On June 17, 2016, new federal legislation came into force creating a regulatory framework for medical assistance in dying in Canada. Under this legislation, medical assistance in dying is legal if the eligibility criteria are met and the procedural safeguards are followed. The eligibility criteria are as follows:
241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be
eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological
suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
The key procedural safeguards are as follows:
(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must
(a) be of the opinion that the person meets all of the criteria set out in subsection (1);
(b) ensure that the person’s request for medical assistance in dying was
(i) made in writing and signed and dated by the person or by another person under subsection (4),
(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that
the person has a grievous and irremediable medical condition;
(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before two independent witnesses who then also signed and dated the request;
(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw
(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in
(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph
(e) are independent;
(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or — if they and the
other medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that
the person’s death, or the loss of their capacity to provide informed consent, is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;
(h) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying;
(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.
Additional procedural details are set out in the legislation.
In addition, under the legislation, the Ministers of Health and Justice are required to initiate independent reviews into the issues of requests made by mature minors, requests made in advance of loss of capacity, and requests made by individuals with mental illness as their sole underlying condition. The Ministers must initiate the reviews by December 18, 2016 and then must bring the reports from the reviews back before both Houses of Parliament no later than two years after initiation of the reviews.
In the meantime, provincial and territorial governments are developing their responses to the recent changes to the Criminal Code:
- The New Brunswick Department of Health has yet to provide information to the public regarding medical assistance in dying.
- The Newfoundland and Labrador Department of Health and Community Services has yet to provide information to the public regarding medical assistance in dying.
- The Nunavut Department of Health has yet to provide information to the public on medical assistance in dying.
- The Yukon Department of Health and Social Services has yet to provide information to to the public on medical assistance in dying.
As well, health professional regulatory bodies have developed and are developing guidelines and standards to further regulate practice in relation to medical assistance in dying.
Guidelines from Provincial/Territorial Colleges of Physicians and Surgeons:
- British Columbia
- New Brunswick
- Newfoundland and Labrador
- Northwest Territories
- Nova Scotia
- Nunavut (waiting on the federal legislation)
- Prince Edward Island
Guidelines/Information from Provincial/Territorial Colleges of Nurses:
- British Columbia
- New Brunswick
- Northwest Territories
- Nova Scotia
- Prince Edward Island
- Saskatchewan (Registered Nurses’ Association & Association of Licensed Practical Nurses)
Guidelines/Information from Provincial/Territorial Colleges of Pharmacists:
- British Columbia
- New Brunswick
- Northwest Territories
- Nova Scotia
- Prince Edward Island
Historically, all forms of assisted suicide were an offense under s. 241 of Canada’s Criminal Code:
Counselling or aiding suicide
241. Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
On June 15, 2012, Justice Lynn Smith struck down the Criminal Code prohibition of assisted suicide (Carter v Canada (Attorney General), 2012 BCSC 886). She found that it violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Her declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the government time to fix the law. The government appealed and Justice Smith’s decision was overturned by the British Columbia Court of Appeal in 2013 (Carter v Canada (Attorney General)). The majority (2:1) allowed the appeal on the grounds of stare decisis (that the issue had been decided by the Supreme Court of Canada in Rodriguez v British Columbia (Attorney General) in 1993). The Supreme Court of Canada heard the appeal on this case in October 2014 and released its decision on February 6, 2015 (Carter v Canada (Attorney General)). The Supreme Court (unanimously and with a decision authored by “The Court”) found that the prohibition on assisted suicide violates section 7 of the Canadian Charter of Rights and Freedoms when it prohibits access for “a competent 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” (irremediable, the Court said, means that the condition cannot be alleviated by means acceptable to the person).
