The preamble’s reference to taking a “human rights-based approach to disability inclusion” is based on the United Nations Convention on the Rights of Persons with Disabilities and the United Nations Disability Inclusion Strategy. The human-rights based approach to disability inclusion affirms that persons with disabilities have the right to participate fully and effectively in decisions that affect their lives, which is critical to the removal of systemic barriers to their full inclusion and participation in society.
Unlike approaches that view disability as a form of individual pathology, a human rights approach views disability as “normal” variations in the human condition. On this approach, disabling experiences are the result of social and environmental conditions that fail to include these inherent variations. A human rights-based approach insists that people with disabilities, like all others, are entitled to enjoy all human rights. As a result, governments must take measures to create inclusive societies in which people with disabilities are welcomed, accommodated, and enabled to live as full citizens. The Bill’s preamble affirms that this Government views disability under the lens of the human rights-based approach. This affirmation is important in the context of legislation that affects persons living with disabilities.

Q 30 Why does the preamble mention suicide as an important public health issue, since MAID is different from suicide?

The word suicide is defined as meaning the act of voluntarily and intentionally ending one’s own life. Under social, public and mental health perspectives, there are important differences of opinion about the relationship between suicide and medical assistance in dying. Some experts are of the view that suicide and medical assistance in dying can be effectively distinguished: suicide is seen as exclusively concerned with pathological behaviour caused by mental illness, while medical assistance in dying is seen as a rational wish to die in light of the person’s intolerable medical suffering. Other experts believe that there is no valid way to distinguish between the two, particularly where MAID is sought to relieve suffering that is not connected to the dying process.
As a matter of criminal law, medical assistance in dying and suicide are directly related. The criminal offence of aiding a person to die by suicide (section 241(1)(b)) prohibits one person providing another person with the means to end their own life. This is what medical and nurse practitioners do when they prescribe a substance for self-administration. Where a person wants a practitioner to administer the substance to cause their death, they are voluntarily asking the practitioner to cause their death. This is also prohibited despite the person’s request and consent. The federal medical assistance in dying regime operates by exempting medical and nurse practitioners from criminal liability for these offences that prevent Canadians in all other circumstances from helping another person to end their life.

Coming into Force

Q 31 When will the changes proposed in this Bill come into force?

The changes to the Criminal Code set out in this Bill would come into force on Royal Assent. People who have signed their written request for MAID when the new law comes into force can obtain MAID without having to satisfy any additional safeguards. They will not need to go through the ten-day reflection period, and they will be able to prepare an advance consent arrangement if they are at risk of losing their capacity to give consent before their preferred date to receive MAID.

Extension in Truchon

Q 32 What is the significance of the February 26, 2021 deadline?

In its Truchon ruling, the Superior Court of Québec had suspended the effect of the declaration of invalidity of the RFND criterion contained in the federal MAID law until March 11, 2020.
On March 2, 2020, the Attorney of Canada’s request for a 4-month extension of the ruling was granted by the same court. This extension was requested to give Parliament more time to assess and enact the legislative response to the Truchon ruling at the federal level.
In light of the disruptions of parliamentary activities due to the COVID-19 pandemic, the Superior Court of Québec granted the Attorney General of Canada’s requests for a second extension until December 18, 2020, and more recently, a third extension until February 26, 2021.
Should Bill C-7 not be enacted by February 26, 2021, the “reasonable foreseeability of natural death” criterion from the current federal law would no longer be applicable in the province of Quebec. It would however remain in effect in other provinces and territories.
Until Bill C-7 is enacted, as long as the Truchon ruling is suspended, patients in Québec whose natural deaths are not reasonably foreseeable can apply to the Superior Court of Québec for an exemption.

Q 33 What is the impact of the pandemic on the February 26, 2021 deadline?

The ongoing pandemic and related physical distancing requirements have considerably impacted Parliamentary activities. In response to the pandemic, on March 13^th, the House of Commons adjourned most of its routine proceedings so that it could focus on the COVID-19 pandemic.
As a result, bills that were before Parliament during the spring of the previous parliamentary session, including former Bill C-7, did not advance through the legislative process.
On August 18, 2020, Parliament was prorogued, and bills that had not yet received Royal Assent—including former Bill C-7—expired on the Order Paper. A new parliamentary session began on September 23, 2020, and Bill C-7, which is identical to former Bill C-7, was reintroduced in this new parliamentary session.
In addition to any Bills from the previous session that have been reintroduced, Parliament will also have to consider important legislative measures in response to the COVID-19 pandemic. This will likely place additional pressures on limited parliamentary time. Our Government remains committed to meeting the February 26, 2021 deadline.

Parliamentary Review

Q 34 What will be the focus of the five-year parliamentary review of the MAID law?

Section 10 of former Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), requires that a parliamentary review of the federal MAID law and the state of palliative care in Canada be referred to one or more Committees of Parliament at the start of the 5th year after the law comes into effect. The mandate and timeframes for the review will be determined in Parliament.
All aspects of the current MAID law and how it is being implemented, and the state of palliative care in Canada, will be subject to the review. The following additional issues will also likely be considered: advance requests for MAID, mental illness as the sole underlying medical condition and mature minors.
The parliamentary review was expected to start in June 2020 (as noted in the Preamble and which was not altered with the re-introduction of the Bill). The COVID-19 pandemic has led to unprecedented challenges, including the disruption of the current Parliamentary session. These disruptions have unfortunately delayed the parliamentary review process.

Date modified:: 2021-08-09