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

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Madam Speaker, Bill C-7 proposes removing the requirement for final consent for eligible individuals whose natural death is reasonably foreseeable.

This requirement could result in a person not receiving enough sedatives to relieve their pain because they need to be fully competent at the time of the second consent.

I would like to know my colleague's thoughts on whether we should also consider the possibility of granting the right to waive final consent in cases where natural death is not foreseeable.

Should we be considering the issue of advance consent, for example, to ensure that people suffering from degenerative or incurable diseases do not have to go before the courts to challenge the terms and conditions surrounding eligibility for medical assistance in dying?

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

Madam Speaker, the goal here is to avoid unnecessary suffering, so I am very supportive of providing for the waiver for final consent and eliminating the 10-day waiting period.

When it comes to advance directives, I tend to be in favour of people being able to make their instructions for end of life and have them respected. As I said, my talk with practitioners has convinced me that we need a broader debate about the issues around advance directives, and that is why I hope to see this parallel broader review start along with the consideration of Bill C-7.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I appreciate the honouring of the stories. I have had a dear loved one choose to use MAID for the next step in his journey. It was a very painful and beautiful day for the loved ones who were with him. One of the things I remember distinctly is that his doctor of over 30 years was a very strong Christian. He felt he could not take that step, but still showed up and held hands with him in his final moments. I remember feeling such respect and love in that room.

When we talk about the subject, the most important thing is the unnecessary suffering. We need to end that, not only for the person experiencing it but for the pressure of watching their loved ones go through that unnecessary suffering.

Could the member speak more about how important this broader review is? When we look at advance directives and vulnerable populations, all of us in the House, regardless of our point of view, want there to be a thoughtful discussion that provides this place with very thoughtful responses and actions we can take in the future.

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

Madam Speaker, I thank the member for North Island—Powell River for also sharing her personal experience with medical assistance in dying.

My background is as an academic and as a member of Parliament. I think we have the same tendency to get into the legal details and forget about the lived experiences that lie behind these kinds of cases and issues. By having a broader review of the issue around medical assistance in dying, we can help build a consensus about appropriate measures when it comes to advance directives and making sure that vulnerable populations are not under undue pressure. This review was mandated by the original legislation and was seen as an important part of the way we consider the experience we have actually had with medical assistance in dying. I am disappointed the government seems to have let this fall off its agenda and is leaving it to the rest of us in Parliament to push forward with this review.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, my question for the member has to do with the disabled. He made a comment about the disabled and in the legislation it looks like there is a different treatment of disabled people to other people. I am concerned about that. I wonder if the member is also concerned.

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

Madam Speaker, the hon. member's question reflects something that I think is very important, which is that when concerns by a community are raised they be fully explored and fully considered, not just dismissed out of hand, regardless of what our own personal opinions are on those concerns. The place I believe we should do that is in the broader review conducted by the House that I suggested in the motion I tabled today. I want us to hear from the disabled community and its advocates and to think carefully about the issues they are raising. I want to make sure the safeguards we have in place to prevent vulnerable people from being pressured into selecting medical assistance in dying are actually adequate.

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

Madam Speaker, I will be splitting my time with the member for Glengarry—Prescott—Russell.

I am pleased today to speak on Bill C-7, an act to amend the Criminal Code in relation to medical assistance in dying.

As members know, clearly we are here because of the decision of the Quebec Superior Court in the Truchon case. That decision struck down a particular criterion under both the Quebec and Canadian regimes with respect to the end-of-life nature of medical assistance in dying, which is the reasonable foreseeability of natural death criterion, in particular, at the national level.

I will agree with some of the members we have heard from today that this is perhaps the most important issue we have faced in the last five years of this Parliament, both in the last Parliament and today. Fine-tuning the approach to medical assistance in dying is something that is intensely personal, but also intensely important to all of us in the chamber and to all Canadians.

What we should know at the outset is that the court's ruling in Truchon applies only in Quebec. We heard the minister speak about this. The court suspended its declaration of invalidity for a period of six months, until March 11.

