Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C‑14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)1 was introduced in the House of Commons on 14 April 2016 by the Honourable Jody Wilson-Raybould, Minister of Justice. It passed second reading on 4 May and was referred to the House of Commons Standing Committee on Justice and Human Rights. The committee reported the bill back with amendments on 12 May, and the bill was passed by the House of Commons on 31 May.
The bill received first reading in the Senate the same day and was referred to the Standing Senate Committee on Legal and Constitutional Affairs on 3 June 2016. That committee had done a subject matter study of the bill in May 2016. The committee reported the bill back without amendments on 7 June. The bill was amended in the Senate and was passed on 15 June, and a message was sent to the House of Commons.
The House of Commons considered the Senate amendments and sent a message back to the Senate on 16 June agreeing with some of the amendments, modifying some, and disagreeing with others. The Senate concurred with the House of Commons amendments on 17 June 2016, and the bill received Royal Assent that same day.
The bill sets out the requirements for the provision of medical assistance in dying (MAID) and establishes exemptions to various Criminal Code2 offences for physicians, nurse practitioners, pharmacists and certain other persons who provide or assist in the provision of MAID.
The bill was developed in response to the Supreme Court of Canada’s unanimous decision in Carter v. Canada (Attorney General) 3 (the Carter decision), in which the Court declared that sections 241(b) and 14 of the Criminal Code,4 which prohibit assistance in terminating life, infringe upon the right to life, liberty and security of the person for individuals who want access to MAID.
To give governments time to respond with legislative changes, the Court suspended its 6 February 2015 declaration so that it would not come into effect for 12 months.5 On 15 January 2016, the Supreme Court of Canada granted a motion to extend the suspension of its declaration of invalidity for four additional months. The declaration of invalidity was therefore to come into effect on 6 June 2016.6
The issue of MAID (see discussion of terminology below) has been debated in Canada for decades. Before the release of the Carter decision, the issue was addressed in:
And as Carter was making its way through the courts, Quebec’s legislature and government were engaged in detailed study of end-of-life care, including consideration of whether to legalize MAID, which culminated in the introduction of the Act respecting end-of-life care in 2014.10
In response to the Carter decision, the federal government established the External Panel on Options for a Legislative Response to Carter v. Canada (the External Panel) in the summer of 2015, which provided a report in December 2015 summarizing the consultations it held on the issue.
A Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying (the P-T Advisory Group) was established in August 2015 and also reported in December 2015, making a number of recommendations relating to MAID.
Finally, in December 2015, a Special Joint Committee on Physician-Assisted Dying (Special Joint Committee) was established by motions in the House of Commons and in the Senate.11 That committee tabled its report on 25 February 2016.
Quebec’s Act respecting end-of-life care, the Carter decision, the External Panel report, the P-T Advisory Group report and the Special Joint Committee report are summarized briefly below, following an explanation of terminology used with respect to MAID.
A number of terms are used in relation to a patient’s express wish to end his or her life. The terms “physician-assisted dying” and “physician-assisted death” were used in the Carter decision and were subsequently used by the External Panel and the P-T Advisory Group. At the trial level in Carter, the plaintiffs submitted that physician-assisted death includes both “physician-assisted suicide,” which they defined as
an assisted suicide where assistance to obtain or administer medication or other treatment that intentionally brings about the patient’s own death is provided by a medical practitioner … or by a person acting under the general supervision of a medical practitioner, to a grievously and irremediably ill patient in the context of a patient-physician relationship12
and “consensual physician-assisted death,” which they defined as
the administration of medication or other treatment that intentionally brings about a patient’s death by the act of a medical practitioner … or by the act of a person acting under the general supervision of a medical practitioner, at the request of a grievously and irremediably ill patient in the context of a patient-physician relationship.13
In addition to “assisted suicide,” the term “euthanasia” is often used in relation to persons who wish to end their lives. There are different forms of euthanasia:
“Euthanasia” as it is used in discussions relating to MAID is normally understood to refer to “voluntary euthanasia” only. In Quebec’s Act respecting end-of-life care, the term used is “medical aid in dying,” which is defined as “care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.” 15 This definition means that voluntary euthanasia, but not assisted suicide, is permitted under its law.
