Medical Assistance in Dying: A Complex and Controversial Policy
Policy Brief by Dilki Jagoda.
The following article contains a discussion of suicide. This may be considered disturbing or difficult by some readers. We recommend that readers prepare themselves before continuing.
MAID, otherwise known as a medical assistance in dying, has been at the forefront of many controversial discussions for decades. The practice and concept of MAID gained significant recognition throughout the years as individuals with debilitating diseases began fighting for the acknowledgement of their right to die with dignity. Granting select individuals the right to MAID would entail granting them the ability to seek professional aid, by willing physicians, to prematurely end their life (1).In other terms, MAID could also be understood as a form of suicide, one that is physician assisted and would allow those suffering through intolerable and indefinite pain to liberate themselves.
Nonetheless, until 2015 this consideration was not even an option since the act of seeking medically assisted suicide in Canada was illegal due to section 241(b) of the Criminal Code which explicitly criminalized the aiding of a person to commit suicide. This prohibition meant that any physician who agreed to conduct assisted suicide with a patient could face a punitive sentence of up to 14 years (2). This blanket prohibition was challenged in multiple ways, one notable example being in Rodriguez v. British Columbia, where the appellant Sue Rodriguez forced the courts to have very extensive conversations around the scope of certain rights. For instance, did a person’s right to life under section 7 also implicitly entail a right to end one’s life?(3). Unfortunately for Mrs. Rodriguez, during her case the answer to that question was no. The widely held view at the time, was that section 7 and the right to life of a person was primarily meant to protect the sanctity of life and that the protection of a right to death did not necessarily fall under the scope of this right(4).
"the enacted legislation for Bill C-14 was meant to reflect the decision of the court, however, there was a discrepancy noted between the court’s ruling and Parliament’s final bill and upon implementation there was objection amongst the general public about one of the requirements of requesting MAID being one’s natural death having a reasonable foreseeability"
During Carter. v. Canada, the conclusion of the judges was different due to the evolved understanding of the fundamental principles of justice(5). In this regard, it was expressed that any law that deprived someone of their constitutional rights arbitrarily, in an overbroad manner or in a grossly disproportionate way, was not consistent with the fundamental principles of justice (6). This assertion by the court was accompanied by the ruling that this infringement on s.7 could not be justified through s.1 which enables the government to impose reasonable limits on certain rights due to matters of public interest. This decision was crucial in highlighting the growing importance of concepts such as self determination and autonomy, and their connection with the preservation of dignity(7).
Furthermore, the enacted legislation for Bill C-14 was meant to reflect the decision of the court, however, there was a discrepancy noted between the court’s ruling and Parliament’s final bill and upon implementation there was objection amongst the general public about one of the requirements of requesting MAID being one’s natural death having a reasonable foreseeability (8). This requirement was successfully challenged during Truchon v. Quebec, where the Superior Court of Quebec ruled that the clause of reasonable foreseeability for natural death was an unjustifiable infringement of peoples’ s.7 and 15 rights (9). Along with this decision came the proposal of Bill C-7. The amendment suggested within Bill C-7 is to remove the clause of reasonable foreseeability. However, its approval within both Houses has recently been delayed due to the 5 amendments presented during the Senate’s third reading, where they seek to potentially expand access to MAID even further, through initiatives such as presenting an 18 month time limit on the blanket ban against access to MAID for individuals suffering solely from mental illnesses (10).
"The critics of this amendment assert that this change in the legislation implicitly reinforces that a life with disability is not one worth living, which would only contribute to an already problematic area of stigmatization around people with disabilities. This topic is certainly not black and white and the fact that the fight for MAID has been ongoing for 20+ years now is, in itself, a testament to the complexity of this issue."
In an effort to meet the third deadline presented by the courts after Truchon, the Government has proposed a modified version of the Senate amendments to be passed (11). This would allow for an interlude period where a joint Commons-Senate committee would be charged with reviewing the assisted dying regime, including issues related to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities. The committee would be required to report back, with any recommended changes within one year (12).
MAID has been and continues to be at the core of many contentious debates. The evolving fight for access to MAID has opened up the doors to many arguments around who is eligible and what their circumstances must be to qualify them to make the choice between life and death. Removing the clause of reasonable foreseeability will help many suffering individuals end their misery, especially those who have stopped seeing a light at the end of the tunnel. However, many also reject this amendment because it could have problematic implications. Mainly around the idea of how people with disabilities are viewed. The critics of this amendment assert that this change in the legislation implicitly reinforces that a life with disability is not one worth living, which would only contribute to an already problematic area of stigmatization around people with disabilities. This topic is certainly not black and white and the fact that the fight for MAID has been ongoing for 20+ years now is, in itself, a testament to the complexity of this issue. It will be interesting to see how the government navigates the tightrope between protecting peoples’ right to die with dignity and protecting the social perception of individuals with disabilities in a manner that ensures this legislation does not demean their lives.
Thomas McMorrow, “MAID in Canada?: Debating the Constitutionality of Canada’s New Medical Assistance in Dying in Law” (2018) 44:1 Queen’s LJ 69 at 70
Criminal Code, RSC 1985, c C-46, s 241(1).
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 520 [Rodriguez]
Ibid at 535
Carter v. Canada (Attorney General), 2015 SCC 5 at para 3 [Carter]
Ibid at para 68
Supra note 1 at 78
Ibid at 82
Truchon c. Attorney General of Canada, 2019 QCCS 3792 at para 12 [Truchon]
Debates of the Senate, 43rd Parl, 2nd Sess,Vol 152-29 (17 Feb 2021) at 1540 (Hon. Pierrette Ringuette)
Supra note 11 at 83
Joan Bryden, “Government agrees mentally ill should have access to assisted dying — in 2 years”, CBC News (Feb 23 2021), The Canadian Press, https://www.cbc.ca/news/politics/maid-bill-senate-amendments-1.5924163