February 21, 2023
Author: Fiona Balaton
On March 17, 2021, changes to Canada’s Criminal Code provisions on Medical Assistance in Dying (MAiD) under Bill C-7 went into effect. These changes marked a significant milestone in Canada’s MAiD laws, which have been under constant debate and criticism since the Supreme Court of Canada held in Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), that the criminal laws prohibiting assistance in dying limited the rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms in a manner that was not demonstrably justified under section 1 of the Charter.
Expanded Access to MAiD
The revised legislation on MAiD (former Bill C-7) expanded access to MAiD for individuals whose natural death is not reasonably foreseeable in response to the 2019 ruling of the Superior Court of Québec in Truchon v Attorney General of Canada, 2019 QCCS 3792 (CanLII), that the “reasonable foreseeability of natural death” eligibility criterion was unconstitutional. The new MAiD legislation also introduced the possibility of future access to MAiD for individuals whose sole underlying condition is a mental illness, although it was determined that Canadians whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, would not be eligible for MAID until March 17, 2023 to provide additional time to study how MAiD on the basis of a mental illness can safely be provided and to ensure appropriate safeguards are in place to protect those persons.
Expert Panel on MAiD and Mental Illness
The Government of Canada established an Expert Panel on MAiD and Mental Illness tasked with making recommendations on protocols, guidance and safeguards to apply to requests for MAID by persons who have a mental illness. The Expert Panel’s final report was tabled in Parliament on May 13, 2022 and culminated in nineteen recommendations. The federal government also launched a joint parliamentary committee to review access to MAiD for mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities.
Extending of Two Year Exclusion of Eligibility
In December 2022, the Government of Canada announced that it would seek to extend the original two-year exclusion of eligibility for persons whose sole underlying medical condition is a mental illness for an additional period of time.
MAiD and Bill C-39
On February 2, 2023, the Government of Canada introduced legislation, Bill C-39, to extend the exclusion of eligibility for MAID where a person’s sole underlying medical condition is a mental illness for an additional year, until March 17, 2024. According to the Government of Canada, if passed, Bill C-39 would provide more time for:
- dissemination and uptake of key resources, such as MAID practice standards and MAID education and training curriculum, by the medical and nursing communities, to ensure MAID assessors and providers are ready to assess requests for MAID for persons suffering solely from a mental illness in a safe and consistent manner across Canada; and
- consideration of any recommendations arising from the Special Joint Committee on MAID’s final report, expected in February 2023, alongside the recommendations of the Expert Panel on MAID and Mental Illness.
There is no projected timeline for subsequent legislative review of Bill C-39, nor when the proposed changes, if passed, may come into effect. Further, any recommendations arising from the Special Joint Committee on MAID’s final report with respect to other outstanding issues, such as access to MAiD for mature minors, or by advanced directive, may result in further legislative amendments.
Proposed Delay of Bill C-39
The evolution of Canada’s MAiD laws has often focused on where the line should be drawn in terms of who has access and who is excluded from accessing MAiD. This can be a polarising issue. As discussed here, there are strong arguments both for and against the expansion of MAiD eligibility criteria to include persons suffering from mental illness. This proposed delay will undoubtedly elicit strong reactions from both sides of the discussion.
Calgary Health Lawyers
If you would like more information on the proposed changes to the MAiD legislation please contact any of our Health Law Specialists.
Updated from: Fiona Balaton and Lorian Hardcastle, “Bill C-7 Amends Medical Assistance in Dying Laws in Canada” (April 1, 2021), ABLawg, University of Calgary, Faculty of Law