At the Trudeau Government’s request, the House of Commons Standing Committee on Justice and Human Rights has deemed a bill to be of such priority that it be fast-tracked through the evaluation process: Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). The Senate has adopted a similar pace. Its’ Standing Committee on Legal and Constitutional Affairs has initiated a pre-study of the bill.
Why the urgency?
C-7 proposes amendments to the Criminal Code that would expand the eligibility for medical assistance in dying (MAiD) to include people with disabilities and chronic illness, as well as reducing requirements for witnesses and wait times on requests from people with terminal diagnoses. MAiD is the statutory exception to criminal prohibitions against counselling suicide, aiding in suicide, or killing another person.
The reason given for the government’s push to have the committee act with haste is an effort to meet the second deadline extension granted by the Quebec Superior Court following a judge of that court concluding in September 2019 that the Trudeau Government’s 2016 MAiD legislation was unconstitutional. The original deadline was six months from the decision in Truchon c. Procureur général du Canada. That deadline was extended to June 2020 due to consequential delays arising from the federal election, and then to December because of Covid-19 related disruption to parliamentary sittings.
MAiD was introduced to Canada in 2016. Then Minister of Justice Jody Wilson-Raybould presented Bill C-14, An Act to amend the Criminal Code and make related amendments to other Acts (medical assistance in dying), as the government’s response to the Supreme Court of Canada’s 2015 decision in Carter v. Canada (Attorney General). C-14 limited MAiD to end-of-life terminal medical circumstances, affirming “the inherent and equal value of every person’s life” and acknowledging the “irrevocable nature of ending a life.” Legislated safeguards included: written confirmation by two medical or nurse practitioners that the patient met the requirements for MAiD; the patient’s request had to be in writing, witnessed by two independent persons; and, a ten-day waiting period.
Considered essential to C-14’s passage by Parliament was the requirement that a comprehensive parliamentary review of the legislation be undertaken before the end of June 2021.
As noted, Parliament’s MAiD initiative was the result of the Supreme Court of Canada decision in Carter, a judicial ruling that overturned the Court’s relatively recent in constitutional law terms 1993 decision in Rodriguez v. British Columbia (Attorney General). The Carter decision was sufficiently recent that Beverley McLachlin participated in both, dissenting from the majority in 1993 and leading a unanimous court as Chief Justice in 2015.
Both decisions were evaluations of the Canadian Charter of Rights and Freedoms section 7 “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Both cases pitted the concept of the autonomy of the person desiring suicide against the state’s interest in prohibiting one or more individuals from contributing to the death of another.
In the Rodriguez case, a majority of the Court concluded the prohibition on assisted suicide did not violate principles of fundamental justice, and recognized the State’s legitimate interest in the sanctity of human life. Two decades later, in Carter,the Court arrived at a different result. The justices found the prohibition on physician-assisted suicide for a person living with a degenerative illness deprived that person of life if they were required to make a decision about suicide prior to losing their physical capacity to take their own life. In effect, the criminal prohibition imposed a premature death in violation of the principle of the sanctity of life.
Although the Supreme Court was unanimous, Canadians were divided on the issue of doctors intentionally administering lethal doses of medication to patients. Some considered this measure as compassionate – comparable to, although more than, putting down a beloved pet – relieving pain when death was imminent. Others saw MAiD as a betrayal of the belief that human life has unique value, one not to be compromised by state-sponsored killing – a position affirmed by the national consensus that developed with Canada’s abolition of the death penalty in the 1970s.
Canadians remain divided, but most had accepted the Wilson-Raybould legislation, C-14, as it confined MAiD to situations where people were medically diagnosed with natural death that was reasonably forseeable.
The decision of a single judge in Truchon found the reasonably foreseeable death requirement was not expansive enough, violating both the Charter’s section 7 right and section 15’s guarantee of equality rights for a person with disabilities of a nature that prevented ending their own life through suicide.
There is ordinarily an expectation that a government will appeal the decision of a single judge of a lower court that strikes down legislation passed by that government. It was surprising that the Trudeau Government did not appeal. However, between the enactment of C-14 and the decision of the Quebec Superior Court, there was a change in Justice Minister. Wilson-Raybould was replaced as Justice Minister by David Lametti in January 2019. As noted in this space on November 6, Lametti was one of three Liberal MPs who voted against C-14. He thought C-14 was too restrictive and did not do enough for vulnerable Canadians seeking assisted death.