Bill C-7 (Historical)

An Act to amend the Criminal Code (medical assistance in dying)

This enactment amends the Criminal Code to, among other things,
(a) repeal the provision that requires a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying;
(b) specify that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying;
(c) create two sets of safeguards that must be respected before medical assistance in dying may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
(d) permit medical assistance in dying to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before medical assistance in dying is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
(e) permit medical assistance in dying to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing medical assistance in dying in order to cause their own death.

Criminal Code

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Madam Speaker, I want to thank the member, who has spoken passionately about this matter. I heard you in the House in 2014 and now, and I thank you for that.

Someone in the House said that we should proceed with caution. Someone else, a very smart man in this room, said we did that in 2015, and people suffered.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, obviously this debate engages all of our emotions and often from both sides. We have heard the testimony that the member shared. I shared in my speech a story of a woman who had her life taken in very sketchy circumstances. It was at a hospice in Vancouver, where someone took that person's life and said it was based on a demand for euthanasia and that the testimony was based on her own notes, but there had been no consultation with, or awareness by, the local staff.

We struggle with cases that involve major concern, cases that exist on all sides of this issue. I hope that through the amending process we may be able to find some common ground.

The member spoke specifically about the issue of advance consent. I think we should have some mechanism in that advance consent section to ensure that there is contemporaneous consultation with the patient. We know of other cases in which someone gave an advance directive and then had their life taken while they did not want that to happen.

Is there a way to meet in the middle and have a requirement for some kind of contemporaneous consent, even in the context of an advance directive?

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Madam Speaker, this is one of those things that is hugely complex and affects everyone differently. We all have different approaches and different beliefs in this room about how we should approach this issue. I do not know whether we can find common ground. I think we found common ground or at least met in the mushy middle in 2015, and we let people down.

I salute the medical practitioners in this country who are assisting Canadians with end of life, whether it be palliative care or MAID. It is important that we see everyone's side to this situation and respect everyone's thoughts and beliefs. I have constituents on both sides of this issue.

I had a very bad joke I used in 2015 when we were talking about this. There is no yes or no. I said there are 50 shades of grey. Only a couple of people chuckled at that joke, and no one got it clearly in this room either.

It is one of those very complex issues on which people do not fall on one side or the other. We could ask 100 people and have 100 different perspectives.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Resuming debate, the hon. member for Northumberland—Peterborough South.

Unfortunately, I will have to interrupt the member at some point. He will be able to continue his speech at a later date.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

Madam Speaker, all of the speeches in the House come from a great place. On my side of the House we value life, and that is meritorious. We have heard other perspectives that talk about ending suffering and that truly has merit, so I appreciate all of the speeches that have taken place on such an important topic.

I know members have gone over this, but just for clarity I want to go over the background for medically assisted suicide in Canada. The 2015 Carter case was a landmark decision for the Supreme Court of Canada. The previous prohibition for assisted suicide was challenged as contrary to the Charter of Rights and Freedoms. In a unanimous decision, the court abolished the provision in the Criminal Code, thereby giving mentally competent Canadians who were suffering intolerably the right to medical assistance in dying when they had provided clear consent.

In June 2016, the first legislation on medical assistance in dying was passed in Canada's Parliament. In the recent 2019 Truchon decision, the Superior Court of Quebec considered the constitutionality and Quebec's requirements in accessing MAID. The plaintiffs in the Truchon case were suffering from grave and incurable medical conditions that were causing tremendous suffering and a total loss of autonomy. However, they had each been refused MAID under the legislation in Quebec and federally. Because they were not at the end of life for the Quebec legislation and federally, death was not reasonably foreseeable.

Madam Justice Baudouin held that “reasonably foreseeable natural death” in the federal provisions infringed the plaintiff's fundamental rights under sections 7 and 15 of the charter. The court declared the impugned provisions unconstitutional. In a surprising and, in my mind, incorrect decision, the government chose not to challenge this decision, thereby getting guidance from higher courts such as the Supreme Court. By not challenging this legislation, the Liberal government was admitting that the legislation the House passed was deeply flawed.

The court's decision in Truchon gave the government until March 2020, which is now in the process of being extended, to amend the legislation to remove the reasonable foreseeability of death criteria from the MAID legislation. Prior to the introduction of this bill, the government conducted a narrow consultation process, limiting its consultations to urban centres and online surveys.