It is important for this chamber to recall that on February 17 of this year, the Attorney General of Canada filed a motion to request an extension to give Parliament sufficient time to enact an appropriate response to ensure consistency in the criminal law. Given the circumstances of COVID and the pandemic, an extension was further sought and granted in June until December 18 of this year. Therefore, December 18 is the new deadline.

Before I go into some of the details in the bill, I want to start out with two important provisions that relate to conscience protection. This was raised in today's debate and was also raised in the context of an earlier debate on this bill in a previous parliamentary session. I think it is critical the record be crystal clear that conscience protections are robust in this country and are entrenched in law.

I am responding here to questions that were raised by the member for Sherwood Park—Fort Saskatchewan. The first location for conscience protections is in the preamble to the old bill, Bill C-14, which states, “Whereas everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms”.

I have had further questions from members of the official opposition about why it is only in the preamble and not in the statute. That assertion is categorically incorrect, because conscience protections are in the statute itself. Section 9, page 8, of Bill C-14, which amended the Criminal Code, states, “For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.”

Lastly, the third point I will refer to is from the Carter decision of the Supreme Court, which has been the subject of extensive discussion in this chamber thus far. I am reading from paragraph 132 of the majority reasons in Carter. The court states, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.”

Those are the three instances where the freedoms set out in section 2 of the charter are taken into account. One is jurisprudential and the other two are statutory. The fourth one is of course section 2 of the charter, which protects freedom of conscience for all Canadians, including those who practice medicine. Therefore, the assertion that somehow conscience rights are not protected or are somehow being eroded is categorically false.

Another point on what is being addressed in today's debate is the notion that a culture of overly facilitating medical assistance in dying is upon us. Here I am referencing some of the interventions made again by the official opposition, particularly the member for Sarnia—Lambton, that somehow this government bill is pushing us further toward predatory practices by health care practitioners or toward disavowing the right to life, liberty and the security of persons who are vulnerable, including persons with disabilities. That is categorically false and is not commensurate with what is in the evidence.

The evidence that we have is that, in total, nearly 14,000 medical assistance in dying deaths have happened in the country in the last four years. The average age of the people accessing MAID is 75 years old. It is being accessed equally by men and women, 51% of the time by men and 49% of the time by women. The most common medical condition is cancer, followed by neurological conditions. In that 67% of all people who access it have cancer; second, come neurological conditions; and third, come cardiovascular conditions.

Very important, in the most recent year of analysis, a grand total of 5,444 people accessed MAID in this country. That represents 1.89% of all deaths in the country. I am saying that specifically for the purposes of the debate, because it is important for Canadians to understand that there is not some sort of culture of medical assistance in dying that is being foisted upon unwitting individuals. I will elaborate upon this going forward.

I would like to address a few aspects of this bill. The eligibility criteria have changed, as the Minister of Justice mentioned this morning.

There are two sets of safeguards. One applies when the individual's death is reasonably foreseeable, while the other applies when it is not. The bill adds new safeguards for this second category.

The bill proposes allowing final consent to be waived on the day of the procedure in exceptional circumstances.

Earlier in the year, the minister, along with the Minister of Health and the Minister of Employment, Workforce Development and Disability Inclusion, as well as myself and other parliamentary secretaries, conducted a very vast consultation process. We heard from 125 individuals, who are experts in this field, whether they are delivering it or acting on behalf of disabled individuals, from nurses, doctors, etc. We also heard from 300,000 Canadians through their responses to a questionnaire that outlined various scenarios.

The views of those individuals were quite concrete in the direction they were seeking. They wanted to be empowered in terms of their autonomy, dignity and their choices. They were seeking fewer obstacles to what had evolved to become an overly restrictive regime, as identified by the court in Truchon. That important feature must be canvassed here. What is important to understand is that the input received was critical to the development of the bill.

As part of the proposed amendments to the Criminal Code, the reasonably foreseeable death provision will be removed from the eligibility criteria. This is in response to the Truchon decision.

In terms of legal impact, this amendment would mean that people whose death is not reasonably foreseeable would be eligible for medical assistance in dying if they meet all of the other eligibility criteria.