The Court’s declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the federal/provincial/territorial governments time to revise existing or craft new laws if they chose to do so. However, in October 2015, the Conservative Government was defeated and, in December 2015, the new Liberal Government made a motion for a six-month extension to the suspension of the declaration of invalidity. On January 15, 2016, (Carter v Canada (Attorney General)) the Supreme Court granted a four-month extension, giving the governments an additional four months within which to make any changes to the law. The Supreme Court also established a constitutional exemption under which individuals throughout Canada could access physician-assisted dying without fear of criminal liability for those who assist them by applying to a court for a judicial authorization based on a demonstration that they meet the criteria set out in the 2015 Carter v Canada (Attorney General). The following cases were decided by the courts under the Supreme Court of Canada’s constitutional exemption:
- Re HS, 2016 ABQB 121.
- A.B. v. Canada (Attorney General), 2016 ONSC 1571.
- A.B. v. Canada (Attorney General), 2016 ONSC 1912.
- A.A. (Re), 2016 BCSC 511.
- A.A. (Re), 2016 BCSC 570.
- Patient v. Attorney General of Canada et al, 2016 MBQB 63.
- W.V. v. Attorney General of Canada, Attorney General of Ontario and Dr. C. Doe, 2016 ONSC 2087.
- W.V. v. Attorney General of Canada, 2016 ONSC 2302.
- A.B. v. Ontario (Attorney General), 2016 ONSC 2188.
- X.Y. v. Canada (Attorney General), 2016 ONSC 2371.
- X.Y. v. Canada (Attorney General), 2016 ONSC 2585.
- C.D. v. Canada (Attorney General), 2016 ONSC 2431.
- W.B.B. (Re), 2016 BCSC 1005.
- Tuckwell, Re, 2016 ABQB 302.
- E.F. v. Canada (Attorney General), 2016 ONSC 2790.
- Patient 0518 v. RHA 0518, 2016 SKQB 175.
- G.H. v. Attorney General of Canada, 2016 ONSC 2873.
- Canada (Attorney General) v. E.F., 2016 ABCA 155.
- M.N. v. Canada (Attorney General), 2016 ONSC 3346
- I.J. v. Canada (Attorney General), 2016 ONSC 3380.
- H.H. (Re), 2016 BCSC 971.
- O.P. v. Canada (Attorney General), 2016 ONSC 3956.
One case was decided after the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) came into effect in June 2016 – i.e., when the prohibitions under the Criminal Code were no longer in effect. In this case, Justice Perrell of the Ontario Superior Court concluded that individuals would still need to seek court orders until federal legislation came into force. Given the introduction of the legislation shortly thereafter, this decision is not being appealed.
Materials from the various levels of court in the Carter litigation are available here:
- Trial decision
- Written and oral arguments at the BC Court of Appeal
- Court of Appeal decision
- Materials filed in the appeal to the Supreme Court of Canada
- Oral arguments in the Supreme Court of Canada
- Supreme Court of Canada Decision (February 6, 2015)
- Oral arguments in the application for extension
- Supreme Court of Canada Decision (January 15, 2016)
The development of the new legislation
In August 2015, a Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying was created by provincial-territorial governments across Canada. Its mandate was “to provide non-binding advice to participating Provincial-Territorial Ministers of Health and Justice on issues related to physician-assisted dying. The advice is meant to assist provinces and territories in deciding what policies and procedures should be implemented within their jurisdictions in response to the Supreme Court’s decision in Carter.” The Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying delivered its final report on November 30, 2015. It made 43 recommendations for how federal, provincial, territorial governments (and other relevant actors) should implement a regulatory framework for physician-assisted dying in Canada.
In December 2015, a Special Joint Committee on Physician-Assisted Dying was appointed by Parliament. Its mandate was “to review the report of the External Panel on Options for a Legislative Response to Carter v. Canada and other recent relevant consultation activities and studies, to consult with Canadians, experts and stakeholders, and make recommendations on the framework of a federal response on physician-assisted dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.” The Special Joint Committee delivered its final report on February 25, 2016. It made 21 recommendations for a regulatory framework for medical assistance in dying and related initiatives.
On April 14, 2016, the federal Minister of Justice introduced Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).
On May 12, the Bill was reported back to the House with amendments.
On May 17, the Senate tabled a pre-study report on Bill C-14 and made a set of recommendations for amendment to the Bill.
