Bill C-14 is now the law in Canada. Physician-assisted suicide and euthanasia, in certain circumstances, are now both permitted by legislation. For the first time in Canadian history, patients can ask physicians to prematurely end their lives if they meet certain criteria, without prior judicial authorization.[1]
CLF appeared in early May before Parliament’s Standing Committee on Justice and Human Rights to affirm suicide prevention as an important public policy goal and uphold the sanctity of life as a fundamental societal principle, to identify some of the Bill C-14’s deficiencies, and to make recommendations for improving the bill. Although some members of the Committee moved to adopt several of our recommendations, they were ultimately unsuccessful. Sadly, the bill was little improved by the time it passed.
Bill C-14 passed quickly: from first reading in House of Commons to Royal Assent took only two months.
That Parliament passed Bill C-14 while being bombarded with misleading rhetoric about the bill being unconstitutional for being too restrictive is encouraging. CLF, along with other organizations, has insisted that Parliament has both the authority and the responsibility to respond to the Carter ruling on its own terms and in furtherance of such crucially important statutory objectives as upholding the inviolability of life, preventing suicide (assisted or not), and upholding the inherent and equal worth of all persons. In his speech in the Senate on June 9, Senator Plett cited CLF’s Policy Options article on this point.
However, the bill leaves much to be desired. First, of course, it legalizes assisted suicide and euthanasia, which Parliament was not required to do. There were means available—including, but arguably not limited to, the Charter’s notwithstanding clause—to continue to prohibit these practices. Second, the bill legalizes assisted suicide and euthanasia using vague eligibility criteria and insufficient safeguards, which will make enforcement and monitoring very difficult.
In this blog, we sketch how the bill changed from its original version to the version that was passed into law last week. We have highlighted the differences between the actual text of the bill as originally tabled in April and the version that received Royal Assent, here. We explain the evolution of the bill below.
Safeguards
Only two procedural safeguards were added to what was already a meagre list. First, the bill as passed requires that if the patient has difficulty communicating, the physician or nurse practitioner must “take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.” Second, the bill as passed states that a person signing a request for “medical assistance in dying”—this euphemism remains in the bill—on another’s behalf must “not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death” (s. 241.2(3)(i)) and must do so “under the person’s express direction” (s. 241.2(4)).
CLF’s most significant recommendation regarding procedural safeguards was to require legal judicial authorization before carrying out euthanasia or assisted suicide. Although amendments requiring prior legal authorization were introduced by members of the House and the Senate, none of any kind were passed.
CLF also recommended removing the open-ended exemption for anyone who helps a person to self-administer a substance prescribed as part of the provision of MAID and to supervise the self-administration of the lethal drug, but no such amendments were made. This exemption is dangerous, as there is no oversight of the use of the lethal drugs once the prescription is received. The drugs could be used at any time or place, which raises safety concerns as well as the potential for patients to be pressured or deceived into taking the drugs by a third party (which could also be difficult to prove).
Eligibility
“Eligibility” for assisted suicide / euthanasia (AS/E) was not narrowed in any way, except that the informed consent requirement in the original version was amended to explicitly require that a patient be informed of “the means that are available to relieve their suffering, including palliative care” (s.241.2(1)(e)) before they give consent. CLF, along with other organizations, had recommended such a provision in its written briefs to both the House of Commons and the Senate.
The Senate amendment that had replaced the list of eligibility criteria in s. 241.2 with the requirement that a person simply “have a grievous and irremediable medical condition [that] has begun to cause enduring suffering that is intolerable to the person” was rejected by the House. This is significant in that only a patient whose death is “reasonably foreseeable” is eligible to obtain physician-assisted suicide or euthanasia. The Senate’s amendment, if accepted by the house, would have open-ended eligibility for patients who were not dying or even terminally ill. The bill as passed retains the original list of criteria, along with the amendment to informed consent as noted above.
In light of the trend in other jurisdictions for undefined terms to be interpreted loosely over time, CLF had recommended to the House and Senate committees that Parliament add precision to the requirement that the patient’s death be “reasonably foreseeable” by requiring that the assessing physicians be certain that the underlying illness(es) the patient has at the time the request is made will cause the patient’s death. However, no further clarification to this criterion was added.
Reporting
As for reporting and data collection on the practice of assisted suicide and euthanasia, the bill as passed states that the Health Minister must (s. 241.31(3)) make regulations that he or she considers necessary respecting what information physicians, nurse practitioners, and pharmacists must provide to the government, whereas the first version of the bill said the Minister may make such regulations. The final version of the bill also directs the Minister of Health to “establish guidelines on the information to be included on death certificates in cases where medical assistance in dying has been provided” (s. 241.31(3.1)).
