©deVeber Institute 2020 A Report on Bill C-7 By Catherine Mathie September 2020 INTRODUCTION In September 2019, the Quebec Superior Court decision Truchon c. Procureur Général du Canada ruled that Canada’s restriction of euthanasia and physician-assisted suicide to people whose natural death was “reasonably foreseeable” was unconstitutional.1 This restriction was part of the original regime of “Medical Assistance in Dying” (MAID) introduced to Canadian law when Parliament passed Bill C-14 to amend the Criminal Code in June 2016.2 Bill C-14 was itself a response to a prior court decision: the Supreme Court of Canada’s 2015 ruling in Carter v. Canada (Attorney General) had struck down Canada’s previous absolute ban on euthanasia.3 Despite the fact that the “reasonably foreseeable” death provision had been invalidated by a court in Quebec whose jurisdiction over federal law did not extend outside of the province, the federal government responded as if the decision had settled the constitutional doctrine that euthanasia must be extended to those who are not dying if their suffering is grievous and irremediable. In January 2020, the federal government confirmed that it would not attempt to defend Bill C-14 by bringing an appeal of Truchon to the Supreme Court of Canada, and it would instead respond by introducing “updates” to expand MAID.4 With the official announcement that it had “accepted the ruling” and was “committed to changing the MAID law for the whole country,” the Government launched a short public consultation process: Canadians at large were given a 14-day period to respond to an online survey posing a list of questions concerned with the updates under consideration, while Government ministers met with experts 1 Truchon c. Procureur Général du Canada, 2019 QCCS 3792. Case references appearing in this paper are to the official English translation of the decision. 2 Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess., 42nd Parl., 2016 (assented to 17 June 2016). 3 Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. 4 Department of Justice Canada. (2020, January 13). Government of Canada consults Canadians on medical assistance in dying [News release]. Retrieved from https://www.canada.ca/en/department- justice/news/2020/01/government-of-canada-consults-canadians-on-medical-assistance-in-dying.html 1 ©deVeber Institute 2020 and stakeholders to discuss MAID changes at a series of closed-door meetings held in January and February in cities around the country. On February 24, the Government tabled Bill C-7 in Parliament, introducing a legislative revision and expansion of Canada’s regime of physician- assisted death which goes significantly beyond expanding MAID to cases where the recipient is not dying.5 The proposed legislation also sets aside safeguards established by Bill C-14 and introduces the possibility for some people who are no longer capable of giving consent at the time arranged for their death to be euthanized according to the terms of a prior agreement. The Bill completed first reading on February 24, but debate at its second reading was first interrupted due to Parliament’s reduced sitting due to the COVID-19 pandemic and then by the prorogation of Parliament that is now in effect until September 23, 2020. Before the interruption, two days of debate were held in the House of Commons on February 25 and 26.6 The government has received approval for a second suspension of the Truchon decision, which will end on December 18, 2020, at which time, a revised law will have to be in place.7 However, the future of debates over Bill C-7 is likely to be further complicated by the fact that June 2020 was mandated by Bill C-14 as the month when Parliament would begin a 5-year review of that law and the state of palliative care in Canada. June has come and gone without any announcements about the statutory review, and now it cannot commence before September. However, when (or if) the House of Commons returns to its deliberations over Bill C-7 in the fall, these will occur at the same period when Parliament is required be taking up a separate review of existing MAID law. CURRENT LAW ON EUTHANASIA AND ASSISTED DEATH In Canada’s Criminal Code, it is an indictable offense to aid a person to die by suicide.8 However, the Supreme Court of Canada ruled in Carter v. Canada that this provision is unconstitutional and void to the extent that it prohibits “physician-assisted death for a competent 5 Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 1st Sess., 43rd Parl., 2020. 6 Canada, Parliament. House of Commons Debates, Vol. 129, Number 024 (February 26, 2020). https://www.ourcommons.ca/DocumentViewer/en/43-1/house/sitting-24/hansard Canada, Parliament. House of Commons Debates, Vol. 129, Number 025 (February 27, 2020). https://www.ourcommons.ca/DocumentViewer/en/43-1/house/sitting-25/hansard 7 Health Canada. (2020). First Annual Report on Medical Assistance in Dying in Canada, 2019. p. 42. Retrieved from https://www.canada.ca/content/dam/hc-sc/documents/services/medical-assistance-dying-annual- report-2019/maid-annual-report-eng.pdf 8 Criminal Code, RSC 1985, c. C-46. s. 241(1)(a)-(b). 2 ©deVeber Institute 2020 adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”9 The Court argued that by prohibiting physicians from aiding in the deaths of such adults, the law unjustifiably infringed upon the latter’s’ Charter rights to life, liberty and security of the person.10 In response to this ruling, Parliament passed Bill C-14 in 2016, introducing amendments to the Criminal Code that exempt certain people from an indictment for assisting a suicide if the medical actions or aid they provide to cause a person’s death amount to the provision of “medical assistance in dying” to that person.11 To the extent that euthanasia and physician-assisted suicide differ, MAID under Bill C-14 can take either form: death may be deliberately caused to eligible adults through a lethal substance being directly administered to them by a medical or nurse practitioner, or being prescribed or provided to them for self- administration.12 To be eligible for such “assistance,” the person in question must be at least 18 years old and capable of medical decision-making, eligible for government-funded medical care in Canada, and have “a grievous and irremediable medical condition,” make a voluntary request for MAID not due to external pressure, and give informed consent to MAID “after having been informed of the means… available to relieve their suffering, including palliative care.”13 In order to define the grievous and irremediable medical condition that could make a person eligible for euthanasia, Bill C-14 introduced four criteria: one must have “a serious and incurable illness, disease or disability;” be “in an advanced state of irreversible decline in capability;” endure “physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;” and face a totality of medical 9 Carter v Canada (Attorney General), at para. 127. 10 The Supreme Court accepted the trial court’s view that the prohibition “deprives some individuals of life” by imposing on them an “increased risk of death” by forcing some “individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable” (at paras. 62, 57-58.) The Supreme Court also found that liberty and security of the person were violated by the prohibition insofar as it deprived them of the “individual autonomy and dignity” to retain “control over their bodily integrity” and make unimpeded “important medical decisions for themselves” representing “their deeply personal response to serious pain and suffering” (at para. 64). 11 Criminal Code, s. 241(2)-(7). 12 Criminal Code, s. 241.1(a)-(b). 13 Criminal Code, s. 241.2(1)(a)-(e). 3 ©deVeber Institute 2020 circumstances that indicate that “natural death has become reasonably foreseeable,” though not necessarily in terms of a specific timeframe.14 To mitigate the risks that MAID deaths might occur in cases where patients have not freely chosen them or no longer choose them at the time their lives are ended, there are a number of “safeguards” and restrictions included in Bill C-14.15 One of the most important seeks to ensure that MAID is only provided to patients who consent at the time their death is caused by requiring the practitioner who administers the lethal substance to them to provide them with a final “opportunity to withdraw their request” immediately before the procedure, “and ensure that the person gives express consent,” taking “all necessary measures to provide a reliable means” for those with difficulty communicating to “understand the information that is provided to them and communicate their decision.”16 If a person is incapable of providing their informed consent at the time of the procedure, Bill C-14 does not permit action to be taken to cause the death. Although Bill C-14 was the fruit of Parliament’s deliberations at the time, it took a less permissive approach to the legalization of euthanasia than was called for by some in Parliament. As an early step in