The minister noted several times, in his address to the House, that the provisions of Bill C-7 were the result of this process. However, he will not share that consultation with Parliament. This lack of respect is disheartening, and counterproductive to open and meaningful dialogue. I wish the government would stop playing games with such important topics and share the information it has with this minority Parliament.

Given that there is a limited timeline, that we are in a minority Parliament, and that MAID legislation will be subject to a complete review this summer, I would have expected the government to take a limited approach. Rather, the government has chosen to take a very different approach. The legislation makes substantial changes to the MAID eligibility far and beyond what is required to the Truchon decision.

[David Lametti, Liberal, Minister of Justice]

moved that Bill C-7, an act to amend the Criminal Code (medical assistance in dying), be read the second time and referred to a committee.

Madam Speaker, I am pleased to speak today about Bill C-7, an act to amend the Criminal Code regarding medical assistance in dying, MAID. The bill before the House today is identical to former Bill C-7, which I was proud to have introduced in February following significant consultation among Canadians and experts. I believe this bill reflects a consensus among Canadians and I call on all of my colleagues in this place to support its timely passage.

As members will recall, this bill proposes a legislative response to the Quebec Superior Court's ruling in Truchon and Gladu, in which the court ruled that it is unconstitutional to limit MAID to persons whose death is reasonably foreseeable. That declaration of invalidity, which applies only in Quebec, was initially suspended for six months and subsequently extended by four months, such that it would have come into effect on July 12.

We were all working toward that deadline when this bill was initially introduced. As with many other aspects of our lives, the COVID-19 pandemic disrupted our usual parliamentary activities and it became impossible to meet the July deadline. As Attorney General, I asked for a further extension, which the court granted, until December 18, 2020.

Even though the ruling in Truchon and Gladu was suspended, Quebeckers who are experiencing intolerable suffering and who meet all the eligibility criteria except that of reasonably foreseeable death can apply to the court for an exemption that would allow a practitioner to provide medical assistance in dying despite Parliament not yet having amended the legislation.

Six exemptions have been granted since Justice Baudouin handed down her ruling in September 2019, and others are under review. The availability of exemptions limits the impact of the suspension of the ruling in Quebec.

I would like to take a moment to note the passing of Mr. Truchon, one of the plaintiffs in the case that led to these important changes to our medical assistance in dying regime. Like many Canadians, Mr. Truchon was concerned about the impact of the pandemic on his quality of life in addition to the suffering caused by his medical condition. He want the option to obtain medical assistance in dying, which he did in April. I would like to express my deepest condolences to his loved ones.

The bill before members today, four years after the enactment of Canada's first medical assistance in dying provisions in 2016, proposes a significant change to Canada's MAID regime in broadening eligibility to persons whose natural death is not reasonably foreseeable.

The 2016 amendments were, themselves, a historic change in our criminal law. They created exemptions to some of the most serious criminal offences, which aim to protect one of our most fundamental values, that of human life. These exemptions sought to protect and promote another of our most cherished values, individual freedom, and more specifically, the freedom to decide when enough medical suffering is enough and to choose when and how one's life should end.

Health Canada's first annual report on medical assistance in dying in Canada released this past July indicates that since then nearly 14,000 Canadians have received MAID. In 2019, MAID accounted for 2% of deaths in Canada.

The requirement for reasonably foreseeable natural death was part of a MAID regime that was adopted in 2016. However, we decided not to appeal the Truchon and Gladu decision because we agreed that medical assistance in dying should be available as a means to address intolerable suffering outside of the end-of-life context. To ensure the consistency of criminal law across the country, we committed to amending the Criminal Code.

Before amending the Criminal Code, we conducted an extensive consultation with Canadians. We gathered responses from 300,000 people through an online questionnaire. My colleagues, the Minister of Health and the Minister of Employment, Workforce Development and Disability Inclusion, our parliamentary secretaries and I also held round tables across Canada with over 125 experts and stakeholders. The summary of these activities can be viewed on the website of the Department of Justice.

