Update on Medical Assistance in Dying (MAID) Law in Canada

The law related to medical assistance in dying (MAID) in Canada continues to evolve since the Supreme Court struck down applicable portions of the Criminal Code[1] in 2015.[2] The federal government introduced legislative reform in 2016, and proposed further amendments via Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)[3] (Bill C-7). The Bill passed second reading, but stalled, like so many things, due to the COVID-19 pandemic.  The federal government reintroduced these amendments in Parliament on October 5, 2020.

The proposed amendments under Bill C-7 would:

1. repeal the provision that requires a person’s natural death to be reasonably foreseeable in order for them to be eligible for MAID;
2. specify that persons whose sole underlying medical condition is a mental illness are not eligible for MAID;
3. create two sets of safeguards that must be respected before MAID may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
4. permit MAID to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before MAID is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
5. permit MAID to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing MAID in order to cause their own death.[4]

The amendment would also expand data collection through the federal monitoring regime to provide a more complete picture of MAID in Canada.[5]

In Carter, the Supreme Court unanimously declared the provisions of the Criminal Code which made it a crime to assist another individual in dying, to be unconstitutional to the extent that they prohibited physician-assisted death 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. As a result, the offending Criminal Code provisions were declared to be of no force or effect.