Freedom of conscience
While the bill as passed does not contain any positive measures to protect medical workers from being pressured to participate in assisted suicide or euthanasia, it is not, like the original version of the bill, completely silent on the issue. The following clauses were added to the preamble:
Whereas everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms; [and]
Whereas nothing in this Act affects the guarantee of freedom of conscience and religion;
Also, subsection 9 was added to section 241.2 of the bill to clarify that “nothing in this section compels an individual to provide or assist in providing medical assistance in dying.”
Other amendments
Providing information about MAID
Counselling or encouraging suicide remains illegal under Bill C-14. However, the final version of the bill states that “no psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.”
CLF advised Parliament that, depending on the circumstances and manner in which such information is provided, the act of providing that information could have the effect of encouraging a person to seek medical assistance in dying, which remains illegal. While the bill as passed does not legalize counselling or abetting a person to commit suicide, it does allow a “social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional” to tell a person how they can obtain “MAID”.
(Non-binding) Commitment to facilitate palliative care
The following was added to the preamble of the bill:
Whereas the Government of Canada recognizes that in the living conditions of Canadians, there are diverse circumstances and that different groups have unique needs, and it commits to working with provinces, territories and civil society to facilitate access to palliative and end-of-life care, care and services for individuals living with Alzheimer’s and dementia, appropriate mental health supports and services and culturally and spiritually appropriate end-of-life care for Indigenous patients.
Review of issues re: expanding eligibility
The only other significant amendment to the original bill that has been passed into law is the requirement that the Minister of Justice and the Minister of Health “initiate a review of issues” relating to expanding eligibility for “medical assistance in dying”. This provision states:
Independent Review
Mature minors, advance requests and mental illness
9.1(1) The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent, initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.
(2) The Minister of Justice and the Minister of Health must, no later than two years after the day on which a review is initiated, cause one or more reports on the review, including any findings or recommendations resulting from it, to be laid before each House of Parliament.
CLF intends to remain involved in any consultative process surrounding the extension of “MAID” in these contexts.
Failed amendments
Most amendments—and there were many—proposed in both the House and the Senate were rejected. In an earlier blog we mentioned some of CLF’s recommendations that were proposed as amendments by certain Members of the House but ultimately rejected.
As for the 15 amendments voted on by the Senate, only 7 passed. Of those 7, the House accepted 5. Of those 5, 2 were minor drafting corrections. The other 3 that passed in the House and are now part of the law were:
Senator Eaton’s amendment clarifying that informed consent means the patient must first be “informed of the means that are available to relieve their suffering, including palliative care”;
Senator Marshall’s amendment stating the Minister of Health must make reporting regulations; and
Senator Eggleton’s amendment requiring Parliamentary committees to review issues related to expanding eligibility for MAID to minors, the mentally ill, and allowing advance directives.
Thankfully, as mentioned previously, the Senate amendment gutting the eligibility criteria was rejected by the House. The original eligibility criteria remain.
Senator Donald Plett’s amendment, which made it an offence for a person to help another person self-administer the prescribed lethal medication if they know or believe they would materially benefit from the death of the person seeking medical assistance in dying, passed in the Senate, but was rejected by the House.
Another of Senator Plett’s proposed amendments—which would have made it a crime to compel an individual, organization or medical practitioner to provide or assist in providing, or to provide a referral for MAID—was rejected by the Senate. This was an amendment CLF began calling on Parliament for in November of last year (see our submission, at pages 14-18, to the External Panel on Options for a Legislative Response).
Senator Denise Batters proposed that anyone with a mental illness—and who meets the eligibility requirements for assisted dying—be required to undergo a psychiatric assessment to ensure that person is capable of making decisions before being allowed to access medical assistance in dying. The Senate rejected her proposal.
Senator Batters had also proposed, following the Senate amendment replacing the eligibility criteria with the requirement that a patient simply have a “grievous and irremediable illness [that] has begun to cause enduring suffering that is intolerable to the person”, that being terminally ill and near death be added to this requirement. The Senate rejected this proposal.
Once the Senate had passed 7 amendments and the House sent the bill back to the Senate having accepted 5 of those 7 amendments, the Senate passed Bill C-14 as it received it from the House the second time without any further changes.
Going forward
Unfortunately, as noted at the outset, passing Bill C-14 was a hasty process. There was insufficient time for adequate debate on important proposed amendments. Now that legislation is in place, however, CLF will look for opportunities to help Parliament improve its legislation. Such opportunities may come in the form of future consultations, for example. Hopefully Parliamentarians will remain engaged on this issue and be actively exploring ways to improve Canada’s euthanasia and assisted suicide laws—and especially, to uphold the inviolability of life and the intrinsic and equal worth of every life, to prevent suicide and the normalization of suicide, and to protect vulnerable persons from abuse. There is certainly room for improvement.
This article is provided for general information purposes only and does not constitute legal or other professional advice. Before acting on the basis of information contained in this article, readers should consult with a qualified lawyer for advice specific to their situation.
[1] Patients have been permitted to do so in Quebec since the Supreme Court's ruling in Carter 2016 in January of this year.