Based on these consultations and other sources of information, the bill proposes adjusting both the eligibility criteria and the procedural safeguards to respond to the decision rendered in Truchon and Gladu. The bill also proposes allowing patients to waive the requirement to give final consent in specific circumstances so that they do not lose their access to medical assistance in dying.

We know that Canadians are also concerned about other issues that are not addressed in this bill. I am thinking, in particular, of access to medical assistance in dying on the basis of mental illness. I am also thinking about advance requests for medical assistance in dying for people who are not yet suffering but fear they will be after they have lost their ability to request this assistance and who want to making their wishes known before that happens.

The upcoming parliamentary review of the medical assistance in dying regime and of the state of palliative care in Canada will provide an opportunity to give these complex issues the time and attention they deserve. It is up to Parliament to determine the scope of this review and when to conduct it.

COVID-19 has delayed this important review, but I am confident that Parliament will undertake it as soon as possible. That being said, our government's top priority is to meet the deadline set by the Quebec Superior Court in the Truchon and Gladu case.

Before I discuss the contents of the bill in more detail, I would like to note the important concerns of many individuals in the disability community about changing Canada's MAID policy from a way to avoid a painful death to a means of relieving intolerable suffering. It is crucial that these concerns not be forgotten as we resume our debate. In the view of many disability groups, a MAID regime that does not limit eligibility to those whose death is already reasonably foreseeable enshrines in law the erroneous view that disability itself is a valid reason for ending life. We have also heard from individuals living with disabilities, like Mr. Truchon and Ms. Gladu, that autonomy in how they choose to live and die is paramount. These are complex and nuanced points of view.

Let me be absolutely clear. Our government supports the equality of all Canadians without exception and categorically rejects the notion that a life with a disability is one that is not worth living or worse than death itself. I believe the fundamental principle that all lives have equal and intrinsic value can be balanced with other important interests and societal values, in particular, the importance of individual choice for Canadians. This balance is at the heart of the bill's objectives, which are to recognize the autonomy of individuals to choose MAID as a means for relieving intolerable suffering, regardless of the foreseeability of their natural death, while at the same time protecting vulnerable persons, recognizing that suicide is an important public health issue and affirming the inherent and equal value of every person's life.

I will now go into the specifics of various elements of the bill.

The bill proposes to expand eligibility for medical assistance in dying by repealing the criteria for a reasonably foreseeable natural death. Medical assistance in dying would therefore be available to people suffering unbearable pain, who have a serious and incurable disease, infection or disability, and whose medical condition is characterized by an advanced and irreversible decline in their capacity.

This removal of “reasonable foreseeability of natural death” from the eligibility criteria would mean that some persons whose only condition is a mental illness could be eligible for MAID. However, the bill proposes to exclude mental illness on its own as a grounds for MAID eligibility.

Our consultations and the report of the Council of Canadian Academies that studied this issue indicated that the trajectory of mental illness is more difficult to predict than that of most physical illnesses, that spontaneous improvement is possible, and that a desire to die and an impaired perception of one's circumstances are symptoms, themselves, of some mental illnesses.

This means that it would be very difficult to determine when, if ever, it is appropriate to grant someone's request that their life be ended solely on the basis of mental illness. In no way does this suggest that persons with a mental illness necessarily lack the decision-making capacity to consent to MAID, or that the suffering associated with a mental illness is of a lesser degree than the suffering associated with physical illness.

During second reading debate of former Bill C-7, some members noted their support for this exclusion while others raised concerns. This issue requires much more thought and debate. We feel the parliamentary review of the MAID legislation would be an appropriate forum for this.

The bill also proposes changes to the safeguards, since the existing safeguards were designed to protect persons whose death is reasonably foreseeable.

Expanding eligibility requires changes to the safeguards, since many experts believe there are greater risks in assessing applications for medical assistance in dying from individuals whose death is not reasonably foreseeable.

The bill therefore proposes two sets of safeguards. Each applies whether natural death is reasonably foreseeable or not. This is the only role that the concept of reasonably foreseeable death would play in the new regime. It would no longer constitute grounds for refusing a request for medical assistance in dying.

Reasonable foreseeability of natural death, or RFND, refers to a temporal but flexible connection between the person's overall medical circumstances and their anticipated death. It allows for clinical judgment, as it requires a comprehensive individual assessment that does not have a result in a specific prognosis and clearly does not require death to be imminent.

