Report of the committee

Thursday, December 10, 2020

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to table its

SECOND REPORT

Your committee has, in obedience to the following order of reference of Thursday, November 3, 2020, examined the subject matter of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying):

That, in accordance with rule 10-11(1), the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine the subject matter of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), introduced in the House of Commons on October 5, 2020, in advance of the said bill coming before the Senate, when and if the committee is formed.

Your committee now issues an interim report as follows:

Bill C-7 was introduced in the House of Commons on October 5, 2020. At the time your committee undertook its study, the bill was concurrently being studied by the House of Commons Standing Committee on Justice and Human Rights. The bill was developed in response to the 2019 Quebec Superior Court decision in Truchon v. Attorney General of Canada in which the Court declared that the “reasonable foreseeability of natural death” criterion in the Criminal Code and the “end-of-life” criterion in Quebec’s Act respecting end-of-life care were unconstitutional and infringed upon the rights to life, liberty and security of the person, and the right to equality, for individuals who want access to medical assistance in dying (MAiD).

Your committee focussed its study on the subject matter of Bill C-7, that is the expansion of Canada’s MAiD regime and proposals to amend relevant provisions in the Criminal Code.

For this pre-study, your committee held numerous meetings over five full days, with over 28 hours of hearings. In total, the committee heard from 81 witnesses, including the Ministers of Justice, Health, and Employment, Workforce Development and Disability Inclusion; regulatory authorities; professional organizations; advocacy groups; people living with disabilities; academics, legal and medical practitioners, and experts; Indigenous representatives; faith groups; caregivers; and other stakeholders. The committee has also received 86 written submissions to date.

Most witnesses who testified before the committee raised concerns about the various proposals being considered.

The following is a summary of selected key issues raised by witnesses during the committee’s hearings.

Major Charter Concerns

Witnesses emphasized the importance of ensuring that any changes to Canada’s MAiD regime comply with the rights guaranteed by the Canadian Charter of Rights and Freedoms.

oRepresentatives of major national disability organizations stated that removing the legal requirement of a person having a “reasonably foreseeable natural death” to be eligible for MAiD would single out disability in a manner that would be inconsistent with the equality rights guaranteed by the Charter, and that they anticipated a constitutional challenge on this basis if any such amendment is passed.

oThe committee heard different views about whether MAiD should be available in cases where mental illness is the sole underlying condition and whether the exclusion proposed in Bill C-7 (new section 241.2(2.1)) conforms with sections 7 and 15 of the Charter.

oAccording to some witnesses, the introduction of a new, different, and more burdensome procedure for patients who are not at the end of life is discriminatory (i.e., making a distinguishing criterion for the safeguards that apply) and marks a clear step backwards by denying Quebec patients rights that were recognized by the Supreme Court of Canada in Carter v. Canada (Attorney General) and clarified in the Truchon decision.

Alternative Approaches

Some witnesses discussed different ways to approach the current deliberations on the proposed legislative changes to Canada’s MAiD regime.

oSome witnesses underscored the need for more time to further review Canada’s MAiD legislation.

oSome witnesses recommended that the Attorney General of Canada seek an extension to the current 18 December 2020 deadline from the Quebec Superior Court following its 2019 decision in Truchon v. Attorney General of Canada.

oOthers stated that it would be appropriate in this case to allow the Court’s suspension of invalidity to expire on December 18, 2020 (its decision could then apply in Quebec).

oMany witnesses said that the Attorney General should have appealed the Truchon decision to receive the judgment of an appellate court.

oSome recommended that the MAiD regime be referred to the Supreme Court of Canada for a judgment on its constitutionality.

Parliamentary Review

Bill C-14, An Act to amend the Criminal Code and other related acts (medical assistance in dying) became law in 2016 and required a Parliamentary review within 5 years (starting in June 2020), which has not yet been done.

oWitnesses encouraged Parliament to begin this review as soon as possible. Some suggested delaying modifications to the MAiD regime until the review is completed.

Expanding Eligibility for MAiD

Many witnesses shared very informed, compelling, and heartfelt testimonies about the eligibility criteria for MAiD.

oSome witnesses supported the amendment that would remove the eligibility criterion of a “reasonably foreseeable natural death,” which was invalidated in the Truchon decision.

oOther witnesses were concerned that removing the requirement for a “reasonably foreseeable natural death” will eliminate a necessary safeguard that places limits on access to MAiD.

oSome witnesses speaking on behalf of those experiencing irremediable and intolerable suffering urged that Canadians should be allowed access to MAiD as a means to preserve their dignity and to protect their personal autonomy.

