Tabled in the House of Commons, October 21, 2020
Explanatory Note
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
Charter Considerations
The Minister of Justice has examined Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-7 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Overview
Medical assistance in dying (MAID) involves a number of competing interests and societal values. The interests and values that Bill C-7 seeks to balance include the autonomy of individuals who are eligible to receive MAID, the protection of vulnerable persons from being induced to end their lives and the need to address suicide as a public health issue. The particular balance struck by Bill C-7, which differs from that under the existing law, was informed by the Quebec Superior Court decision in Truchon v. Canada (2019), Canadian and international evidence, and by recent consultations on MAID in Canada.
Under the existing law, individuals who seek medical assistance in dying must satisfy all of the eligibility criteria set out in subsections 241.2(1) and 241.2(2) of the Criminal Code. In particular, they must be 18 years of age or older, capable to make decisions with respect to their health and eligible for health services funded by the federal government, a province or a territory. They must make a voluntary request for MAID that is not the result of external pressure and must give informed consent, after having been informed of the means available to relieve their suffering. Finally, they must have a grievous and irremediable medical condition, as defined in subsection 241.2(2). A person with a grievous and irremediable medical condition is someone who has a serious and incurable illness, disease, or disability, who is in an advanced state of irreversible decline in capability, who is experiencing enduring and intolerable suffering that cannot be relieved under conditions acceptable to them, and whose natural death has become reasonably foreseeable.
Amendments to eligibility criteria
Bill C-7 would amend the Criminal Code to permit MAID for individuals whose natural death is not reasonably foreseeable. However, the Bill would continue to prohibit MAID for individuals whose sole underlying medical condition is a mental illness.
Safeguards
The Bill would create two different sets of safeguards for those whose natural death is reasonably foreseeable and for those whose death is not reasonably foreseeable. For individuals whose natural death is reasonably foreseeable, the safeguards under the existing law, which are described in more detail below, would continue to apply subject to two modifications. First, the patient’s written request for MAID would only have to be signed by one independent witness, rather than two. Second, the 10-day reflection period would be eliminated.
For individuals whose natural death is not reasonably foreseeable, the safeguards described above would apply in addition to four new or clarified safeguards. The additional safeguards, which are described more fully below, would include a minimum 90-day assessment period, a second eligibility assessment by a practitioner with expertise in the condition that is causing the person’s suffering and two clarifications of informed consent.
Exceptions to the requirement for “final consent”
In addition to the amendments responding to the Truchon decision, the Bill would also create two exceptions to the requirement for “final consent” at the time of the MAID procedure. The first exception would apply to persons whose natural death is reasonably foreseeable and who have entered into an advance consent arrangement. The second exception would apply in cases of failed self-administration.
Amendments to the monitoring regime
Finally, Bill C-7 would enact enhancements to address certain gaps in the current federal monitoring regime to ensure that data is collected on all requests for, and cases of, MAID. The amendments would require the reporting of certain information from all practitioners and health sector personnel who carry out assessments (or preliminary assessments) of eligibility for MAID. The offence of knowingly failing to comply with the reporting obligations under the existing law would also be amended to ensure that it applies to all professionals who would be subject to the expanded reporting obligations.
Expanding eligibility to permit MAID for people whose natural death is not reasonably foreseeable
Bill C-7 would broaden eligibility for medical assistance in dying by repealing the eligibility requirement that the person’s natural death has become reasonably foreseeable (clause 1(1)).
Life, liberty and security of the person (section 7) and equality (section 15)
Section 7 protects the rights to life, liberty and security of the person and prohibits government interference with these interests unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of mental or physical disability.
In Carter v. Canada (2015), the Supreme Court of Canada held that a competent adult’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. A criminal prohibition on MAID for a person in this situation – whom the law would permit to request palliative sedation, refuse artificial nutrition and hydration or request the removal of life-sustaining medical equipment – impacts liberty and security of the person. This is because the criminal prohibition interferes with the ability to make decisions concerning bodily integrity and leads to serious suffering. Broadening the law to permit MAID for persons whose natural death is not reasonably foreseeable would promote the liberty and security of the person interests of individuals who seek MAID as a response to a grievous and irremediable illness.
The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Expanding eligibility for MAID involves broadening the exceptions to criminal prohibitions on the intentional taking of life. If sufficient safeguards are not included to protect vulnerable persons against abuse or error, it could affect the right to life and security of the person under section 7. Because the broadened exceptions would apply where the person seeking MAID has a serious and incurable illness, disease or disability, the Bill also potentially engages the s. 15 right to equal protection of the law of persons with disabilities.