This point is very important. The bill proposes to exclude persons whose sole underlying condition is mental illness. This has been touched upon by different people who have already intervened in the context of today's debate and in previous debates in the previous session of Parliament. This is important, as was outlined by the minister this morning. It recognizes the increased complexities and risks associated with such cases, which were highlighted by many practitioners, stakeholders and experts at the main round tables.

What is also very important is that the Canadian Mental Health Association supports the position we are taking with respect to excluding mental illness as a sole underlying condition. This complex issue must be examined carefully as part of the parliamentary review of the legislation on medical assistance in dying.

Importantly, the Government of Québec has also announced the exact same study for the exact same provision in the context of mental illness. Issues of consent and capacity and properly being able to diagnose this and having a prognosis are critical.

I will move to some of the comments that have been made. It is important for people to understand the safeguards are under two tracks. Those safeguards respond to persons whose deaths are reasonably foreseeable and those whose death is not.

With respect to some of the aspects raised in the context of today's debate, please understand we have taken the 10-day period of reflection out of the legislation. The basis for this was that the safeguard was not doing the work it was meant to do. As opposed to protecting those who were vulnerable, it was increasing vulnerability insofar as it was prolonging suffering.

We have heard some people were so concerned about their inability to provide their final consent after 10 days that they would stop taking their pain medication, which was simply creating further suffering just to maintain the ability to provide final consent.

With respect to how we can ensure informed consent is applied when it has not been solicited actively, there are two responses. This is with regard to the advanced consent regime.

The government is conscious of the Audrey Parker situation and we are seized with it. When people have been assessed and approved for this procedure and when they make a determination they want to access it and provide consent in writing, that consent would be sufficient.

In direct response to whether it could be vitiated, yes it could. First, if the person has not lost capacity, consent could be vitiated. Second, it could be done by a physical gesture that could be interpreted to fully and finally eliminate that consent for the purposes of the practitioners. That is in response to a question posed by the member for St. Albert—Edmonton.

This bill strikes a balance and the balance is important, a compassionate response that protects vulnerable people, respects their dignity and autonomy and what is required by the Constitution. I am very hopeful we can achieve all-party consensus on this fundamental issue.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I would like to talk a bit more about the conscience protections. The hon. member mentioned it was in the preamble, in section 9 and in the charter. Why then does the government not immediately address the situation existing in Ontario, where physicians and nurses are being forced to participate in MAID even if it is against their religious beliefs?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Speaker, I will clarify that it is in a fourth place as well. It is in the penultimate paragraph of the Carter decision.

The reason the government is not intervening in respect to a jurisprudential decision in Ontario is because that jurisprudential decision complies with the charter. The regime in Ontario is that a person is not compelled to provide this service, as the court has indicated, but providing a referral is required, pursuant to the rules enacted by the College of Physicians and Surgeons of Ontario. That was deemed constitutionally compliant. That is sufficient for the purposes of protecting the Charter of Rights at issue.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Madam Speaker, I want to thank my colleague for his speech. I appreciated his knowledge on the topic and his compassion in all this. It is very important.

The Bloc Québécois supports the bill in principle, as my colleague said earlier. I appreciate the fact that we can work together in a non-partisan way.

However, we believe that the bill may not go far enough in certain respects.

Does my colleague believe that the issue of advance consent should have been covered in this bill?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Speaker, I thank my colleague for this question and thank the Bloc Québécois for its support.

The notion of advance consent was put into this bill because it was necessary to accommodate Audrey Parker's request, which was covered extensively by Canadian media.

We must maintain an individual's autonomy and respect their choice, but also avoid prolonging their suffering or making a decision that would lead to premature death.