Safeguards

Witnesses expressed various opinions with regard to the possibility of amending the MAiD safeguards that must be respected before medical assistance in dying may be provided to a person.

o Witnesses disagreed about whether the proposed 90-day assessment period prior to receiving MAiD for persons whose natural death is not reasonably foreseeable was appropriate, or should be longer or shorter.

oWitnesses also had divergent opinions concerning the necessity for a person who has requested MAiD to give a final consent immediately before MAiD is provided and the possibility of a waiver of final consent in advance of a loss of capacity.

oWitnesses expressed concerns about the proposed removal of the 10-day waiting period for individuals whose natural death is reasonably foreseeable, and about the proposed change to only require one witness when a person signs a request for MAiD.

Adequate Access to Health Care

In discussing Canadians’ adequate access to health care, many witnesses told the committee that:

oMany Canadians do not have sufficient access to quality health care and support services, particularly for persons with disabilities, Indigenous peoples, those living in remote areas, and racialized persons, among others.

oCanadians, especially in certain regions, also face a lack of access to trained and qualified MAiD assessors and providers.

oMany are concerned that individuals may choose MAiD if there are not sufficient alternatives in palliative care or mental and physical health supports available to them.

o Some underscored that MAiD should only be considered as a last resort when all other alternatives have been considered.

Persons with Disabilities

Witnesses raised concerns about discrimination towards persons with disabilities inherent in proposed changes to the MAiD regime.

oSome noted that if the reasonably foreseeable natural death eligibility requirement for MAiD is removed, many Canadians with complex disabilities could qualify for MAiD because of their disability.

oSome testified that proposed changes promote stigma and prejudice against persons with disabilities and suggest that some lives are not worth living.

oMany felt very strongly that consultations with the Government of Canada on MAiD with persons with disabilities were insufficient.

Mental Illness

Many witnesses expressed views with regard to the proposed exclusion of individuals with a mental illness as the sole underlying condition from being eligible for MAiD.

oSome witnesses underscored that an exclusion and strong safeguards are needed to protect Canadians with mental illness under a MAiD regime, especially given that suicidality may often be a symptom of their illness.

oSome witnesses who supported excluding mental illness from the eligibility criteria for MAiD stated that there is a lack of consensus among experts about suitable medical definitions of mental illness and about the irremediability and predictability of many mental illnesses, which would make it difficult to objectively assess a patient’s eligibility for MAiD.

oOthers expressed concerns with an exclusion, adding that it minimizes the suffering of people with mental illnesses, and that the psychiatric community has developed or can develop approaches and standards that enable accurate assessments. Some added that medical practitioners are already assessing the eligibility for MAiD for individuals who have a combination of mental and physical illnesses, and are capable of doing so.

oSome recommended that a sunset clause be added so that the exclusion will expire in one year, thereby allowing time to review the complexities of this issue and develop a MAiD regime for persons with mental illnesses.

oSome were adamantly opposed to a sunset clause on this subject, given that in their opinion, there is an absence of compelling and conclusive evidence on this topic.

oSome witnesses argued that the criterion of having an “irremediable condition” is even more vague and ambiguous, and would be difficult to apply objectively to persons with mental illnesses as the sole underlying condition if there was no exclusion.

Accessing MAiD

Many witnesses raised various concerns about different aspects of how patients consult with medical practitioners about MAiD.

oDivergent opinions were expressed about whether medical practitioners should be required to advise a patient about MAiD or refer them to another practitioner.

oSeveral witnesses felt very strongly that medical practitioners’ freedom of conscience rights should mean that they are not obligated to advise a patient about MAiD, nor be required to refer them to another practitioner.

oOther witnesses stated that conscience rights in the provision of health care fall under provincial jurisdiction.

oSome witnesses emphasized that medical practitioners should never suggest MAiD as an option unless the patient has inquired about it of their own accord.

Indigenous Peoples

Many witnesses testified that the Government of Canada’s consultations with Indigenous peoples were insufficient, that Inuit and Métis were not consulted, and that Canada’s MAiD framework did not adequately fulfill the Government’s responsibility to consult.

Witnesses cautioned that Indigenous peoples are not monolithic and their views and perspectives on MAiD are diverse.

Witnesses raised concerns that Indigenous peoples should be informed about MAiD in a culturally safe way.

Witnesses repeated the need for physicians to ensure that patients who are eligible for MAiD are not pressured or coerced due to lack of support services.

Diversity

Some witnesses were concerned that culturally appropriate healthcare options that respect the diverse backgrounds of Canadians have not been sufficiently integrated into the MAiD framework.

Prisons

Some witnesses raised concerns that MAiD should not be administered in prisons due to the lack of treatment options, palliative care, and viable options for transferring prisoners to appropriate health care facilities.

Data and Research

Witnesses presented various views on the existing data and research with regard to MAiD.

oWitnesses stressed the importance of thorough data collection on MAiD requests and outcomes to inform future reports, reviews and critical analysis of the regime.

oMany witnesses relied on information drawn from other countries’ experiences with their equivalent to MAiD, which differs from Canada’s.

oMany witnesses were unfamiliar with Quebec’s experience with MAiD.

Respectfully submitted,

MOBINA S. B. JAFFER

Chair