Individuals may decline towards death along trajectories of greater or lesser predictability. As such, RFND is not defined by a maximum or minimum prognosis, but it does require a temporal link to death in the sense that the person is approaching the end of their life in the near term.

We kept the RFND standard because it provides flexibility in relation to the difficult and imprecise exercise of anticipating when natural death might occur. A natural death that is expected within six to 12 months certainly meets the RFND standard. That was made clear when Parliament adopted Bill C-14 as an end-of-life regime. It did not impose a six- to 12-month prognosis requirement to preserve flexibility, but it still considered such timelines to be within the meaning of RFND.

A person's death may also be foreseeable in the temporal sense over longer periods, depending on the particular circumstances under consideration. However, having an illness that will cause death several years in the future would not normally meet the condition of RFND.

Safeguards for those whose deaths are reasonably foreseeable are based on safeguards that currently exist with two changes. First, the 10-day reflection period would be eliminated. Second, the request for medical assistance in dying will no longer require the signature of two independent witnesses, just one.

A person paid to provide health care services or personal care who is not involved in the assessment of the person's eligibility for medical assistance in dying can now act as an independent witness.

During second reading of former Bill C-7, some hon. members expressed concern about removing some of the safeguards.

Allow me to assure hon. members that these changes are based on the comments we received during our consultations and follow through on them.

For those whose natural death is foreseeable, many of whom spend a long time seriously thinking about what they want to do, the 10-day reflection period might unduly prolong their suffering.

We also learned that people who live in long-term care facilities or in remote regions may have difficulty finding two independent witnesses. These difficulties are exacerbated by the pandemic. The independent witness confirms the identity of the person, but does not participate in assessing their eligibility for medical assistance in dying. Only one person is required for meeting that safety objective.

Newly eligible persons whose death is not reasonably foreseeable would benefit from additional safeguards, the purpose of which is to ensure that sufficient time and expertise is devoted to the assessment of their MAID request. Where death is not reasonably foreseeable, the suffering motivating a MAID request may be due to a broader range of sources that warrant greater attention before someone's life is prematurely ended, to reduce the risk of providing MAID when there is a possibility of alleviating the person's suffering.

Specifically, the bill proposes a minimum 90-day assessment period, which would require that at least one of the practitioners assessing eligibility has expertise in the condition that is causing the person's intolerable suffering. A formal specialization or certification by a medical college would not be required. The bill would also require that a person whose death is not reasonably foreseeable be informed of and offered available means to relieve suffering, such as mental health and disability supports. In addition, the practitioner would have to be satisfied that those other means of relieving suffering have been seriously considered.

These are clarifications to the existing requirement of informed consent. It is our hope that these steps are already taken in all cases, but the Criminal Code would explicitly require them for those whose death is not reasonably foreseeable.

In addition to changes in response to the decision in Truchon and Gladu, the bill would let a person whose natural death is reasonably foreseeable and who has been deemed eligible to receive MAID to waive final consent if there is a risk they will lose the capacity to consent before the date on which they chose to receive MAID.

At present, the Criminal Code requires that, immediately before providing MAID, the practitioner must ensure that the person has given express consent to MAID and that they have the opportunity to withdraw their request. This safeguard, which attests to the irreversible nature of death and the importance of obtaining consent at the point of ending life, simply cannot be met if the person has lost the capacity to consent. This seems unfair when a person has been deemed eligible and was awaiting the procedure. In such cases, the rule could push some individuals to obtain medical assistance in dying earlier than they wanted to.

Under the amendments proposed in the bill, a person whose death is foreseeable, who has already been assessed and approved for MAID and has decided they want to receive it, could make an advance consent arrangement with their practitioner, setting out the date for the provision of MAID and their consent to MAID if they no longer have the capacity to consent at that later point.

According to round table participants and experts who looked at this question for the Council of Canadian Academies' 2018 reports, providing for advance consent in this way presents relatively little complexity or risk, and some practitioners have indicated they would be relatively comfortable providing MAID under such circumstances.

The bill does not propose to permit advance requests in contrast to what I have just described as advance consent. Advance requests are documents that may be provided at some future unknown date, if and when a set of expected circumstances materializes and when the person is no longer able to give consent. This issue is significantly more complex and challenging, and it will be examined during the parliamentary review.