The adoption of the term “medical assistance in dying” was recommended for use in legislation by the Special Joint Committee:
The Committee prefers the term “medical assistance in dying” to “physician-assisted dying,” as it reflects the reality that health care teams, consisting of nurses, pharmacists, and other health care professionals, are also involved in the process of assisted dying.16
The introduction in the Quebec legislature of Bill 52, An Act respecting end-of-life care, on 12 June 2013, followed an examination of the issue of MAID by the legislature and the provincial government lasting several years. The Act, which received Royal Assent on 5 June 2014, establishes, among other things,
In 2012, Gloria Taylor, who had had amyotrophic lateral sclerosis (ALS), and the British Columbia Civil Liberties Association challenged the laws prohibiting assisted dying in the courts. They were joined by William Shoichet, a physician willing to provide MAID if it were no longer prohibited by law, as well as by Lee Carter and Hollis Johnson, who had travelled with Ms. Carter’s mother, Kay (who had spinal stenosis), to an assisted suicide clinic in Switzerland where she ended her life.
The trial judge found that the relevant Criminal Code provisions (primarily section 241(b) and related sections 14, 21, 22 and 222) violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 of the Charter states that:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The British Columbia Court of Appeal overturned the trial decision on 10 October 2013 in a 2‑to‑1 decision.17 This decision was appealed, and on 6 February 2015 the Supreme Court of Canada concluded that sections 14 and 241(b), which prohibit the provision of assistance in terminating life, violated section 7 of the Charter, and declared that those sections
are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.18
As noted above, the Supreme Court of Canada initially suspended the declaration of invalidity for one year, and then for an additional four months, in response to an application made by the Attorney General of Canada. When the extension of the suspension of the declaration of invalidity was granted in January 2016, certain sections of Quebec’s Act respecting end-of-life care were exempted, meaning that those provisions were not prevented from taking effect. In addition, when the Court granted the extension of the suspension, it nevertheless allowed a limited form of access to MAID:
We would … grant the request for an exemption so that those who wish to seek assistance from a physician in accordance with the criteria set out in para. 127 of our reasons in Carter, may apply to the superior court of their jurisdiction for relief during the extended period of suspension. Requiring judicial authorization during that interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.19
On 17 July 2015, the federal government established the External Panel, which was mandated to carry out consultations and make recommendations for a legislative response to Carter. After the federal election in October, the External Panel’s deadline to report was extended by the federal Minister of Justice and the federal Minister of Health on the grounds of “limitations posed by the … election period,” 20 and the Panel’s mandate was modified to enable them to meet the new deadline. Instead of providing legislative options, the External Panel was asked to provide a summary of its key findings.
In its report, the External Panel summarized consultations relating to the following issues:
In August 2015, the P-T Advisory Group was established. Quebec did not participate, and British Columbia had observer status. The P-T Advisory Group’s report, released in December 2015, contained 43 recommendations, most of which related to aspects of MAID that would likely fall within provincial jurisdiction. The P-T Advisory Group’s key recommendations included:
On 11 December 2015, motions were passed in the House of Commons and the Senate to establish the Special Joint Committee
to review the report of the External Panel on Options for a Legislative Response to Carter v. Canada and other recent relevant consultation activities and studies, to consult with Canadians, experts and stakeholders, and make recommendations on the framework of a federal response on physician-assisted dying that respects the Constitution, the [Canadian] Charter of Rights and Freedoms, and the priorities of Canadians.23
The motions directed the committee “to consult broadly, take into consideration consultations that have been undertaken on this issue, examine relevant research studies and literature and review models being used or developed in other jurisdictions.” 24 The Special Joint Committee was required to report back to Parliament by 26 February 2016. The committee was made up of five senators and 10 MPs.