On May 31, the House passed the Bill.
On June 15, the Senate sent the Bill with amendments to the House.
On June 16, the House considered the Senate’s amendments, made more amendments itself, and sent it back to the Senate.
Bill C-14 was subjected to extraordinary debate in both the House and the Senate. Links to the speeches made in the House and the Senate are here.
Note that although suicide is not mentioned in the legislation, the Act has been interpreted to include suicide.
Switzerland does not have legislation that decriminalizes assisted suicide. Rather, Article 115 of Switzerland’s Penal Code, SR 311.0 states that “any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty”. Therefore, assisted suicide is not a criminal offence where the assister lacks a selfish motive.
Reliable evidence does not support the claim that legalization of assisted suicide has a negative impact on either availability or quality of palliative care. The evidence does not demonstrate a reduction in availability or quality of palliative care post-legalization. Furthermore, availability and quality of palliative care are better in some countries that permit assisted suicide than in others that prohibit assisted suicide. For example, Belgium and the Netherlands rank higher than Canada for quality end-of-life care.
After reviewing evidence relating to the relationship between legalizing assisted suicide and the quality and availability of palliative care, Justice Smith for the Supreme Court of British Columbia made the following remarks (at 731-736):
My review of the evidence regarding Oregon, the Netherlands and Belgium suggests that in those jurisdictions, legalization of assisted death has not undermined palliative care; on the contrary, palliative care provision has improved since legalization by some measures.
Few conclusions, however, can be reached about the possible impact on palliative care from a change in Canadian law regarding physician-assisted death.
First, as Canada points out, palliative care is a developing field; it may be assumed that it is improving not only in permissive jurisdictions but also in jurisdictions that continue to prohibit physician-assisted death.
Second, there are differences in the history, culture and modes of medical practice among the jurisdictions.
Third, further improvements in palliative care in Canada would require commitment of public resources, since health care in Canada is largely delivered through a public system. Some of the debate in the United States has raised the question whether health insurers would refuse to fund palliative care when assisted death was available; no evidence was provided to show that that fear has become reality in Oregon or Washington. It is difficult to imagine that Canadian politicians, public officials or health care providers, if physician-assisted death were legal, would reduce resources for palliative care services for that reason.
In summary, having reviewed the evidence and the submissions on this point, I conclude that while a change in the law to permit physician-assisted death could affect the palliative care system, predictions as to how would be speculative. I find that the evidence establishes that the effects would not necessarily be negative.
For Justice Smith’s full discussion of evidence on the impact of legalizing assisted suicide upon the quality of and access to palliative care, click here.
Similarly, in addressing the concern that the practice of euthanasia could hinder the development of palliative care (in its Report at 69), the National Assembly of Quebec Select Committee on Dying with Dignity found that:
Legitimate as this fear may be, this has not yet happened in the European countries where euthanasia has been legalized. Perhaps surprisingly, the exact opposite has occurred. The legalization of euthanasia has boosted the development of palliative care. the social consensus was to openly accept this practice as long as palliative care was accessible to more patients. Consequently, Belgium and the Netherlands have quality palliative care, much of which is offered at home.
These findings find support in data recently published in two reports:
- The Quality of Death: Ranking end-of-life care across the world, a 2010 report produced by the Economist Intelligence unit offers an overall ranking of the quality of end-of-life care across forty countries. Belgium and the Netherlands respectively ranked higher than Canada in the report’s overall ranking of end-of-life care services.
- Palliative Care Development in Countries with a Euthanasia Law, a 2011 report authored by the European Association for Palliative Care for the United Kingdom Commission on Assisted Dying, investigates the impact that legalizing assisted suicide and/or euthanasia has had upon the development of palliative care in Belgium, the Netherlands and Switzerland, where assisted suicide and/or euthanasia has been legalized. Based on an analysis of available data, this report suggests that palliative care appears to be developing within the Netherlands, Belgium and Switzerland at a rate comparable to that of other European countries where assisted suicide and euthanasia are not legal. From a review of relevant scientific literature, the report also suggests that the quality of palliative care within the Netherlands and Belgium after the legalization of assisted suicide and euthanasia has remained comparable to the quality of palliative care available within European countries where assisted suicide and euthanasia remain illegal.
