Legal History

Old Legislation

Historically, all forms of MAiD were prohibited under the Criminal Code of Canada (as aiding suicide and homicide).

Charter Challenge — Carter v Canada (Attorney General)

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. It issued a final report entitled “Consultations on Physician Assisted Dying: Summary of Results and Key Findings”.  However it made not policy recommendations as that was not a part of its mandate.

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).

Materials from the various levels of court in the Carter v. Canada (Attorney General) 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 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 was not appealed.

 

The Development of Canada’s Legislation

In 2011, The Royal Society of Canada Expert Panel: End-of-Life Decision Making reviewed evidence about actual experience from the various jurisdictions that permit MAiD and analyzed the legal and ethical arguments for and against the decriminalization of MAiD.  It made a series of proposals for reform about a range of end-of-life decisions including, withholding and withdrawal of potentially life-sustaining treatment, advance directives, palliative care, potentially life-shortening symptom relief, terminal sedation, and assisted suicide and voluntary euthanasia.  Notably, it recommended that MAiD should be available for competent persons (not necessarily adults) who make a free and informed request for MAiD.

In July 2015, the federal government appointed an Expert Panel on Options for a Legislative Response to Carter v. Canada.  This Panel conducted extensive public consultations and travelled to other places where MAiD is legal to assess the evidence about their experiences.  However, it made no policy recommendations as that was not a part of its mandate.

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.
On June 17, the Senate considered the House’s amendments and passed the Bill. The Bill then received Royal Assent.

Links to the debates in the House and the Senate are here.

The Development of Québec’s Legislation

Quebec’s journey to MAiD began with an all-party committee of Quebec’s National Assembly.  This committee consulted experts and the public and traveled to countries and states that permit MAiD. It tabled its report in 2012 recommending, among other things, permitting MAiD. An expert panel was convened to advise the government on how to move to permissive legislation. A bill was introduced on June 12, 2013, there were further public consultations, and the bill was approved in principle on October 29, 2014.  The bill was studied by the health and social services committee, amended, debated, and passed in the National Assembly on June 5, 2014.  It came into effect in December 2015.

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