In English terms, it is the notion of not having someone accelerate and go to their death prematurely, simply because they had to wait for the ability to provide that final consent. That is the reason why we decided to insert it as consenting to the regime.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Madam Speaker, first, we are pleased to see the reintroduction of Bill C-7 as part of the effort to end unnecessary suffering for those who are facing the end of life. I had a note from Jule Briese. She cited that her husband, Wayne, who is challenged with Alzheimer's, currently meets the criteria for medical assistance in dying as long as his window of capacity for informed consent does not narrow, preventing this. He has ongoing appointments at three-month intervals with his geriatric psychiatrist to assess his capacity for consent. She cites that this is extremely stressful, and could result in having to make this choice sooner rather than later. Legalizing advance requests for those with dementia to make the choice for MAID compassionately supports the individual's right to end-of-life choice guaranteed by the Canadian Charter of Rights and Freedoms.

Could the parliamentary secretary speak to Julie and Wayne, and talk about how this legislation is going to help them? We certainly do not want him to have to choose to end his life prematurely, and this is a directive he would like to have fixed in the bill.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Speaker, I thank the member for this point and the case he is raising about Julie and her spouse. It underscores the very sensitive and delicate nature of what we are facing. What I can say in all candour is that we had a regime that had been deemed overly restrictive by courts. We have expanded the regime to allow for greater accessibility to medical assistance in dying. The notion of an advance consent is applicable here, but not yet an advance directive. That is something that was studied by the academic council when it looked at three separate areas. It would form part of the parliamentary review, and it is something that merits scrutiny. The safeguards that need to be put in place are that much more rigorous. That is why it is not inserted into this bill, but is something that obviously merits a lot of scrutiny and consideration going forward.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Madam Speaker, before I begin, I want to wish you a happy Thanksgiving.

I appreciate this opportunity to discuss the Government of Canada's consultation process to inform amendments to the federal legislation on medical assistance in dying. My colleagues who hosted the round tables, the Minister of Justice, the Minister of Health and the Minister of Employment, Workforce Development and Disability Inclusion, had the privilege of hearing the perspectives of experts and other key stakeholders.

In September of last year, the Superior Court of Quebec handed down its decision in the Truchon and Gladu case.

The court found that the eligibility criteria of the federal and Quebec provincial legislation on medical assistance in dying that required a person to be at the point of reasonably foreseeable natural death, or at the end of life, were unconstitutional.

The federal government did not appeal the Truchon decision. Despite the short time frame, our government felt it was critical that any amendments to the law should be informed by evidence and feedback provided by Canadians, provincial and territorial governments, and key stakeholders.

That is why, during January and early February, our government launched an online public consultation and hosted round tables with stakeholders from across the country. During this process, participants shared their views on key aspects of the law governing MAID, including eligibility requirements, safeguards and advance requests. An online survey led by the Department of Justice ran for two weeks in January. The survey closed with over 300,000 responses: the largest number of responses the department has ever seen for any public consultation.

Our government also hosted a series of 10 roundtable meetings in eight cities across the country. More than one hundred participants representing nearly every province attended these national and regional meetings, including academic experts, health care providers, medical and nursing regulators and other stakeholders. While the meetings included some representation from indigenous communities, a specific roundtable was also held with indigenous stakeholders.

Our government’s ultimate objective is to have a law that facilitates access for those who are eligible for MAID and provides protections for vulnerable people.

Feedback from both the online survey and round table discussions indicated wide support for removing the eligibility requirement that an individual's natural death be reasonably foreseeable. There is general comfort among Canadians and stakeholders with the idea that MAID should be available to eligible individuals who are suffering intolerably, but not necessarily at the end of their life.

Many organizations representing persons with disabilities expressed concerns about the removal of the requirement for reasonably foreseeable natural death, pointing to the potential for societal harm if disability were to be seen as a reason to terminate life.

Concerns were raised about extending MAID to include specific medical conditions where individuals may be more vulnerable, in particular, to those with mental illness. Most felt it was too early to allow MAID for persons with mental illness as their sole underlying medical condition and advocated taking additional time to study this issue.

The concerns about access to medically assisted death for individuals whose sole underlying medical condition was a mental illness were consistent with the findings of the Council of Canadian Academies report on this topic. As mandated by the 2016 legislation, our government commissioned three independent reviews on topics that were not included in the law at the time: requests by mature minors, advance requests and requests where a mental illness is the sole underlying condition. Of the council's three reports, the one addressing mental illness was the source of the greatest divergence among the experts. Ultimately, they could not reach consensus on ways to address the complexities and mitigate the risk associated with mental illness and MAID.