It held meetings in January and February 2016, and issued its final report, Medical Assistance in Dying: A Patient-Centred Approach, on 25 February 2016.25 The report adopted by the majority contained 21 recommendations comprising a legislative approach to be adopted by Parliament. Throughout the report and its recommendations, the Special Joint Committee emphasized the need for the federal government to work collaboratively with the provinces to ensure consistency among jurisdictions. Among other things, the Special Joint Committee recommended that:
Some of the Conservative MPs who participated in the Special Joint Committee presented a dissenting opinion, stating that:
The New Democrat members of the Special Joint Committee presented a supplementary opinion that emphasized the need:
For information on how the MAID regime established by Bill C‑14 compares with those of other jurisdictions that allow MAID, as well as on how Bill C‑14 compares with the recommendations made by the Special Joint Committee on Physician-Assisted Dying, see the appendix.
Rather than examining each provision, the description and analysis that follow focus on the substantive changes resulting from the bill.
The preamble to Bill C‑14 outlines various factors identified as striking “the most appropriate balance between autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other.”
The preamble also states that the government “has committed to develop non-legislative measures” to improve end-of-life care and to “explore other situations” in which medical assistance in dying may be sought, “namely situations giving rise to requests from mature minors,26 advance requests and requests where mental illness is the sole underlying mental condition.” It also states that the government will develop non-legislative measures “that would respect the personal convictions of health care providers.”27
The preamble was amended during the House of Commons Standing Committee on Justice and Human Rights’ consideration of the bill to include references to freedom of conscience and religion. A clause was also added committing the federal government to working with partners on palliative and end‑of‑life care, dementia care, and culturally and spiritually appropriate end‑of‑life care for Indigenous patients.
New section 241.1 of the Criminal Code includes a number of definitions that relate to the practice of MAID:
Previously, the Criminal Code made it an offence either to kill someone at that person’s request or to assist the person in committing suicide. Bill C‑14 amends section 241 of the Criminal Code and introduces a new section 227 to allow MAID (both voluntary euthanasia and assisted suicide) if a number of conditions, which are outlined below, are met.
New section 227 states that physicians and NPs do not commit culpable homicide if they provide MAID. In addition, the section provides that an individual who aids a physician or NP to provide MAID is not a party to culpable homicide. It also clarifies that section 14 of the Criminal Code, which makes it illegal to consent to one’s own death and clarifies that such consent does not affect the criminal responsibility of a person who inflicts death on another, does not apply with respect to MAID.
Amended section 241 outlines the exemptions from the offence of aiding a suicide and specifies those to whom the exemptions apply.
The exemptions from criminal liability for MAID apply to:
If a person has a reasonable but mistaken belief about any fact that is an element of the exemption, the exemptions from the offences of homicide or aiding a suicide are available (new section 227(3) and amended section 241(6)).
Clause 6 of the bill amends section 245 of the Criminal Code to exempt physicians, NPs and persons assisting them from the offence of administering a noxious thing or poison in relation to MAID.
New section 241.2(1) outlines the conditions required for an individual to be eligible for MAID. Five substantive criteria, all of which must be met for a patient to be eligible for MAID, relate to the individual’s circumstances:
A person is mentally competent or capable when they have the capacity to understand the nature and consequences of their actions and choices, including decisions related to medical care and treatments.28
Advanced state of irreversible decline in capability: When combined with the requirements that death be reasonably foreseeable and that the person be suffering intolerably, the requirement to be in an advanced state of irreversible decline ensures that medical assistance in dying would be available to those who are in an irreversible decline towards death, even if that death is not anticipated in the short term. This approach to eligibility gives individuals who are in decline toward death the autonomy to choose their preferred dying process.
