Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision

Introduction

The purpose of this document is to provide a technical overview of the Government of Canada’s legislative response to the Superior Court of Québec TruchonFootnote 1 decision on medical assistance in dying (MAID). MAID was decriminalized in 2016 following the Supreme Court of Canada’s decision in CarterFootnote 2 through former Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which came into force on June 17, 2016 (S.C. 2016, c.3). Canada’s Criminal Code now exempts physicians and nurse practitioners who provide, or help to provide, MAID from otherwise applicable criminal offences (the offences of culpable homicide and aiding suicide) and provides eligibility criteria and procedural safeguards that must be followed for MAID to be provided lawfully.

As per section 241.1 of the Criminal Code, “MAID” is an umbrella term which includes:

As a matter of criminal law, the federal MAID regime in the Criminal Code applies across the country. Provinces and territories also have jurisdiction over aspects of MAID, such as its implementation through healthcare systems, the regulation and oversight of health professionals, and the prosecution of Criminal Code offences. Provinces and territories can introduce legislation and policies related to health care, so long as they do not permit what the Criminal Code prohibits. To date, only Québec has adopted comprehensive MAID legislation.Footnote 3

Evolution of MAID in Canada

The MAID legislation (former Bill C-14) created an end of life MAID regime. Its core policy objective was to give Canadians who were suffering intolerably in the dying process the choice to have a medically assisted death.

The MAID legislation also required the Government of Canada to initiate independent reviews on three issues: requests for MAID by mature minors, advance requests, and requests for people where a mental illness is the sole underlying medical condition. The Council of Canadian Academies (CCA) was selected to undertake these reviews, which were tabled in Parliament in December 2018. The reports and a summary are available on the CCA’s website.

The legislation also required the Minister of Health to make regulations to establish a federal monitoring regime to collect data relating to MAID in Canada in order to provide insight into how the legislation is working and promote transparency and public accountability, taking into consideration the very serious and irreversible nature of ending life. The Regulations for the Monitoring of MAID came into force in November 2018 and set out the framework for mandatory reporting for physicians and nurse practitioners who receive written requests for MAID, and for pharmacists who dispense drugs for MAID. The First Annual Report on Medical Assistance in Dying in Canada, prepared using the federal monitoring regime data, was released on July 24, 2020 and covers the 2019 calendar year. It is available on Health Canada’s website. Prior to releasing the first annual report, Health Canada published four interim reports based on voluntary data submitted by provinces and territories.

According to the First Annual Report on MAID in Canada, in 2019, there were 5,631 cases of MAID reported in Canada, accounting for 2.0% of all deaths. In other jurisdictions where MAID is permitted, assisted deaths account for between 0.3% (in US states where patients must be at the end of life and only self-administration is permitted) and 4.6% (in Belgium, the Netherlands and Luxembourg - the “Benelux” countries - where eligibility is based on suffering rather than proximity to death and clinician administered MAID is permitted) of all deaths. When all data sources are considered, the total number of medically assisted deaths reported in Canada since the enactment of federal legislation in 2016 is 13,946. The First Annual Report on MAID in Canada includes more detailed information on requests for MAID than the previous four interim reports, and includes data on access to and receipt of palliative care and disability support services among persons who received MAID.

The MAID legislation also required that a parliamentary review of the law and the state of palliative care be initiated five years after the law came into effect. This review will provide the opportunity to hear from Canadians about how MAID is working, to consider the CCA reports on requests for MAID by mature minors, advance requests, and requests for people where a mental illness is the sole underlying medical condition, and to see if any changes should be made. It was expected that this review would start in the summer of 2020. However, the COVID-19 pandemic disrupted parliamentary activities and has delayed this review.

Finally, since the enactment of the MAID legislation, litigation challenging the MAID regime has been initiated in British Columbia, Ontario, Quebec and Saskatchewan. The British Columbia (Lamb) and Quebec ( Truchon) cases challenged the MAID law on the basis that its eligibility criteria violated the Canadian Charter of Rights and Freedoms (the “Charter”) because they were too restrictive. The Ontario (Foley) and Saskatchewan (Katzenback) litigations also allege that the MAID law violates the Charter, but on the basis that its safeguards are insufficient to protect Canadians, who are offered MAID instead of adequate support services and assistance in life.

Truchon v. Attorney General of Canada

On September 11 2019, the Superior Court of Québec, in its Truchon v Canada (AG) decision, declared unconstitutional the “reasonable foreseeability of natural death” eligibility criterion contained in the federal MAID legislation, and the “end of life” eligibility criterion contained in Quebec’s Act Respecting End-of-Life Care. The Court ruled that the RFND criterion violates section 7 of the Charter, which protects against deprivations of life, liberty and security of the person, and section 15 of the Charter, which guarantees the right to the equal protection and equal benefit of the law without discrimination. The ruling, which only applies in Quebec, was not appealed by the Attorney General of Canada or the Attorney General of Quebec. The Court suspended the declaration of invalidity for a period of 6 months, until March 11, 2020, and granted a constitutional exemption to the plaintiffs during the suspension period. On March 2, 2020, the Court granted the Attorney General of Canada’s request that the suspension of the declaration of invalidity be extended for four months, until July 11, 2020, and subsequently granted a further extension to December 18, 2020, as disruptions to the parliamentary process due to the COVID-19 pandemic made it impossible to meet the previous deadline.