Many round table participants expressed support for creating a two-track system of safeguards, depending on whether a person's death is reasonably foreseeable. Many respondents to the online survey were open to the idea of some stronger safeguards for people who are suffering but not dying.

The proposed legislative changes include new or modified safeguards for individuals when their death is not reasonably foreseeable. It is proposed that one of the physicians or nurse practitioners assessing an individual's eligibility for MAID would need to have expertise in the individual's medical condition. In addition, individuals would be subject to a 90-day assessment period to ensure enough time is devoted to exploring relevant aspects of the person’s situation and to discussing possible options to alleviate their suffering.

During the round tables, participants expressed overwhelming support for removing the current requirement for two persons to witness an individual's MAID request. They cited the difficulties in finding independent witnesses based on the current definition in the law, which excludes health care providers and personal support workers.

Many individuals living in nursing homes or other residential settings have limited family or social networks. The amended legislation would reduce the required number of witnesses to one, and would not permit individuals who are paid to provide personal care or health care to take on this role. Anyone in a position to benefit financially, or in any material way, from the person's death would not be allowed to act as a witness.

The witness's role is strictly to confirm that the person seeking MAID has actually signed the request themselves. Safeguards, such as ensuring that the person signed the request voluntarily, are the responsibility of the practitioner who provides MAID, not the witness. We also clearly heard that there is no obvious benefit to the 10-day reflection period. We are proposing to remove this requirement from the legislation.

The third area of consultation was on the issue of advance requests. This is also one of the topics studied by the Council of Canadian Academies as part of their independent reviews.

Although many people speak of advance requests in general terms, the issue can be very different depending on an individual's situation relative to a diagnosis and when they are eligible for MAID.

The CCA report pointed out that not all advance requests are created equal and outlined several scenarios. It noted the most straightforward scenario is where an individual is nearing death, and has been found eligible for MAID, but fears losing capacity to consent prior to the procedure.

This was the case, for example, in the widely publicized case of Audrey Parker: the Nova Scotia woman battling late-stage breast cancer. She feared that she would lose the ability to provide consent later on, before the date she ideally wished to have the medically assisted death she was authorized to receive.

A more complicated scenario arises when an individual has been diagnosed with a disease such as Alzheimer's but has not yet come to the point where their circumstances make them eligible for MAID. However, the person may wish to outline the conditions under which they would like MAID to be provided in the future, when they no longer have capacity to provide final consent.

Nearly 80% of respondents to the online survey agreed that the revised law should allow for advance requests in both scenarios. However, there were concerns about allowing advance requests post-diagnosis. There was near unanimous support to refer this more complex scenario to consideration during the parliamentary review process.

The amendments we are proposing reflect the overwhelming support for the first scenario by permitting individuals who have been assessed as eligible for MAID, and whose death is reasonably foreseeable, to provide consent in advance if they lose capacity before their preferred date.

Our government is committed to maintaining an ongoing dialogue with indigenous groups on the topic of MAID, to ensure their families and their many diverse voices continue to be heard.

Lastly, it is important to note that, across the board, participants in the round table consultations all agreed on the importance of having appropriate health and social supports in place, including palliative care, assistance for persons with disabilities and mental health services, to protect against individuals choosing assisted dying due to the lack of adequate supports to live a dignified life.

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

Madam Speaker, my question for my friend from Glengarry—Prescott—Russell is with respect to advance consent. The legislation provides for advance consent in certain circumstances in which a patient might lose their capacity.

When we studied the issue of advance consent under Bill C-14, the Canadian Medical Association noted that it was an extremely complex area. The expert panel's final report from the Council of Canadian Academies noted that there are significant knowledge gaps and a lack of consensus with respect to administering euthanasia, or medical assistance in dying, when a patient has lost capacity.

Why would the government include that in this bill, rather than allow a more thorough legislative review to take place, which it has pre-empted?