Reasonably foreseeable death: In the context of medical assistance in dying, it means that there is a real possibility of the patient’s death within a period of time that is not too remote. In other words, the patient would need to experience a change in the state of their medical condition so that it has become fairly clear that they are on an irreversible path toward death, even if there is no clear or specific prognosis. Each person’s circumstances are unique, and life expectancy depends on the nature of the illness, and the impacts of other medical conditions or health-related factors such as age or frailty. Physicians and nurse practitioners have the necessary expertise to evaluate each person’s unique circumstances and can effectively judge when a person is on a trajectory toward death. While medical professionals do not need to be able to clearly predict exactly how or when a person will die, the person’s death would need to be foreseeable in the not too distant future.30
Informed consent is a medical term that means that a person has consented to a particular medical treatment after having been given all of the information they need to make that health care decision. Information that is necessary to be provided includes their diagnosis, their prognosis, available forms of treatment and the benefits and side-effects of those treatments. It also requires that the person be mentally competent or capable, i.e., that they be able to understand the relevant information and the consequences of their choices.31
The Senate amended the provision relating to informed consent to require that prior to consent being given, a palliative care consultation would have to occur and the patient would have to be informed of options that could relieve suffering.32 The House of Commons amended that amendment to require instead that patients first be informed of “the means that are available to relieve their suffering, including palliative care.”33
In addition to the substantive criteria noted above, Bill C‑14 specifies a number of procedural requirements to safeguard the MAID process. According to new sections 241.2(3) to 241.2(6), before the physician or NP provides MAID, he or she must:
The physician or NP must provide MAID with reasonable knowledge, care and skill and in accordance with applicable provincial laws, rules and standards (new section 241.2(7)). A physician or NP who prescribes or obtains a substance for use in MAID must also inform the pharmacist of the intended purpose before that pharmacist dispenses the substance (new section 241.2(8)).
Bill C‑14 introduces a number of new criminal offences that apply where there is a failure to comply with the procedural safeguards. New section 241.3 makes it an offence for a physician or NP to fail to comply with the safeguards in new sections 241.2(3)(b) to 241.2(3)(i) outlined above and to fail to inform the pharmacist of the intended purpose of the substance as outlined in new section 241.2(8). The House of Commons added a new section 241.2(9) to specify that section 241.2 does not compel an individual to provide or to assist in providing MAID.
New section 241.4 creates two new offences:
The new offences in sections 241.3 and 241.4 are hybrid offences that may be prosecuted by way of indictment with a maximum of five years’ imprisonment or as summary conviction offences with a maximum of 18 months’ imprisonment.
The federal Minister of Health is required by new section 241.31(3) to make regulations that the minister considers necessary relating to the provision, collection, use and disposal of information regarding requests and provision of MAID in order to monitor the practice, and may exempt certain classes of person from filing requirements. Guidelines relating to death certificates and MAID must also be established by the minister (new section 241.31(3.1)).
New section 241.31(1) requires physicians and NPs who receive a written request for MAID to provide information, as required by regulations, to the designated recipient unless they are exempted from doing so. Pharmacists must do the same where they dispense a substance for MAID (new section 241.31(2)).
Physicians, NPs and pharmacists who knowingly fail to comply with the filing requirements can be found guilty of a hybrid offence, as can anyone who knowingly contravenes the regulations (new sections 241.31(4) and 241.31(5)). Upon conviction, a person is liable to a maximum punishment of two years’ imprisonment on indictment or a maximum punishment of a $5,000 fine, or six months’ imprisonment, or both, upon summary conviction.36
The Pension Act provides for pensions for individuals who have become disabled or have died as a result of military service, and for their dependents.37 No pension is awarded where disability is a consequence of improper conduct. Clause 7 amends the definition of improper conduct to clarify that a wound resulting from MAID does not constitute improper conduct. It also clarifies that members of the Canadian Forces who receive MAID will be deemed to have died from the illness, disease or disability that made them eligible to receive such assistance.
The Canadian Forces Members and Veterans Re-establishment and Compensation Act provides a framework for various benefits and services to members of the Canadian Forces and veterans who have been injured or died as a result of their military service, and to their families. Clause 9 makes changes similar to those made to the Pension Act to this Act.
