Good afternoon, and thank you, members of the committee. My name is Jay Potter. I'll be giving remarks from Justice Canada today.
I'm pleased to be here to support your review of medical assistance in dying. My comments will be consistent with those of Ms. Klineberg from last year and will provide an overview of the federal MAID framework and highlight some considerations that you may wish to bear in mind as you study the complex and important issues that are before you.
As you know, our law has evolved considerably since the 2015 decision of Carter by the Supreme Court of Canada. In less than a decade, the law's approach has transformed from an absolute prohibition on MAID in all circumstances to a sophisticated regime that permits it as a legitimate response to intolerable medical suffering, while also providing for eligibility criteria, procedural safeguards and a monitoring regime to protect vulnerable persons.
Thousands of Canadians have accessed MAID, most of whom did so under the initial framework set out by former Bill C-14. As you all know, that framework changed last year through former Bill C-7, which responded to the Truchon decision.
The most significant change made by former Bill C-7 was to eligibility criteria. The law now permits MAID irrespective of whether or not a person's natural death is reasonably foreseeable, but that concept is used to determine the procedural safeguards that will apply to a request. There's also a temporary exclusion for requests where a mental illness is the sole underlying medical condition, which will expire in March of 2023.
There were also a number of changes made to procedural safeguards, including providing for a waiver of final consent, which allows MAID to be provided to an incapable person in certain defined circumstances: specifically, where such a person has a reasonably foreseeable death and, while they had capacity, they requested MAID, were assessed and approved for it, had scheduled the procedure for a specific date and agreed with their practitioner to receive MAID on or before that date if they lost capacity.
As you move forward with your work, it may be helpful to recall that the framework governing MAID is shared between the federal and provincial governments. Parliament is responsible for the criminal law, which is the foundation for the federal framework, and the Criminal Code provides exemptions from offences of culpable homicide and assisting suicide so that practitioners and those who support them are not criminally liable for providing or being involved in the lawful provision of MAID. The criteria and safeguards form the key elements of those exemptions.
In contrast, the delivery of health services is generally a matter of provincial responsibility. This includes organizing access to MAID, the regulation of health care professionals and enforcement, whether that be at the professional disciplinary level or with respect to the enforcement of the criminal law. As a matter of health law, provinces or professional regulatory bodies could supplement the federal framework with additional requirements concerning MAID; however, they could generally not permit something that falls outside of the exemptions. That type of change would require federal legislation.
Relatedly, I would note that the issue of advance requests for MAID raises particular complexity in this regard. The criminal law exemptions are oriented towards a single point in time, which is when the practitioner administers a substance to cause a person's death or provides them with a lethal substance for self-administration. In an advance request scenario, a second point in time is relevant, too, which is when the request is prepared by the person who at that time is not immediately seeking MAID. This earlier point in time does not obviously involve the commission of a criminal offence that requires an exemption, so there's legal complexity in considering how the criminal law might provide for procedural safeguards or other requirements to govern it. Those would ordinarily be matters of health law.
Finally, in support of your study, I would remind the committee of the three reports of the Council of Canadian Academies. These were prepared pursuant to former Bill C-14 and address many of the issues that are before you. No doubt you'll also be interested in the forthcoming recommendations of the expert panel on MAID and mental illness, which was established last year to consider safeguards, protocols and guidance for the provision of MAID in those circumstances.
Those conclude my opening remarks. I'd be pleased as well, with my colleagues, to respond to the committee's questions.
Thank you.