Canada’s MAID law has for decades been a failed attempt to use the criminal law to regulate a medical procedure that is within provincial jurisdiction. That is using the wrong tool for the job.
Canadian governments have opposed medical assistance in dying (MAID) for decades. In 1993 Sue Rodriguez sought judicial permission for this procedure from the courts, to alleviate her excruciating pain. She lost 5:4 in the Supreme Court of Canada. She died shortly thereafter, with assistance from an unidentified physician.
In the 2015 Carter case the Court reversed the Rodrigues decision and held that the total prohibition against MAID violated the plaintiff’s section 7 Charter right to life, liberty and security of the person.
In September 2019 a Québec court held in the Truchon case that the “reasonable foreseeability of natural death” requirement in the Criminal Code violates both Charter section 7 and section 15, which guarantees the right to the equal protection and equal benefit of the law, without discrimination.
The Attorney General of Canada (AG) didn’t appeal the Truchon ruling. Instead, in February 2020, the Liberal government introduced Bill C-7, to allow MAID for those whose natural death was “not reasonably foreseeable.” Bill C-7 was passed in the House of Commons on 10 December 2020, by a vote of 212 to 107. It is shocking that 107 MPs voted against C-7 despite the Truchon court ruling that the reasonably foreseeable requirement is unconstitutional. This shows the strong philosophical or religious opposition to MAID and the stubborn indifference to constitutional compliance under the rule of law.
The Senate has approved five amendments to the bill. I will discuss these below.
Bill C-7 Replaces One Unconstitutional Barrier with Another
Bill C-7 removes the requirement that death be reasonably foreseeable, but imposes a new prohibition against using MAID by those suffering from “mental illness” without accompanying physical illness or disability. The law should permit MAID for any eligible adult with the mental capacity to provide informed consent. And many sufferers from mental illness have that capacity. They should not be excluded from MAID if they are otherwise eligible.
Given the AG’s numerous constitutional law advisors and the speeches of Senator Gold and Minister Lametti to the Senate about the bill, this new unconstitutional barrier is undoubtedly intentional. Their justification, that there is a lack of consensus on the mental health issue, is unpersuasive. Consensus has no objective measurement and there will never be unanimity. In any event, the government has made it clear that it is unwilling to change its decision on that issue.
Regulating A Medical Procedure With the Criminal Law is Using the Wrong Tool
The criminal law is a sledgehammer, a blunt instrument, completely unsuited to regulating what is a compassionate medical procedure. For example, several presenters at the Senate have requested special protections for Indigenous Canadians and the disabled. Such selective, nuanced protection cannot be provided effectively in a criminal law.
The few compassionate physicians (mostly family doctors) and nurse practitioners willing to provide MAID are not criminals. But they risk prosecution if their interpretation of the Criminal Code is found, after the fact, to have been legally incorrect. This is an unreasonable risk to impose on the medical profession.
Some worry about equal access to MAID. Wealthy Canadians who are denied access to MAID in Canada can travel to Switzerland, which provides MAID for foreigners. Canadians with lower incomes cannot. Why condemn the poor to die in pain because of an archaic law?
MAID is not suicide. People commit suicide at any age, and for any reason or no reason. MAID is a carefully controlled medical procedure for adults, usually elderly, most often (75%) terminally ill with cancer, and having the capacity to grant informed consent. It is available only if two independent medical practitioners conclude that the patient meets all the legal eligibility requirements.
Nevertheless, MAID still needs some legal regulation. Who should do that? Regulating the medical profession is the constitutional responsibility of the provinces and provincial medical societies. It is only through a historical accident that this regulation is being implemented, unsuccessfully, through the federal Criminal Code. That is the wrong tool being wielded by the wrong level of government.
Until MAID is taken out of the Criminal Code the constitutional litigation, and Parliament’s resulting efforts to comply, will persist. Parliament can fix it now or fix it later. But the Senate can’t fix it now with a proliferation of amendments to C-7. And, as I have warned earlier, the Senate risks losing even C-7 in an impending election and Parliamentary dissolution.
How Did We Get Here?
Committing suicide or attempting to commit suicide used to be an offence under the Criminal Code. It is difficult to imagine a more stupid law.
The purpose of criminal law is to deter criminal conduct through prohibition, and to enforce that prohibition through the judicial process. How could any law deter anyone from committing suicide? If someone commits suicide how could the police arrest a corpse? And if someone in a state of acute psychological distress attempts suicide unsuccessfully, how is it helpful to prosecute them for that?