Section 19 of the Corrections and Conditional Release Act requires that when an inmate dies in federal custody the Correctional Service of Canada must investigate and report on the death to the Commissioner of Corrections or a designated person and provide a copy of the report to the Correctional Investigator (the ombudsman for federal offenders). Clause 8 of the bill removes the requirements for an investigation and report in the case of an inmate who receives MAID.
The House of Commons Standing Committee on Justice and Human Rights added a provision that requires an independent review of issues relating to MAID for mature minors, advance requests for MAID, and requests for MAID where mental illness is the sole underlying condition. The Senate added a further requirement that the report of any such review be laid before each House of Parliament within two years of the start of the review.
These three issues had been considered by the Special Joint Committee on Physician-Assisted Dying. To take measures for mature minors into account, the Special Joint Committee recommended a two-stage legislative approach. Individuals 18 years or older are immediately eligible for MAID in the first stage, with mature minors becoming eligible in the second stage, which comes into force within three years of the first stage. The Special Joint Committee also recommended that the government “immediately commit to facilitating a study of the moral, medical and legal issues surrounding the concept of ‘mature minor.’”38
With respect to advance requests for MAID, the Special Joint Committee recommended that they be allowed “any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable.”39
Finally, with respect to mental illness as the sole underlying condition, the Special Joint Committee stated:
The Committee recognizes that there will be unique challenges in applying the eligibility criteria for MAID where the patient has a mental illness, particularly where such an illness is the condition underlying the request. However, where a person is competent and fits the other criteria set out by law, the Committee does not see how that individual could be denied a recognized Charter right based on his or her mental health condition. Furthermore, we do not understand the Carter decision to exclude mental illnesses.40
Clause 10 requires referral of the law to a committee of the Senate, House of Commons or both for review at the start of the fifth year after the day the Act receives Royal Assent. The committee is to provide a report to the house or houses of Parliament of which it is a committee and to include a statement setting out any changes to the legislation that it recommends. The House of Commons Standing Committee on Justice and Human Rights amended clause 10 to include examining the state of palliative care as part of the statutory review.
Clauses 4 and 5 (relating to the filing of information) will come into force within 12 months of Royal Assent. Presumably, this would allow for the time required to set up a system for data collection, use, analysis and disposal before reporting requirements are implemented. The rest of the bill would come into force upon Royal Assent.
The response to Bill C‑14 has been mixed. A number of media reports, editorials and responses from stakeholders relating to the bill suggest that the government has taken a reasonable approach to the issue.41 Other commentators, however, have identified potential legal issues with the bill; they argue that by restricting the availability of MAID to adults, barring individuals with psychiatric disorders who still have capacity to consent from accessing MAID, and not allowing a request for MAID to be made in advance, the bill fails to respect the Charter and will likely give rise to court challenges.42
That MAID will be available to “dying patients”43 suggests to some commentators that it is available only to terminally ill individuals, although the bill does not explicitly state that one must have a terminal illness to have access to MAID. It has been argued that restricting access to MAID to terminally ill individuals would be contrary to the Carter decision.44 Some MPs and other stakeholders have suggested that, to avoid future potential Charter challenges, the government refer the bill to the Supreme Court of Canada for a determination as to whether the bill complies with the Charter.45
Some of the amendments that were adopted by the Senate were not agreed to by the House of Commons.46 Notably, the Senate deleted new section 241.2(2), which established the criteria for having a “grievous and irremediable” medical condition. The House of Commons disagreed with this and a few other amendments on the basis that
they would undermine objectives in Bill C‑14 to recognize the significant and continuing public health issue of suicide, to guard against death being seen as a solution to all forms of suffering, and to counter negative perception about the quality of life of persons who are elderly, ill or disabled.47