Finally, the bill would enhance the monitoring regime, which is crucial for accountability and transparency. I have examined the bill for charter compliance and I am confident that it responds to the Truchon ruling in a way that respects the charter. I will soon table a charter statement that sets out key considerations about the bill's potential impacts on charter rights and freedoms.

In conclusion, these important amendments seek to guarantee that medical assistance in dying—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

We must now proceed to questions and comments.

The hon. member for St. Albert—Edmonton.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, needless to say, this is an incredibly complex area. While Bill C-7 purports to respond to the Truchon decision, it goes considerably beyond the scope of Truchon, and in so doing, removes a number of safeguards that Parliament, in its wisdom, passed four short years ago. In so doing, it would pre-empt a legislative review, where there would have been an opportunity to thoroughly examine all of the issues before experts and to take into account the comprehensive reports of the Council of Canadian Academies.

Why would the government choose to pre-empt a legislative review and instead proceed in a rushed way, in the face of the expiration of a stay on the declaration of constitutional invalidity effective December—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The hon. minister.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, I thank the hon. member for his participation and concern, over the last four years, with respect to this issue.

As the hon. member has pointed out, we are responding primarily to the Truchon decision, but we used the opportunity to make a certain number of other modifications where there was a clear consensus among Canadians. We consulted widely with MAID service providers and with families who had gone through the process. There was a universal conclusion that the 10-day waiting period was only a source of suffering, that people who decided to have MAID had made the decision and the 10 days only prolonged suffering. I continue to hear that. The witness requirement was actually becoming an impediment for people in regions and in long-term care facilities to access MAID, so we decided to change that now.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I thank my colleague for his exhaustive overview of the bill before us today. We are pleased to be able to work together on this bill, which speaks to the very needs of Quebeckers and Canadians.

I would like to hear the minister's thoughts on how he expects all members in committee to work together so that we can meet the December 18 deadline for the final legislation. I hope that our work will be constructive and that we will thoroughly examine the issues. We must not forget that the objective is for fewer people to suffer while awaiting a final piece of legislation.

Could the minister tell us how he hopes this will work and how he plans to make it happen? I believe we have chosen not to include mental illness for the time being. There is not necessarily a consensus on this issue. I would like to hear what he hopes to see from parliamentarians.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, I thank my hon. colleague for her question.

Issues relating to minors, mental health and advance requests are complex ones. We will give these issues the consideration they deserve in a parliamentary review, which was already set out in the 2016 legislation.

I hope that we will have the co-operation of our colleagues in this chamber and in the other place. There is clearly a strong consensus across the country, including in Quebec, for measures like the ones we are proposing. We will ensure that parliamentarians work together to meet the deadlines.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I want to start by thanking the minister for the co-operative and open dialogue that he and I have maintained on the bill and many other matters in the justice area. I also want to thank him for bringing the bill back promptly, because the concern of the New Democrats has always been that we not inadvertently prolong suffering for those who are at the end of life and for their families.

I do have a concern that the minister seems to have dropped the review off the edge of the agenda here. We are talking about the bill, but the work we need to do also includes the broader review. I placed an order on the motion paper today suggesting that we establish a special committee to deal with these broader issues. The minister made many references to the review without talking about a schedule or how we would accomplish this review.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Speaker, I thank the hon. member for his work and his collaboration. I think there is a question in there, which I am going to try to answer.

I will look at the motion. I am open to discussing the parameters of the review with my parliamentary colleagues from all sides of the House and, indeed, the other house. I am certainly open to discussing the parameters of the review as we move forward.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I wanted to touch on the consultations that took place around the country, some of which I was privileged to take part in, along with some of the other parliamentary secretaries assisting the ministers working on this file. I want to ask the minister if he could comment on the influence of the Audrey Parker case, and what that means in the context of persons who would have been approved of a proceeding but not had the time to wait until they can give that final consent. What does that do in terms of this issue of people availing themselves of MAID prematurely?

As a second point, I would ask the minister to clarify whether this new bill would affect at all the conscience rights of medical practitioners, in terms of their being compelled to provide medical assistance in dying.