Prime Minister Pierre Trudeau’s government decriminalized suicide in 1972, almost 4 decades ago. But a related provision wasn’t changed at that time: the offence of counselling or assisting someone to commit suicide. That is still in the Criminal Code, and that has been the reason for the MAiD litigation. The provision was never intended to cover medical assistance, but rather, to prohibit helping someone to commit suicide by, for example, providing them with a gun or poison.
How to Fix MAID in 3 Easy Steps
1. Parliament should enact a provision excluding MAID from the Criminal Code, as MAID is not suicide and medical treatment cannot be micromanaged or regulated through the Criminal Code;
2. Have that exclusion come into force in three years time;
3. Within three years, establish a Federal-Provincial Committee, with advice from the Canadian Medical Association and MAID providers, to draft a model MAID law regulating the physician-patient relationship, with necessary safeguards, to be adopted at the provincial level.
Fixing The Problem Provision
The Criminal Code still has this historic problem in section 241:
241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,
(a) counsels a person to die by suicide or abets a person in dying by suicide; or
(b) aids a person to die by suicide.
Parliament could easily create a blanket exemption that medical assistance in dying does not constitute suicide, and therefore, is excluded from section 241. That amendment alone would quickly solve the problem – if the government wants to solve it rather than preserve it. Then the provinces would take over the responsibility for regulating MAID.
There will always be a small number of insensitive or biased people, and also some well-meaning people, who will recommend that someone would be better off accepting MAID than continuing to suffer. What can be done about such people? Practically, not much.
A targeted Criminal Code prohibition would be difficult to draft to distinguish between well-meaning and nasty recommendations, and difficult to enforce in practice. A blanket Criminal Code prohibition against any suggestion of MAID would be overinclusive, criminalizing well-meaning conduct that is beneficial or harmless.
The better course, in the longer term, would be to decriminalize MAID and follow the advice of the Supreme Court of Canada in its paragraph 132 of Carter:
“In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures.”
In other words, the Court recommended that MAID should be regulated the way other medical procedures are regulated: under the civil law and the medical ethics prescribed by physicians’ colleges. In six years Parliament has yet to take this learned advice.
The Senate’s Proposed Amendments
I have reviewed the five proposed Senate amendments approved between February 9-11, 2021. These raise two concerns: timing, and form.
When the Senate sends these controversial amendments to the House, this may cause delay in finalizing the bill, resulting in it dying on the order paper. This should not happen.
The Senate must weigh the risk of delay versus the potential benefit of its proposed amendments, in the unlikely event that the House will adopt them.
In principle, I see no problem with the substance of any of these amendments. If the House approves them that would be a good outcome. However, these controversial amendments will engender considerable debate in the House. If so, is the Senate prepared to go to the wall with them and seriously risk losing C-7?
As well as tight timing, my concern with presenting these amendments is their form. Several of them seek to amend the Criminal Code by imposing mandatory requirements on current or future legislative or government administrative activity. These don’t belong in the Criminal Code, and, in any event, are unenforceable. They would better be communicated to the government in a letter from the Senate.
The Criminal Code is about negative duties: prohibited conduct, not mandatory conduct. But how could a mandatory provision imposing a duty on a government – such as to begin a parliamentary review within 30 days of C-7 receiving Royal Assent – be enforced? If the government fails to ask Parliament to do this who will be prosecuted? Parliament? The Cabinet? Or can anyone sue for an order under the Criminal Code to compel Parliament to begin a political process? How could a court could grant such an unenforceable political order?
Another amendment calls for race-based data of all people who request and receive MAID to be systematically collected by the federal government. Undoubtedly this data will be useful, but why does it require an amendment to the Criminal Code for Statistics Canada to start collecting data? Don’t talk to Statistics Canada by amending the Criminal Code. Just ask the government to tell Statistics Canada to do this, which it will do if the government thinks it’s a good idea.
The Situation of Indigenous and Disabled Canadians
I have advised and represented both Indigenous groups and disabled plaintiffs in Courts of Appeal and the Supreme Court of Canada. I have a great deal of personal sympathy for their ongoing social, economic and legal problems. That’s why I would not want to see well-meaning but misguided legislative proposals be enacted, to their disadvantage.