The following considerations support the consistency of these amendments with sections 7 and 15 of the Charter. Under the Bill, individuals would continue to be eligible for MAID only if they have made a voluntary request that was not the result of external pressure. They would also still have to give informed consent after having been informed of the means available to relieve their suffering. It would be a criminal offence to provide MAID if the requirements have not all been met – either with respect to the eligibility criteria or procedural safeguards, which are discussed in more detail below.
In addition, the following considerations support the consistency of these amendments with section 15 of the Charter. Like the current law, the Bill would continue to affirm the equal and inherent value of every person’s life (preamble). Eligibility for MAID under the expanded law would not be based on negative stereotypes equating disability with loss of dignity of quality of life, but on the respect for the autonomy of all persons with a serious and incurable illness, disease or disability to choose MAID as a response to intolerable suffering that cannot be alleviated by means acceptable to them.
Excluding eligibility for MAID where mental illness is the sole underlying medical condition
While expanding eligibility for MAID to include people whose natural death is not reasonably foreseeable, the Bill would exclude individuals whose sole medical condition is a mental illness. In order to be eligible for MAID, paragraph 241.2(2)(a) provides that a person must have a “serious and incurable illness, disease or disability”. The Bill proposes that a mental illness would not be considered an illness, disease or disability for the purpose of paragraph 241.2(2)(a) (clause 1(2)).
Liberty and security of the person (section 7) and equality (section 15)
Because clause 1(2) would continue to prohibit MAID for individuals whose sole medical condition is a mental illness, it has the potential to engage liberty and security of the person. It also engages section 15 because the exclusion from eligibility for MAID would apply to individuals who suffer from a mental illness. The following considerations support the consistency of clause 1(2) with the Charter.
In Carter, which addressed the section 7 Charter implications of the absolute prohibition on MAID under the previous law, the Supreme Court of Canada stated that MAID for persons with psychiatric disorders did not fall within the parameters of its reasons.
The exclusion in clause 1(2) for individuals whose sole medical condition is a mental illness is crafted narrowly. In particular, the exclusion would apply only to mental illness (conditions that are primarily within the domain of psychiatry). The exclusion is not based on the assumption that individuals who suffer from mental illness lack decision-making capacity and would not disqualify such individuals from eligibility for MAID if they otherwise meet the requirements, for example, if they have another medical condition that is considered to be a serious and incurable illness, disease or disability. Nor is the exclusion based on a failure to appreciate the severity of the suffering that mental illness can produce. Rather, it is based on the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness. First, evidence suggests that screening for decision-making capacity is particularly difficult, and subject to a high degree of error, in relation to persons who suffer from a mental illness serious enough to ground a request for MAID. Second, mental illness is generally less predictable than physical illness in terms of the course the illness will take over time. Finally, recent experience in the few countries that permit MAID for people whose sole medical condition is a mental illness (Belgium, Netherlands and Luxembourg) has raised concerns. The concerns relate to both the increasing numbers of these cases and the wide range of mental illnesses in respect of which MAID has been provided. As the practice of MAID in Canada is relatively new, the body of evidence and research on current and potential future practice, including in relation to mental illness, is still developing.
Safeguards
The Bill would create two different sets of safeguards for those whose natural death is reasonably foreseeable and for those whose death is not reasonably foreseeable.
For individuals whose natural death is reasonably foreseeable, the safeguards under the existing law would continue to apply, with some modifications (clause 1(3)). First, the patient would have to make a written request for MAID that is witnessed and signed by one independent witness (clause 1(4)). This would be a change from the existing law, which requires two independent witnesses. Second, two independent practitioners would have to confirm that the person meets all of the eligibility criteria. Third, the person would have to be informed that they can withdraw their request at any time. Fourth, unless the person has an advance consent arrangement, they would have to be given an opportunity to withdraw their consent and expressly consent again immediately before MAID is provided (clause 1(3)). Fifth, if the person has difficulty communicating, the medical practitioner would have to take all necessary measures to provide a reliable means by which the person may understand the information provided and communicate their decision (clause 1(5)). The Bill would eliminate the 10-day reflection period that applies under the existing law (clause 1(6)).
In light of the different considerations associated with MAID for people whose natural death is not reasonably foreseeable, the Bill would create new and clarified safeguards that would have to be satisfied before MAID could be provided to these individuals (clause 1(7)).
First, the Bill would require a minimum of 90 days for the assessment of a person’s eligibility for MAID. In order to conclude that a person is eligible for MAID, the practitioner must determine that all of the eligibility requirements set out in subsections 241.2(1) and 241.2(2) are satisfied. The minimum 90-day assessment period could be shortened if both evaluating practitioners agree that the person’s loss of capacity is imminent, but only if the eligibility assessment can be completed in a shorter amount of time.
Second, the Bill would require that one of the two mandatory eligibility assessments be carried out by a medical or nurse practitioner with expertise in the condition that is causing the person’s suffering. That practitioner would not, however, have to be a specialist.