Reliable evidence supports the conclusion that legalization of assisted suicide does not put vulnerable people at heightened risk of non-voluntary or involuntary euthanasia. In the Carter case, Justice Smith of the British Columbia Supreme Court made the following remarks on this point:
I have considered the study, the critique and the cross-examinations, as well as other evidence (such as that of Ms. Jackson, Dr. Bentz and others) bearing on whether the experience in Oregon and the Netherlands supports the fears of those who argue that the availability of consensual assisted death will lead to the imposition of assisted death on vulnerable persons.
I accept that the conclusions stated in the Battin et al. Study are soundly based on the data. I find that the empirical evidence gathered in the two jurisdictions does not support the hypothesis that physician-assisted death has imposed a particular risk to socially vulnerable populations. The evidence does support Dr. van Delden’s position that it is possible for a state to design a system that both permits some individuals to access physician-assisted death and socially protects vulnerable individuals and groups. (at 667)
I accept that elderly persons are vulnerable to abuse and that the assessment of voluntariness of elderly people must incorporate an understanding of that reality. As discussed earlier, however, there is no evidence that the elderly access physician-assisted dying in disproportionate numbers in permissive jurisdictions (Professor Battin, Dr. Ganzini, Dr. van Delden, Professor Deliens), and Professor Deliens observed that the number of patients over the age of 80 whose deaths resulted from LAWER in Belgium was not disproportionate. (at 847)
However, there is no evidence that persons with disabilities are at heightened risk of accessing physician-assisted dying in jurisdictions where it is permitted. … (at 852)
My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced. (at 883)
For a full discussion from Justice Smith on the issue of whether legalizing assisted suicide puts vulnerable people at risk, click here.
The SCC in Carter v Canada (Attorney General) affirmed Justice Smith’s remarks on the issue:
 The trial judge found that the prohibition violates the s.7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition. She concluded that this infringement is not justified under s. 1 of the Charter. We agree. The trial judge’s findings were based on an exhaustive review of the extensive record before her. The evidence supports her conclusion that the violation of the right to life, liberty and security of the person guaranteed by s. 7 of the Charter is severe. It also supports her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.
The SCC also highlighted the success of jurisdictions with permissive regimes: Oregon, Colombia, Montana, Washington, Switzerland, Luxembourg, Belgium and the Netherlands. The court noted that “Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable” (at 8).
After assessing evidence from the Netherlands and Belgium on the issue of whether a more permissive stance toward assisted dying would lead to abuse, the National Assembly of Quebec’s Select Committee on Dying with Dignity stated that: “these risks can be eliminated by defining clear and strict guidelines” (National Assembly of Quebec Select Committee Report Dying with Dignity, Report (2012) at 74).
For the Select Committee’s full discussion on this point, click here.
Similarly, The Royal Society of Canada Expert Panel: End-of-Life Decision Making reviewed evidence from permissive jurisdictions concerning the relationship between legal assisted suicide and protecting the vulnerable, and concluded the following:
In sum, there is no evidence from the Netherlands supporting the concern that society’s vulnerable would be at increased risk of abuse if a more permissive regime were implemented in Canada.
Despite the fears of opponents, it is also clear that the much-feared slippery slope has not emerged following decriminalization, at least not in those jurisdictions for which evidence is available. Nor is there evidence to support the claim that permitting doctors to participate in bringing about the death of a patient has harmed the doctor/patient relationship. What has emerged is evidence that the law is capable of managing the decriminalization of assisted dying and that state policies on this issue can reassure citizens of their safety and well-being. (at 89 and 90)
To view an excerpt of the full discussion of the issue of whether legalization of assisted suicide puts vulnerable people at risk from Royal Society of Canada Expert Panel on End-of-Life Decision Making, click here.