Individuals and advocacy groups have argued against C-7 on the grounds that this would particularly disadvantage Indigenous and disabled Canadians. However, they have provided no statistical or other empirical evidence that in the application of MAiD there has in fact been any such disadvantage. It has all been about one or two isolated anecdotes and speculation about future harm. There has been no explanation of how or why C-7’s removal of the requirement that death be reasonably foreseeable would affect Indigenous or disabled persons differently from everyone else. A Black advocate has even argued in the media that C-7 is racist.
The only “solution” to such persistent but unfocussed demands is to offer to agree: “OK, we will create a special exclusion, so that no Indigenous or disabled or Black Canadians will be eligible for MAID and thus none will suffer the harms you so strongly oppose — if that’s what you really want.” Of course no reasonable advocate wants to condemn people to die a slow, terribly painful death without MAID. So what do they really want Bill C-7 to do? They never say.
There is a tendency for such advocacy to treat all indigenous persons or all disabled persons as homogeneous, with identical interests, and with these interests being represented by their advocacy organization. There are reasons to believe that such advocacy is misplaced.
First, as noted in the court’s summary of the evidence in Truchon:
“Neither the national data in Canada or Quebec nor the foreign data indicate any abuse, slippery slope or even heightened risks for vulnerable people when imminent end of life [the subject of C-7] is not an eligibility criterion for medical assistance in dying.”
Second, indigenous and severely disabled Canadians are a relatively small minority in Canada. Ten percent of Canadians identify as indigenous, but roughly half of all First Nations members live in urban municipal areas, not on isolated reserves. Should they be condemned to have less access to MAID if they need it than their non-indigenous neighbours, simply because of their race? Or, for that matter, those living on reserves? That doesn’t sound like the treatment required by Charter section 15: “…without discrimination and, in particular, without discrimination based on race….”.
According to Statistics Canada, only 20% of Canadians have any disability, and a much smaller percentage have a severe disability. The leading disability is pain, which tends to increase in incidence with advancing age and cancers. Unrelenting pain is the main reason for seeking MAID. Should the criminal law deprive all Canadians, regardless of their situations, of access to MAID via C-7 because of this alleged need to protect a small minority? Or should the law simply protect the small minority, if indeed it needs such protection?
Third, the advocacy is based on false stereotypes which assume that all Indigenous people or people with disabilities are so weak and vulnerable as to be unable to exercise any individual autonomy.
As held in Carter, MAID is currently only available 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.” Are Indigenous Canadians who are suffering grievously and intolerably really better off being deprived of a compassionate alternative to suicide? Charter section 15 says “NO!”
According to Statistics Canada, First Nations people living on and off reserve, Métis and Inuit, die by suicide at a rate twice as high as non-indigenous adults. Among adults in Inuit Nunangat (1999 to 2003) the rate was four times higher than all other adults in Canada. Why is it kindness to deny such a disadvantaged group the same medical alternative to suicide as everyone else, if they meet the Carter criteria quoted above?
Why The Federal Government Won’t Do It
Neither the previous Conservative government nor the current Liberal government has shown any enthusiasm for making MAID more accessible. Quite the contrary. They have steadfastly refused any law reform unless forced to do so by the judiciary. And even then, as in C-7, this government has refused to comply fully with the court’s constitutional requirements. Why?
The government knows from public opinion polls that most Canadians favour making MAID more accessible. But a small minority of vocal disability advocates and the religious right are strongly opposed to MAID, and have lobbied extensively against it. In politics, determined minorities often prevail over large majorities, without strong political leadership.
There is a certain parallel between the development of the laws governing same-sex marriage, abortion and MAID. No Canadian legislature would go anywhere near the legal issues of same-sex marriage and abortion. They were first legalized by the courts.
Likewise, the past and present federal governments would prefer to do nothing about MAID. Instead, their cynical excuse seems to be “The judges can do the politically difficult work. They don’t need to be elected, we do.“ That is buck passing, not leadership.
Unfortunately, amending the Criminal Code through the litigation process is sporadic and slow. The Rodriguez case was 28 years ago and the key issues are still unresolved. Maybe in another two or three decades the courts will have sorted this out. Meanwhile, thousands of us will suffer slow, painful deaths.
We can only hope Ottawa will quickly display the political leadership to do what has to be done to alleviate a lot of intolerable suffering. If not, this suffering should rest heavily on the consciences of all MPs and Senators.