Finally, the Bill would introduce two changes clarifying the requirements of informed consent in this context. The first change would be an express requirement that the person be informed of available counselling services, mental health and disability support services, community services and palliative care, as appropriate to the individual’s situation, and be offered consultation with professionals who provide those services. Second, the person and practitioners would have to agree that reasonable and available means of alleviating the person’s suffering had been discussed and seriously considered before MAID could be provided.
Life, liberty and security of the person (section 7) and equality (section 15)
As noted above, if sufficient safeguards are not included to protect vulnerable persons against abuse or error, permitting or expanding access to MAID could affect the right to life and security of the person under section 7 as well as the right to equality under section 15. On the other hand, the rights to life, liberty and security of the person could also be impacted if the safeguards are so burdensome that they create unnecessary barriers to access for those who qualify for MAID. The following considerations support the consistency of the safeguards with the Charter.
The two sets of safeguards are tailored to the different risks and considerations that are associated with MAID, depending on whether or not the person’s natural death is reasonably foreseeable. Both sets of safeguards would help to ensure that issues affecting eligibility for MAID are detected. This includes issues related to the voluntariness of a person’s request for MAID and their informed consent to receive MAID. Requiring only one independent witness would be an adequate safeguard because the witness is only attesting to the signing and dating of the MAID request and plays no role in the assessment of eligibility or application of other safeguards.
The safeguards for persons whose natural death is reasonably foreseeable reflect the reduced risks and complexities of MAID in that context. Evidence suggests that the existing safeguards are working well to protect vulnerable individuals whose natural death is reasonably foreseeable. Eliminating the 10-day reflection period for these individuals would address concerns from health care providers and experts that the reflection period often led to prolonged suffering but did not have a protective effect. This is because experience with the existing law suggests that people whose natural death is reasonably foreseeable and who request MAID do so after careful consideration over a long period of time.
The new and clarified safeguards for persons whose natural death is not reasonably foreseeable would address the different considerations in relation to MAID in that context. The requirement for a minimum of 90 days for the eligibility assessment would help to ensure that there is adequate time to explore all the relevant aspects of the person’s situation, including whether there are treatments or services that could help reduce the person’s suffering. The requirement that one of the two evaluating practitioners have expertise in the condition that is causing the person’s suffering would help to ensure that all treatment options have been identified and explored, and that the other eligibility criteria have been satisfied. At the same time, this requirement would avoid the need for specialist involvement, which could pose a barrier in remote and rural areas where specialists may be in short supply. These two safeguards would work together with the clarifications to informed consent. These clarifications would require that the person be informed of available supports and offered consultation with the professionals who provide those services. The person and practitioners would also have to agree that reasonable means of alleviating the person’s suffering had been discussed and seriously considered.
Exceptions to the requirement for final consent for MAID
Under the existing law, a medical practitioner must, immediately before administering MAID, give the person an opportunity to withdraw their request and ensure that the person gives their express consent to receive MAID. Under Bill C-7, there would be two situations in which the requirement for “final consent” would be waived (clause 1(7)).
First, clause 1(7) would permit persons whose natural death has become reasonably foreseeable to receive MAID on the basis of an “advance consent arrangement” under certain conditions (proposed subsection 241.2(3.2)). This option would be available where the individual has been assessed and approved for MAID in accordance with all the applicable safeguards and has indicated their preferred date for the procedure. The Bill would also require that the person has been informed by their practitioner that they are at risk of losing capacity to give final consent, and has a written arrangement with the practitioner. In the agreement, the person would consent in advance to receive MAID on a specified day, and the practitioner would agree to provide MAID in accordance with the arrangement if the person has lost capacity to consent at that time. However, MAID would not be permitted on the basis of such an agreement if the person demonstrates – by words, sounds or gestures – refusal or resistance to the administration of a substance that would cause their death. In such circumstances, the advance consent arrangement would be invalidated (subsection 241.2(3.4)).
The second exception to the final consent requirement would allow a person who chooses to self-administer MAID to create a back-up plan in case the self-administration fails to produce death within a specified period of time but results in a loss of capacity. In order to qualify for the exception, the person would have to enter into an agreement with the medical or nurse practitioner. The agreement would have to specify that the practitioner will be present at the time of self-administration and will administer MAID if the person loses decision-making capacity but does not die within a specified period of time.
Life, liberty and security of the person (section 7)
The proposed exceptions to the requirement for final consent have the potential to affect the Charter rights of both individuals who would be permitted to consent to MAID in advance, and those who would not be permitted to do so.
As noted above, the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Permitting MAID to be administered to a person who has lost the ability to withdraw consent that was previously given, or to give consent to the procedure, has the potential to affect the right to life if sufficient safeguards are not incorporated to protect vulnerable individuals against abuse or error.