Oregon | The Netherlands | Belgium | Luxembourg | Quebec | Bill C‑14 | Special Joint Committee | |
---|---|---|---|---|---|---|---|
Voluntary euthanasia (E)/assisted suicide (AS) allowed? | AS allowed | E and AS allowed | E and AS allowed | E and AS allowed | E allowed | E and AS allowed | E and AS allowed |
Terminal illness required? | Yes | No | No | No | Yes | Not specified | No |
Residency required? | Yes | Yes, although not explicitly in the law | Yes, although not explicitly in the law | Yes, although not explicitly in the law | Yes | Yes | Yes |
Advance directives permitted? | No | Yes | Yes (only for unconscious persons) | Yes (only for unconscious persons) | No | No | Yes |
Permitted for minors? | No | Yes (12 years and older or newborn) | Yes (restricted eligibility criteria) | No | No | No | Yes |
Permitted for person with dementia/psychiatric illness not capable of making decisions? | No | Yes, if there is a signed advance directive | Yes, but the person must be competent at time of request | Yes, but the person must be competent at time of request | No | No | Yes, if there is a signed advance request |
Psychological suffering sufficient? | No | Yes | Yes | Yes | No | No | Yes |
Form of request | 2 oral, 1 written | Oral request sufficient; no requirement for multiple requests but that is the practice |
A number of appointments with a reasonable delay between them, 1 written request | A number of appointments with a reasonable delay between them, 1 written request | Talk with patient at reasonably spaced intervals given progress of the condition; 1 written request |
1 written | In writing (where possible) |
Witness(es) required? | 2 witnesses | No | No | No | 1 witness (can be attending physician) | 2 witnesses | 2 witnesses |
Waiting period? | 15 days between oral requests; 48 hours between written request and prescription |
Not specified | 1 month where death not imminent | Not specified | Not specified | 10 days unless death or loss of capacity imminent | Flexible |
Number of doctors and specialization | 2 physicians; referral to counselling in case of impairment resulting from psychiatric/psychological disorder or depression |
2 doctors | 2 doctors; 3 doctors, including a specialist, if patient is not near death |
2 doctors; discretion to consult an expert |
2 doctors | 2 doctors | 2 doctors |
Informing family | Must request that patient inform family but cannot obligate them | Consult relatives at patient’s request | Consult person listed in end-of-life plan unless patient refuses | Consult relatives at patient’s request | |||
Reporting requirements and oversight | Case reports to Oregon’s Department of Human Services; annual reports |
Case reports to regional review committee; annual reports; more comprehensive reviews took place in 2007 and 2012 |
Case reports to Federal Evaluation and Control Commission; annual reports |
Case reports to Federal Evaluation and Control Commission; annual reports |
Case reports to council of physicians, dentists and pharmacists of the institution or to Collège des médecins du Québec; annual reports by College; Commission on end-of-life care to evaluate implementation and report every 5 years |
Filing requirements (details to be determined in regulations); statutory review at start of 5th year |
Annual reporting; plus statutory review every 4 years |
Conscientious objection | No requirement to participate or refer but participation is defined to exclude referral; an institution can prevent assisted suicide in its premises |
Freedom of conscience but not mentioned in the law | No requirement to participate or refer (must transfer file if requested) | No requirement to participate or refer (must transfer file if requested) | No requirement to participate, must inform institution which takes steps to find a willing physician | Mentioned in preamble (government is committed to “respect the personal convictions of health care providers”) No one is compelled to provide or assist in providing MAID |
Effective referral required |
Note : This table includes a number of elements to highlight the differences between jurisdictions, but does not include all criteria that must be met to satisfy the conditions in each jurisdiction.
Sources :
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.Section 241 of the Criminal Code provides:
Everyone who[ Return to text ]whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
- counsels a person to commit suicide, or
- aids or abets a person to commit suicide,
[m]inors (below 18 or 19 depending on applicable provincial laws) who have the intellectual capacity and maturity to understand the information relevant to their medical decision and appreciate the consequences of such decision.[ Return to text ]
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