Conversely, continuing to require final consent in situations other than the two circumstances specified in Bill C-7 has the potential to affect the section 7 rights of individuals who are not permitted to consent to MAID in advance. To the extent that the Bill may restrict access to MAID for individuals who lose capacity to consent prior to the time at which they would seek MAID, and who do not fall within either of the two exceptions to the final consent requirement, it has the potential to affect liberty and security of the person. To the extent that it may lead some individuals to end their lives sooner than they wish, it may also affect the right to life.
The following considerations support the consistency of these amendments with the Charter. Bill C-7 would only waive the requirement for final consent in two specific circumstances. The limits in the Bill would help to ensure, to the extent reasonably possible, that MAID would only be provided to persons who want to receive it, in circumstances where risks of error or abuse are low.
The exception for cases of failed self-administration would apply to individuals who have been assessed and approved for MAID and who have demonstrated their wish and readiness to die by self-administering a substance for the purpose of causing their own death. The requirement that the medical practitioner be present at the time of self-administration would guard against risks of abuse by helping to ensure that the person had voluntarily initiated the MAID process.
Similarly, the exception for individuals who have entered into an advance consent arrangement under proposed subsection 241.2(3.2) would only apply to individuals whose natural death is reasonably foreseeable and who have scheduled the procedure, after having been assessed and approved as eligible. These requirements would help to ensure that MAID is being provided only to individuals whose desire for MAID is based on intolerable suffering associated with their current medical condition, in circumstances where the potential for vulnerability or uncertainty about the person’s wishes is diminished. The Bill would further protect against the unwanted administration of MAID by giving effect to words, sounds or gestures indicating that a person does not wish to receive MAID, which would render the advance consent arrangement invalid.
Continuing to require final consent for MAID for individuals whose natural death is not reasonably foreseeable reflects the inherent risks and complexity associated with such situations. A person whose natural death is not reasonably foreseeable, but who faces the risk of losing capacity to consent, may seek to schedule MAID not because they are suffering intolerably now but because they fear their medical circumstances will cause intolerable suffering in the future. However, evidence suggests that predictions of this nature are highly unreliable and that people are generally better able to adapt to changes in their medical circumstances than they would have thought, often finding quality of life in circumstances that they would have predicted to be intolerable. As such, permitting individuals whose natural death is not reasonably foreseeable to give consent for MAID in advance would risk cutting short lives that are not otherwise ending, in circumstances where the person may not be suffering intolerably and may no longer wish to die. Based on the evidence available at this time, it is not clear that any system of safeguards could adequately mitigate this risk and preserve the balance that the Bill aims to strike between the competing values and interests at stake in this context.
Enhanced data collection
Under the current law, medical and nurse practitioners who receive a written request for MAID must file specified information in accordance with the Regulations for the Monitoring of Medical Assistance in Dying. In clause 3(1), Bill C-7 proposes to expand the reporting obligation under subsection 241.31(1) to apply to other professionals who carry out a preliminary assessment of whether a person is eligible for MAID and to practitioners who assess eligibility before having received a written request.
Unreasonable search or seizure (section 8)
Section 8 of the Charter, which guarantees the right to be secure against “unreasonable” searches and seizures, protects a reasonable expectation of privacy. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable, in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. Because the reporting obligations encompass private information related to an individual’s medical circumstances and wish to receive MAID, they engage section 8.
The following considerations support the consistency of the expanded reporting obligations with section 8. Robust monitoring of Canada’s medical assistance in dying regime is necessary to provide accountability and transparency about how the legislation is working. The expanded reporting obligation strikes an appropriate balance between the privacy interests of individuals who seek MAID and the societal interest in ensuring that the regime is working as it is intended, including with respect to the protection of vulnerable individuals.
Expanded offence of knowingly failing to comply with reporting obligations
Under the current law, it is an offence for a medical or nurse practitioner to knowingly fail to comply with the reporting obligations set out in subsection 241.31(1). Bill C-7 would expand the scope of the existing offence to ensure that it applies to all professionals who would be subject to the expanded reporting obligations introduced by clause 3(1).
Right to liberty (section 7)
Because imprisonment is available as a punishment for the expanded offence, the section 7 right to liberty is engaged. However, in reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice.
Healthcare providers’ freedom of conscience and religion
Because Bill C-7 would broaden the situations in which MAID is available, it would lead to requests for medical assistance in dying in circumstances that may be contrary to some healthcare providers’ conscience or religious beliefs. As with the existing law, nothing in the Bill compels healthcare providers to provide such assistance or otherwise interferes with their freedom of conscience and religion rights under section 2(a) of the Charter.
